On Owning, Death, and Dynasties

I am grateful to have been invited by Danielle to join the esteemed group of guest bloggers this month at Concurring Opinions. This opportunity arrives at an interesting moment in my scholarly life. For the last few years I’ve been thinking a great deal about what “ownership” means – both when we use the term colloquially and when we mean it to connote a term of art. It is, I think, a deceptively simple idea at the core (at least on the surface of the thing). At the core, “ownership” seems to convey the idea that an “owner” may exercise a unique degree of dominion or control over a valuable entity, and that control is backed by the force of law. By some lights, the concept of “ownership” primarily articulates a relationship between the “owner” and those that are obliged to respect her ownership prerogatives (i.e. everyone else) rather than a relationship between the owner and the valuable entity itself. Others adopt a different view. But what has fascinated me the past few years is the constitutive relationship between our concept of “ownership” and the status designation of “owner.” Is “ownership” a capacity? Is it a uniquely human capacity – i.e. does it require sentience, or perhaps some degree of agency? Who (or what) is a capable of being an “owner”?

I first became interested in this question in the context of contemplating our capacity to own our own whole and living bodies, a contemplation that is detailed in my piece The Law of the Body, which is forthcoming in the Emory Law Review. In that piece, I passed upon the question of whether a person has the capacity to own her own living body – whether it falls within the extension of our concept of “ownership.” This question ostensibly raised subject/object problems (i.e. can one both be the subject (owner) and object (owned)) as well as a number of other interesting (at least to me) issues.

In particular, the idea of owning oneself raises deeper questions about ownership as a capacity. In this vein, I have read with great interest Taunya Bank’s recent posts (also here) about how “human beings can lose control over what happens to their bodies (and body parts) during life as well as after death.” Professor Banks touched upon two of the more salient (and to some degree, vexing) points about ownership (including body ownership): control and death. In almost any plausible understanding of the concept of “ownership,” it connotes some degree of control. There are two ways to think about this control. It may be that ownership refers only to legally sanctioned control. On the other hand, it may refer to “control” in the sense of the capacity to make decisions about the use or disposition of an entity. While these two senses of “control” largely overlap, they are not coterminous.

For example, a person may “own” a book that has been given to her as a gift, such that she has a legally-sanctioned privilege to use it in any lawful manner she wishes. However, if that “owner” is, say, a newborn baby, she lacks the capacity to use it or to make decisions about the use or disposition of the book. Is she the book’s “owner” in the sense we conventionally mean it? If so, then is the capacity to exert a degree of control over an entity not a necessary criterion of “ownership”? With respect to a newborn baby, we may dismiss this distinction: a baby can be an owner without deeply challenging a potential “capacity to exercise control” criterion of ownership, insofar as the child’s guardian can act on her behalf until she develops the necessary “control capacity” (whatever it may be). The baby’s control capacity is, we assume, dormant. We can simply put the baby’s copy of The Secret Garden on the shelf and wait for her to grow into her role as its owner.

Herein enters the perennial problem of death. When an owner is a natural person (rather than, for example, a corporation), then death would seem to present an obstacle to owning. When an owner dies, her capacity to make decisions about the use of an entity is terminated. Unlike in the newborn example, that capacity is not dormant, it is extinguished forever. If the capacity to exercise control over an entity is a necessary criterion of ownership, we would not expect deceased people to be capable of ownership. This intuition is supported by the fact that generally when an owner dies, the object of ownership passes (by will or intestate succession) to another owner. In this instance, there is no continuity of “ownership” – the new owner does not act on the behalf of the deceased owner – the ownership simply ends with the owner.

A notable exception to this scenario exists in the context of trusts. A trust presents challenge to our conventional understanding of “ownership,” – and particularly to the idea of ownership as a capacity. This is so not only because “ownership” is split in the context of a trust between equitable and legal owners, but also because some degree of control over the trust assets seems to be retained by the settlor. In this sense, the settlor seems to continue to act as a kind of “owner” of the assets, even though the settlor may be deceased. This phenomenon is sometimes referred to as “dead hand control.” Lately I’ve been thinking about this phenomenon in the context of the commitments implicit in our concept of “owner.” The interplay of these ideas is especially interesting in the context of what is sometimes described as a “dynasty trust.” A dynasty trust has the potential to endure into perpetuity, long after the settlor is deceased. I’ll be posting more on dynasty trusts, death and the concept of “owner” in the weeks to come.


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8 Responses

  1. AP says:

    Great post. Is it your position that ownership cannot exist without legal recognition?

  2. Orin Kerr says:

    This isn’t my area, so I apologize if my question is amateurish. But why isn’t the answer to say that (a) the concept of ownership is actually pretty easy — it’s legally recognized rights to control — but that (b) as a matter of policy, we impose all sorts of practical limits on how ownership rights are exercised in order to recognize specific problems like minors and rights after death? What is gained by combining these two questions into one and theorizing about the essential nature of ownership?

  3. Meredith Render says:

    AP: Thank you for the kind words. I think it is an interesting question whether there is such a thing as “ownership” that lacks legal recognition. There are a couple of ways that we could think about the issue. We could, for example, contemplate the possibility that when we talk about “owning” we may be referring to one of two distinct concepts: a legally-constituted concept of “owning” and a non-legally-constituted (but otherwise conventional, in contrast to the third possibility contemplated below) concept of “owning”. For this to be the case, there would have to be some content to the non-legally-constituted concept that is not strictly parasitic on our legal concept of ownership. In other words, the two concepts must be distinguishable by particular instantiations (or examples) of their application. If this were true, then when we speak of owning in the non-legally-constituted sense we would necessarily be referring to something other than merely the capacity to exercise control backed by the force of law. To a limited degree this possibility is supported by our casual “property talk.” We use possessory language to describe our relationship to a number of entities that we do not legally “own.” For example, we talk about “our” kids, or “my” friends, or “my” JD. However, while this possessory language would seem to connote some kind of normatively-bounded “belonging to me” relationship to the entity in question, that “belonging to me” relationship may not be “ownership.”

    On the other hand, although I am not fully committed to this proposition, I think an easier case may be made for the claim that when we speak of “ownership” we are always speaking about the legally-constituted concept of “owning,” but sometimes we are simply wrong about what we think we own. In this sense, if we talk about “owning” our kids, we may believe that the relationship we are describing is tantamount to (or coterminous with) ownership, but we are simply wrong. This point arises readily in the context of human body ownership, where we often talk and behave as though we “own” our whole and living body, but to the degree the law doesn’t recognize back that intuition with the force of law, we are simply wrong. I actually argue (in the paper I refer to in the post) that the law does recognize (albeit implicitly) a property interest in the whole and living body, so when we speak about “owning” our body, we are correctly applying the concept of “owing.”

    There is a third possibility that merits consideration as well. It could be the case that when we speak of “ownership” that is not backed by force of law, we are referring to an “ownership” status that is conferred by natural law rather than positive law. From this perspective, property rights may be understood to be uniquely pre-social such that the normative designation of “ownership” is not coterminous with the legally-constituted concept of “ownership.” Although there is more to say about this third possibility, I fear that I have already taxed your patience sufficiently with this lengthy response. Thanks again for the comment.

  4. Meredith Render says:

    Orin: Thank you for your comment. I certainly see your point, and it could be the case that the most fruitful way to think about the concepts of “owner” and “ownership” is to simply investigate how our positive law applies these concepts in particular instances. So we know that a baby can be an “owner” because positive law recognizes that possibility. But from my vantage point, there is utility in contemplating whether positive law’s application of these concepts reveals any necessary commitments or criteria for their application. This utility is perhaps best illustrated in the context of novel “ownership” possibilities. For example, can a tree be an “owner?” This might seem like a silly example, but the status designation of “owner” was purportedly conveyed by deed to a tree in Athens, Georgia in the 1820s. It was reported that the deed ostensibly conveyed ownership of the tree to the tree itself, as well as eight feet of real property surrounding the tree on all sides. Although the story of the deeded transfer may be apocryphal (see, http://books.google.com/books?id=g0YUAAAAYAAJ&dq=%22Jackson%20Oak%22%20Athens&pg=PA1446#v=onepage&q=%22Jackson%20Oak%22%20Athens&f=false) it raises an interesting question about how we know what does and does not fall within the concept of “owner.” While we may conclude that a tree cannot be an owner, it is not immediately obvious why this is so. The concept clearly applies to non-natural persons (like corporations) so perhaps the concept applies to any entity that is the recipient of a valuable resource, whether that entity is a natural person, a corporation, a tree, or a dog (it turns out that dogs are frequently the recipients of testator largess; see e.g.: http://nymag.com/guides/bestlawyers/12276/). If we think (or a court decides) that a tree or a dog cannot own property, it is reasonable to wonder why that is the case. Although we might conclude that allowing a dog or tree to own property would make for poor policy, to some degree this conclusion assumes the premise. What is it about these entities that make them poor candidates for the status designation of “owner”? Whatever the answer to that question may be (sapience? agency?), the answer would provide insight into the commitments implicit in our concept of “ownership.” In turn, the illumination of those commitments would not only permit us to offer a more satisfying answer to the question of why a particular entity falls within the concept of “owner,” but would also provide grounds for criticizing a particular application of the concept (e.g. a court’s ruling) that seems to be inconsistent with what we have learned about the concept. This latter point is, I think, especially significant in light of tremendous importance of the concept in our legal scheme writ large.

  5. Orin Kerr says:

    Thanks for the response, Meredith. If ownership just means the right to control, as I am suggesting, then I would think that the reason trees and dogs can’t be owners is that control at the very least implies conscious thought and the ability to express it in order to articulate control. The tree is an easy example. You can’t control something unless you have a brain, so the idea of something without a brain “owning” something else seems intuitively wrong.

  6. I suspect several types of behavior that we bring under the description of “control” are in fact exhibited by some nonhuman animal species. Furthermore, it is not brains, as such, that can account for the capacity to exercise that kind of control peculiar to ownership, as many nonhuman animals have brains. But propositional knowledge and propositional attitudes, and the kind of intentionality associated with creatures like us, with a capacity for self-consciousness or self-awareness, self-knowledge, and the peculiar manner in which these capacities are related to our thoughts, beliefs, and desires, together account for distinctively human agency. So, instead of referring to our “brains,” Orin might have spoken of our “minds,” for it is the latter that we possess, uniquely, as human animals, minds as defined by our distinctive form(s) of consciousness. It is this kind of consciousness, as Raymond Tallis argues, that is cause and consequence of the existential intuition “That I am this…” (in evolutionary terms: the ‘emergence of the first-person subject within the impersonal body’) which expresses a transformed relationship of the human organism to itself that serves to distinguish its possession of knowledge from the sentience of our nearest animal kin (Tallis has written a three volume study of these topics). It is human agency which allows for us to articulate the normative concept of “ownership,” and thus it is arguable if not unlikely that any nonhuman species can be thought of as owners in anything other than a figurative or derivative sense, although, again, such animals may exhibit forms of control over aspects of their environment and their fellow creatures (while lacking the concept of ‘control’).

    What I find more intriguing is the question to what extent our modern capitalist notion of “ownership,” morally and legally speaking, has been connected to the notion of a moral right of “self-ownership” (a concept that, as the late G.A. Cohen noted, has been put to both progressive and reactionary uses). Indeed, it would be interesting to compare different types of ownership found in earlier periods, as well as outside the orbit of what we’ve come to call Western civilization. Moreover, a more systematic comparison with notions of “trusteeship” I think would likewise be illuminating. Incidentally, Cohen has a nice treatment of the libertarian concept of self-ownership (and the idea, as it were, of ‘world-ownership) in his brilliant book, Self-Ownership, Freedom and Equality (Cambridge University Press, 1995).

  7. Meredith Render says:

    Patrick: Thank you for your comment. I also share your intutition that something like a “mind” (or perhaps, as I mentioned earlier, sapience, as we might think that someone in a persistent vegetative state has the capacity to be an owner) may be a necessary criterion of the status desgination of “owner”. This is why I find “owning” after death so interesting, because a deceased person no longer has a mind and/or is no longer possessed of essential qualities of sapience.

    As to your second point, I am also a fan of Cohen’s work. I found his treatment of the concept of “self-ownership” to be quite helpful in thinking about human body ownership.

  8. Anon says:

    I love this puzzle and your approach to it. I don’t have a sense of what the answers are, but I do think it makes sense to figure it what (if anything) is special about ownership by considering the closest “losers” among possible owners. I think it has obvious implications for the durational scope of rights, but It might well also affect how we think about bundles, etc.

    Keep up the good work!