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.