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The Fugitive's Properties: Law and the Poetics of Possession
By Stephen Michael Best
University of Chicago PressCopyright © 2004 Stephen Michael Best
All right reserved.
Chapter One - Fugitive Sound
Fungible Personhood, Evanescent Property
La propriété c'est le vol!
Pierre Joseph Proudhon, Qu'est-ce Que la Propriété? (1840)
The several essential features of the phonograph demonstrate the following as faits accomplis: the captivity of all manner of sound-waves heretofore designated as "fugitive," and their permanent retention.Theft and Gift
Thomas Alva Edison, The Phonograph and Its Future (1878)
As a matter of practice, nineteenth-century American jurisprudence was overwhelmingly "economic" in focus-economic, not as Aristotle defined it in the Politics, as the wise production and distribution (nemesis) of household (oikos) for the common welfare of all but, rather, as has been offered by Michel Foucault, citing the somewhat narrower suggestion of Guillaume de la Perrière, "the right disposition of things, arranged so as to lead to a convenient end." No adequation need obtain here between "common welfare" and "convenient end[s]"; for, in nineteenth-century America, economy almost certainly corresponds to the latter, that is, to a wealth and property arranged toward the ends of private interest, even in matters of public law. Perhaps no stronger evidence can be marshaled in support of this proposition than one simple development in property law: the jurist's responsibility to determine the correct disposal of "things" within property disputes often entails the added determination of the nature of things themselves (a determination disproportionately in the interest of those who, seeking accommodation of their heretofore invisible "property," make claim to a deserved judicial "scrutiny"). These expanded legal prerogatives were especially in evidence during the latter half of the century, for, with the tremendous and dynamic industrialization and commercialization of American culture at the century's close, state and federal courts were asked to accommodate increasingly evanescent, immaterial, and novel forms of wealth and ownership. They obliged on most occasions.
In the case of Brett v. Ebel (1898), the court respected the plaintiff 's claim that, by making a covenant on the sale of his business not to solicit his old customers for his new business, he managed successfully to transfer to the purchaser the goodwill he had previously accrued among those customers-that is, a reputation and standing of that business among its frequent patrons said to be a transferable measure of the business's going value, said to be a property in itself. The transfer of property was complete, the court maintained, even though no object had changed hands, only the probability that the old customers would resort to the old place of business. Similar recognitions accrued in the case of Peabody v. Norfolk (1868), where the Massachusetts Supreme Court affirmed a property right in silence-a property right, to be specific, in secrets. Peabody, who had given certain trade secrets to Norfolk, his employee, under the promise that Norfolk would not divulge those secrets to others, filed the case to enforce adherence to the promise. The court held, in recognition of Norfolk's agreement to a binding confidence, that "a secret art is a legal subject of property." Words spoken once never to be spoken again were secure subjects of property in the eyes of the law. And in the case of Chicago Board of Trade v. Christie Grain and Stock Company (1905), the U.S. Supreme Court permitted members of the board to sell and trade the subtle price differences between lots of agricultural produce through a contracted intermediary, the Western Union Telegraph Company. Undersold farmers decried the board's "trading for differences"- this investment of money in anticipation of the direction of fluctuation of exchange values, this valorization of inference-as the legal renunciation of trade in consumable commodities and, in turn, the endorsement and embrace of an unscrupulous trade in "phantom cotton," "spectral hogs," and "wind wheat." Yet, importantly, the Court's move expanded the scope of agricultural property from the goods themselves to prices and information about those goods, and, furthermore, this recognition of prices as property confirmed, as well, the postbellum transformation of America's market economy into a credit economy, where traffic in goods found itself largely subordinate to traffic in capital. Finally, in what is perhaps the U.S. Supreme Court's most celebrated decision on these matters, the case of Santa Clara v. Southern Pacific Railroad (1883), the Court extended to corporations the legal status of "person" within the meaning of the Fifth and Fourteenth Amendments to the Constitution; and, by endowing corporations with the rights and privileges the Constitution ascribes to the agents of contractual liberty (the "due process" protection of citizens against deprivation of life, liberty, or property by the state and "equal protection" of the laws), the Court made it possible for new as well as old forms of wealth to be protected against state infringement so long as courts of any rank were persuaded to treat them as property. In a move that came to characterize transformations in American jurisprudence as a whole, the creation of immaterial and incorporeal forms of property turned, with dazzling legal maneuvering, on the personification of another of the law's constructs, the corporation.
Lines of thinking afforded the greatest legitimacy in American law at the end of the nineteenth century apparently ran contrary to the judicial designs of antebellum legal culture. At the beginning of the century, legal fictions pictured property, ideally, as absolute dominion over "things," as the right to a tangible parcel with clear boundaries. William Blackstone is the jurist largely responsible for the popularization of this fiction, for, in his Commentaries on the Laws of England (1765-69), that well-known compendium of received statute, he takes property, or in his words, "hereditaments" ("whatsoever may be inherited"), to encompass all things "as contradistinguished from persons." Landed property is this legal compass's due north, and trespass the essence of legal interference with property rights. Courts perceived the concept of property to rest inevitably in the nature of things, and thus a certain "objectness" provided the premise from which ownership could be deduced with certainty ("New Property," 328- 29). At the Civil War's end, the perceived inevitability and deductive certainty between things and rights in Blackstone's common law no longer obtained. One could then find "right" in the absence of any "thing." The protection of value rather than things so broadened the purview of property law that the new property seemed capable of embracing every valuable interest known to the law. "The basic problem of legal thinkers after the Civil War," Morton Horwitz explains, "[is] how to articulate a conception of property that could accommodate the tremendous expansion in the variety of forms of ownership spawned by a dynamic industrial society." New fictions of property began to creep into the constitutional interpretations given by state and federal courts, fictions that firmly managed to ensconce themselves into Supreme Court doctrine. The Supreme Court expanded property "to include the pursuit, and therefore the legal protection, of intangible value, or earning power-that is, the right to a reasonable return on investment in intangible assets (for example, 'goodwill')." The Court firmed up this transition in the first Minnesota Rate Case, in 1890, when it changed the definition of property from physical things perceived to have some use value to the exchange value of anything. The pivotal words initially were provided by Justice Noah H. Swayne, in his dissent in the Slaughterhouse Cases, in 1873, and read, simply, "property is everything which has exchangeable value."
I will return to these words presently. Suffice to say that theft or "takings" (even the mere interference with another's property, which was formerly considered trespass and invasion) now included any action that reduced the market value of property. Divorced from concrete physical objects, the definition of property came increasingly to turn on abstract ideas of individual expectations of stable market values. The new property, as every species of valuable right and interest, threatened to engulf all legal relations. In the words of Horwitz, "American courts [came] as close as they... ever had to saying that one had a property right to an unchanging world." In a legal revolution shepherded by Federalists (such as James Kent) and Republicans (such as Joseph Story) alike, the law responded to the demands of entrepreneurs not only to protect property against interference but to promote its marketability. Entrepreneurs expected and received, under the new jurisprudential dispensation, a law "sufficiently elaborated and uniform to make the consequences of business decisions highly predictable." Jeremy Bentham would capture this prognostics of the law of property in the early decades of the eighteenth century: "Property is nothing but the basis of expectation... consist[ing] in an established expectation, in the persuasion of being able to draw such and such advantage from the thing possessed." All inference and immateriality, prognostics and predictability, promise and obligation, property lost reference to actual goods and use values and, arguably, acquired the characteristics of a set of "instruments" and securities central to an emerging speculative market capitalism: of contracts or "options" that granted the "privilege" to buy (a "call") or sell (a "put") a commodity at a future date; of hedges for and against the anticipated price of a commodity ("futures"), which either overvalued (selling "long") or undervalued (selling "short") the commodity in question; of the setting of a floor and ceiling to rates of return on the wager either that future rates would exceed the established limits (a "straddle") or remain comfortably nestled within their confines (a "collar"). Within an emerging market of infinite abstraction, interminable speculation and miraculous profits, property served as a synonym for certainty, and property law became a means of proscribing actions in such a way that the future remained consistent with current calculations. In essence, property was a species of pathetic fallacy, a personification of individual "interests" by way of the fabulation of specific "outcomes"- in short, a formalization of a way of thinking about future actions, a means of substantializing acts as a form of property.
The Court's metamorphoses resulted in nothing short of the liquidification of property ("the conversion of capital from fixed tangibles into fluid intangibles" [Corporate Reconstruction, 50])- ironically, a textualization of property in which it became so much a function of the lex scripta (statute law, written law) as to make it nearly impossible to say "market" without also saying "the law," "possession" without also invoking "property," "things" without also calling to mind the difference between things and the "signs" of things. Historian of capitalism Martin Sklar has chosen an apt analogy to describe this critical state of the law:
In proportion as market relations mature, the law displaces religion, just as the courts displace the church, and lawyers and judges, the clergy.... There can be no modern capitalist market... apart from the complex development and the certainty of the law. The law is the Latin of the market, just as the language of money and price is the Vulgate.. . . The modern capitalist market without the law is as little feasible as the church without religion. The courts are the church, the law the canon of everyday life, jurisprudence the theology. (Corporate Reconstruction, 86-87)The expectation of stable market value. The property right to an unchanging world. The certainty of the law. The importance of the "letter of the law," its significance as a reservoir of certainty, intensified as the law's perceived need to conceive of property in terms of bounded, tangible land began to wane. In short, the ephemeralization of property was met by the incarnation of the word. Again Sklar: "Certainty, here, does not mean changeless rigidity, but a consistency of logic and reasoning, which, though rooted in precedent, may also depart from it in adapting to, or providing for, changing conditions. Certainty means, in other words, a logic . . . that yields a reasonable predictability in both the constancy and the variability of the law" (86-87). Legal certainty, by emphasizing a "consistency of logic and reasoning," not only stresses a finite set of inferential procedures "rooted in precedent" but also valorizes the law as a system capable of functioning with "mathematical" certainty. By the terms of the fallacy, the legal forms of this "logic" (borne to market in the argot of equity, credit, debt, liability, contract) work like chemical reactions and mathematical theorems.
Legal certainty, as many nineteenth-century jurists warned, collapses legal causation into scientific causation. In "The Path of the Law," written in 1897, a mere seven years after the Supreme Court's pivotal reconfiguration of property, Oliver Wendell Holmes cautions against the belief that logic is the only force at work in the law. "The life of the law has not been logic," he asserts elsewhere, in one of the more memorable of his many dicta, "it has been experience." The notion that a given system can be worked out like mathematics from some general axioms of conduct, he warns, has long presented one of law's greatest fallacies, which fallacy, for him, approaches the comedic: "[It is] as if [ judicial wrangling] meant simply that one side or the other were not doing their sums right, and, if they would take more trouble, agreement inevitably would come." (Tellingly, Holmes here strikes a chord with Harriet Beecher Stowe's condemnation of the "severe, unflinching accuracy of logic" that reigns in antebellum jurisprudence, those "accursed principle[s of ] mathematical accuracy" and "elegant surgical instruments for the work of dissecting the living human heart.") True, Holmes concedes, the "language of judicial decision is mainly the language of logic," but the syntax or form of logic only "flatter[s] that longing for certainty and for repose" common to the law: "But certainty generally is illusion, and repose is not the destiny of man" (181). Holmes concedes that, superordinate to logic, prediction and prophecy are the business of the law. Most people long to know, and to know clearly, the circumstances under which they "run the risk" of encountering the punitive arm of the state (167). The jurist's task is thus to predict "the incidence of the public force" through "the instrumentality of the courts" (167). Again, Holmes's formulation deserves citation on account of its simplicity alone: "The prophesies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law" (172- 73). The forms of the law are in fact merely figures of judgment, of "a judgement as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgement, it is true, and yet the very root and nerve of the whole proceeding" (181). Again, Holmes cautions, it would be wrong here to confuse legal ideas with moral ideas. "An inarticulate and unconscious judgement" refers only to the force of an agreed on set of cultural signs-in his words, "the preference of a given body in a given time and place" (181, emphasis mine). It is here that a pragmatic jurisprudence dispels moral and principle and appears merely akin to public policy.
Contracts provide the most eloquent expression of the path that leads from a view of the law as the domain of morals and promises and toward a view of contractual agreement as pure semiosis (toward, in short, a reliance conception of contract). Again Holmes:
We talk about a contract as a meeting of the minds of the parties.. . . Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one [of the parties] does not know of the other's assent.. . . The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties' having meant the same thing but on their having said the same thing. Furthermore, as the signs may be addressed to one sense or another-to sight or to hearing- on the nature of the sign will depend the moment when the contract is made. If the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. (177-78)Holmes's emphasis on "signs" aside, his critique of the will theory of contract (of the vision of contract as a "meeting of . . . minds") represents a decisive shift toward contract's objectification. His agreement rises to the status of what the law assumes is the customary meaning held by an average, ordinary person; the proverbial "reasonable man." Holmes and other Progressives strive to be able better "to create formal, general theories that would provide uniformity, certainty, and predictability of legal arrangements." What stimulates this drive toward contract's objectification is, of course, the corporate form of personhood itself; for, under corporate employment, the organization held responsibility for its employees' contracts. Obligation remains free of the intent of the parties, and thus the law looks to the reliance of a "reasonable person" so as "to ensure that the rest of the world could rely upon uniform and predictable legal consequences."
Justice Swayne's accent on property as "everything which has exchangeable value" and Justice Holmes's shift in the law's bias from the transparencies of logic to "the nature of the sign" together suggest a line of thinking unfolding, concurrently, in the halls of the University of Geneva: a series of lectures given by Ferdinand de Saussure between 1907 and 1911 that would become, on their publication by his students in 1916, his Cours de linguistique générale. It is in these lectures that Saussure offers his central doctrine of the "arbitrariness" of the sign-the thesis of "linguistic value" that states, in short, that the value or identity of any semantic fragment is not "motivated," for there is no necessary relation of language to the object world. Rather, Saussure contends, the relation is one of "convention," based on a history of accepted usage and consensus, with values emanating from within a system of differences. We refer, then, to the "arbitrariness" of the sign because the moment of identity in language is only conceivable as the effect of a play of differences in the "system" of value. Against the commonsense perception of language as a reflection of the world, Saussure shows this relation to be fundamentally analogical: on the one hand is language, with its differential system of making meaning; on the other is an object world of things that becomes available to human agency only in terms of the network of signification that language casts on it. To return to our original concern-property-we might say, in light of Saussure's intervention, that whether or not novel phenomena and things may in fact be considered property under law is not a matter one can deduce from an analysis of an object's "properties," from some assessment of the nature of property; rather, it is a matter of public policy (of consensus, convention, and agreed on methodological postulates, in short, of "preference"). Antagonistic, interested positions within the market differ little, then, from the differential positions that determine the semiotic content of signs. Swayne's pivotal assertion-a worthy precursor to literary theory's linguistic turn-might then also be read, under interested eyes, as "property is semiosis."
Excerpted from The Fugitive's Properties: Law and the Poetics of Possession by Stephen Michael Best Copyright © 2004 by Stephen Michael Best. Excerpted by permission.
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