The Barefoot Boy’s Guide to Ownership

 

Oh, for boyhood’s time of June,

Crowding years in one brief moon,

When all the things I heard or saw

Me, their master, waited for …

 

Mine, the sand-rimmed pickerel pond,

Mine, the walnut slopes beyond,

Mine, on bending orchard trees,

Apples of Hesperides!

 

John Greenleaf Whittier’s “Barefoot Boy” is one of over a dozen poems I’ve memorized over the last year. To stand athwart our Googling age, I’ve decided to try to stock my mental treasury as best I can, starting with classics from Shakespeare and Marvell, then moving into Romantics (Keats, Tennyson), and adding some scraps of Greek and Latin as well.

“Barefoot Boy” I chose in part for local interest: Whittier was born in my hometown, and as a child I wandered (generally shod) in some of the same places as he. I was also attracted to the challenge of memorizing the lists of woodland creatures (wild bees, tortoises, woodchucks, ground-moles, etc.) and plants (lilies, berries, groundnut, wood-grapes and so on) that the barefoot boy observed in his rambles.

Memorization prompts reflection, and as I repeated this poem I came to see it as a song about alienation. The barefoot boy of the first stanza enjoys the union of outside and inside (his turned-up pantaloons, showing that he’s still young and growing, suit his merry-whistled tunes, the spontaneous music of his soul); his simplicity trumps convention (“Prince thou art,—the grown-up man only is Republican. Let the million-dollared ride! Barefoot, trudging at his side …). In sum, “Outward sunshine, inward joy: Blessings on thee, barefoot boy!”

But with the second stanza, the Fall begins: first, to “Knowledge never learned at schools.” As colorful as that knowledge is, it sets the boy at a distance from the world. The third stanza, the first lines of which are quoted above, moves from knowledge to ownership: “All the world I saw or knew seemed a complex Chinese toy, fashioned for a barefoot boy!” And in the fourth stanza, mastery turns into monarchy: “I was monarch: pomp and joy waited on the barefoot boy!” Each stage of development has its attraction, but it is not surprising that they lead, in the final stanza, to pain, pride (“All too soon these feet must hide in the prison-cells of pride”), constraint, toil, and, ultimately, law and sin. (“Happy if their track be found never on forbidden ground; happy if they sink not in quick and treacherous sands of sin.”) The final lines lament youth wasted on the young: “Ah! that thou couldst know thy joy, ere it passes, barefoot boy!”

***

Memorizing old poems has the added benefit of casting new light on contemporary thoughts. I was reminded of Whittier’s “Barefoot Boy,” and specifically its third stanza, while reading Michael Heller and James Salzman’s new book, Mine! How the Hidden Rules of Ownership Control Our Lives (New York: Doubleday, 2021).

The authors are professors of law, Heller at Columbia, Salzman at UCSB and UCLA. From their writing, I venture that they must be engaging teachers. Every chapter is full of deft tales from case law that provoke readers’ wonder at the questions, “Why is what’s mine, mine? And why isn’t what’s yours mine?”

Their answer is that there is no one answer. Rather, there are six maxims or “stories” that people use to justify claims of ownership. They are

  1. First come, first served.
  2. Possession is nine-tenths of the law.
  3. You reap what you sow.
  4. My home is my castle.
  5. Our bodies, our selves.
  6. The meek shall inherit the earth.

Heller & Salzman imply that there are only these six rules of ownership. I can imagine a few others: “To the victors go the spoils.” “From each according to his ability, to each according to his needs.” Or, “Them’s that got shall get, them’s that not shall lose” (Billie Holiday’s adaption of Matthew 13:12).

But sticking to their list, Heller & Salzman show how easy it can be to overturn supposedly settled maxims of ownership. For example, “First come, first served” might work OK for the deli line, but it didn’t fit the bill for settling the American West. Nor did “possession”: Western settlers had to improve their claims to keep their land. “You reap what you sow” sounds fair to Lockean liberals, but it can stifle creativity and invention through the extension of copyright and patent protections. “My home is my castle” or “Our bodies, our selves” can also create various forms of “ownership gridlock,” affecting the delivery of goods and services as well as medical research. As for “inheritance,” it goes to people with the best estate planning attorneys, thereby (in the authors’ view) starving the government of funds to pay for programs that serve the meek.

This book offers vivid reminders on every page about the centrality of justice to ownership. Who deserves this? Who’s owed that? “Mine!” in essence says, “To this, you have no right!” Ownership is not some abstract concept. It is justice, in the flesh.

For this reason, Heller & Salzman’s approach offers a welcome contrast to the “economic” analysis that has become so prominent among legal theorists. Even when it comes to property, they show that people obey non-economic motives. We are not little computers, endlessly calculating profit and loss, and producing outputs accordingly. The right law is not necessarily that which brings the greatest profit to the largest number of people.

No doubt, a successful “story” about ownership benefits its teller. That benefit may be counted in dollars and cents, but it can include intangible matters such as pride, comfort, or security. Whatever the payoff, the point is that some story is required. Stories, rather than spreadsheets, offer our attempt to say what’s right.

Thankfully, Heller & Salzman also do not let their emphasis on “stories” about ownership lead them to a sort of lazy relativism, the claim that all we have are stories or that no story justifying ownership is inherently better than any other. After all, in practice, no one lives this way. To paraphrase Mike Tyson, “Everything’s a legal fiction until someone takes your stuff.” That is, when confronted with conflict, no one says my justifications are mere stories.

***

The problem with Heller & Salzman’s approach lies in its goal: to promote “design thinking” with regard to ownership. It’s not a law school course, so readers should not expect to become certified in “ownership design” just by reading this book. But it aims to get readers to appreciate this art and, no doubt, its practitioners, who happen to be law professors (among others) who seek to consult to companies, governments, courts, and legislatures.

What is design thinking about ownership? It means recognizing the limitations of any and all justifications for ownership, seeing property conflicts as competition among these stories, and then actively adjusting the “remote control” of those hidden rules of ownership to achieve “better” rather than “worse” outcomes.

Most simply, design thinking means viewing ownership, and law in general, as a sort of “technology.” Just as the designers of the iPhone did not limit themselves to preexisting models, and the designers of the web “move fast and break things,” so too, the “ownership designer” need not merely apply rules to a case. Rather, she should evaluate which rules to apply, which tools from her tool-box to use in the given circumstances and for the desired ends.

The relation of artfulness to law is a topic I can’t give due attention to here. It has been a concern of political philosophers as far back as Plato in his Laws, and of legislators no doubt farther back than that. Yet it does present real problems that cannot be papered over with a flashy new word like “design.” For example, to look at law as a technology means to view it as instrumental: a tool to achieve some end—a view that undermines the respect that law typically demands. Likewise, a designer’s goals, or his client’s interests, rule the design of a product and determine its shape. Those perspectives may be quite partial and self-serving. But a law is not a coffee-maker or an iPhone: it claims to serve the common good, and on that basis to deserve our allegiance. Most simply, art or technology aims to make things that benefit their users (and producers). In contrast, laws claim to serve the interest of a whole community. “Catch shares” governing fishing stocks or “cap and trade” governing carbon emissions may take into account the good of (some) fishermen, power plant owners, or their customers, but those goods are likely secondary to local, national, or global goods. That means that, at least for some individuals, this or that law may impose net costs, not benefits. It may put you out of business, ration your health-care, maybe even end your life. What are the grounds for an “ownership designer” to impose such costs? Why should one obey such designing laws? Heller & Salzman don’t say.

Of course, in an adversarial system, we expect trial lawyers to “design” for their clients’ advantage. But a trial lawyer is different from a judge or legislator, just as forensic rhetoric differs from deliberative. Likewise, sometimes it is necessary to change the law, for good reasons and in salutary ways. But then any “designing” should be done as quietly as possible, with hesitation, not zeal. Again, “ownership designers” could learn a great deal from Plato’s Laws, Book One, which explores the conditions under which one might best discuss changing old-established laws. (Short answer: in private, among sober old men, loosened up first by talk about drunkenness.) Otherwise, the erstwhile ownership designer risks undermining respect for and obedience to the law he seeks to (re)design: hardly a result that inspires faith in such experts.

***

Which would be a pity, since Heller & Salzman clearly intend ownership design to help serious people make decisions, establish rules, settle conflicts, and get along as well as can be. If that’s the case, then, we should seek to ground these decisions in something enduring and firm, not whatever the fashion of “our time” or “our way” is at the moment. We should study nature. Allow the law to teach us. It reflects and reveals our nature, in its complexity, if not inscrutability at times.

For example, Heller & Salzman’s six maxims offer a place to begin. Take “Possession”: clearly our upright posture and the freedom it affords to our hands define the way we are in the world. We are possessive animals. Or, “You reap what you sow”: Our terrestrial existence is hard. It requires work. And as Locke argues, the labor I put into the world (somehow) makes this part mine. (I would add that although Heller & Salzman quote this maxim as a justification for ownership, usually it’s offered as a justification for deserved punishment. Punishment is the “property” owed the wrong-doer.) “My home is my castle.” We dwell, not only in houses but with families, and we’re naturally somewhat unsure about those outside our castles. “They” may pose a threat; the world can be dangerous; nature is not simply beneficent. And in squaring off against “them” we also recognize our own privacy, a place to find ourselves. “Our bodies ourselves”: How else do we ever experience being who we are—our selves—without a body? A body may not explain all of what we are be all of what we are (surely we are not animated corpses?), but it is inextricable from who we are.

Let’s not forget Heller & Salzman’s first maxim: “First come, first served.” Yes, this maxim applies to deli lines, and less securely to land. It derives from our experience of temporality. Those who come first make the rules. It is the principle of law: older is better, if not oldest is best. Stare decisis: stand by what’s been decided. Hence it is the principle of property too: “Don’t you move what someone else set down.” It captures the difference between art (including design) and law. Law rests on the principle that older is better. Art always strives for something new. But there is a place for both—art and law—in our lives.

As for their sixth maxim, “the meek shall inherit the earth”: it is not a maxim of ownership but rather an aspiration—to upset the prevailing order of ownership. It reflects our common experience that the strong own the most and rule the weak, whether through political, military, economic, or brachial strength. “A rich man takes his poor neighbor’s ewe lamb and serves it to his guest.” Justice cries out against this deed. And it raises important questions: who are the weak? The poor? The sick? The wise (who are a small minority in any community)?

These are the briefest of suggestions, but in something like this way Heller & Salzman’s work could provide an excellent beginning to an inquiry into the nature of ownership, which in turn would provide the indispensable foundation for any sound attempts at “design.”

Their book also illuminates one more line of investigation: the importance of shared stories about ownership. Ownership reflects and reinforces a political community’s laws and gives the community its character. A feudal kingdom looks different than a capitalist burg. An oligarchy from a democracy. Ever since Aristotle, political science has recognized that the different rules of ownership combine with each other in the form of different regimes. These rules define the regime, the shared way of life of a “common-wealth.” It is not surprising, then, that the many rules of ownership conflict. Of course they do, for they fit different regimes. What determines what is right? This city. Its character or “regime.” The city is the ultimate “technology.”

But if that’s the case, why shouldn’t there be some regimes that are better for human beings, and some worse? And if some are better, why not one that’s the best? The first goal of a teacher, then, should be to ask what “rules” of ownership suit the best regime. And the second would be to encourage his students and fellow-citizens as much as possible to move in that direction, “educating” their habits of ownership.

***

But let’s return from the dizzying heights of political philosophy to get our (bare) feet back on the ground with poetry. My memorizing “Barefoot Boy”—is that a sort of ownership? True, I didn’t write it—it is not my work. But the poem is mine in a much deeper sense than if I had to Google it. Thanks to my efforts, its images brighten my mind; its rhythms and rhymes move me. Its words influence my words, its thoughts my thoughts. Memorizing it leads me to see things I did not see before. For even if I have not made what the poet makes, cannot I see what he sees? Without excluding anyone else from its enjoyment, is not the truth still “mine”?

By giving you access to the poet’s world, a good poem brings you back to your world, to yourself, too. A good poem will not let you “miss” some part of yourself. Alienation is real. But so is recollection. Memorizing a poem about boyhood is not the same as boyhood. But maybe it holds the key to a different, deeper, more lasting joy. What does a good poem do but to reveal to the reader a world? What does memorizing a good poem do but give a key to enter that world anytime you want? It’s yours and mine.

Why then does ownership matter? Because it is about being free, and about being in the right way in this world. It is about how you hold yourself—to yourself and to the rest of creation. It is not only about property but about character, the character of individuals and of regimes.

Heller & Salzman seek to inspire their readers with ownership design. I would suggest a humbler task: to become better owners. How do we do that? No doubt through many choices and activities in various parts of our lives. As Heller & Salzman offer, that could entail cherishing old cookbooks, learning how to tune your car, helping a sick neighbor, planting a garden, or building a playground. This pursuit also includes cultivating the garden of the mind, and here we can become better owners, in part, through memorizing old poems, and coming to see the world through the poets’ eyes; also, through reflecting, graciously, on our opinions, acknowledging their appeal and questioning their self-assurance. Perhaps, most basically, we become better owners in the highest sense through learning or relearning enduring truths, and by trying our best to shine a light on them for ourselves and our friends.


Image: Jordan Whitt, Public Domain

Keith Whitaker

Keith Whitaker, Ph.D., is a Founding Associate at Wise Counsel Research Associates. He also serves as Chair of the Board of the National Association of Scholars.

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