Despite its models of property and personhood, and the empires built upon them, English law has never been able to maintain a sharp distinction between things and persons. This essay explores some of law’s more curious and at times barbaric means for separating persons from things, subjects from objects. What emerges is a wide-ranging history of conceptual ambiguities and inconsistencies, in which objects seem often to have more personality than human persons. What it means to be a person in such a context is an open question to which law’s only answer is its violence.

Objects with Personality

From the deck of an Australian military ship paused on waters south of Indonesia, Behrouz Boochani watched as officers used a stationary machine gun to fire two holes into a small white fishing boat, which sank and disappeared into the ocean.¹ It was the winter of 2013. Boochani had boarded the fishing boat at an Indonesian port some days ago. Together with his fellow passengers he was attempting the treacherous maritime journey to reach Australia, where he could apply for asylum. But this was not to be. After sinking their boat, execution-style, the Australian military transported the passengers to remote island prisons where they were to be detained indefinitely. Australian border patrols continue to sink boats found smuggling migrants towards its borders. Extending the same logic, the European Council President has proposed that boats be captured and destroyed in North Africa before they can be used to carry people across the Mediterranean.² This proposal has not gone ahead, largely because migrant boats are little more than repurposed fishing trawlers. It is difficult to discern when an innocent fishing boat becomes a guilty smugglers’ vessel.

Do ships have personalities? Seafarers have long believed so. Ships are christened, have working lives, husbands and sisters; they are able to enter contracts and be sued in their own names.³ Over three centuries, ships carrying slaves across the Atlantic were regarded as legal persons while their human cargo were categorized principally as things.⁴ Both ship and slave oscillated between person and property, as law’s metaphysical power could transform inanimate objects into persons, and human beings into things. The Australian government’s execution of Boochani’s ship, followed by its detention of his body in a cage where inmates are regularly sprayed with pesticide,⁵ suggest that the oscillating power of law to transform thing into person and vice versa continues today.

Despite its models of property and personhood, and the empires built upon them, law has never been able to maintain a sharp distinction between things and persons. For example, law’s metaphysical power today imbues corporations and select rivers with personhood, polices nations on the basis of algorithmic apparitions, sacrifices migrant boats to the sovereign, and makes newly built homes into haunted houses. But if inanimate objects have personalities, what distinguishes them from us? Why is it that law continues to move the line which divides persons from things?

Anglo-European legal constructs of property and personhood rely on a sharp distinction between person and thing, subject and object, culture and nature. For John Locke, the natural world was an object waiting to be properly used by “the civilised part of Mankind.”⁶ Every such man “has a property in his own person” which he could mix with the natural world by productively labouring upon it. For Locke, productive labour was equated with enclosing the land, meaning “civilised men” could come to own any land “in the state of nature” that they enclosed. Though different from Locke’s subject-object distinction, Georg Hegel’s starting point for his theorisation of property also assumed a clear separation between persons and things external to them.⁷ While the idea of persons as controlling, masterful subjects in stark contrast to everything else that is categorically wild or lifeless around them, took hold in Anglo-European laws of property, this distinction has always been conceptually and practically unsustainable.

From around 1200 until 1846, it was a principle of English law to hold animate and inanimate objects responsible should they be involved in the accidental death of an adult human person. Such objects could be declared deodand, meaning, “that which must be given to God.”⁸ Objects found to be deodand were understood as being evil and thus imbued with divine power.⁹ For example, in a case from 1272 in which a man who had climbed into a church belfry and then fallen to his death, the ladder was declared deodand.¹⁰ Having been deemed an accursed object, the ladder would be forfeited to the sovereign as the earthly representative of God.

The law of deodand was ill-defined and flexible, and scholars today continue to debate its definition, purpose and meaning. Though some courts and dictionaries suggested that to be deodand, an object must have moved to cause the death, in practice the judgment was often applied to stationary objects such as the ladder. Key to an object’s capacity to be deodand was whether the object was real or personal chattel property.¹¹ Under feudal English land law, the sovereign had jurisdiction and ultimate ownership over real property, thus land and matter affixed to it could not be given up to the sovereign because such property already belonged to him. While it relied on this proprerty distinction, declaration of a deodand sat uncomfortably with ideas in property law wherein objects are assumed to be devoid of agency.

Although the law of deodand was not formally adopted in Britain’s colonies, Colin Dayan argues that its logic—that objects could be evil and legally controlled through punitive measures—was an important precursor to the creation of the slave as a hybrid person/property category in the United States and the Caribbean.¹² The force of consciousness could already adhere to things, which could be sacrificed as a subject of law separate from their owners. The slave, like the deodand, was vulnerable to legal prosecution while being deprived of personality; seen as having a will to commit crime, but incapable of other forms of agency.¹³ In English law and its colonial iterations, there have long existed categories in which humans, animals and inanimate things coalesce.

The impetus for deodand’s abolition in 1846 was the Industrial Revolution and its proliferation of railways and heavy machinery: highly profitable objects with a tendency for involvement in accidents causing adult human death. Deodand was now an impediment to high risk, high profit industrial capitalist innovation.¹⁴ In London, members of Parliament debating the abolition of deodand celebrated the end of an irrational, absurd and barbaric legal practice. But are the legal practices which have come in its wake any less bizarre, barbaric or ambiguous on what separates persons from things?

Over the centuries, deodand had developed into a flexible legal tool, a way for local communities to process unexpected deaths for which there was no clear human culpability. In many cases deodand was used as a discretionary means by which to compensate the family of the deceased.¹⁵ Rather than forfeit the evil object, its owner could instead be required to pay its monetary value. Coronial juries could order that this money be granted to the family of the deceased, without them having to launch separate legal proceedings. Though it had come to be used as a means of compensating death with money, the deodand sum was based on the value of the culpable object rather than that of the human life lost, which was regarded as too valuable to be calculated. The Fatal Accidents Act 1846 replaced deodand and rejected that view, putting in place a legal scheme which provided compensation for accidental deaths according to the financial value of the deceased person. Risk was to be rationalized and privatized to individuals and their families, and human life would be valued according to income level, calculated down to the final cent.¹⁶ Accidental death is now a profitable industry for insurance companies.

With the continued rise of the insurance industry, advances in actuarial studies, and the increased use of predictive technologies, persons matter less today than the algorithmically produced risk profiles which precede them. What damage might this risk profile do with an insurance policy, a credit card, a visa, a loan, an education, a hospital admission, a grant of parole? In the post-deodand era, persons emerge first as apparitions: projected profiles of who the law should target in the quest to minimise risk. Animated beings resembling these projected visions of danger and evil can then be stopped with force at the border, on the street, in their own homes. While deodand addressed harm that had already occurred, the insurance industry, the credit economy and risk minimisation policies address the possibility of harm before it has occurred. Many branches of law have now moved from a focus on the past to a focus on the future, with consequences for subjects, objects and all that lies in between.

Is the predicted future capital raised by a corporation through the issue and subscription of shares more valuable than human life? Suicide rates increase after stock market crashes.¹⁷ Anticipation of the risk profiles these shareholders are about to become, presents a future too horrific to endure. To be a shareholder is not to be in control of one’s shares, as ownership tends to otherwise presuppose. Legal anthropologist Bill Maurer argues that the definitions of property put forward by Anglo-European philosophers such as Locke and Hegel are of rapidly decreasing relevance in the context of late capitalist forms of property.¹⁸ Studying the practices of commercial lawyers trading financial instruments on American securities markets in the 1990s, Maurer writes that:

twentieth-century lawyers, first, seek the abandonment of the property construct itself because they believe it places needless restrictions on securities transfer and capitalist expansion and, second, redefine the subject of property not as the bearer of rights but as a risk profile subject to the disciplinary practice of insurance. At stake is not merely a new definition of property but a new definition of personhood.¹⁹

In this new scheme, it is objects that wield power over subjects, rather than the other way around.

In the recent sub-prime mortgage crisis, law facilitated the eviction of 10 million human persons from their homes, which had been judged to be more valuable than them. For mortgaged homeowners, the object of property controls them as much as they control it: demanding that they stay employed and budget appropriately in order to meet the monthly repayments. Exploring this anomaly, Annie McClanahan explains that “for Freud, the fear of losing our valuable objects—a fear that defines the very fact of owning in the first place—manifests first as an anxiety that these objects have ‘an uncanny and secret intention of doing [us] harm.’”²⁰ The home can thus transform, for the indebted owner, into a constantly menacing enclosure: a carceral structure possessed by an evil spirit, seeking to rid itself of human presence through foreclosure.

What does it mean to be a person in an era when objects have so much personality? Reflecting on modern law’s manipulation of the category of personhood, Dayan argues that despite law’s professed commitment to rational judgement, it is the supernatural that serves as "the unacknowledged legislator of justice."²¹ Law today imbues houses with malicious powers against their owners, facilitates the complex journeys of abstract financial objects that are directly implicated in death and displacement, and executes boats carrying humans across borders. Legal personhood remains a mystical category, the bounds of which can only be discerned in the incredibly absurd and atrocious annals of the judiciary.

ENDNOTES

Behrouz Boochani, No Friend But The Mountains: Writings from Manus Prison (Picador, 2018), 77.

European Council, “Remarks by President Donald Tusk following the special European Council meeting on migratory pressures in the Mediterranean” (23 April 2015)

European Council, “Remarks by President Donald Tusk following the special European Council meeting on migratory pressures in the Mediterranean” (23 April 2015)
https://www.consilium.europa.eu/en/press/pressreleases/2015/04/23/final-remarks-tusk-european-council-migration/ (accessed 2 August 2019).

Renisa Mawani, Across Oceans of Law: the Komagata Maru and Jurisdiction in the Time of Empire (Duke University Press, 2019) 79.

Ibid, 86.

Arash Kamali Sarvestani and Behrouz Boochani, Chauka, Please tell us the time (Sarvin, 2017). Jon Locke, Two Treatises of Government (Cambridge University Press, 1960).

Hegel, G.W.F., Wood, A.W. and Nisbet, H.B. (eds), Elements of the Philosophy of Right (Cambridge University Press, 1991).

William Pietz, "Death of the Deodand: Accursed Objects and the Money Value of Human Life," Res: Anthropology and Aesthetics 31 (Spring 1997): 97-108.

Ibid.

Edward Kirton-Darling, "Searching for Pigeons in the Belfry: The Inquest, the Abolition of the Deodand and the Rise of the Family," Law, Culture and Humanities 14, no. 3 (October 2018): 439-461, 442.

Pietz, "Death of the Deodand," 101.

Colin Dayan, The Law is a White Dog: How Legal Rituals Make and Unmake Persons (Princeton University Press, 2011), 122.

Ibid, 147.

Pietz, "Death of the Deodand," 106. Kirton-Darling, "Searching for Pigeons," 444.

Ibid, 445.

Wisniewski, Tomasz Piotr, Brendan John Lambe, and Keshab Shrestha, “Do Stock Market Fluctuations Affect Suicide Rates?” (13 July 2018) https://ssrn.com/abstract=3213334 (accessed 2 August 2019).

Bill Maurer, "Forget Locke? From proprietor to risk-bearer in new logics of finance," Public Culture 11, no. 2 (1999): 365- 385.

Ibid, 366.

Annie McClanahan, Dead Pledges: Debt, Crisis, and Twenty-First-Century Culture (Stanford University Press, 2017), 129.

Dayan, The Law is a White Dog, 40.