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applied to ties, whether by blood or marriage, through kinship. Although an
early entry of 1502 for a kin relation in the Oxford English Dictionary suggests
that I might be overstating the case, I note that relative (the substantive) does
not become applied to kinsmen until the mid seventeenth century, also true of
the verb relate, by contrast with a plethora of fourteenth and ¬fteenth century
usages for relation, relative and relate in the sense of logical or conceptual
connection.
It was not alone; several terms to do with knowledge practices on the one
hand and on the other kinship practices were seemingly in ¬‚ux.53 In many
65
EMERGENT PROPERTIES


instances it was a case of adding new properties to old, so that existing terms
acquired double meanings. I point to two such clusters, of which the digres-
sions on copyrighting and on the veri¬cation of scienti¬c ¬ndings have already
given an indication.
One cluster refers to propagation, and the oldest candidate here is the very
term conceive and its correlates, concept and conception. To create offspring
and to form an idea: this double sense of conceive had been recorded since
the 1300s.54 But there is also generate, reproduce, create and issue, and some
of these terms only doubled their reference much later. Thus creation was
used in the fourteenth century for begetting and with divine connotations of
causing to come into being; it was ¬rst recorded as applying to an intellectual
product or form in the late sixteenth “ early seventeenth century. This was in
the sense of summoning through the imagination as well as in the then more
established legal sense of constitute. Other doubles also emerged in the early
modern period. Consider the second cluster, dominated in my own mind by
the term relation, which includes connection and af¬nity. Af¬nity seems to have
been a relationship by marriage or an alliance between consociates before it
became, in the sixteenth century, a term for structural resemblance (between
languages) or causal connection. Conversely, connection itself, which appears
in the seventeenth century, seems to have referred to the joining of words and
ideas by logical process before it came in the eighteenth to designate the joining
of persons through marriage or (more rarely) consanguinity.55 Of more recent
coinage, connection nonetheless followed the same sequence as relation and
relative.
The clusters are connected. The one elides mental conceptions and procre-
ative acts; the other elides the kinds of connections these produce. Elucidating
the nature of mental conceptions was one of philosophy™s contributions to the
new knowledges of the time, whereas the relationship between procreation
and kinship fed into emergent formulations of nature and culture. But that is
in prospect; there is something to be explained in retrospect.
If these were originally puns and conjunctions allowed by the English lan-
guage and the way it created verbal connections,56 then they must also have
been allowed by English kinship in the way it set up connections between
persons.57 Was the attention to knowledge-making that we associate with
the new sciences also refashioning the way people represented their rela-
tions to one another? What was the nature of those relations? What was
entailed in having ˜relation™ introduce into thinking about kin an intellectu-
alised sense of connection? And embedded there, did it acquire further proper-
ties? For, once introduced into kinship, ˜the relation™ could be borrowed back
again.
66 KINSHIP, LAW AND THE UNEXPECTED


Listen now to this deliberate analogy, addressed to the elucidation of knowl-
edge processes. How we know kinsfolk and how we know things are drawn
together in a parallel with all the force of serious explication. In his Essay
concerning human understanding (1690), Locke conjured up the image of two
cassowaries on display in St. James™s Park, London. Cassowaries are large,
¬‚ightless birds from Papua New Guinea and South East Asia, and to London-
ers they seemed quite enigmatic, eluding immediate classi¬cation. However,
the philosopher wanted to illustrate the logical circumstance whereby a rela-
tion could be perceived clearly even though the precise nature of the entities
themselves might be in doubt. He offered a parallel with this strange bird,
its enigmatic identity (not his phrase) contrasting with the clearly perceived
relationship between the pair: they were dam and chick.58 The one was the
offspring of the other. The parent“child relation, a matter of kinship, illus-
trated how one could, as a matter of knowledge, conceive relations between
entities.
We might assume that all at issue here were relations between concepts, as
between the concepts of parent and offspring. But not only did Locke draw
on the concrete act of propagation (it was ˜the notion that one laid the egg
out of which the other was hatched™ [Locke 1690: 237] that gave the idea of
relationship), the avian connection had been preceded by several references
to human kinship and to interpersonal relations.
Kinship makes evident one very notable property of the relation: the tie
that invisibly links kin is both embodied in each (kins)person and can be
understood as separate from them. Thus in talking about the way in which
the act of comparison (bringing items into relationship) is a clarifying exercise,
Locke argued that ˜in comparing two men, in reference to one common parent,
it is very easy to frame the idea of brothers, without yet having the perfect idea
of a man™ (1690: 236). What he was comparing were the two kinds of relations.
Throughout his disquisition on the relation, he took kin relationships as
immediately accessible exemplars of logical relations. Thus he gave as examples
correlative terms obvious to everyone: ˜father and son, husband and wife™.
The argument is building up for a consideration of that ˜most comprehensive
relation, wherein all things that do or can exist are concerned; and that is the
relation of cause and effect . . . [from which comes] the two fountains of all
our knowledge, sensation and re¬‚ection™ (1690: 237).
In making the comparisons, Locke linked a conceptual relation between
entities to a procreative relation between hen and chick as though both usages
were as thoroughly sedimented in the English language. Only with hindsight
do we note that between the two it was relation as applied to the kin connection
that was the relative novelty. So, for all that the conceptual notion of relation
67
EMERGENT PROPERTIES


can be borrowed back so effectively from the domain of kin relations, the
historical question remains: how did it come to be applied to kinspersons in
the ¬rst place?
The reader already knows that this is not the occasion for an answer. But
recent technological developments have perhaps added to the reasons that
make the question worth asking. Although kinship and knowledge provide
¬gurative or metaphorical resources for one another, borrowed back and
forth, the historical direction in which the concept of ˜relation™ expanded “
from knowledge-making to kinship connection “ would seem to have left
traces in a certain persistent asymmetry. Not only for this reason but also
perhaps including this reason, ˜knowledge™ holds the privileged position.


III

Kinship and Knowledge
Anthropology™s relation echoes and is echoed in the way people crossover
between conceptual and interpersonal ways of relating. The remainder of this
chapter offers some Euro-American examples. They return to the speci¬c case
of knowledge and kinship that characterises the ˜scienti¬c kinship system™
I claimed in Chapter Two. But I return to this point with the additional
information about the apparent directional drift in the English language, in
which fresh conceptualisations of the world seemingly worked their way into
the apprehension of relations between (kins)persons. In discussing people™s
interpretations, it pursues an argument about the role of analogies as common
vehicles for such manoevres and about what becomes explicit or remains
implicit crossovers.
Analogies are not relations of cause and effect; concepts do not “ pace
the Calverts and Buzzancas “ procreate. They get carried by people across do-
mains, often because there is some argument to pursue. Analogies are relations
of resemblance; that does not mean their fancifulness is idle. On the contrary,
much of culture is a fabrication of resemblances, a making sense through
indicative continuities, just as one text points to another text.59 This is true
whether analogies are pressed into the service of innovation or into the service
of keeping values intact. It follows that appreciating the power of a parallel
between conceptual and familial relations does not depend on demonstrating
the direct derivation of one from the other. It is conceivable, for example,
that the terms ˜relation™ and ˜relative™ migrated into kinship from their more
general usage, at the time, for associates, persons connected through mutual
acknowledgment. Like the circle of scientists, the circle of persons who publicly
68 KINSHIP, LAW AND THE UNEXPECTED


recognised one another (as associates) possibly anticipated some of the class
overtones of kinship so evident by Jane Austen™s time. However, even the us-
age of relation (relative appears only rarely with this connotation) for non-kin
associates was itself fairly recent; its application to the mode by which per-
sons are mutually connected through knowledge and circumstance, and for
the aggregate of such associations, apparently comes from the seventeenth
century.
The point is that once narratives, tropes and images are lodged in a particular
context or domain, they are capable of summoning other contexts whether or
not they were derived directly from them. If the spectrum I have just conjured
falls broadly into a set of parallels between knowledge and kinship, it would
seem that since early modern times English-speakers have kept these domains
in tandem. Each has had its own developmental trajectory, but each seems
still to offer people the power of drawing the other into itself. Needless to say,
they do not work on one another to quite the same effect; they are not entirely
symmetrical. Here we must to consider how terms come to be naturalised
in their new domains. Their metaphorical status laid aside, the potential for
analogy may be submerged.
Familial and procreative language in philosophy and science have long been
naturalised to refer not only to classi¬catory schema but also to non-human
processes of reproduction. In any case the evidence is that some of these terms
were widely used in, for instance, natural historical and anatomical writ-
ings before they became applicable to human relations, one such term being
˜reproduction™ itself (cf. Jordanova 1995: 372). But then no one blinks an eye at
referring to mother and daughter cells either. Such terms have a technical job
to do in de¬ning certain states or processes or connections between concepts,
and any ¬gurative recall will seem for the most part irrelevant. Beer asks us to
consider this description of the planets:

When we contemplate the constituents of the planetary system from the point of
view which this relation affords us, it is no longer mere analogy which strikes us,
no longer a general resemblance among [the planets]. . . . The resemblance is now
perceived as a true family likeness; they are bound up in one chain “ interwoven
in one web of mutual relation.
Chambers 1844: 11 “12, from John Herschel™s 1833
Treatise on Astronomy in Lardener™s Cyclopaedia,
quoted in Beer 1983: 169, original emphasis

Herschel wanted to displace a weak sense of analogy between planetary
bodies (they look alike) with a strong sense of the webs of af¬nity be-
tween them (their orbits are calibrated in respect of one another). The ¬rst
69
EMERGENT PROPERTIES


relation in this passage is a mathematical deduction between distances from
the sun and revolutions around it, whereas the second sounds as though it
could have acquired resonances of kinship.60 But equally well, he could simply
be reinforcing the usage that had become habitual in science. A family is an
assemblage of objects, and all he was insisting on was their necessary or sys-
temic connection.61 It did not have to be expressly as kinship that such ideas
were embedded in knowledge practices.
Ideas about knowledge embedded in kinship practices were another mat-
ter altogether; they were there as knowledge. This was nothing novel. The
question is what in¬‚ection early modern ideas about intellectual procreation
and conceptual reations might have added. Was new impetus given to the
legal axiom that between mother and father only the mother is known with
certainty? Note the part that relations played in this axiom. The father had a
relationship to his child because of his (certain) relationship to the mother;62
if one relation had been brought into being through another relation,63 is that
not also about how knowledge was being argued (one piece of information
validated through another piece of information)? However, the analogy here
is mine.64 In folk terms, all one needed to say was that the father was related to
the child because his relationship to the mother was known, at once declared
and acknowledged. In short, knowledge was already a part of the way in which
Euro-Americans reckoned they were related to one another; that is still the
case.
For English-speakers, a peculiarity of knowing in kinship terms is that
information about origins is already grasped as knowledge. Parentage implies
relatedness; facts about birth imply parentage, and people who ¬nd things
out about their ancestry, and thus about their relations with others, acquire
identity by that very discovery. The information constitutes what they know
about themselves.65
One fact about being a kinsperson, then, is that information about kin is
not something that can be selected or rejected as information (cf Strathern
1999). Information already bestows identity. Let me expand the point. Because
kinship identity is realised within a ¬eld of relationships, knowing about one™s
kin is also knowing about oneself. One has no option over the relationships;
any subsequent selection or rejection implies selecting or rejecting those who
are already one™s relatives or else revealed not to be relatives at all. Hence,
information can only be screened out at the invidious cost of appearing to
choose (˜oh, I don™t want to know about them™).66 Whether what one discovers
is the basis for deciding never to see certain people again or for welcoming
them into the home, the information is already, so to speak, knowledge, that
is, already embedded in the way one acts toward these others. This leads to a
70 KINSHIP, LAW AND THE UNEXPECTED


sense in which we may say that knowledge creates relationships: relationships
come into being when the knowledge does. As a proposition about kin, it can
be taken quite literally.
So what room does that leave for ¬gurative manoevres? As long as the do-
mains (˜kinship™, ˜knowledge™) are kept separate, perhaps through associations
and connotations that do not seem to bear in immediately on each other, the
potential for analogy remains present. And as long as they are separate, the
one endows the other with its own distinct properties, bringing a different
sense of reality with it.
An example running through this account is that either knowledge or kin-
ship can make the other appear relatively concrete or relatively abstract. As
we have seen in the borrowings back, a reference to kinship can give fresh
concreteness to the abstract perception of relations in the way Locke appears
to have intended “ as did, and do, the all too solid questions about children,
money and property. Or to the contrary kinship may appear to be rendered
too abstract for some people™s comfort. Jordanova™s documentation of chang-
ing terms for procreation in eighteenth century England affords an example.
Reproduction came to be applied to human beings, displacing the earlier term
generation. Reproduction ˜abstracts the [procreative] process from the bod-
ies and persons involved, whether they are parents or offspring™ (1995: 372).
Indeed, its abstract sense of forming or creating or bringing into existence
was only applied to human procreation under some protest. By contrast with
generation, reproduction was held to disregard mankind™s privileged geneal-
ogy. Indeed, the very point was that it encompassed the entire organic world;
extending it to human beings was a new way of organising knowledge about
the world. For John Wesley, she observes, the term was thus a denial of human
kinship with God for it levelled man with “ in his words “ nettles or onions.
It would be wrong, then, to infer that knowledge invariably offers abstrac-
tion, kinship concreteness. Rather, what is going to appear abstract and what
is going to appear concrete will depend on the argument of the moment. It
will also depend on the way in which objects of knowledge acquire status
and certainty. Abstractions lead to fresh rei¬cations and in the process may
well acquire, so to speak, new bodies. When the text is detached from the
book as a material body (the bound volume), it is turned into an immate-
rial but nonetheless recognisable thing over which rights can be owned. The
perception of a ˜thing™ in which rights may be held can be a stimulus to fresh
concretization or corporealization. Should we be surprised that it is also in the
eighteenth century that the very term corpus subsequently became attached
to the idea of a collection or gathering together of works?
The asymmetry is another issue. To say that knowledge is a part of contem-
porary kinship in a way that kinship is not a part of knowledge, my general
71
EMERGENT PROPERTIES


point here, reminds us of the relation and its direction of expansion. My in-
terest in the early modern material has been, all along, its pointers to practices
of making knowledge. Recall the explicitness with which the practitioners of
the new science set about their task, as explicit as their latter day counterparts
writing for scienti¬c journals have to be. What I do not know is how we might
or might not, historically speaking, align creating knowledge with creating
kinship.
Let me conclude with a situation in which anthropologists do know some-
thing about kinship practices. It returns us to present-day arguments, to
practices stimulated by the so-called new reproductive technologies and to
the arena of litigation. We might read the situation either as a move toward
greater abstraction “ a new form of relatedeness without relatives “ or as a
move toward greater concreteness, where value is recovered for kinship sub-
stance, indeed where one might say that kinship is being turned back from
knowledge into information. In this context, there are moments when the
domains of kinship practice and knowledge practice cannot be kept separate,
and analogy again becomes impossible.


The Informational Family
It is generally assumed that parents have an interest in their children™s health
and that doctors will inform parents about it. In 1992, an American, Donna
Safer sued (against the estate of) her father™s physician for not having informed
her of her parent™s condition. She had been diagnosed with the same cancer
that her father had died from, twenty-eight years earlier, when she was ten.
Her complaint was that had she known she might have been able to take
precautionary measures. The New Jersey trial court concluded that a doctor
had no legal duty to warn the child of a patient of a genetic risk. It was said
that the harm was already within the non-patient child (Dolgin 2000: 556).
The appeals court disagreed and said that there was an obligation to inform
in instances of genetic disorders ˜where [given the nature of the technology]
the individual or group at risk is easily identi¬ed.™ It went on:
[T]he duty [is appropriately] seen as owed not only to the patient himself . . . [but]
extends beyond the interests of a patient to members of the immediate family of
the patient who may be adversely affected by a breach of that duty.
quoted by Dolgin 2000: 557.

Of the diverse cases considered by Dolgin, this she takes as the most radical.
It compels her to identify an emergent phenomenon, the ˜genetic family™.
Warning parents about a child™s genetic condition is one thing. That sim-
ply re¬‚ects social and legal understandings of the parent“child relationship,
72 KINSHIP, LAW AND THE UNEXPECTED


granting parents the right to know and decide what their child should know.
Otherwise, family members have as much right to con¬dentiality as anyone.
The reverse case67 not only removes the doctrine of patient con¬dentiality
among adults but also imposes an obligation on third parties to warn family
members about the medical condition of other family members. Dolgin sees
this both as undermining individual privacy and as treating family members as
an undifferentiated group.68 In my view, it could also be doing something else.
When knowledge is knowledge of genetic makeup, there is no option as
to the ensuing facts of relationship. But although information about origins
automatically becomes knowledge for the person, under other circumstances,
as here concerning the health of individual family members, it can revert to
information again. This is true insofar as it becomes similar to other kinds of
information about the world acquired from outside sources. Indeed, and this
is what Dolgin stresses, nothing else need be known about the relationship
between parent and child than the fact that the body of one held or holds
information that could be useful to the other.
A kinship system that has a propensity to base relatedness on what can be
known about people™s connections to one another was bound to be intensely
interested in the new certainties afforded by genetic testing. What could be
more concrete than heredity evident in every body cell? The genetic family,
that is, the family whose members are proved or presumed to be genetically
related, is at once held together by the substance people ascribe to genes and
by the information these genes supposedly contain. What is newly important
about the genetic tie is that it gives family members information about one
another.
The concreteness of the gene has the potential to displace other concretiv-
ities. Like ¬nding direct evidence of inspiration from within a literary work,
genes offer direct knowledge of heredity unmediated by parentage, a possi-
bility that has been appreciated for some time (Wexler 1992). Yet, in practice,
personal knowledge of a family™s genetic history is the route by which people
may start enquiring into their own susceptibilities or ¬nd out more about
af¬‚ictions already on them, and on the basis of personal knowledge persuade
doctors to give them ˜genetic tests™ (Finkler 2000). So why is Dolgin so struck
by the novel properties of what she calls the genetic family, at least as it is legally
constructed through cases such as Donna Safer™s? Relatives have become like
their genes; value lies in the information they carry, and what strikes her in
this regard is the substitutability of persons for one another. What is lost is
the concretivity of speci¬c relationships.
˜Genes suggest nothing about social relationships. They are simply data.
As such they neither represent nor demand particular moral links among the
73
EMERGENT PROPERTIES


people they describe™ (Dolgin 2000: 544, her emphasis). In fact, Dolgin has
also argued (personal communication) that the genetic family challenges the
presumption that the law can safeguard modern families “ so-called families of
choice “ as units of love, solidarity and lasting commitment. The construct of
the genetic family precludes choice and is indifferent to the character of family
life. Thus the genetic family is neither America™s ˜traditional™ family with its
hierarchy or community in which members ¬nd their place by reference to one
another (privacy belonged to the familial whole represented by its patriarchal
head [her term]) nor its ˜modern™ family consciously held together through
autonomous choice, where the unit of value was the unique individual (and
privacy accorded individual members within it). ˜Within the genetic family,
any unit (any person) or combination of units can exist without reference to
any others . . . [and] the unit of value . . . is the whole (itself variously de¬ned)
as well as the parts (insofar as they mirror the whole and each other)™ (Dolgin
2000: 558). As to privacy: information about any one member of the family is
merged with information about them all.69 In short:

The links connecting Donna to her father “ or any member of a genetic family to
any other “ are a-moral links that neither de¬ne nor depend upon the scope and
meaning of social relationships among the parties.
Dolgin 2000: 561.

This fractal vision assumes a family within which, as repositories of informa-
tion, persons are replicas of one another.70 Relatedness without relatives one
might say.71
You might think this is rather much to derive from a court case. However,
we do know something about contemporary kinship practices. And, among
many other possibilities, the genetic family is also being lived outside the
American courtroom. Indeed it may be re-lived as an extended family. The
positive aspect of having breast cancer was for one woman in Finkler™s (2000:
98) study her ˜relationship with the extended family. I™m stuck with this. It™s
nice to know that I™m back in the family.™ Genetic information that appears to
extract relatedness from relationships can equally encourage people to seek
out far ¬‚ung connections that may or may not be turned back into active
relationships. The point is that they do not have to be.
˜In contemporary society people have tended to become separated from
kin, if not from their immediate family, and family and kinship have taken on
an amorphous cast, for multiple reasons, the most obvious being geographic
dispersal™. Finkler™s (2000: 206) general observations on the American family
follow with the speci¬c comment that notions of genetic inheritance may move
it together again. She was reporting on a study of women either diagnosed as
74 KINSHIP, LAW AND THE UNEXPECTED


having a hereditary disease or with a (family) history of one and their search
for information from relatives with whom they might have long been out of
close contact.72 But the re-corporealization of the family, if I may call it that,73
comes with this astringent proviso:

interaction with family and kin may no longer be required in order for people
to recognize relatedness and connection. . . . To the sense that one forms part of a
family chie¬‚y because one shares the same genes, requiring no social participation
nor sense of responsibility to those who are related except to provide blood samples
for testing purposes, removes the moral context of family relations.
Finkler 2000: 206

More than this, Finkler™s expectation that people would blame their ances-
tors for passing on ˜faulty™ genes was upturned; the women she interviewed
said their families were not accountable for their af¬‚iction. Genes are amoral
entities.74 For there is a sense in which they are equally a-relational: ˜they
are another kind of thing, a thing-in-itself where no trope can be admitted™
(Haraway 1997: 134). The genes™ location in kinship becomes all the more
fascinating.
The routines of family life have usually meant that relationships without
responsibilities tend to fade away. A truism about knowledge can keep them in
view: the genes that carry the data informing you what you are at the very same
time comprise the mechanisms that have the potential to bring about what
you are. This looks like a reworking of an old theme, the constitutive nature of
kinship knowledge. But to ¬nd kinship knowledge in the gene is, so to speak,
to ¬nd it in itself. Knowledge and kinship become momentarily inseparable.
They are not analogues of one another; even more so than Herschel™s planets,
resemblance dissolves into an identity. Only an ˜extraneous™ factor could prise
them apart again. And Justice Kennard™s winkling out of the analogy between
conceivers of ideas and conceivers of children introduces just such a factor.
It was property ownership that showed them to be different: in this context,
property opens up new comparisons. Thus one can say, as a point of deliberate
comparison, that knowledge may be regarded as belonging to persons in the
same way as they might imagine their genes belonging to them.
Indeed, in the background to Donna Safer™s suit for the wrong done to
her by the withholding of genetic information lies increasing nervousness
about setting precedents for ownership, as Dolgin (2000: 550“1) describes.
Two issues, among many others, concern commentators in the United States.
On the one hand, legal instruments (such as statutes) that de¬ne genetic
information as the property of those to whom it pertains do so with concerns
about individual privacy in mind. On the other hand, the very idea that
75
EMERGENT PROPERTIES


people should claim property in genetic information is vigorously opposed by
sections of the biotechnology industry; they see the imposition of ownership
rules on genetic information as likely to require a record-keeping regime that
would inhibit research and provide a context for litigation, as well as interfere
with pro¬ts. Commentators have been as inventive as those concerned with
authorship.75 It has been proposed in the United States that ownership should
be replaced by the doctrine of informed consent. Informed consent rules grant
people the right to know about the uses to which others will put information
about their genes.
Another analogy follows. Like the division proposed in the United Kingdom
between license to publish and copyright, this could divide the owners of
rights to exploit the information (who would enjoy the economic bene¬t of,
say, developing technology) from the persons giving informed consent (who
would enjoy a kind of moral right, an identi¬cation with their genes and a
potential safeguard to their genetic privacy). For the latter, and it is a cultural
commonplace, what seems supremely at issue in gene information is that this
core bit of kinship should be accessed as knowledge for, belonging to and
about themselves.


i started with some observations about cultural resources.
Kinship practices and knowledge practices comprise ¬elds that have, since
early modern times, provided ¬gurative ammunition for each other. The com-
plex possibilities established by terms such as ˜conception™ had long been in
place, whereas others “ of which I have singled out ˜relation™ “ appear to have
been formed at this time. As far as the latter is concerned, and as far as the
evidence goes, one usage (in the context of knowledge, namely, conceptual re-
lations) had historical priority over the other (interpersonal relations). Recall,
again, that the term ˜relation™ already denoted intellectual practice “ narra-
tion, referring back to something, making a comparison “ before it became
applied to social ties and speci¬cally to ties of blood and marriage. This was
the period when the relation in its conceptual sense was to be given a long
chain of effects in new practices of knowledge-making.
Over time, analogies between domains may be submerged, revived and
submerged again. I ended by pointing to a recent social phenomenon, the
genetic family, which gives a new literalism to understandings about knowl-
edge, and where knowledge about persons also appears as knowledge about the
world. Kinship identity can be imagined as embodied in an informational code
and information can be imagined as a kinship substance. It is as though the
analogies between knowledge and kinship were compacted into one another.
76 KINSHIP, LAW AND THE UNEXPECTED


But that elision is brought into being by a concatenation of circumstances
that certainly do not exhaust everything one might want to say about either
knowledge or kinship. I noted that property started up fresh analogies. Let me
brie¬‚y go back to the beginning, and to a different fate for ideas about genetic
substance.
The U.S. women who hoped, in response to the advertisement, to sell their
eggs for $50,000 were prepared to convert one kind of substance (genetic ma-
terial) into another (money), and were not looking for any enduring sense of
connection. In another part of the same world, the United Kingdom, where by
law that conversion is not possible, egg donors do different kinds of conver-
sions. One potential conversion is into connections but connections created
outside a premise of kinship. Here new separations emerge as well. If one starts
not with kin, people whom one knows, but with people whom one does not
know, fresh scope for relational reasoning also emerges.
In meeting various egg donors in Britain, Konrad was struck by the ex-
tremely vague and amorphous way in which they talked about the connection
between donors and recipients; she suggests that it is out of the very condition
of anonymous diffuseness that people conceive relations of a kind (Konrad
1998: 652). ˜As ova substance is disseminated in multiple directions to multiple
numbers of recipients . . . donors and recipients are partaking collectively in
an exchange order of non-genealogical relatedness™ (1998: 655). In this process,
substance may be leached of ˜biological™ signi¬cance (the eggs are ˜not like a
physical thing that have come from my body™, quoted at 1998: 651). What signi-
¬es is being the origin of a process that another carries forward. Here women™s
conservation of privacy is important;76 they aim to help others whom they
do not know and largely do not want to know. The wish to assist ˜a someone™
contains the essence of their own agency, an extension of themselves that takes
effect across a disperse universe of unidenti¬ed others.
Konrad thus describes persons forming themselves through an extensional
relatedness via multiple persons who are separated from them by being neither
locatable nor nameable.77 Ova donors need effect no speci¬c transaction in
order to value their action. ˜What appears as the agency of these donors does
so as the value of multiple and untraceable circulations of persons and body
parts anonymized as (an)other™s action, as a generalized, diffuse relatedness™
(1998: 661). This relatedness may not have relatives, but it does have signifying
others. Women as would-be mothers: the donors see their situations (the
situations of both donors and recipients) as parallel.
Reaching out to an audience of multiple recipients sounds not so far re-
moved from the aspirations of authors. But unlike authorial identity, at least
of the scienti¬c kind, the basis for these particular donors™ relations with the
77
EMERGENT PROPERTIES


women they saw themselves as helping was that their accountability would
have no forward effect: their gesture contained its own de¬nition of respon-
sibility (to help a someone). The relations did not translate into interaction.
The eggs did not need a name.78 Hence it seemed possible to leave quite un-
de¬ned whether or not what they were giving away was something they felt
they owned. Konrad (1998: 651) quoted one among apparently several women
who said, ˜I don™t think the eggs are mine, they™re not something physical
that they™re my eggs. I don™t even think of them as eggs™. In other words, the
parallelism rests on what is also an unbridgeable gulf between them: in this
sense, donors and recipients are in a relation of analogy.
Many of the British women™s feelings have no doubt been echoed on the
American side (cf. Ragon´ 1994 on similar expressions in surrogacy arrange-
e
ments), and I am not labouring after a contrast. All I do is underline the
obvious, that there are always new domains with which to make connections
and thus new material for analogies.
In the prevailing (Euro-American) view, technology and its scienti¬c basis
has had a tremendously inventive impact in creating new material. It is in-
triguing, then, to realise the way in which some analogies have been locked
together for centuries. We cannot know out of the present ¬‚ux where kinship
and knowledge are going to end up; we can know something of past circum-
stances. The expansion of the term relation is a case in point. So I come back
to wanting to ask about kin connections between English-speakers in early
modern times. To what kinship practices did the new concept of relation
speak; what emergent problems or possibilities in social interaction might its
properties have addressed? From the perspective of kinship, anthropologically
speaking, the sciences of the time come to look rather interesting.


acknowledgements
Initially presented as the 2000 Robert and Maurine Rothschild Lecture to
the Department of History of Science, Harvard University, as ˜Emergent
properties: new technologies, new persons, new claims™. My thanks to the
Chair and to the Department both for their invitation and for their many
comments, especially Mario Biagioli and Peter Galison. ˜Emergent proper-
ties™ continues an essay on ˜The Relation™ (1995); I thank Annelise Riles for
insisting on my not forgetting it. The project owes much to many colleagues,
notably Debbora Battaglia, Barbara Bodenhorn, Janet Carsten, Jeanette Ed-
wards, Sarah Franklin, Frances Price, Hel´ na Ragon´ . I also record here the
e e
lasting stimulus of a Wenner Gren conference organised by Sarah Franklin
and Susan McKinnon on New Directions in Kinship to which parts of this were
78 KINSHIP, LAW AND THE UNEXPECTED


presented. Paul Connerton gave the earlier manuscript adroit scrutiny, as did
Susan Drucker-Brown, Joyce Evans and, on several points, Eric Hirsch and
Annelise Riles. My debts to Janet Dolgin and Mario Biagioli for papers not
published at the time should be evident. Finally Patricia Fara™s subsequent
comments have afforded a glimpse into discussions among historians that
could help locate some of the observations here.
part two




the arithmetic of ownership
Introduction: The Arithmetic of Ownership




I have been dealing with the impetus to kinship thinking
provided by technologies that have confronted people with unprece-
dented explictness about relations where knowledge holds a key role. The
people in question are heirs to the scienti¬c revolution. Habits of knowledge
already embedded (for Euro-Americans) in everyday practices are made visi-
ble, and then made visible again in regulation or legislation. That is what the
Human Genetics Commission (HGC) was so concerned about.
Now the HGC documents mentioned in Part I largely con¬ne children to
speci¬c chapters; children are treated ¬rst and foremost as minors, persons
too young to give independent consent to medical treatment. Yet in another
sense, the whole exercise is about children, that is, about offspring and what it
means to be heirs of another kind, to a genetic inheritance. There would much
less concern about human genetics if genetic information were not regarded
as revealing inherited characteristics. The HGC generalises this when it says
that one of the identifying features of genetic information is that it ˜is not
only information about the individual person, but about his or her biological
relations™ (HGC 2000: 7). However, although the text refers generally to issues
that arise for family members, it is only in the context of children as young
persons that it also deals explicitly with children as offspring.
Part II introduces materials from peoples who may be intensely interested
in their origins through their parents precisely because of the kind of offspring
that connection makes them into, a concern they carry all their life. In Euro-
American kinship thinking these days, the genetic source is a kind of tracer
that spells out “ counts out “ the respective contributions of different kinds
of parents and points to how many there are according to the nature of their
contributions (several generations may be involved). But once the parental
contributions have combined in the individual child, the child™s multiple
origins become a matter largely personal to it, largely private in the eyes of
81
82 KINSHIP, LAW AND THE UNEXPECTED


third parties outside the family. However, there are places, and my examples
come from the Paci¬c, where the multiplication of distinct parental origins
forms a set of crucial and enduring social resources. It matters how people
count the number and kinds of parents they have and even “ as recounted in
the ¬nal chapter “ the number of offspring.
Arithmetic of this kind turns out to be germane to the sources of creativity
that people can claim and to the way they assert claims over their own and
other people™s offspring. When these positions are found in the doubling
and quadrupling of what an older anthropology would have called kinship
roles, we begin to see why kinship ˜systems™ are more than just complicated
to describe; they are also uncovered as complex phenomena in themselves
(Mosko and Damon in press). From one point of view, the chapters in this
second part of the book simply illustrate the point. From another, they invite
us to see how we might use the tool described in Part I, the ability to handle
two kinds of relations at once, the duplex relation.1
The duplex works in a (Euro-American) world simultaneously perceptible
from different viewpoints. Switching back and forth between what appears
given and what appears constructed, or between categories and individu-
als, offers positions that anticipate each other. These are understood to be
viewpoints on one world.2 To adopt Riles™ striking phrase for the way inter-
nationalist networks and personal relationships sit side by side, the duplex
produces ˜the same form seen twice™ (Riles 2000: 69; also 115“6). The form
is that of the relation. Yet suppose we encountered not a doubled world but
worlds that could be counted in different ways? What of our duplex then?


conception by intent
Hairsbreadths in vocabulary seem to separate what could so easily seem similar
propositions. This is what Bamford (2004) found when she thought she knew
what Kamea people in the Papua New Guinea Highlands meant in asserting
that brothers and sisters were ˜one blood™. The idiom of blood sounds familiar.
Yet in truth it is not the vocabulary that discriminates but what of the world
it refers to. They were not talking about descent or physiology; the familiar
phrase refers to a vision of connection quite foreign to English-speakers, and
quite narrow, namely the shared experience of having once been ˜contained™
in a single woman™s womb. Again, I introduce a vignette to set the scene.
One of the questions Kamea ask themselves is why girls grow faster than
boys. They have a ready answer: because of the thoughts in the girls™ heads!
It is nothing less than their intention to marry that makes them mature. In a
wonderful reprise of imagining we have heard it all being followed by surprise
83
INTRODUCTION: THE ARITHMETIC OF OWNERSHIP


that actually we have not, ˜Women think only of men and getting married™,
she quotes Kamea saying; ˜this is what makes them grow quickly™ (Bamford
2004: 296). Intent to marry accompanies intent to conceive, an echo of the
(Amazonian) Wari™ tenet that to become kin is to desire kin (Vilaca 2002: ¸
352“3). In this case, intent is fuelled by the food that a prospective groom™s
family gives the family of his betrothed as a prelude to bridewealth. These
people ˜constitute her capacity to act as a “container” [become pregnant]
and, in doing so, engender her identity as a reproductively mature female™
(Bamford 2004: 297). Where, that is, who food comes from is quite critical:
it is the groom™s kin who in this way create the mother. The groom in turn is
made into a father whose constitutive act is to continue the ¬‚ow of food and
other gifts to his wife™s kin. The child may not come up in spots if he fails in
his duty but will indubitably remain stunted, all skin and bone.
Although the body registers the effects of people™s actions, one of Bamford™s
arguments is that the body is not a vehicle that renders substance, let alone
procreative substance, the linking material of kinship. That takes other forms.
For example, what is in their heads affects men too. Men prize their con-
nections with their fathers and fathers™ fathers and point to their inheritance
of land as proof. A man™s land claims depend crucially on knowledge, to be
precise knowledge of where his ancestors have cultivated, in order that he may
cultivate there (claims not activated through labour will eventually disappear).
In fact, men and women engender their own modes of relating, a woman™s
children (especially girls) tracing lateral ties through one-blood connections
and a man™s children (especially boys) seeing themselves as part of a lineal
succession. The modes are so divergent that the anthropologist refers to the
momentum of Kamea social life as an intersection of ˜two distinct relational
forms™ (Bamford 2004: 302).
In this vignette lies just the kind of material that would fuel continuing
Euro-American sterotypes about the personalised, face-to-face character of
small scale communities. I hope the observations about the conceptual role of
intent and the signi¬cance of knowledge will have offered at least preliminary
pause.


leaving ˜knowledge™ to one side
Scienti¬c knowledge gives Euro-Americans a way of being truthful about the
nature of the world. Indeed, it is literally a practice of veri¬cation. The ability
to occupy two positions at once, key to the relational tool I have introduced,
is no more than a tool or a facility, and exists alongside diverse attempts to
co-opt it. All we can say is that a social anthropology made possible by the way
84 KINSHIP, LAW AND THE UNEXPECTED


relationality is developed for the epistemological ends of investigation and
enquiry also ¬nds itself practising its own forms of relationality. Part I spelled
out anthropology™s dual interest in conceptual and interpersonal relations,
in investigating relations between concepts and relations between persons.
Anthropology does not have to summon a nature“culture divide (science™s
relation) in order to do so. But it does summon knowledge-making practices.
Spelling out the anthropological usefulness of the tool spurs me to re¬‚ect
on Part II and thus on Chapters Four to Six in a particular way. (And the rendi-
tion might draw the pieces together, even bestow some value on their original
independence.) At the outset, Chapter Four opens with a set of stereotypes
about Euro-Americans inhabiting technology where others “ here Paci¬c Is-
landers (from New Ireland) “ apparently inhabit communities. Chapter Six
ends with an internationalist example of just such thinking being applied to
new legislative attempts in the Paci¬c, which will in turn drive new political
and economic interests. This is knowledge put to work, I might add, a means
rather than an end.
In pressing its dual interests into a source of knowledge for itself, anthro-
pology may seemingly ¬nd arenas of social life that correspond to one or
other side of the duplex. One aspect of society appears a more apposite exem-
plar than another. So the two kinds of relations frequently emerge as though
they could be distributed across different forms of association, institutions,
societies even. That is one way in which Euro-American knowledge practices
work. They allocate values or insights or facilities to different places (other
people may strive to make them appear in the same place), rather as the ancient
Greeks distributed virtues and vices among the gods. Chapter Five offers an
example of Euro-American human rights discourse pitting categorical against
interpersonal relations. But if we gave ear to Gell™s (1999a: 35) admonishment,
that a woman is mother to a child not through her physical presence or acts
but as a term in a relation, we must take the view that persons do not exist
independently of concepts of them. We ought in turn to be astonished to ¬nd
kinship become associated with interpersonal relations as against the cate-
gorical or conceptual relations of society “ or of property, McKinnon (2001 )
reminds us “ in the anthropological tradition. I am afraid this is almost how
Chapter Four proceeds, using Euro-American intellectual property regimes
and Melanesian memorial practices as foils for one another. Why this might
be marginally tenable as a comparison emerges at the end of Chapter Six.
Between these forays into epistemology is a narrative of a different sort.
Science™s relation and, with its own reach, anthropology™s relation, afford
an immense resource to a society whose project rests on knowledge of the
world. I further remarked that if anthropology™s relation does not have to
85
INTRODUCTION: THE ARITHMETIC OF OWNERSHIP


summon a nature“culture divide, it does summon knowledge practices, by
which I meant the kind of knowledge-making that informs epistemology.3
But anthropology (among other routes to insight!) also forces us to observe
that not all projects are knowledge-projects in this sense. Does that bring it
up short? Or can anthropology use its tool to ask what a non-epistemic version
of the relation would look like?
There is nothing arcane about this: we have just encountered legislation
pressing into service a contrast between techno-industrial and communal
rights. The Model Law for the Paci¬c Islands (described in Chapter Six) is based
on an assumption about the inappropriateness of an intellectual property
rights (IPR) regime formed in a technology-conscious, industrial-political
economy for the kind of protection Paci¬c Islanders might seek for their
cultural resources, understood as their inheritance. It has required various
fact-¬nding missions. Importantly, the aim was not to understand more about
the nature of those Paci¬c Island communities; rather, it was to set up an
instrument that would give these communities formal recognition in the legal
process.
Here I draw on Riles™ (2003) work a second time. In thinking about differ-
ent genres of legal knowledge, she distinguishes between instruments whose
existence is de¬ned by the ends to which they are put and representations that
are to be analysed for their meanings and thus for what they express. In fact,
she argues that the law™s expressive genre makes objects such as ˜communities™
by producing signi¬cations about them; at the same time, in instrumental
genre, it creates documents and verdicts that do not represent but instantiate
(say) a community™s rights. In her words, the expressive and the instrumental
are sequential responses to one another. If we take thus take knowledge of
the world (epistemology) as representation, an end in itself, an immediate
analogy would suggest that non-epistemic knowledge will be found when
instrumental means come to the fore. As we shall see, this is not the only
conclusion.
My attention is drawn to the law, as a domain of Euro-American institu-
tional life, for the very reason that it treats knowledge as means as well as ends.
Any illumination it brings of the world may be displaced by its instrumental
value in setting up the protocols and boundaries that direct people™s actions.
Here, it is treating knowledge in a non-epistemic manner. Now the law™s great
strength is its deployment of categorical or conceptual relations. Thus IPR
regimes attempt to give categorical value to the products of people™s activities
through the concept of property. Frequently, however, it declares little interest
in interpersonal relations. People as subjects in law must be dealt with categor-
ically too, as in the conceptual de¬nition of who are entitled to call themselves
86 KINSHIP, LAW AND THE UNEXPECTED


members of a rights-holding community. More than that, the law insists on
a separation between legal (conceptual) and personal (interpersonal) mat-
ters. A human rights commentary on this very point is mentioned at the
end of Chapter Five, and a forceful criticism appears in Chapter Six from the
Australian legal writers whom we also met in the ¬rst. Indeed the separation,
on which the law insists, frequently puts the distinction in concrete terms that
¬nds very general resonance: Euro-Americans like to tell themselves that they
distinguish property from persons.
However, when it comes to relations, it is apparent that this non-
epistemic apprehension of knowledge deals with only part of the conceptual“
interpersonal duplex and indeed sets up barriers between the two kinds. In
this context, as its criticisms of human rights discourse shows, anthropology™s
relation can only work by bringing in evidence from beyond the law in a kind
of counter-balancing or compensatory fashion. The challenge is whether the
(anthropologists™) duplex as such, with both kinds of relations in view, can also
point to non-epistemic phenomena. Here it is fortuitous that my attention was
drawn to the law in the arena where it deals at once with knowledge and with
property, namely intellectual property rights. For the global dissemination of
IPR thinking, as culminates in protocols such as the Paci¬c Islands Model Law,
conveys in its wake all kinds of questions about persons and property. This
brings us face to face with cosmologies that include claims of considerable
interest to the law (property) but rest more widely on concepts of ownership.
Ownership is of passionate concern to Euro-Americans. Indeed the short
disquisition on ownership in Chapter Four could have been written with
Tarde in mind (see Chapter Two). But it is also a very useful translation, in
a way property is not, for certain ways in which people (including people
not in this tradition) perceive their claims over one another. Perhaps there
is a candidate here for non-epistemic relations of both kinds. The argument
requires bringing in non“Euro-American material, primarily from Melanesia.
Riles observes that expressive and instrumental forms of legal knowledge
act in concert with each other. But there is knowledge, including knowledge
available to the law, that lies beyond this pair. Ownership involves descriptions
and representations of the world yet is not itself a project of description or a
representation. And it would require quali¬cation (e.g., property ownership)
to render it instrumental. Ideas about ownership thus offer a possible axis for
comparison with ways of thought that lie outside the Enlightenment orbit “
and with those that lie within to which Enlightenment thinking can give only
clumsy guidance.
Pursuing ownership may thus throw light on the fact that, despite con-
stant assertions to the contrary, for Euro-Americans the question of whether
persons are property will not die. The conundrum, which the law seems to
87
INTRODUCTION: THE ARITHMETIC OF OWNERSHIP


have settled and yet not quite, unsettles assumed ways of knowing about the
world. For it unsettles axioms of agency (subject“object and person“thing)
derived from the relational nexus based on nature“culture, biology“society,
discovery“invention and so forth. Thus we ¬nd all over again, and the book
opened with this very concern, biotechnology raising in people™s minds new
questions about persons (including bodies and body parts) being owned.
In broaching Euro-American anxieties on this score with materials drawn
altogether from elsewhere, we encounter other interests that compel people to
combine and separate conceptual and interpersonal relations. This includes
an interest in propagation, that is, in creativity and procreation, where “ as
Kamea assume “ nothing is ¬nished at birth, and the determination of who
is an offspring of whom has to be worked upon. Kinship emerges as a prime
¬eld in which claims are made over persons as categories. If these are relations
in the ¬rst place neither expressive nor instrumental, they are non-epistemic
by virtue of the fact that kinds of knowledge cease to be a principal reference
point.


the arithmetic of ownership
Chapter Four dwells at some length on intellectual property rights and on the
kind of investment that Euro-American people make in their ownership. If
invention shows the creativity of individuals, it must be marked off from the
discovery of natural facts that were always there for anyone to come across.
One reason to reproduce this piece is that it immediately summons an
instrumental application of knowledge. The categorical distinction between
invention and discovery becomes far less signi¬cant as offering divergent
ways of verifying the nature of the world than it becomes, in IPR, a legal
tool for adjudicating between rights. Hirsch (2004: 184) highlights Rabinow™s
(1996b) famous question of a U.S. scientist, ˜Who invented PCR [polymerase
chain reaction]?™, to which the reply came, ˜Conception, development and
application are all scienti¬c issues “ invention is a question for the patent
lawyers™. This brings Euro-American moderns closer to their New Ireland
counterparts than the reverse. Moreover, what for a moment looks like a
contrast between the categorical distinctions of Euro-American patent law
and New Ireland rituals of procreation “ the one producing things out of
things, the other persons out of persons “ dissolves. Euro-Americans also aim
to produce creative scientists who can claim ownership, adding the magic of
individualism to invention, whereas New Irelanders aim to produce images
of persons as concepts or categories whose form they wish to own.
It is the anthropologist who puts these people and their ideas together. But
the anthropologist also hopes to recognise her duplex in the hands of others.
88 KINSHIP, LAW AND THE UNEXPECTED


The two-sided relation emerges in the way people try to make conceptual
artefacts, and speci¬cally categories, out of social relations. Here ˜people™ be-
comes inclusive, as the chapter stresses what lies in common between those of
a ˜Euro-American™ background and those who hail from ˜Melanesia™. Of course
they are not the same. New Ireland carvers think they are reproducing what
was always there, whereas Euro-American experimenters think they innovate.
Nonetheless, the extended ˜as if™ analogy that drives the chapter, ˜suppose a
type of New Ireland mortuary sculpture (Malanggan) were a patentable form
of technology™, is meant to bring these circumstances together.
Ownership pinpoints differences of interest (Hayden 2003). Patents are
about the ownership of rights to exploit an idea, whereas copyright is an
ownership right over the form in which ideas are expressed against the interests
that other people might have. What New Irelanders own, and to some extent
distribute to other persons, is the concept or image of a (particular) deceased
person. The image is a categorical rendering of the person that is capable
of being communicated to others, and thereby so to speak interpersonally
reworked. As we shall see, the rendering of the image (as a sculpture or mask
for example) involves knowledge in its execution and in people™s recognition of
its features. Perhaps we could call the knowledge non-epistemic. For it is clear
that Malanggan ˜knowledge™ is transmitted not in order for people to know
about ˜the world™ or improve upon it but in order to capture power (Wagner
1975), to confer title. The persuasive effect of the work is accomplished if it
simply summons a presence that is, aesthetically speaking, memorable.
Chapter One did not pause on the intriguing title of Davies and Naf¬ne™s
book, Are persons property? (2001 ). The same question is asked in Papua New
Guinea, and is answered by law and custom in different ways. Chapter Five,
taking us further along the path of ownership, thus opens with a court case
from Papua New Guinea concerning claims over a woman being given away, it
would seem, as though she were property. The image of her as bones (literally,
a skull) in a netbag, seems to compound the indignity. But this echo of Euro-
American interest in body parts leads us to unpack the Melanesian fabrication
along lines hinted in Chapter Four. The image of a person is an image of a
relationship.
An image rei¬es (categorises) a relationship by presenting the whole per-
son as seen from view of their claimant/relative. In this sense we can talk of
ownership: people may own the (whole) concept of the person as a relative.
The speci¬c relationship that they summon or elicit from the person is that
(whole) person in relation to them. We can also talk of relations or relation-
ships as the subject of politico-ritual interest much as the individual person
in Western jurisprudence is a subject in law. However, when they come to
take action, persons become agents in that they must choose which of several
89
INTRODUCTION: THE ARITHMETIC OF OWNERSHIP


potential relationships is to be acted upon. It is relationships, not knowledge,
people describe as compelling action. As a consequence, persons may appear
either as singular (whole, categorically available for possession by others) or
as plural (partible, an agent enmeshed in a multitude of agents).
Euro-American property thinking points to different premises. Ideas about
bodies and body parts suggest, by contrast, that it is possible to have property
in a part but not the whole. Other habits of thought are also contextualised,
such as the equation of kinship with tradition, and the antinomy tradition
and modernity. Chapter Four ended with a comment on whether people think
they are pursuing the new or the old: here we have legal rhetoric pitting the new
against the old. Finally, it is probably super¬‚uous to add that anthropology™s
relation is held in place by the way the narrative is constructed. The analysis
thus elucidates an interplay between categorical and interpersonal relations
in the manner in which a bride-to-be was regarded by her kin, and regarded
herself. Neither view substituted for the other.
Several themes found in earlier chapters are encountered again in Chap-
ter Six. It starts off a vein similar to Chapter Three with a comment on rhetoric,
in this case in terms of (culturally salient) issues that are brought to bear
on the law but are not part of it. It also echoes the discussion about ˜how
many™ authors make up an author. Where Chapter Four draws inspiration
from European legal thinking about patents, here copyright takes centre stage.
Above all it continues the argument of Chapter Five about categorical claims
on persons. In opening up the Malanggan case again, it pursues the issue of
non-epistemic relations, in both senses of non-epistemic (on the one hand a
type of knowledge and on the other hand not about knowledge at all). This
leads to the question voiced by Kalinoe and Simet, namely what if anything
is intellectual about the ownership of rights to designs or other intangibles
that could be glossed as knowledge? Intellectual may not be the right epithet
for immaterial effects such as images, and I query the signi¬cance of their
location in the mind.
Chapter Six is confrontational about one question of ownership. It does
not make up a query about whether persons can be property but takes the
query directly from the work of academic lawyers. A contrast presented by IPR
proves illuminating insofar as it emerges that Euro-American legal thinking
allows that persons can only own (rights over) what is embedded in an object
understood as a ˜thing™. This logic lies behind the arithmetic of ownership.
Melanesian people, and the examples are from areas where images of the
person or relationship are found in ornaments and emblems, compute claims
over the person in the form of categorical ownership. Here, ornaments, and
other emblems, such as land or paintings, may be regarded as the ˜bodies™
of those who thus ˜own™ him or her, as the body itself can. Persons are in
90 KINSHIP, LAW AND THE UNEXPECTED


this manner embodied in others. The Kamea mother-to-be, whose contours
are transformed as she consumes the bridewealth food (girls are fed copious
quantities) would ¬nd this familiar.
But then perhaps the North London mother would not ¬nd dissonant an
analogy that jumps out of this last chapter. The analogy is between her expe-
rience of her child as an extension both of herself and of the world and those
Euro-American views of property that see it as at once enhancing the person
and attaching him or her to this (same) world. Indeed, ¬ltering the discussion
of knowledge through property yields another dividend. It uncovers a con-
dition of subjectivity under which knowledge comes to have value as an end
rather than a means, that is, assumes an epistemological character: the duty
to know oneself.4 For it would be too narrow to read simple instrumental-
ism back into the mother™s compulsion to improve her parenting of her child
(even her relationship with it, to take Adrian Mole5 as our guide). The sci-
enti¬c impetus to improvement, including self-improvement, demands that
the world is understood ¬rst. Instrumental value can be found at any order of
injunction (you need to understand the world as it is because you never know
when you are going to need the knowledge; research is justi¬ed by future use
even if none is evident now, and so on). But this is only possible because the
(one) world is regarded as in¬nitely open to exploration. And that premise is
re-iterated over and again.
In what way do the two sides of the anthropology™s relation work for
Melanesian ownership? In the making of a conceptual link between kin, the
person (the particular relationship) becomes categorised, rei¬ed, claimable;
in the enactment claims are then re-embedded in a nexus of interpersonal
relationships with particular histories to them. Thus the Murik or Omie child
appears now with a singular identity and now with multiple identities. The
two aspects to relating are also found in the contrast between observing rules
and bestowing nurture. Together, the three chapters in Part II suggest how the
respective facilities in linking concepts and linking persons work off against
each other in situations where people are concerned with their origins, and
with the origins of powers as they conceptualise them. The details of the
way these Melanesian persons divide themselves from one another, where
Euro-American constructs suppose people adding themselves to one another,
throws some light on the kinds of calculations made about the ownership of
(pro)creative potential.


the anthropologists™ relation is a tool, a duplex fashioned by
the social world in which they (and everyone else) live, by the way people
91
INTRODUCTION: THE ARITHMETIC OF OWNERSHIP


switch between conceptual and interpersonal relations in their dealings with
one another. This fashioning lay behind their early forays into kinship sys-
tems long before relations between nature and culture became debated. And
this social world includes but goes beyond the Euro-American, and indeed
non“Euro-American kinship gave the tool much of its cutting edge.
Yet in anthropological hands, the duplex has a major limitation. It be-
comes an epistemological artefact. For all that it allows one to ask about non-
epistemic relations, its limitation is (obviously) the form that the duplex takes,
the relation. For although it is good at elucidating the other side of things,
especially in the case of societies outside the orbit of those developed by the
Enlightenment and the scienti¬c revolution, things indeed remain ˜other™, that
is, seen always in relation to the vantage point of the moment. This is the trick
of the Euro-American ˜one world™, and a ¬nal surprise that should be no sur-
prise. What happens to the duplex when anthropologists ¬nd they can count
worlds in different ways is, precisely, nothing. In short, the relation will not
disappear.
By this I mean that the duplex whose form is the relation translates every-
thing into itself. So it is impossible with this tool to comprehend different
worlds other than in relation to one another. The hard-won feminist message,
that male only makes sense in relation to female, was a signi¬cant challenge
to essentialism or positivism; but when it comes to the ˜two distinct relational
forms™ of Kamea gender, the limit is that we can only see these as correlates of
each other. In the way kin become embodied in kin, the viewpoints of son and
sister™s son, hazarded in Chapter Six as a counterpart to the multiple worlds
of human-animal interactions in Amazonia, appear already related.
The edge of this tool is simultaneously its power. Whatever one declares
about incommensurability or asymmetry, the elements of anthropological
narrative will re-arrange themselves in relation to one another. So it will
forever translate diverse and multiple worlds into versions of “ perspectives
on “ the same world. We just need to know that.


acknowledgement
My debt to Eduardo Viveiros de Castro should be evident throughout the
book, but no more so than here; Chapter Six provides some exempli¬cation.
His three nano-essays on kinship and magic (in prep.) take everything a notch
further.
4




The Patent and the Malanggan




The Malanggan exists at no speci¬c time or place, but moves through time
and place, like a thunderstorm.
Alfred Gell, 1998: 226



T he perception that technology is everywhere “ within and
around us “ comes from, among other places, the way modern people
describe themselves. They (moderns of the Euro-American sort) run together
all kinds of devices, examples of ingenuity and aids to living as though they had
a total existence more powerful than any particular contraption could hold
by itself. The conglomerate is glued together by two major assumptions. In
everyday parlance, ˜technology™ points to what is contemporary and innovative
about modernity; it also points to the creative inventiveness that brings itself
into being. A substantial corpus of intellectual property rights, for instance,
concerns itself with the producers of contraptions when the producers can
also show that they were the original innovators and inventors. I wish to
take advantage of the prevalent disourse of technology and the increasingly
prevalent discourse of intellectual property to describe a part of our world not
ordinarily brought within the range of these constructs. It creates an interesting
context for a question. What is strange about technology that Euro-Americans
should so insist on their familiarity with it? My toolkit is a couple of textbooks
on intellectual property rights (IPR), an art catalogue from an exhibition of
wooden sculptures and some anthropological re¬‚ections on enchantment.


introducing the body
New Ireland, off the coast of Papua New Guinea, is famous for its intricately
carved and coloured sculptures called Malanggan. Indeed the possibilities of
92
93
THE PATENT AND THE MALANGGAN


their travelling beyond these islands is written into the technology. They are
by and large both portable and durable, while in the minds of the producers
they are also supremely ephemeral. Malanggan are produced to be discarded.
Created with great care they may be displayed for no more than a few days,
hours even, before they have to be destroyed or thrown away. One mode of
destruction is to put them into the hands of European traders: they are one of
the most collectible types of art object from any ethnographic region of the
world.
Malanggan come from northern New Ireland where they circulate across
several distinct language groups.1 We may imagine them as bodies, although
the body appears in many different shapes and forms. The most familiar (most
portable) take on the shapes of human and animal beings, a mask, say, with the
general appearance of a head, made up of numerous smaller ¬gures, snakes,
birds, ¬sh, parrot wings.2 Its purpose is to contain the life force of a deceased
person; New Irelanders say it provides the deceased with ˜body™ or ˜skin™ now
that their other body no longer exists.3 Present bodies may at once substitute
for absent bodies (New Ireland exegesis) and (exegesis mine) may be presented
as composed of other bodies, as a head is composed of birds and ¬sh. It is an
open question whether we should see the smaller bodies as inside the larger or
as attached to its surface; from either perspective, visually speaking, images are
composed of images. So what kind of space for dwelling is being created here?
Imagining entities ˜containing™ entities is one way of making notions of
habitation and dwelling concrete. But of course such a strategy literalises4 the
basic phenomenological understanding that one cannot describe the world as
it appears to people without describing the character of people™s being, which
makes the world what it is.5 It follows that people are as much within it as the
world is within them. Alongside this formulation comes the question: rather
than being surprised that there is anything special about inhabiting technol-
ogy, why do Euro-Americans think technology requires special techniques of
habitation, and thus why in effect do they distance it from themselves?6 From
that point of view, different cultural perceptions of worlds within worlds start
to become interesting. This mask is not the dead person™s spirit, it is a skin or
body for that person™s spirit. The spirit is about to become an ancestor, and
the body is carved into a form recognisable as ancestral to the person™s clan. A
transient container for ancestral power to be, it is also contained by ancestral
power. So what is so special about the working of this power that it must
be placed within a body before it can be released? Why, like Euro-Americans
thinking about technology, do New Irelanders go to such lengths to separate
themselves “ the contained by contrast with container “ from what they see
as otherwise enveloping them? We shall come back to this.
94 KINSHIP, LAW AND THE UNEXPECTED


No doubt Euro-American observers would comment on the technical skill
that goes into making Malanggan.7 They might also be tempted to read the
animal motifs as referring to nature, apposite for Euro-American sensibili-
ties, which would place seemingly non-modern peoples closer to their envi-
ronment than themselves because they lack the intervening devices of high
technology. However, for New Irelanders that cannot be what the birds and
the ¬sh are about. These people would no more think that they were in nature
or nature in them8 than they would think there was some kind of opposition
between nature and the application of knowledge that Euro-Americans call
technology.


enchantment
Exactly this distinction is, on the other hand, thoroughly embedded in Euro-
American ways of thinking and is reinvented over and again, just as one of its
partners, the distinction between the social and the biological, is constantly
reinvented (Pottage 1998: 741)
Consider how ˜technology™ inhabits the English language. By pointing to a
substantive entity, it gathers numerous things together under the one rubric
so that English-speakers show to themselves the products of technology ev-
erywhere and distinguish them from other products. In common parlance, a
dishwasher is an artefact of a technological world in a way the kitchen sink
simply is not. Technology, in the culturally pervasive sense in which it inhabits
this language, does not just reify effort or production; it rei¬es, gives tangible
form to, a creativity regarded as rejuvenating. So technology embodies more
than the recognition of the techniques of human handiwork; it is evidence
of the continually creative mind that seeks to enlarge society™s capacities.9
Moreover, it mobilises agents whose efforts are socially extended, not just
as a tool extends human effort but as innovations substitute for old travails
(the dishwasher purportedly releasing the washer-upper for other ways of
spending time, an altogether friendlier image than Gell™s [1998] devastating
depiction of landmines as the dispersed agency of a military commander).
Put these together and we have enumerated some of the values attendant on
that particular kind of creativity Euro-Americans recognise in an invention.
For, of all the products of human creativity, inventions are de¬ned by the
power that technology has to give them life. Thinking about its foundation in
inventiveness, we might say that technology lives among us in an enchanted
state.
Here I take liberties with Gell™s (1999b: chapter 5) disquisition on the en-
chantment of technology. The enchantment of technology lies in ˜the power
95
THE PATENT AND THE MALANGGAN


that technical processes have of casting a spell over us™ (1999b: 163),10 the way
artefacts are construed as having come into being, and thus what makes us
marvel at the very ability to translate an idea into an invention and an in-
vention into a device that works. Power seems to end up in the artefacts
themselves, harnessing the human energy they augment.11 Above all, they are
physical manifestations of the technical virtuosity and creativity of the maker.
In an industrial world such makers may be known through trademarks that
weave their own spells (Coombe 1998), but they may equally well be lost in
anonymity. These nameless inventors could be named but, importantly, when
they are not known they can re¬‚ect back a diffuse or generalised aura of capac-
ity, enhancing people™s sense that they are all heirs to a collective creativity.12
Enchantment lies in a further dimension, the enlargement of social agency.
And here we encounter the technology of enchantment. An essential tech-
nique for creating an enchanted space is separation. I said that rather than
being surprised that there is anything special about inhabiting technology,
the interesting questions are about how one distances it. An obvious way is
by dividing technology from other aspects of life. The magico-puri¬catory
effect of conceptual separation (Latour 1993) suggests there is something spe-
cial about the inventiveness of human agency; access to technology is in turn
prized as extending such general capacities for the individual. How does the
puri¬catory divide work? If Technology inhabits the English language as a
substantive entity, it can also evoke other entities in opposition: sometimes
Society,13 sometimes Nature. When it is nature that is counterposed, technol-
ogy and society may roll together as jointly enlarging the sphere of human
endeavour at nature™s expense. Nature puts technology at a distance from its
own world. Thus whatever is categorised as nature simultaneously provides
a measure of the effectiveness of the technology; it re¬‚ects degrees of human
activity. Moreover, the magic of zero-sum logic makes measurement appear
to work automatically: the more human activity there is, the less untouched
nature or fewer natural processes there must be in the world. You can see it in
every medical advance or diminished bird count. Nature in this sense is the
ultimate envelope, containing technology and society within.
There are many ways in which English-speakers in particular and Euro-
Americans in general make all this obvious to themselves.14 I note one; Euro-
Americans may claim for their culture the special capacity of globalisation,
the ability that their information technology (IT) gives them to be in several
places at once,15 a spatially unmatched reach of ef¬cacy. The world shrinking
through communications and the retreat of untouched (natural) spaces are
measures of it. Euro-Americans may even describe themselves as inhabiting
a space enabled by technology that they alone are capable of making. In this
96 KINSHIP, LAW AND THE UNEXPECTED


authorial claim, by a kind of reverse logic that assumes people without the
adjuncts of IT must live in a less expanded world, they may assume that
other peoples do a different kind of inhabiting. Think of all their stereotypes
of societies as communities. Take, for example, the people of Papua New
Guinea. Perhaps Papua New Guineans have no idea of nature, but surely they
have ideas of community, localities that stay put and a kind of dwelling that
together yield stable identities, roots and all the rest of it?


return to new ireland “ 1
The stereotype would be misleading for New Ireland. This is not only because
of the frequency of contact with European navigators, traders and labour
recruiters over the past 150 to 200 years16 but also because they have long had
their own ways of moving around, and in a dimension at once spatial, temporal
and virtual. Living people are never in just one place. And any one person
lives within a stream of persons who move from place to place over time,
remembered in some detail. Here the techniques of constructing Malanggan
bodies start assuming the characteristics of a technology.
Malanggan do not only take the form of masks; they may be poles, friezes or
standing displays.17 Nor do they only appear at death, although all Malanggan
involve the embodiment of deceased persons.18 What is constant is that such
artefacts are brie¬‚y displayed for the duration of ceremonies “ days, hours “
before being deliberately disposed of. The life force of the dead person is then
released from its container. But, as Gell remarked (1998: 226), we might as
well say the life of the person, for what is held momentarily in one place is
an identity composed of the person™s associations with many others, whether
through the garden lands that they worked or through the groups into which
they and their relatives have married. Moreover, the identity in question is
not only of the deceased but also of the living owner of the Malanggan who
has had it made in a particular way. The owner will produce the designs to
which his membership in a clan or a localised unit of the clan entitles him.19
But designs also travel, just as people do.
Malanggan are manufactured in such a way as to suggest multiple identities.
Lincoln (1987) shows a Malanggan (catalogue number 40) composed of chick-
ens and a frigate bird holding the tail of a snake that undulates through stylised
foliage, as the catalogue description has it. In another constellation of elements
(catalogue number 13) one sees clearly distinguishable snakes and birds “ in-
cluding chickens “ and foliage garlands topped by a hornbill. Variation is
necessary if people are not to trespass on one another™s designs, and no two
¬gures are identical. In certain Malanggan traditions, acceptable variation may
97
THE PATENT AND THE MALANGGAN


involve as little as two or three centimetres of carving (Gunn 1987: 81). Motifs
travel between these ¬gures, then, and each new Malanggan is a composite of
elements drawn from other Malanggan. It is a place that gathers places from
elsewhere to itself, a person (to which Malangan are likened) who gathers the
interests of other persons into him- or herself.20
The social space being modelled here is one of movement over time and
distance.21 For at death a person™s attachments are still scattered in several
locations.

The gardens and plantations of the deceased, scattered here and there, are still in
production, their wealth is held by various exchange-partners, their houses are still
standing. . . . The process of making the carving coincides with the [subsequent]
process of reorganisation and adjustment. . . .
Gell 1998: 225

At the same time the social space is a virtual one in which the deceased is
enveloped in the larger persona of clan connections. The clan is an always
present environment.22 If, however, we say that there is a sense in which a
person inhabits a clan and the clan inhabits the person, then we must include
those relationships beyond the clan that clanship also brings. Everyone has
active relationships with other groups, and a living person™s actions are ori-
ented in diverse directions. Gathering these in, Malanggan have been spoken
of as bringing together an otherwise dispersed agency.23
The crucial point about the destruction of the mortuary Malanggan is that
the gathered agency of the deceased has then to be redispersed, whether to
revitalise old relationships in new form or to return the deceased™s powers in a
more general way to the clan.24 When a ¬gure is assembled, it may recapitulate
¬gures created for past clan members, then, containing elements that have
travelled down the generations, whereas other motifs may have travelled across
local groups so that elements also come from ¬gures originating elsewhere.25
The dimensions are of both time and space, and here we stumble across what
can only be called a technology of enchantment. For the ¬gures are constructed
in such a way as to bring together in one place simultaneous reference to the
past, present and future.
The moment when the Malanggan is discarded is also the moment at which
it or its components may be dispersed to others, the moment people from other
localities looking at the sculpture pay for the ability to reproduce the parts
of the designs at some time in the future. K¨ chler (1992: 101 “2) argues that
u
Malanggan designs anticipate this; they are planned with the future owners
in mind. The past has already become the future. So what is the technology
that weaves such enchantment?
98 KINSHIP, LAW AND THE UNEXPECTED


There are two distinct axes to Malaggan as carved ¬gures. Overlaying
the wooden three-dimensional framework with its carved motifs is a two-
dimensional surface integrated through the painted designs.

The carved planes refer to the exchange history of the sculptured image, or its
˜outer™ or ˜public™ identity, whereas the painted pattern signi¬es the present own-
ership of the image, or its ˜inner™ identity. . . . [These] together constitute what is
called the ˜skin™ (or tak) of the sculpture™.
K¨ chler 1992: 101
u

Strategic relationships between groups, above all through marriage, are cre-
ated by ties of ˜skin™. The container of the life force is also a map on which
participants in a Malanggan ceremony inscribe their anticipated alliances.
For the present owners already know who will want to make claims on the
designs, and the Malanggan is carved in such a way as to acknowledge the
owners-to-be.26 The carved container as a repository of social effectiveness
(Gell™s phrase) through time is then covered by the painted ˜inside™ of current
relationships now rendered on the ˜outside™. Enchantment is achieved through
the technique by which the form simultaneously extends into past and future
while holding it all at a single moment in time and space. It is not just that
the present encapsulates the past; the future is projected as a remembering
of the present. For while the new relationships move into operation straight
away, it will be many years before the motifs reappear in daylight; then they
will emerge as components dispersed among other Malanggan. They will be
brought to life in new sculptures looking back to this moment of acquisition.
The conjunction of paint and carving does that: each form carries the other
into and away from the present.
What the future owners receive is, they say, ˜knowledge™ of the Malanggan
(along with the re-arrangements of social relations that gives them land rights
and so forth). That knowledge makes them effective in the future, and this is
what turns Malanggan into a kind of technology. To use a phrase from Sykes
(2000; cf K¨ chler 1992: 101 also), they are transmitters or conduits, rather than
u
memorials or representations. They do not just work to make things work
or extend people™s reach; a Malanggan converts existing relationships into
virtual ones, matter into energy, and living into ancestral agency, heralding
the reversal of these transformations at a future stage in the reproductive cycle.
The technico-ritual process of carving and painting does not produce things as
we might think of artistic works; as a thing, the body is not allowed to remain in
existence. Rather, like technology, which combines knowledge, material form
and effectiveness, the reproduction of the Malanggan body makes it possible
to capture, condense and then release power back into the world.27
99
THE PATENT AND THE MALANGGAN


One might remark that this happens in social life all the time: we gather the
past into our various projects, and then ¬nd ways of seeking to in¬‚uence the
future. There is, however, a mode of presenting Euro-American technology
that weaves something of a comparable enchantment, enough to make people
feel that something momentous might be going on. This is where patents
come in.


patenting technology
If the very concept of technology creates a ¬eld of artefacts and expecta-
tions, the law “ as we encountered in Chapter One “ runs in parallel: it up-
holds as a generic category the industrial application of new ideas, so that all
such applications come to seem to be examples of human creativity.28 How?
Through patents. Patents are part of international intellectual property law,
which makes:

a vital contribution to mankind™s storehouse of technical information. Eighty
percent of the existing technical knowledge in the world is estimated to be available
in the patent literature, organized in an internationally recognized classi¬cation
system.
Tassy and Dambrine 1997: 196

The idea of being able to patent something has a double power. First, the
patenting procedure requires a body; the initating idea has to be manifest or
embodied in some artefact or device, a concrete invention that ˜contains™ the
idea, while what the patent protects is the idea itself, the creative impetus,
minimally an inventive step. Second, patents do not just recognise creativity
and originality; they transform creativity into usable knowledge by at once
attaching it to and detaching it from the inventor.
That transformative power appeals to the imagination. Indeed, intellec-
tual property systems as a whole have been written about in lyrical terms
as though they were part of a technology of enchantment. One writer refers
to genetic resources brought under the spell of intellectual property rights
(Khalil 1995: 232); another confessed that intellectual property has always
seemed ˜the Carmen of commercial law™ “ ˜a subject with charm, personality
and a force of character™ (Phillips in Phillips and Firth 1990: vii). And of all
IPR protocols, the patent is paradigmatic, ˜the form of intellectual property
par excellence™ (Bainbridge 1999: 7, my emphasis), for ˜intellectual property
law reserves a very special and powerful mode of protection for inventions™
(1999: 317). That mode is a property right that takes the form of monopoly:
the patent attaches the invention exclusively to the inventor. In doing so it
100 KINSHIP, LAW AND THE UNEXPECTED


also detaches it in the form of knowledge: the patent agreement compels the
inventor to yield information to the world about how to re-create the arte-
fact. Patents simultaneously produce private property and public(ly available)
information.29
As part and parcel of the industrialising project of the West, intellectual
property regimes nowadays exert international pressure on countries such as
Papua New Guinea currently considering the implementation of copyright
and patent legislation (in response to World Intellectual Property Organi-
sation [WIPO] and under the aegis of Trade-Related Aspects of Intellectual
Property Rights [TRIPS]). In Britain, speci¬cally, patents began taking their
present form at the time of the industrial revolution, with the aim among
others of encouraging the development of ideas leading to innovation. They
grant a monopoly over the bene¬ts to be gained from an invention, provided
it is new and provided the details are put in the public domain. The philoso-
phy is that inventions in the long run should contribute to a general good. In
the interim, however, bene¬t is chanelled through the patent holder who is at
liberty to control access to it for a set period (until the patent expires).
Any one invention must build on numerous others:30

all inventions can be regarded as being comprised of units of information [infor-
mation is composed of information]. Under this view, that which appears to our
eyes to be an ˜invention™, a creation of something new, is no more than a synthesis
[a composite] of known bits of information, not really an invention at all.31
Phillips and Firth 1990: 21, after Pendleton

Behind these many inventions are of course numerous others involved in the
long process of development. At the point of patenting, an invention becomes
a place or passage point at which diverse expertise, all the knowledge that
went into creating it, is gathered together and condensed into a single entity
(cf Strathern 1996). In turn, precisely because it must meet the speci¬cation
of being an industrially applicable device, it is through its technological ap-
plication that the effect of that expertise is extended and dispersed, typically
in the form of a manufactured product. Patenting procedures speed up this
gathering and dispersal.
I deliberately echo the New Ireland analysis. The fabrication of Malanggan
results in a form that condenses a whole history of interactions and in the
process makes it possible to channel clan powers “ the clan and its relation-
ships with others “ for future bene¬t; we might say that the patent results in
a form “ the potency of information made product “ through which tech-
nological power is also channelled to the future. Depending on the point in
the reproductive cycle, Malanggan transform living and ancestral agency, the
101
THE PATENT AND THE MALANGGAN


one into the other. Patents imply a more linear series of conversions, intangible
ideas into enforceable property rights. In the place of the enveloping clan with
its ancestral potency, at once inside and outside everyone, English-speakers
instead accord nature a similar regenerative and recursive potential. Indeed
patenting is part of a process that continues to regenerate nature as fast as
it appears to consume it. A kind of technology within technology, patents
thereby augment the enchantment of technology.
First, patents perpetuate the very concept of nature. If technology in gen-
eral creates nature as a world of materials waiting to be used or of natural
processes that carry on without human intervention, then the law creates a
domain of nature in a very speci¬c sense. For the general rationale is that
patents cannot apply to any interpretation or manipulation of natural pro-
cesses that does not require the speci¬c input of human know-how, resulting
in things that did not previously exist. Invention modi¬es nature; discovery
does not. So objections to patents may be dismissed as the result of ˜technical
misunderstandings which arise from a wilful refusal to understand the dif-
ference between discovery and invention™ (Pottage 1998: 750). The rubric is
that nature cannot be patented. Ipso facto, anything patentable is already out
of the realm of nature. If it can be used as an exclusionary mechanism, the
issue then becomes what does or does not count as nature. Many patents deal
with re¬nements of other inventions already in the made world, and there
are numerous grounds on which applications for patents may be refused, for
example over the degree of innovation that an inventor has brought to ma-
terials already worked upon or over how realistic industrial exploitation may
be. But excluding anything that exists ˜naturally™ is a touchstone of patent
law that has come into particular prominence with recent developments in
biotechnology. ˜[M]erely to ¬nd a hitherto unknown substance which exists
in nature is not to make an invention™ (Phillips and Firth 1990: 35). Conversely,
Bainbridge (1999: 368) quotes Justice Whitford in 1987 (apropos recombinant
DNA technology), ˜you cannot patent a discovery, but if on the basis of that
discovery you can tell people how it can be usefully employed than a patent
of invention may result™. Nature is rede¬ned, re-invented, over and again by
such exclusions.
Second, there is the matter of knowledge about the natural world. Instead

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