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of thinking of nature as an axiomatic measure of human endeavour, one may
regard it as a source of technological innovation added to as fast as it is taken
away. As fast as information is made product, new sources of information
about the world are uncovered. And they necessarily point to fresh under-
standings of natural elements or processes until these are transformed by
human ingenuity and lifted out of the natural realm.32 So nature continues
102 KINSHIP, LAW AND THE UNEXPECTED


to grow in scope. The more it grows, the more it can be consumed, and the
more it is consumed through a patent regime, the more knowledge about it
is likely to expand.
Yet why do Euro-Americans sometimes accuse scientists of ˜patenting
nature™? In biotechnology, the manifestation of nature they dwell on is ˜life
itself ™ (Franklin 2001 ). So along with objections to patenting human beings
or individuals go living things and life (Strathern 1999a: 171 “2; Strathern 1998:
744). Yet the very act of patenting seems to reaf¬rm a strong divide between
nature, which cannot be patented, and artefacts, which can. What could be
more explicit than the legal exclusion of plants or animal varieties or biological
processes (Walden 1995: 182, apropos the European Patent Convention 1973),
not to speak of the human body (in the EC 1998 Biotechnology Directive)?
So why do people talk as though nature, or life, were being patented? One
does not have to look very far for an answer. Patent confers ownership, and
there is a long history of Euro-American suspicion over what people do to
one another through asserting ownership.
Patent ownership confers the right to enjoy bene¬ts that arise from the
owner™s investment in the invention. As with all intellectual property rights,
the right is held as private property; although others can seek release of the
information (e.g., under license), the owner regulates access. But it is not
always clear what the property contains. An often voiced concern is about
what is being gathered into the patent. Let me note several distinct concerns.
The ¬rst concern has been touched on: truncating the network of scientists
behind the invention into those who claim the ¬nal inventive step that leads
to a patentable product. The second concern is the breadth of the patent:
how much is being claimed over future processes or products is a matter of
current controversy. The third concern is that there is too much modi¬cation
of what people see as the order of things, and it is here that appeals to nature
emerge.
When people claim that property ownership has inappropriately extracted
items from that world, they go behind the decision as to whether something is
an invention to query the process by which the invention came into being in the
¬rst place, back to the moment when all the elements were still unmodi¬ed
(cf Pottage 1998: 753). To assert that ˜nature™ is being ˜patented™ is to draw
up political or ethical lines in order to curb the extended agency of human
interference. Indeed, criticism of property rights may go hand in hand with
the disenchantment of technology; it is alleged that the separation between
technology and nature has been breached because patents that properly apply
to technology are now being applied to nature. The phrase patenting nature is
part of the politics of disenchantment.
103
THE PATENT AND THE MALANGGAN


The fourth concern is a very old one. To assert ownership by way of patent
inevitably engages with a long Euro-American debate over private property,
historically regarded as carved out of what would otherwise be available to
all. This may be nature or it may be other human artefacts and knowledge.
Critics of current practices have reintroduced the language of enclosing the
commons. Phillips and Firth (1990: 21 “2) continue their comment on each
invention as a permutation of previous inventions as follows:

Correlative to this view, is the asumption that, if each unit of information is a com-
munity resource, part of the common heritage of mankind, no edi¬ce constructed
from such communal blocks should be able to constitute a privately-owned inven-
tion. [They then add:] The modern intellectual property lawyer ¬nds it dif¬cult
to accept this, unless he can persuade himself that there is no difference between
a palace and the pile of bricks from which it is built.

What is claimed for society (common heritage) is then claimed for nature:

[T]he patentability of discoveries would result in man™s expropriation of nature
itself, and it is dif¬cult to justify the expropriation by one of what is already the
natural legacy of all.
Phillips and Firth 1990: 35

Expropriation implies an exclusion of, the owner™s separation from, others.
Ownership works as a kind of extended agency, an extension of a person™s
capacity, personal or corporate, with a reach as far as products will travel. If
what is owned has the legal character of private property, then technology, in
the legal form of a patent as the right to exploit it, is so to speak folded within
the individual owner.
This is textbook stuff. Here I have a suggestion. In relation to ˜inhabiting™,
the concept of ˜containment™ conveys the sense in which parts of our social lives
seem to be lived within others, ¬gures within ¬gures, knowledge composed of
(other) knowledge. With the in¬‚ection of dwelling, it implies more than the
kind of ¬t with the world that makes it comfortable and familiar; it points to
an existential orientation toward it. Euro-Americans take momentary refuge
in nature or in technology, either of which seems at once around and part
of them, or else in all the dwelling places afforded by notions of community
or locality. But there is a further candidate for habitation, nothing to do
with environment or community, that allows Euro-Americans to dwell in
a thoroughly taken-for-granted world, an envelope that allows them to live
within themselves.
I take my candidate from the way self-acknowledged Euro-American mod-
erns become attached to a world they see full of useful and beautiful things. It
104 KINSHIP, LAW AND THE UNEXPECTED


is a world they imagine that people desire to appropriate, whether they think
of private individuals in exclusive possession of property or of the common
people in open possession of its bounty. Ownership. What is not owned exists
either to be owned as some future resource not yet exploited or else is no-
tionally owned by humankind in general, including the generations to come.
Ownership envelops all. Is ownership a mode of habitation? The manner
in which Euro-Americans attach things to themselves makes them at home
in the world “ whether contained by technology or by nature “ from which they
think of such things as coming. Ownership is a kind of second skin to these
two containers, a world through which people are in¬nitely interconnected
through the inclusions and exclusions of property relations, and in which pos-
session is taken to be at once a natural drive and the just reward of creativity.
Property “ in rights, in pro¬ts “ seems comfortably within everyone™s grasp,
subject only to the limitations of unequal endowment.
It would, I think, be an enchanted world, created not least by the magico-
puri¬catory divide at the heart of property relations, the cultural sleight of
hand that suggests that just as things are intrinsically separate from persons
so too things intrisically separate persons from one another. Principles of
ownership carry their own exclusions and separations. The stereotype is that
we would have to go to other cultures to escape that particular enchantment.


return to new ireland “ 2
For a third time, the stereotype would be misleading for New Ireland. There
is much that can be translated as ownership.
We saw that agency or energy located in numerous social places had to be
gathered into one place, focused in the carved and painted Malanggan ¬gures
and then redispersed. However, that is only half of the story. Every gathering
together, every recombining of motifs out of motifs, involves a speci¬c claim
of title. It is not possible to incorporate designs without permission. That is
because only certain people have the right to use the knowledge associated
with particular Malanggan.
On the one hand, the authorisation to display the image is vested exclusively
in the sponsoring clan or local group; on the other hand, expertise is required to
carve the ¬gure, and owners of Malanggan must commission an expert carver.
Sponsors own not so much rights to the designs as rights to their reproduction,
and the subjects of reproduction are images retained as memories. It is the
right to make bodies, to make material and to give physical form to images, that
is transferred across the generations and across groups. Transfer is sealed by
payment. Now if Malanggan can be considered technology, in the captivating
105
THE PATENT AND THE MALANGGAN


effect of the skill required to reproduce the ¬gure at all, we might be tempted to
see the enchantment of technology. The skill in question is as much intellectual
as manual and requires the work of both owner and carver.
When Malanggan are displayed, the new owner takes away the sighting of
the form to which he has acquired rights and which he then holds as a memory
for what may be as long as a generation. This means that the would-be sponsor
(the owner) of a new Malanggan carving will have glimpsed the image long
before it is to be reproduced.33 He must now describe the image in detail to
an expert carver, who in turn conceives the new form in his own mind, an
inspiration assisted by magic or by dreaming. What is dazzling to the Euro-
American is the ability of the carver to produce a form from a description
held by another person (the owner) as the memory of a Malanggan seen
years earlier. What one suspects34 is dazzling to New Irelanders is the way the
resulting body emerges from two bodies.
I earlier asked why New Irelanders distance themselves from what they
regard as enveloping them. Perhaps one answer lies in the enchantment of
this particular technology, the way artefacts are construed as having come
into being. Reproduction requires two persons, and they have to be socially
distinct. The techniques by which new Malanggan come into being work
only because of the successful joining of quite separate efforts (the work of
remembering and the work of carving).35 Indeed, it is important that the form
emerging from the clan repertoire is only like its original in some respects;
axiomatically, Malanggan do not duplicate one another (cf K¨ chler 1987:
u
244), any more than human offspring duplicate one or other parent alone.
(We might say that the ˜ancestral™ Malanggan body is the child™s image of the
parent body.) What is contained within the ˜skin™ (body) of the Malanggan
must be kept distinct from the container: social difference is conserved at the
very point at which the deceased also merges with the ancestors. Similarly,
between sponsor and carver, it has to be the work of joining that makes the
reproduction a unique and amazing process. Work is perceived to be at the
heart of Malanggan (Sykes personal communication; Lincoln 1987: 33).
Now the mode in which these rights are claimed has long prompted compar-
isons with intellectual property and speci¬cally with copyright. Some ¬gures
are made with an outstretched tongue said to have the function of ˜threatening
all offenders against the owner™s copyright™ (Heintze 1987: 53). ˜Copyright™ is
of course the ethnographer™s gloss.
One could therefore think of the whole ¬gure as an artistic work subject
to copyright, a kind of literary text replete with (permitted) quotations from
other texts but itself an original form of expression. However, let us take the
analogy step by step. What is gained is the right to reproduce the design. And
106 KINSHIP, LAW AND THE UNEXPECTED


what circulate in transactions are ˜not objects, but the images they embody™
(K¨ chler 1988: 629; Harrison 1992: 234).36 At issue is not the identical text, the
u
form of expression that is key to Euro-American concepts of copyright, but
the idea behind it:

For when the license [for a Malanggan] is sold, not the ¬gure itself but the de-
scription of the form and associated rites are made available to the purchaser.
Bodrogi 1987: 21, my emphasis

When a Malanggan appears, others may challenge the owner™s right to repro-
duce a particular design, and Gunn (1987: 81, 83) speaks of people having to
˜defend copyright held by another subclan™ or of the process of transference
being subject to public inspection for ˜breaches of copyright™. Yet the challenge
comes from those who hold a memory or idea of the image they claim is theirs,
not from being able to compare its expression or realisation in material form.
The carving no longer exists. Moreover, the owner of the supposed copyright
cannot necessarily give permission for others to make copies. He can dispose
of the copyright, like property, but in many circumstances another can only
make a copy by acquiring the copyright itself. And then:

With the sale of the copyright the earlier owner is deprived of all rights to make
the type [now] sold.37
Bodrogi 1987: 21

Finally, the design is not copied as such; rather, it is lodged in the memory as an
image to be recalled at a later date.38 Indeed, in respect of certain elements of
the Malanggan, we may note that claimants™ rights exist only until the moment
of their realisation in material form, the point at which they are transferred
to others; people own them most securely as memories still to be realised.
Reproduced, not replicated: the analogy with copyright does not seem to go
far enough.
If we did indeed think of the Malanggan not only as art or text but also as
a piece of technology, then we might refer to the rights in question as being
guaranteed by something closer to a patent.39 Some differences are clear. A
patent grants a monopoly to exploit an idea (embodied in some artefact),
and is held by one owner at a time; others obtain the idea or artefact through
license or purchase. By contrast, use of Malanggan is (usually) effected only
by those who simultaneously own the ˜patent™ rights insofar as one cannot
display the product, the embodied image, without having acquired ownership
of the idea as well. However, in one respect a Malanggan bears resemblance
to an invention under patent.
107
THE PATENT AND THE MALANGGAN


Such an invention gathers together expertise (all the knowledge that went
into making it) and then through its application disperses the effect of that
expertise (through products widely available). And that gathering together is
done for a set period: a patent is made to expire.40 In the interim, it has con-
densed multiple agencies into itself, reproducing them in the names of the new
owners. Moreover, the unique item with its particular combination of motifs
is the effective materialisation essential for transfer to the next generation; the
conceptual template held by the heirs is not extinguished but neither can it be
activated without being embodied in a speci¬c Malanggan form. Of course in
the case of expiring patents it is the owner™s rights that are extinguished after
so many years, and the invention goes on being used, whereas New Irelanders
extinguish the particular invention (the individual Malanggan), and the rights
go on being conserved. Nonetheless, we might conclude that Malanggan not
only are like a technology in some of their effects but also are like the very
patents taken out to protect the application of technology, at once a description
of transferable rights and a speci¬cation of how they are to be materialised.
Patent applications in the United Kingdom run at some 27 000 a year, per-
haps 7 000 of these being granted, with some 180000 renewals (Bainbridge
1999: 336“7). This gives the order of recent patents, with upward of some two
million, it has been calculated, lying expired in the Patent Of¬ce.41 The reason
Malanggan are one of the best represented and collectible type of art object,
some 5 000 now housed within the museums of the world,42 is precisely be-
cause their function as unique habitations for energy and power will have long
expired. The rights to reproduction remain active until the image has been
properly reproduced, but then it (the image) comes to lodge in a new version
whose powers are animated by a new generation.43 This is technology in a
state of perpetual transferral.


new irelanders, says sykes (2000), claim malanggan as a
distinctive feature of their modern and customary cultural life. Imperfect
as the analogy with technology is, it draws attention to the way in which
artefacts such as Malanggan work their effects on people and to the knowl-
edge that is held to be embedded within them. And impossible as the analogy
with patenting is, the comparison perhaps enables us to grasp some of the
imaginative and ideological potential of Euro-American intellectual property
concepts, one of the many forms modern rationalities take (Rabinow 1996a).
The recombination of elements of information, the amalgamation of new
and existing forms, the minute variations that may be suf¬cient to demonstrate
crucial intervention, channelling past knowledge to future effect, a limited
108 KINSHIP, LAW AND THE UNEXPECTED


period of ef¬cacy: all this could as well describe a Malanggan as it describes
a patent. Yet there is a gulf of ideological proportions between them. Mod-
erns of New Ireland persuasion think of Malanggan neither as inventions
(application of technology),44 nor as describing the original inventive step
(patents). Indeed, individuals are only regarded as producing original images
under certain somewhat risky circumstances. The overriding doctrine is that
artefacts are acquired not created; therefore, the routes of acquisition are a
crucial source of their value. Concomitantly, it is not the protection of new
forms that New Ireland people seek but the right to reproduce what others
have reproduced before them. This representation of their efforts is as much
a misrepresention (Harrison 2000) as are the equally dogmatic assertions by
English-speakers of originality and innovation as the basis of technological
advance. The Euro-American doctrine is encapsulated in the very notion of
patent rights. These point to inventions as artefacts created not acquired, and
what is protected is not a right to reproduce the original invention but the
right to prevent others from freely reproducing the capacity that the invention
has created.
We have seen how the concept of nature upholds this legal doctrine; it
underwrites the distinction between discovery (of things in nature) and in-
vention (abstracted from nature through human ingenuity). And it may do
so to the point of absurdity. In talking about attempts to patent a cell line
and similar biotechnological innovations, Pottage criticises the way this ˜ba-
nal doctrinal distinction™ (1998: 750) is used to put down political or ethical
objections. His own objections to the ˜endless permutations of “nature” and
“artefact”™ (1998: 753) are twofold. First, the distinctions are brought in to
truncate arguments concerning the political or ethical implications of what is
or is not commodi¬able. ˜Political oppositions are not a function of [cannot
be dismissed as] doctrinal confusion™ (1998: 753). Legal doctrine takes, as the
basis for decision-making, linguistic and categorical distinctions rather than
what is happening to whatever we might want to call nature. Second, there
are situations in which it is increasingly obscure just how an invention is to be
identi¬ed. ˜[T]he production of an immortal cell line demands little more of
the “inventor” than the mastery of a routine scienti¬c technique. The “inven-
tive” process seems merely to transcribe a natural code into a new medium™
(1998: 752, note omitted). In his view, biotechnology has rendered transpar-
ent or implausible the very distinctions that bind the patent law upon which
biotechnology so crucially relies (1998: 745).
The question of ˜man™s expropriation of nature . . . [as] expropriation by
one of what is already the natural legacy of all™ (Phillips and Firth 1990: 35)
is open to debate. But there is a further question in the way the problem is
109
THE PATENT AND THE MALANGGAN


taken care of in the distinction between technology and nature, invention
and discovery, and the rest; patent law in effect de¬nes what has already
been expropriated, that is, is no longer nature. Now New Irelanders remake
people out of people, so to speak, bodies out of bodies, and the competition
is over claims to ancestral power, that is, making claims to what is already
speci¬cally identi¬ed as theirs. Patent-holders, on the other hand, deal with
people in terms of property claims, and instead make their devices out of
things, materials and knowledge ultimately part of a ˜commons™ belonging to
everyone and no one.
When they think of the commons as a natural resource, Euro-Americans
may imagine it as a domain free from people™s inventiveness, and ideally
perhaps even empty of people altogether; at the same time when they think
of dwelling, this is the location they often bring to mind, and they would
also like to think of the commons as a world that people ˜naturally™ possess
and in which people ¬nd their ˜natural™ habititation. It is this ¬‚exibility, we
could say, making people apparently now relevant and now not relevant to
one™s perspective (on the world) that has been so enabling of technological
innovation in the West (Eric Hirsch personal communication). But I have
deliberately ended with an image of nature as a resource “ the commons “
that points to human interest in it. Is not part of our feeling comfortable
with technology, dwelling ˜with™ it, the fact that it gives us things we can own
and thus take possession of for ourselves? Disquiet when those proprietory
extensions of the person seem inappropriate is part of being at home with the
techniques and relations of ownership.
New Irelanders have been on the receiving end not just of colonial exports
or of intellectual property rights legislation but of the very divide between
technology and inhabiting that the convenors of a conference in 2000 called
Inhabiting Technology have problematised. The New Irelanders serve as a re-
minder of the political and ethical debates that surround resource extraction,
the extension of property regimes and so forth. But too often a Euro-American
will re-invent the divide between technology and inhabiting by investing such
peoples with the qualities that his or her own ideas about technology would
give to nature. I have tried instead to make these people and their ideas present
in a different way, by emphasing the very many points on which we might
draw parallels in order to heighten those where we cannot.


acknowledgements
First presented at a conference organised in 2000 by Mike Featherstone, Scott
Lash and Philip Dodd jointly for the Institute of Contemporary Arts (ICA),
110 KINSHIP, LAW AND THE UNEXPECTED


in the journal Theory, Culture and Society, and the U.K. Economic and Social
Research Council (ESRC) Virtual Society? programme, called Inhabiting Tech-
nology, at the Institute of Contemporary Arts, London. It was written in re-
sponse to the conference theme of how we ˜dwell in™ technology. It is not
original. I bring together the expertise of several anthropologists dispersed
over a range of studies, especially Susanne K¨ chler on whose work I draw
u
extensively, although probably rather lopsidedly (see her subsequent volume,
2002), and my portrait of Malanggan is a composite of features from different
ethnographic areas, following only one track among many analytical possi-
bilities. Principal thanks are due to Karen Sykes and the results of her own
investigations in New Ireland. I am very grateful for permission to draw on
unpublished material (I follow Sykes™ spelling). Terence Hay-Edie, who had
been exploring other enchanted worlds, is also due thanks. The stimulus of the
conference at the ICA is self-evident; thanks too to members of the Summer
Institute on World Arts at the University of East Anglia for several comments.
5




Losing (out on) Intellectual Resources




When their ˜transplant™ was terminated, the ˜root people™ on one side felt
that the other side had violated their divine relationship
John Muke, paraphrased in Dorney 1997




I

L
˜ iving men or women should not be allowed to be dealt with
as [a] part of compensation payment under any circumstances™. The
custom is ˜repugnant to the general principles of humanity™ (PNGLR 1997:
150, 151). Thus said Judge Injia in handing down his verdict on, as it was called in
the local headlines, the ˜Compo girl case™. This was at the Mt. Hagen National
Court in 1997; it concerned people from the Minj part of the Wahgi region,
in the Western Highlands of Papua New Guinea.1
The case offers an interesting comment on the role played by legal technique
in the fabrication of persons and things. In some respects it rehearses issues
that have long troubled anthropologists describing marriage arrangements.
They include the extent to which an equation between women and wealth ren-
ders women ˜thing™-like, the locus classicus being bridewealth (bride-price)
payments, which feeds an epistemological anxiety, the extent to which an-
thropological analysis in turn treats its subjects as less than subjects, where
the locus classicus is ˜the exchange of women™.2 With these issues in the back-
ground, I note the role played in this case by the reference to human rights.
That role assisted in the fabrication of persons;3 the antithesis between persons
and things was never far away.
This is an instance in which it might assist analysis to project a Euro-
American distinction between person and thing onto the Papua New Guinean
111
112 KINSHIP, LAW AND THE UNEXPECTED


material, although the techniques of fabrication will be of a politico-ritual
rather than legal nature, and the distinction does not work quite as Euro-
Americans might expect. It will at least allow comparison between the ref-
erence to human rights and certain Papua New Guinean formulations. The
vernacular I evoke here is common to ways of thinking and acting found in
many parts of the country, including Minj. Rendering this material as like
rather than unlike the kinds of Euro-American assumptions that lie behind
human rights language serves to highlight a signi¬cant resource. This is an
intellectual resource, modes of thinking that help us think. It would be a pity
to lose possible ways of thinking about the manner in which people make
claims on others simply because vernaculars seem local and strange.


The Terms of an Agreement
A compensation payment for a man™s death was agreed between clans from
two Minj tribal groups, Tangilka and Konumbuka. Muke belonged to the same
Tangilka patriclan as the dead man, Willingal, and was later called on to give
evidence. Willingal had been killed by police; he was said to have been the
bodyguard of a wanted man, a fact disputed by his kin. The ¬nal settlement
comprised 24 pigs, K20 000 money, and a woman who was to be sent to the
aggrieved clan in marriage.4 The aggrieved in this case were not the clan of the
dead man (from Tangilka); on the contrary, it is they who were being asked
for compensation. The demands came from his mother™s clan in Konumbuka.
The rationale was that the deceased™s patriclan had not protected their ˜child™
(sister™s child) properly. This had two components, a particular accusation
that they had been indirectly responsible by causing the police to come onto
their land, and the more general point that they had failed in their care of him.
It was a loss to both sets of kin, each of whom had a duty of care that, although
carried out in different ways, they owed the other. The two sides came to an
agreement and a daughter of Willingal, Miriam, emerged as the obvious bride
for the Konumbuka.
The settlement would have gone ahead but for a legal intervention. A human
rights NGO (non-governmental organisation) based in Port Moresby, Indi-
vidual and Community Rights Advocacy Forum (ICRAF), sought orders from
the court to enforce Miriam™s constitutional rights.5 Gewertz and Errington
(1999: 125) sum up ICRAF™s grounds: ˜regardless of local custom, trading in
women could not be allowed because it was violation of fundamental hu-
man rights™. As reported in the national press (Post Courier 11 February 1997;
National 12 February 1997), Justice Injia ordered the two tribes to refrain
from enforcing their custom. He commented on the sometimes too-hasty
113
LOSING (OUT ON) INTELLECTUAL RESOURCES


evaluation of customs on the part of external agencies, including modern
courts, but observed that the issue was a constitutional one in another sense, in-
volving the precedence of national law over customary practices. It is Gewertz
and Errington™s (1999: 133) view that the judge was quite self-conscious about
the role played by the professional ˜middle class™ in promoting the reasonable-
ness of modern morality.
Chapter Four referred to New Ireland modernity; here we can listen in on a
conversation about how to be modern, and the lineaments we have met before
(Chapter One). Modern morality and its entailments provided the terms of a
lively debate that we have, remarkably, on record. The conversation took place
at the Mt. Hagen Lodge hotel on the eve of the preliminary court hearing the
year before (Gewertz and Errington 1999: 123). Apart from the two anthropol-
ogists, the others were professional Papua New Guineans: the lawyer employed
by ICRAF to argue for Miriam™s protective custody, and the priest into whose
care the lawyer hoped she would be placed, as well as the hotel proprietor, who
had her own strong views, and her nephew. Talk turned to the kind of person
modern Papua New Guineans should be. Above all these were imagined as
agents, subjects and individuals who could and should exercise choice.
The small party was divided over the question of what kind of person was
appropriately bound by what sort of standard, standards ˜based on ancestral
precedent or on a more universalistic vision of human rights™ (1999: 133). The
lawyer and priest ceded that many customs were ˜good™ but deplored ˜bad™
customs that went against human rights and, in the priest™s view, against
Christian teaching; the proprietor and her nephew thought that such com-
pensation payments were for the general good of the community and helped
keep peace. Traditional culture was ˜needed™ by Papua New Guineans in poor
rural areas and urban squatter settlements; it gave people something mean-
ingful in their lives. The conversation included a discussion of bridewealth,
which the propietor defended as cementing matches that brought bene¬ts to
clans, whereas her nephew observed that with money as the medium of ex-
change women became like commodities (1999: 127). All took the modernist
view that one could choose between customs, so that rational evaluation by
the ˜educated and modern™ made it possible to apply human rights issues to a
local context. Miriam in turn should not be constrained by customs that took
away her own ability to choose, not only choice of marriage partner6 but of
future education and lifestyle. Her exercise of agency was at stake.
The cultural rationale for the bene¬ts to clans was spelled out in the af¬davit
that Muke prepared. Women are regarded as moving along the same channels
through which wealth ¬‚ows. They create ties between groups because the
children they bear become consanguineal connections for the descendants. At
114 KINSHIP, LAW AND THE UNEXPECTED


the same time their work and fertility bring bene¬t primarily to the husband™s
rather than their own (father™s, brother™s) clan. It is appropriate that payments
include ˜compensation™ for the ˜loss™ that the woman™s natal clan suffers. The
spouse™s clan does not take away something that the natal clan could have
enjoyed for themselves “ only when female reproductive powers are transferred
in marriage can the natal clan enjoy them, that is, when they are realised
through the offspring the woman bears “ but the ongoing ¬‚ow of nurture and
blessing through gifts, and ancestral (spiritual) support, must be recognised.
So one clan will indemnify another ¬rst for a bride and then for the children
the woman bears. When blood is shed, these ties are severed, and that in itself
is an injury. The patrilineal kin who had been the ones to bene¬t immediately
from the deceased™s existence must ¬nd recompense for the maternal kin,
who had vicariously enjoyed the embodiment of their fertility in the member
of another clan. The aggrieved Konombuka demanded that a return for the
original woman, an ancestress of Willingal, be sent in back in marriage; Miriam
was to be part of a ˜head payment™ (mortuary gifts owed to maternal kin).
The judge could see no objection to payment as such, and said that cus-
tomary compensation practices involving ˜money, pigs and other valuable
personal items™, that is things, were no problem; however, when the payment
takes ˜the form of young single women™, that is a person, that is another matter
(PNGLR 1997: 130; National 12 February 1997). One concern was the degree
of agency Miriam had been allowed: how voluntarily had she agreed to the
settlement? The judge concluded that Miriam was coerced into giving her
consent, ¬nding for ICRAF on all counts.
Let me point out three aspects of the judge™s conclusions. First, the judge
paid considerable attention to understanding the background to the compen-
sation settlement, helped by Muke™s extensive and detailed af¬davit. Second,
nonetheless, ˜[n]o matter how painful it may be to the small ethnic society con-
cerned, such bad custom must give way to the dictates of our modern national
laws™ (PNGLR 1997: 153; quoted in The Independent [PNG] 14 February 1997).
Third, the judge invoked a universalism enshrined in the Papua New Guinea
Constitution. This particular compensation payment for the life of a human
being was inconsistent with the national constitution and repugnant to the
principles of humanity. Running through all of this was the distinction I shall
designate as between Tradition and Modernity.


Tradition and Modernity
Whatever might have happened in the past, the enactment of this custom
was now to be judged against a modern constitution that protected women™s
115
LOSING (OUT ON) INTELLECTUAL RESOURCES


rights. Invoking a line between the categories tradition and modernity echoes
the strategy seen in Chapter Four, which Pottage (1998) has described in the
case of nature and culture used so adventitiously in the pursuit of patenting
claims. Documenting what does or does not count as modern in contempo-
rary practices is like documenting what does or does not count as human
intervention (culture) in discriminating invention from discovery.
The analogy with patenting procedure is again helpful. If the determination
is that nature is intact, then it is left alone; proprietory claims cannot be made.
In the case of tradition, if custom can be proved, then it too is left intact; it is
seen to have its own rationale. But if the investigation of nature has required
the intervention of obvious human arti¬ce, then what is discovered, by virtue
of the attendant inventions, no longer belongs simply to the realm of nature.
Similarly, if tradition has already been modi¬ed by modernity, then it cannot
be appealed to in any simple way.7 Miriam™s af¬davit included the fact that
she thought the Wahgi custom of head pay marriages had fallen into disuse
since the arrival of missionaries; this had been reported in the Post Courier at
the beginning (9 May 1996) and was repeated again now (11 February, 1997).
In fact, the judge found the custom was still extant. However, and perhaps he
was thinking of Miriam™s aspirations for education and employment, relevant
in his eyes was the fact that the framers of the constitution ˜were thinking
about a modern [Papua New Guinea]™. In other words, tradition was not seen
to be intact; it was already open to invasion by modern values, which clearly
opened the way to a modern interpretation of customs as either ˜good™ or
˜bad™.8
Custom as opposed to individual choice, tradition as opposed to modernity:
these categorical distinctions are implicated in one another, while each pair
also derives conviction from the other. As we have seen, Justice Injia upheld
the value of custom in certain arenas, acknowledging its function within the
community, and thus recognising the force of tradition; at the same time,
treating these issues as a bundle made it possible to put them all to one side
together. Other things were also being bundled away.
Out of sight was any need to determine the kind of obligations in which
someone such as Miriam ¬nds herself enmeshed. Obvious examples are the
obligations entailed in having kinsfolk. It is as though kinship can simply
be bundled up and disposed of as part of tradition. And it is in putting
such considerations to one side that an intellectual resource becomes lost to
view: people™s re¬‚ections on the fact of relationship and on what happens
when kin ties between people become translated into expectations about acts
and behaviour (see Banks 2001 ). Rendering kinship “ anywhere “ as part of
tradition is an old Euro-Americanism.
116 KINSHIP, LAW AND THE UNEXPECTED


Now in the context of patent applications, Pottage raised the question of
what precisely is to count as human intervention. When a technology becomes
routinised, what is inventive about it? Given the extent to which the apprehen-
sion of natural facts is mediated by multiple layers of social representation,
we might he says always ask what is ˜natural™ about the terrain that natural
science has carved out for itself (1998: 753). More to the point, through the lit-
igations and disputes that accompany patenting in the ¬eld of biotechnology,
what is to count as nature and what is to count as artefact becomes itself an
artefact of political and legal decision making. Concomitantly, in the context
of modernising customs, we might raise the question of what is to count as
modern. But whereas Pottage pointed to advances in biotechnology that have
effectively challenged if not yet dissolved the lines along which various dis-
tinctions have been drawn, it would seem that here (in modernising customs)
distinctions remain rampant, and kinship gets caught up in them.
This chapter attempts to extricate kinship and the question of obligations
from the antithesis between tradition and modernity (Jolly 1996). Shades of
Antigone (cf. Fox 1993): divine duty (to a brother) as opposed to civic duty (to
the king), and an echo of an element in Muke™s seminar paper, reported in the
newspaper account of his af¬davit, which falls unusually on English-hearing
ears, namely his reference to divinity. The mother™s clan, he said, ˜had always
exercised their divine curative powers™ in helping the dead man prosper; they
had not been the cause of Willingal™s death as they might have been through
the power of the curse that they also wielded (PNGLR 1997: 132; Dorney 1997).
In this con¬‚ict of duties, the rami¬cations of kinship, divine or not, fell foul
of the state™s view of itself as protecting the modern virtues. The modern
individual person as subject and agent was uppermost in the judicial mind.


II
To continue a theme of Chapter Three, issues may be lost from view; issues
may also be pushed from view. It is interesting to observe what it is that legal
processes (choose to) step over rather than pick up, fabrication by default one
might say. The vexed question of body ownership is a case in point.
Despite the difference between the cynical pragmatism of Anglo-American
law and the French legal tradition for which the body is the inalienable foun-
dation of legal individualism (Pottage 1998: 745), under neither regime can
persons “ including Injia™s ˜living men or women™ “ be owned as property.
Problems arise with embodiment and the (Euro-American) symbolism that
equates the person with the individual body. The scandal of slavery was that it
involved traf¬cking in the whole body also understood to be the whole person.
117
LOSING (OUT ON) INTELLECTUAL RESOURCES


Labour was bought and sold but so too was autonomy of action, depriving
the person of agency.9
How is the Euro-American notion of wholeness or entirety fabricated in
this context? The body seems to be taken as entire in the double sense of
being a complete functioning (or once functioning) organism, and being of a
piece with the individual person as subject and agent. There are equivocations.
Although, once animation has departed, a corpse may be treated as a whole
body, no one would think of regarding it as a whole person, yet there are
occasions when dead and living bodies have to be treated in the same way.
The image of the whole body produces a second image: the body that is not
whole. There are an increasing number of circumstances under which it seems
desirable to argue that whole bodies and part bodies should not be treated
alike. (One argument put forward at the time of the 1998 European Directive on
Biotechnology, concerned with the patenting of biological material, including
human body parts, suggested that parts could be rendered patentable provided
they could no longer be ascribed to speci¬c individuals.) However, the general
situation over body parts seems at present entirely equivocal. Some of this
equivocation is discussed in the U.K. Nuf¬eld Council on Bioethics™ Report
(1995) on ethical and legal issues concerning the donation of body tissue,
organs or reproductive material, and I shall draw brie¬‚y on this.
Reminiscent of the way the plea and judgment in Miriam™s case avoided
opening up questions about kinship obligation, it points out the lengths U.K.
legal and ethical thinking takes to avoid adjudicating on whether it is appro-
priate to talk of ownership over or property in body parts. Resort to a scheme
of consents (to removal, disposal and such) bypasses the problem. Yet the issue
of the kinds of interests one has in one™s own body and its parts, or of other
people™s bodies, and the circumstances under which these could amount to a
property interest, is there in the background.
Distinctions that appear to occlude that background question also point
to it. Primary here is the difference between treating the human body as
a ˜thing™ and treating it if not as a ˜person™ then at least as pertaining to
persons. The same difference is not quite replicated in (propped up by) the
possibility of treating body parts separately from the whole body. People have in
mind detachable organs and tissue. One effect of the Euro-American division
between persons and things is to promote property rights (between persons
with respect to things) as the paradigmatic exempli¬cation of ownership,
so that when one talks of property ownership one implies that rights are
being exercised over or in relation to some thing or other. The more entities
approximate to things, the more legitimate ownership appears. And perhaps
one effect of unanswered questions about whether or not body parts constitute
118 KINSHIP, LAW AND THE UNEXPECTED


property is the realisation that detachment must be fabricated conceptually
as well as physically.
What about other forms of ownership? I shall suggest that the question of
obligation in the Papua New Guinean case offers a situation where we may,
experimentally, talk of the ownership of persons. The Papua New Guinean
material also suggests that there too parts are treated separately from wholes,
although these connect to ˜persons™ and ˜things™ in very different ways. We can
at least ask of it a comparable question about fabrication: how are parts and
wholes construed in the ¬rst place?


Body Ownership
The following notes come from the Nuf¬eld report (1995), which has the virtue
of being a coherent and straighforward account intended for the layman. It
plays a rhetorical role in my argument by hammering home certain Euro-
American presumptions about body parts. We can read it as a treatise on the
making of things. Persons do not really appear; indeed it is obviously possible
to discuss body ownership without explicitly bringing personhood into the
picture at all.10
English law at the time of the report was silent on whether someone could
claim a property right in tissue taken from them. Emphasising the lack of
legal direction in this area (there was simply no case law on which it could
draw), the report suggested that a likely approach would be on the basis of
whether or not consent to removal had been given. Where tissue was removed
in the course of treatment, consent to treatment would imply abandonment
of claim. Where tissue was donated, any claim would re¬‚ect the terms of the
donation. The question of ownership, it says, is thus avoided. The view that
common law recognises no right of property in a body is attributed to tradition
(the ˜traditional view™), and avoiding the issue of ownership seems analogous
to not interfering in tradition, keeping it intact. Thus the legal instrument of
consent can deal with changing (modern) circumstances (such as the hitherto
unimagined circulation of body parts) without challenging the traditional
view in common law that one cannot have property in the human body. The
traditional view was presumably formulated with the idea of the body as a
whole entity.11
Detachable body parts alter the circumstances. The report is concerned
with the extent to which ownership may or may not entail property rights,
and here it draws on several legal contexts for comparative evidence.12 Thus it
points out that the issue of property has been avoided in the case of gametes:
the Human Fertilisation and Embryology (HFE) Act (1990) requires donors of
gametes and embryos to consent to any storage or usage of them. ˜By adopting
119
LOSING (OUT ON) INTELLECTUAL RESOURCES


a scheme of consents . . . [the HFE Act] avoids vesting any property claim in the
donor . . . circumventing the need to resolve questions of property and ownership™
(Nuf¬eld Council 1995: 68, 69; my emphasis). Nonetheless, the report argues,
the solution conceals ˜a property approach™ in that it contemplates that the
control of gametes and embryos rests with the donor until that moment. It
observes that the U.K. Human Tissue Act 1961 and others (e.g., Human Organ
Transplants Act 1989) allow that tissue can be removed as an unconditional
gift, that is, it becomes free of all claims. This does not tell us whether or not
the gift is a gift of property.13 Finally, the report (Nuf¬eld Council 1995: 68)
gives a hypothetical example of how various concepts might work together.

1. The patient consents to an operation which involves removal of her appendix;
2. by her consent she abandons claims to it; 3. on removal it acquires the status
of a res (thing) in possession of the hospital prior to disposal; 4. in response to a
request from the patient for it to be returned, the hospital gives it to her as a gift;
5. the appendix then becomes the property of the patient.

Commentators have argued that, once it is removed, living tissue axiomati-
cally ˜becomes the property of the person from whom it is removed™; removal
itself does not entail intention to abandon. How so? Seemingly, tissue becomes
(eligible for consideration as) ˜property™ because by its very detachment it is
made into a legal thing (res). What makes such a ˜thing™? The converse holds.
It seems to become (eligible for consideration as) a thing because proprietory
rights can be exercised over it.

The tissue may well, in fact, be abandoned or donated, but these imply a prior
coming into existence of a res and the exercise of rights over it. Indeed such
an analysis is logically essential . . . even if the resulting property (i.e. a person™s
assertion of a property right over a new res), exists merely for a moment (a scintilla
temporis).
Nuf¬eld Council 1995: 69.

If this argument is accepted, then the appendix would have remained the
patient™s property had she not by implication waived rights to it. However,
this is not the end of argument. Another view has it that tissue at the time
of its removal is res nullius, that is, a thing but belonging to no one until
brought under dominion (˜the traditional legal example is the wild animal
or plant™, i.e. nature); the tissue then becomes the property of the one who
removed it or subsequently acquired possession of it. The person from whom
it is removed has no claim.14 As for the claims of those who detach or use
tissue, it is unclear as to whether, for example, anatomical specimens can be
appropriated as property: ˜it is probable that the user of tissue acquires at least
120 KINSHIP, LAW AND THE UNEXPECTED


the right to possess, and probably a right of ownership over [it]™ (1995: 77, 81).
Indeed the Nuf¬eld report concludes that there is an overall lack of clarity in
English law. Yet no one, it adds, could say that University College London does
not ˜own™ Bentham™s skeleton. However, it is that part of Bentham that is his
skeleton, not Bentham as such, that University College London is considered
owning. The body part is owned as a thing (˜skeleton™) not as a whole person
(˜Bentham™). Indeed we have seen that one way in which it becomes a thing is
by being owned.
If this were not the case we might otherwise wonder about the odd tenacity
of the term part. After all, why is the detached and now freestanding entity
thought of as a part?
Perhaps what is being fabricated is precisely the possibility of considering
detachable parts of the body as things to which claims of ownership may be
laid. Owning the whole person is legally unthinkable; owning the whole body
is prohibited. In a wonderfully illogical but perfectly sensible way, at the very
juncture when through detachment it could be regarded as having ceased to
be a part of the body, the tissue or organ is reconstituted neither as a whole
entity in itself nor as an intrinsic part of a previous whole. Colloquially, it is,
somehow, a freestanding ˜part™. So what is kept alive in this nomenclature is the
process of detachment itself; it would seem that for as long as its detachability
from the person remains evident, it can be thought of as a ˜thing™ “ but not to
the lengths of a ˜whole thing™. One interpretation could be that the designation
(part) refers to an essential incompleteness; the tissue or organ exists only in
being destined for other human beings. Another could be that to conceptualise
it as a whole entity would point too emphatically to an independent existence,
on the market say, and thus to a thing that could easily become a commodity.


Whole Persons: Things
The Papua New Guinean material offers rather different shifts of perspective.
It is based on a synthesis of anthropological analyses (as the Nuf¬eld report is
a synthesis) and applies in the ¬rst place to societies of the Papua New Guinea
Highlands, with my own in¬‚ection from Mt. Hagen that abuts the Minj area,
and secondarily to Melanesia at large. It suggests a situation in which it might
be appropriate to imagine people owning people. This is also the situation in
which persons appear as things, although thing here has to be understood as
a fabrication lying outside a property context.15 Persons are owned as things
through a politico-ritual fabrication16 that presents the person being claimed
by another as singular, entire and whole. In other words, it is the whole not
the part that is thing-like.
121
LOSING (OUT ON) INTELLECTUAL RESOURCES


So what kind of thing is being imagined? I understand the techniques
of much public (including ritual) activity of Highlands cultures as making
relations visible, presenting them as objects of people™s attention. Wealth items
of the kind that ¬‚ow in compensation payments objectify relationships by
giving them the form of things that can be displayed, such as money, pigs and
other valuable items. The same relationships may also be activated through
persons; relations become visible in the positions by which persons divide
themselves from one another, as mother™s kin may divide from father™s kin
and the one confront the other with its claims. It is persons who emerge as
partible, a point to which I return in the next section. In their multiple roles,
persons are always half hidden from one another. In contrast, a form presented
to be seen must be seen as a whole image is seen; an image can only ever be a
whole thing.17 By form I refer to the contours, bulk, colour, gender of entities,
in short, the aspects of ˜body™.
From this perspective people may be rei¬ed, just as wealth and similar
items may be personi¬ed.18 For instance, men are rei¬ed, or self-reify, when
presenting themselves in decorations that make them an explicit object of
attention. Ritual intervention heightens one of the regular processes of social
life in which the singularity of the person is manifest. The conditions under
which people appear as things are also the conditions under which they appear
as whole and singular entities.
This is, we may say, the singularity not of individualism but of relationism. In
order to appear in another™s eyes as someone of whom the other takes account,
the person appears oriented to that particular relationship. So the person who
stands for (objecti¬es) that relationship is in effect eliminating all others in
favour of the one. Thus someone may be presented as an initiate (in relation to a
senior generation), a bride (about to meet a groom), a clansman (of this group
rather than another), with his or her multiple identities eclipsed by the one
of the moment. We could call that eclipse an abstraction or detachment. The
person is abstracted from all other social contexts in order to exist, however
momentarily, in one alone, like assuming a particular role or taking on a
category position. Whereas the process of detachment itself belongs to the
partitioning of persons, the image presents an already completed thing. It is
the visible moment when an initiate, a bride or a clansman, in appearing in
˜one™ form, in him or herself appears whole and entire. And the person appears
whole and entire from the perspective of a speci¬c other. It is to her husband™s
clan that a prospective wife exists as a bride. This is the image of the woman
that they have, so to speak, created. They own it.
If I say, to experiment with Euro-American constructs, that persons may
be owned when they appear as things, I can also say they are things because
122 KINSHIP, LAW AND THE UNEXPECTED


of their capacity to be seen by others as an embodiment of one particular
relationship, that is, because they are owned. Let us pursue these Melanesian
fabrications of things with reference to other Euro-American constructs; I
digress brie¬‚y on intellectual property and commodi¬cation.
In an inspired rendering of ritual as a kind of intellectual property, Harrison
proposes that ˜a useful way of viewing intellectual property is that it is the own-
ership, not of things but of classes of things, of their images or typi¬cations™
(1992: 235).19 But “ to continue the analogy with legal processes “ let me trans-
pose that insight from ownership of ritual to one of the effects of ritual as a
practice of intervention. If we ask what is owned of the person made visible “
the image that has been created “ then we might want to say it is the idea
or concept of the relationship that they embody. When a male initiate steps
forward all decked out in his transformed body, a new member of a clan, his
clansmen own so to speak the concept of this person as a male clansman.
He has to look, act and behave like one. His clanmates acknowledge him by
claiming him; they see in him, at that moment, the embodiment of a concept.
What they own is that concept or image of him manifest as his ˜body™, and
they own it as they own themselves.20 In Harrison™s terms, the image as a
typi¬cation is constructed of generic and universal elements, anyone in this
role will look like this. That is what ritual requires the particular initiate to act
out.
Leach (2002: 728) comments on male initiation practices among a people
from outside the Highlands, Nekgini speakers from Reite, Madang Province,
which are predicated on the fact that a man is nurtured on his land:

The work of the father and his kin, and of the lands upon which they nurture
children, is to produce potential from which form can be made. There is noth-
ing mystical about this process, as that form is one which is given by the set of
relationships into which that potential person is propelled. The boy is this man™s
nephew and not another™s, this set of cross-cousin™s joking-partner, not another™s.

The father™s af¬nes (his wife™s kin and their spirits) give form to the appearance
of the boys at initiation as a result of the kind of nurture they bestow. (The boys™
substance comes from their father™s land.) Now the importance of initiation
being carried out among the particular persons who give the initiate™s social
presence its particular form depends on there also being a sense in which they
bring into being the universal or generic (sister™s son). In Reite, it might be
truer to say af¬ne™s sister™s husband™s son. Through their actions they reify this
speci¬c man as at once their sister™s son and as their sister™s son. The latter is
an abstraction, an image, an idea. The same ritual can be performed for any
boy precisely because each is an instantiation of a sister™s son.
123
LOSING (OUT ON) INTELLECTUAL RESOURCES


And through the intervention of the compensation agreement, something
very similar was to have been Miriam™s lot. Members of her clan claimed
dispositional control over their sisters and daughters, whereas the clan to
which she would be joined through the marriage had claims on her as a
prospective wife and mother. (This was complicated in her case by the fact
that she had been brought up by her maternal kin, from a part of the same
tribe into which she was now to marry, and that at her father™s death they
assumed they had rights of bestowal over her.) The moment at which Miriam
was detached from all her other relationships and appeared as the single and
whole embodiment of the concept of reciprocation between clans was the
moment at which we could talk of both sides both enjoying ownership in her.
This allowed people to draw on multiple rationales for the overall gift, com-
prising homicide compensation for the secondary cause of death, mortuary
payments to maternal kin (˜head pay™) and reasons to do with past marriages
between the groups. At one point Muke insisted that, as an element in the
overall payment, this last was the principal rubric that applied to Miriam; she
was not being sold as part of a homicide compensation but returned as part
of life cycle payments.
The general conditions of a mortuary payment were relevant. A clan sending
out its women in marriage contributes to the prosperity of other clans; through
its offshhoots “ a sister™s child is called a ˜transplant™21 “ maternal kin expand
their own spheres of in¬‚uence. So if these progeny prosper through their
guardianship then, in turn, as we have seen, death injures them. When their
transplant was killed, observed Muke in his af¬davit, the ˜root people™ on one
side felt that the other side had violated their divine relationship. In local
idiom, the deceased™s ˜bones™ or ˜head™ (male wealth) should be sent back by
the patriclan to the maternal clan that had in its lifetime overseen its welfare.
Such wealth, the head pay, is regarded as regenerative for the future. But if kin
request that an actual granddaughter of the woman be returned, then they are
thinking of how their groups have intermarried in the past. They look for a
˜skull in a netbag™, that is the strength or value (bones) of a woman™s progeny
in and within the form of another woman (the netbag or womb), as O™Hanlon
and Frankland (1986) describe (see also Muke; PNGLR 1997: 132). A woman
who marries under the rubric of a skull in a netbag, as Miriam was doing, is
meeting obligations set up by previous marriages.
What kinds of body parts are these ˜bones™ and ˜womb™? I suggest that
the bones are not conceptualised as parts but rather as wholes; they are the
whole body made manifest from the perspective of the claimants. That is,
the wealth they see from the hand of the donors is equated with the claims
they have (in the image of strong bones); they own the person in the form of
124 KINSHIP, LAW AND THE UNEXPECTED


the bones (wealth) they can expect in return.22 And it was not any, generic,
woman (womb) who would satisfy the need for the maternal kin to recover
what it had given in the past. A particular relationship was singled out: she
should be someone standing in the relation of granddaughter23 to the actual
woman earlier sent in marriage. This is the importance of each side owning ˜a
granddaughter™, embodied in Miriam, that the one could give and the other
receive.
A thing created through commodi¬cation also embodies a concept; its
value must be speci¬able in abstract terms against equivalent items. Recall the
Mt. Hagen Lodge conversation, which included a discussion of bridewealth
(Gewertz and Errington 1999: 127). The proprietor™s nephew had observed that
with money as the medium of exchange women became like commodities:
money made women equal to anything and everything one might want to
buy in a way they were not in the past. They became not just equal to things
but substitutable one for another (cf. Demian 2001 ). This is the process that
Minnegal and Dwyer (1997: 55) described when people turn from exchanging
to selling pigs (my emphasis, omitting theirs).

A pig is brought to an exchange not as a pig per se but as a particular pig. Its
particular constellation of attributes, and its history, make it not only appropriate
but, in a real sense, the only appropriate offering. Where pigs are sold, by contrast,
attributes such as size, sex and colour may in¬‚uence the going price but no longer
bear upon the appropriateness of the particular pig to the intended transaction.
A pig is suitable for sale simply [i.e. universally] because it is a pig. Thus it seems
that the idea of ˜pig™ itself has become rei¬ed. The boundary between ˜pig™ as a
category and other things has become more salient in guiding social action than
the differences between particular pigs.

Note that the thing created through commodi¬cation carries with it cate-
gorical information about itself and does not require contextualisation beyond
its evaluation in relation to similar entities. This is how initiates may be com-
pared to one another, as are brides over the generations during which clans
have intermarried. Unlike a commodity, however, although a person may be
presented as a thing with generic and universal attributes, far from being de-
tached from its social origins each image points precisely to the source of its
creation. Moreover, sisters™ sons may all be alike in the form and conventions
by which they display their tie to their mother™s brothers, but substitutability
is likely to be hedged around with restrictive rules. There will be conditions
about ˜classi¬catory™ equivalents, that is, who quali¬es as a stand in “ which
mother™s brothers will count what persons as sister™s sons. Ownership applies
only if certain relational preconditions are met.
125
LOSING (OUT ON) INTELLECTUAL RESOURCES


These two digressions bring us to the question of what rights ownership
brings, presaged in the previous chapter. What entitlements ¬‚ow from the
ownership of an image? In the case of ritual as performance, one may well be
able to imagine reproductive rights such as copyright, as Harrison suggests.
The entitlement to perform a ritual, or produce a song or dance, anticipates
the particular realisation of a conceptual entity. Certain people may lay claim
to the knowledge involved or to rights of sponsorship or performance; these
may or may not be entitlements that can be transferred to others. In the case of
persons, compensation or other forms of reciprocation are designed to provide
an abstract equivalent to the value once embodied in a now absent other. The
claims of Miriam™s father™s mother™s kin included the fact that they had been
deprived of a reproductive opportunity, not as a matter of the continuing
existence of the deceased person but of their continuing relationship through
him to others. However, the question of deciding what might or might not
count as rights does not take us very far.
Consider, rather, the question of what public intervention, legal or ritual,
creates. Having set up the possibility of persons being owned, as thought“
objects and as things, I am forced to the conclusion that it is in the very
activation of ownership as a question of rights and claims that an intervention
of a kind has already taken place.
Euro-American understandings of property ownership invariably entail the
ownership of rights; one owns not the thing as such but rights in respect to
other persons in relation to the thing. Yet rights is an awkward idiom for the
ideas of ownership to which I have been referring, where ownership seems
a question of expanding or augmenting identity, an entitlement that allows
those “ and no others “ who claim ownership to re-state their own identity
(maternal kin to the sister™s or daughter™s child). People readily enough assert
claims attendant on such connections, staking them out in a manner that
looks like claiming rights, but as an intervention “ as an action “ mobilising
claims shifts the perspective the actors have on one another. Here we need to
remind ourselves of the difference between wholes and parts. If it is plausible
to suggest that what is owned is an image of a person (a concept), then only
an entirety can be owned; rights and claims set up a different social ¬eld
altogether and one in which nothing seems entire. The dispute over Miriam
shows this.


Part-Persons: Agents
There is no simple sense in which one can translate ˜body part™ into the
Melanesian vernaculars I have been presenting; at the same time, the notion
126 KINSHIP, LAW AND THE UNEXPECTED


touches at such provocative points on the way persons might be partitioned
that the comparison is inviting to pursue.
I talked, with particular reference to the Papua New Guinea Highlands, of
the presentation of persons as whole forms or bodies. Objecti¬ed from the
perspective of others, the person (the thing“image) is in a speci¬c and thus
singular relationship to them. But whole bodies are, in another sense, part-
persons. From a second perspective that these other persons have, what they
see is divided substance. For in addition to being singular, persons can also
be plural. Because the whole person is detached from other relations, taken
together these relationships compose the person as an entity with a multiple
or plural character. This produces another perspective on the body.
The body™s health and sickness are regarded as the outcome of an amalgam
of actions on the part of multiple others. In this sense it is an assemblage of
parts, not as limbs or organs or tissue but as paternal and maternal substances:
bone and ¬‚esh or blood and semen. Or at least that is the rationale given to
various transactions. Indeed, the very possibility of compensating persons for
the pain they have suffered (the blood of childbirth), for nurture they have
bestowed (mother™s breast milk) or for injury they have endured (damage to
the body) fabricates a view of the body as partible. Through their actions,
including giving or withholding blessings or curses, people bestow bodily
energy on one another. As a result, a person™s substance may be thought of as
body that is a part of other bodies. Who pays and who receives delimits the
claims. Thus the mother™s clan claim the child because they are due wealth
for it; the father™s clan claim the child because they are able to pay wealth for
it. Each side, in ˜growing™ the child for the other, reproduces itself not just
through the child but through each other.
We can, then, imagine the person as distributed or dispersed (Gell 1998)
across a spectrum of relationships, belonging to diverse groupings. Yet al-
though these relationships converge on the one person (rendering the person
a composite of diverse ties), the ties as such are dispersed, and can never be
gathered together in anything but that person. They do not form a further
whole of which the person is a part, as Euro-Americans like to imagine the
individual as part of society. If we construe these relations as ˜parts™, then the
only entity they can be part of is a person.
The shift in perspective is created by taking action. For at the moment when
claims or rights are activated, the singular person (the abstract thing“image)
is then seen to have many social origins, to be a partible entity combining
in itself many particular concrete histories. The point at which a claim is
translated into a gift or the carrying out of a duty is the point at which the
127
LOSING (OUT ON) INTELLECTUAL RESOURCES


one relationship is (re)perceived to be one among many. The person has other
possible destinies.
Let me explicate further. As soon as ownership is realised in the activation
of claims, persons have to deal with one another as agents. And as soon
as relationships are realised in the activation of ownership, people divide
themselves off from one another. What the mother™s brothers thought they
owned as a product of their own nurture or protection now appears to have
been the result of nurture at others™ hands as well, spirit as well as ¬‚esh, semen as
well as blood. This is because when action is taken or when wealth is mobilised
or when someone seeks to meet an obligation, decisions have to be made,
and these bring into the foregound all those other relationships that demand
taking action, sending wealth or meeting obligations. Realisation creates its
own moment in time, even if no more than a scintilla temporis. Taking action
is itself an intervention in that an abstract category now becomes a particular
entity in a history of particulars. Perhaps the very idea of right or entitlement
or claim is usefully thought of as ownership in an already activated form. Here
what they own, and I take my cue from an observation by Kalinoe (personal
communication), is how persons ˜belong™ to one another.
In the Minj compensation settlement, there were many strands of relation-
ships, past events and old debts being brought together in what would be the
one transaction it was hoped would answer them all. But that one transaction
was in turn to be composed of items of wealth collected by many contribu-
tors, where each would ¬nd himself faced with other, competing, demands on
his resources. Choices had to be made, eliminating one from multiple ways
of acting. If acting requires choosing between alternatives, these are basically
choices between relations “ and thus invariably invoke prior relations. Here
one arrives at a local understanding of agency. Agency is evinced in the ability
of persons to (actively) orient themselves or to align themselves with particular
relationships,24 however foregone a conclusion that decision may seem to be.
This is not the same as free choice (indeed someone may have few options in
the matter) and does not translate directly into the kinds of acts of choice by
which the modern person can be recognised.
Kinship is necessarily predicated on prior relations, on the fact of rela-
tionship. Muke™s (1996) analysis of the Minj case pinpointed the crux of the
matter: kinship on trial. It was not just the clans on trial but a whole set of
suppositions summed up in the term kinship “ the nature of relationships as a
matter of people™s conduct and obligations toward one another. Thus Miriam
was quoted as saying that she initially agreed to the compensation settlement
out of concern for her younger sisters and other clanswomen who might be
128 KINSHIP, LAW AND THE UNEXPECTED


asked if she refused (Gewertz and Errington 1999: 125“6). In her af¬davit, as
rendered by judge, she stated that she was willing to be part of her father™s
head pay, but not willing to marry immediately or to marry just anyone. She
felt pressured into probably having to make a quick match, and the payment
process left her feeling humiliated in the eyes of others, ˜ashamed at being
used as a form of compensation™ (Gewertz and Errington 1999: 130, quoting
the judge™s summing up). Indeed, at her ¬rst interview with the press (Palme
9 May 1996), she was reported as being upset and shocked by the decision. (The
same reporter also pointed out the power imbalance between the two sides:
the Tangilka were scattered by warfare over the district; the Konombuka, who
had taken some of them in, was one of the biggest tribes in the area.) Whatever
one might think about Miriam™s predicament and whatever pressure she was
under, the observer is left with the fact of relationship. The question is how to
take into account the obligations they entail. As Muke implied, what does one
do “ what action is to be taken “ about the fact that one clan is in perpetual
spiritual debt to another for the welfare of its progeny?
A set of very particular claims lay behind Miriam™s selection. She was already
well known to her father™s maternal kin and had in fact been living with them
since her mother was sent there for safety during previous ¬ghting while her
father, Willingal, stayed back with his paternal clansmen. In fact, this family “
Willingal™s two wives and ¬ve children “ had been one of several Tangilka
living there as refugees and had as yet paid no ˜rent™ to their hosts. Moreover,
Miriam™s father™s mother™s clan had sent many wives to her father™s clan who
had borne many sons to strengthen it, while few women had come in return.
These were all perceived as putting the one clan into the other™s debt. Miriam™s
marriage would help adjust the imbalance. In short, from this perspective the
case concerning Miriam and her maternal and paternal kinsfolk is all about
the nature of obligations and how people meet debts. The claims that bear in
on the actors as immediate reasons for their actions are based on the fact of
their relationships with one another. It is because of these relationships that
they have to act.
The National Court judge took this on board in his response. Yet it was
the degree of obligation to which he apparently objected. Justice Injia found
that obliging a woman to be part of a head payment was an infringement of
her constitutional rights. For example, her right to equality of treatment was
violated because the custom only targeted eligible women and not men (cf.
Dorney 14 February 1997). Moroever, he opined, although an open request
placed an obligation on any of a clan™s girls, the closer the relationship the
greater the pressure.
129
LOSING (OUT ON) INTELLECTUAL RESOURCES


How, then, does the ¬nal verdict of this careful and sympathetic judge
avoid the fact of relationship? Once again the tradition versus modernity
rubric comes into play. Pitching the issue of obligation in terms of obligations
between groups, tribes and clans, has the effect of invoking a community
whose interests seemed ˜against™ those of the individual. In focusing on the
way in which groups bring pressure to bear on individual women, this judicial
opinion rehearses a familiar position. Obligations start looking like communal
and thus cultural constraints, and cultural constraints somehow belong to the
domain of tradition and custom. Yet when Miriam herself talked she had
in mind speci¬c individual kin, ˜living men and women™, of whom she was
thinking. She was after all an agent in this herself.25 In an interview with the
Port Moresby Post Courier (20 February 1997), Miriam said she was fearful
about the way her clanspeople would interpret ˜the law™ (the judgement given
a few days earlier). She said that she wanted her people to really understand
the court™s decision: her worry was that ˜[h]er people think the court has given
her “freedom” from a traditional obligation and this could take away her tribal
support™.
So Miriam also resorts to the notion of tradition. It is an open question
whether she was referring to cultural constraint or to the exercise of her own
agency. Whichever it was, the latter was not going to be heard. To acknowledge
claims as obligations in the context of kinship looks to modern eyes as perpet-
uating dependency, control and coercion. Human rights discourse “ grounded
in equality between individuals “ sweeps all this away. Muke™s question was
whether it were also to sweep away kinship as such.


III
I have taken the Euro-American duo, person and thing, as far as it will go
for the kinds of Papuan New Guinean materials presented here. Persons turn
out to be most thing-like (embodying a concept) when they are regarded
as unitary, whole and abstracted from all social contexts but one, and most
person-like (partible) when they ¬nd themselves engaged across a plethora
of relationships in multiple contexts. Under the ¬rst rubric I have wondered
whether it is apposite to refer to persons as owned; the second leads to claims
and rights, and here a person in orienting him- or herself toward speci¬c
relationships can act only for him- or herself. In the former circumstance,
what is owned is a concept or image of the person, made visible (rei¬ed)
through the body. This is an ownership that augments the owner™s status, as
Miriam™s grandmother™s clan increased its sense of itself through the fertility
130 KINSHIP, LAW AND THE UNEXPECTED


it bestowed on another. Her offspring, such as Willingal, their sister™s child,
would appear to them in that singular and ideational form as an exemplar
of a ˜sister™s child™. In the latter circumstance, when the fact of relationship “
that a person is always a composite, a part of a plurality “ is translated into
action, this makes visible the obligations and expectations through which kin
in belonging to one another are bound to and divided off from one another.
Action includes acknowledging debts to be discharged, including in turn debts
owed for life.
Miriam™s case invites us to think again about legal interventions that appeal
to human rights. We may think of human rights ¬tting an anonymous entity
abstracted from all social contexts bar one (common humanity) or else, to
the contrary, as investing the subject with the dignity of choice (between
multiple options). But what about the nature of obligation as it inheres in
human interactions, the expectations of dependency in the sense revived by
MacIntyre (1999)? Human rights discourse, at least as invoked by Justice Injia,
the NGO and journalists in this case, would seem to have no place for the fact
of relationship.


Decontextualisation
Something similar but not identical to this criticism has been voiced by an-
thropologists commenting on human rights interventions. Wilson (1997a;
cf Rapport 1998) strongly advocates greater anthropological application in
the arena, an intellectual resource that he suggests is under-used.26 He would
like to see a comparative study of human rights focussed on the ways transna-
tional discourse materialises in speci¬c contexts.
In order to address human rights violations, Wilson argues, the anthropol-
ogist does not have to choose between copying the supra-local universalism
of legalistic declarations and giving in to a relativity that deems that any local
representation is as good as any other.27 Focus should be on the middle ground
between the local and supra-local. Anthropology, he states, is well suited to
judge the appropriateness of particular accounts of abuse, to pay attention to
historical and biographical cicumstances, to assess concrete examples accord-
ing to the context in which they occur. It could show how people engage in
human rights narratives from their own vantage points.
Rapport (1998) reviews Wilson™s insistence that we live in a ˜post-cultural™
world in which human rights belong to global governance. This is a polity
that ˜posits individuals as ontologically prior to the cultural milieux which
they create™ (Rapport 1998: 386). It is individuals who animate and transform
cultures: individual actors are ˜the anthropological concrete™ (after Aug´ 1995)
e
131
LOSING (OUT ON) INTELLECTUAL RESOURCES


who can adopt or reject cultural personae. ˜In short, the liberal polity which
is to be globalised is one which publicly respects the rights of the individual
citizen to his own civil freedoms against cultural prejudices™ (Rapport 1998:
386 original emphasis). In this view identities at once come together and
remain distinct, and one can investigate human rights without entering into
universalisms. It does not mean having to harmonise different moralities:

All one expects is a common respect for the procedural institutions of the polity
which seek to balance, in an ad hoc, concrete, case-by-case fashion, the competing
demands of diverse perspectives while not serving the exclusive interests of any
one.
Rapport, after Rorty, 1998: 385

The manner of intervention would thus acquire its own signi¬cance: procedu-
ral rules become the candidates for universal application. If human rights are
understood as political procedure (human rights as a ˜transnational juridical
process™), then culture becomes ˜an optional resource™, one to be employed
by individual actors on a global stage who are free to create identities for
themselves (Rapport 1998: 387, 388; Weiner 1999). It is a modernist position
of course to imagine that one can choose. Much of the rhetorical justi¬cation
for Culture is in fact cast in terms of allowing people the ˜right™ to practice
their customs as they always have done; conversely, critiques of conservatism
perceive cultures as blindly clinging to practices modern sensitivities ¬nd
repugnant.
Wilson wants to build a theory about the operation of rights. Legal right
based on equality before the law implies the subject being stripped of social
circumstance, as when descriptions of victims abstract them from their fam-
ily and class background (1997: 146). Yet, he argues, although human rights
discourse models itself on legal discourse it does not have to. His plea is for
anthropologists to address themselves to speci¬c interventions and thus pro-
vide the crucial local contexts in which decisions are taken. Contextualisation
is a familiar and powerful intellectual resource. Thus an anthropologist might
readily observe of Miriam™s case that there was bound to be more to the two
clans™ actions than the acting out of tradition, custom or culture. Explicat-
ing the rami¬cations of indebtedness that lay between the people to whom
Miriam was related affords just the kind of socio-historical contextualisation,
the middle ground, that Wilson regards anthropologists being in a prime
position to supply.
Yet are we limited to fabricating that middle ground from the intersections of
the local and supra- or trans-local global? A contextual analysis is insuf¬cient
if it simply supplies supplementary circumstances for an action, reasons at a
132 KINSHIP, LAW AND THE UNEXPECTED


remove. I see more interest in fabricating a middle ground as its own order of
phenomenon. Pace Aug´ , I would return to the foundational anthropological
e
concretivity: relations. And thus I give weight to what Wilson slips into the
following (1997: 15, my emphasis):

If human rights reports strip events free of actors™ consciousness and social con-
texts, then part of the anthropologist™s brief is to restore the richness of subjec-
tivities and chart the complex ¬elds of social relations, contradictory values and
the emotional accompaniment to macro-structures that human rights accounts
often exclude.

For the next sentence gives it way again when he states that social relations
are what trace local connection to macro global processes. It is clear that he
is thinking of relationships as mainly supplying the context that has been
taken away. Yet, in my view, to regard relations of indebtedness, as in Miriam™s
case, a matter of context or background is to tell only part of the story.28
The relationships between the two clans were carried by persons themselves
involved in very particular sets of relations to one another. In the spirit of
Jolly™s (1996) advocacy apropos Vanuatu, my own plea would be that we have
to treat social relationships as a complex (complex as in complexity) ¬eld of
its own. This will give us another perspective altogether.
We certainly do not have to go on re-inventing the contrast between tra-
dition and modernity. There are other intellectual resources at hand. If we
consider the notion that culture is carried by persons, a Papua New Guinean
might say that persons are also carried by other persons. Individuals do not
interact ˜with™ culture “ they interact with persons with whom they have rela-
tionships. Although it may be consciously in accord with cultural values that
they follow this or that path, much of the motivation to act comes from the
claims binding them to others. There is therefore a non-optional aspect to the
relationships into which people are locked, producing a situation in which,
once brought into being, the very fact of relationship becomes a condition
prior (˜ontologically prior™) to action.
Miriam™s case may offer local examples but they are examples of a thor-
oughly trans-local social fact. People are nowhere free to create relationships.
This is true both because every relationship has a momentum and character
of its own, that is, must take the form of a (speci¬able) relation and thereby
embody a particular image of itself, and because each relationship involves
other parties, at a minimum in sustaining the relationship. To put words into
Miriam™s mouth that one might want to put into anyone™s mouth, perhaps
she would like to be able to ful¬ll her obligations.
133
LOSING (OUT ON) INTELLECTUAL RESOURCES



Intellectual Resources
Wilson™s criticism was provoked by the de-contextualisation he saw in human
rights reporting. Anthropological expertise in re-contextualisation could, in
this view, redress the imbalance, a scholarly intervention with the potential
of being an activist one as well. However, there are resources that lie beyond
anthropological procedures.
The problem with human rights reporting is not so much detachment from
context, a logical impossibility, but the removal of an entity from one context
into another. The victim is redescribed in the kind of bare detail similar to
a presumption of (human) equality before the law, the new social context
being the universe of others who have suffered human rights abuse. The
criticism is that, in avoiding personal detail, human rights reporting can lose
everything one would want to know about a person™s circumstances, career,
family. These are all part of that person™s ˜life™, and Wilson observes that it is
often that life which has been put at risk or abused. Only the particularity
of circumstances would de¬ne what an entitlement or right could mean in
those speci¬c conditions under which people live. Yet, in my view, we shall
not get very far with understanding the de¬cit only as a de¬cit in cultural
understanding. It is a de¬cit in social analysis. Personal detail is, as Wilson in
effect notes and we may now add, interpersonal detail. We would be losing
(out on) an intellectual resource not to take into account the diverse ways in
which persons visualise themselves as carried by other persons and, for better
or worse, by their relations to others.
Complaining that human rights discourse renders people as little more
than things is a customary Euro-American accusation (respect for individual
persons is incompatible with treating them as things), and indeed the whole
elevation of the victim™s status to do with human rights violation could well
have been premised on such accusations in the ¬rst place. The Melanesian
construct, as I have synthesised it, of the rei¬ed person as a thing“image offers
a different route, and one that dares us to begin specifying what it is as human
beings we might own of one another.


acknowledgements
I thank Martha Mundy and Alain Pottage, organisers of the 1999 London
School of Economics symposium, Fabrications: the technique of ownership,
for forcing the pace on ˜persons™ and ˜things™. I am especially grateful for
provocation of John Muke™s re¬‚ections. Cyndi Banks and Claudia Gross gave
unstinting hospitality in Port Moresby in 1995 and 1997, including a visit that
134 KINSHIP, LAW AND THE UNEXPECTED


the British Academy supported, and supplied me with information about the
Minj case. Parts of this account join with other issues in a chapter (˜Global
and local contexts™) for a PTC volume, Rationales of Ownership (Kalinoe and
Leach 2000). Lawrence Kalinoe provided the Papua New Guinea Law Report
and many insights, as did James Leach. Eric Hirsch™s study (1999) has been a
stimulus for thinking about ones and multiples, as was the 1999 GDAT (Group
for Debates in Anthropological Theory) debate at Manchester on human
rights and Michael O™Hanlon™s pertinent observations on the case. A ¬nal
thanks to Lisette Josephides (2003) for her critique of some of the premises
on which this argument is based; the piece comes as originally conceived,
however, and I do no more than acknowledge her observations here.
6




Divided Origins and the Arithmetic of Ownership




Borrowing information between groups characterises Papua New
Guinea . . . The sharing of information only requires permission or the
exchange of gifts. No actions should be taken that might stop the ¬‚ow
of information exchange through traditional channels.
Nick Araho, Seminar on Intellectual, Biological and Cultural Property,
Port Moresby, 1997; Whimp and Busse 2000: 186“8




I

A nthropologists do not generally go about their business
thinking that their subject matter is a contingency. Yet that invariably
becomes the case when the ethnographic record “ however vast “ or models of
social structure “ however illuminating “ are brought into relation with other
bodies of material. They are hardly alone in this. Insofar as bodies of knowledge
form systems, other efforts must lie outside, part of the environment not part
of the system.
One body of knowledge that perpetually strives toward the systemic is
law. Indeed this re¬‚ection on contingency is prompted by Barron™s (1998)
discussion of the in¬‚uences that in 1991 were brought to bear on the Australian
Federal Court that upheld (against his will in this case) the appropriateness of
copyright as a property relation between an Aboriginal artist and his carving
of a sacred emblem. In asking how this legal recognition had come about in
the ¬rst place, she discusses a number of what she calls contingent issues,
issues that in her view belonged to the environment not to the system. They
included the newly discovered artistic value of Aboriginal art, not to speak of
the thoroughly contingent place the genius of the Romantic individual holds
in respect to copyright law in general. Copyright in this case was allowed to
135
136 KINSHIP, LAW AND THE UNEXPECTED


the artist as the originator of the work without invoking any stronger sense of
creativity or merit. There are many cultural arenas of debate “ and assumptions
about the individuality of genius occur over and again in intellectual property
discussions “ that supply people rhetoric with which they may approach the
law without being the basis of law. Of interest to the student of culture may
well be the very fashioning of that rhetoric.
The boundaries are not always clear.1 Two Australian legal theorists and
feminists observe just that in considering whether persons can ever be prop-
erty (Davies and Naf¬ne 2001 ; see Chapter One). Property law, they argue, is
surrounded by assumptions that act out the idea that one can have property
in persons, or aspects of persons, even though the law is built on its denial.
(They discuss mainly U.S., Australian and U.K. jurisdictions.) Indeed, they
suggest that these days property in persons may be assumed in the very arena
that legal thinkers once took as the radical divide that separated persons from
things: self-ownership. Insofar as persons (as subjects) own themselves, no
one else can own them (as objects).2
Now this state of affairs is at once interesting and unsettling for the anthro-
pologist. It may be a contingency that one could ask similar questions of many
of the kinds of societies anthropologists study, including those of Aboriginal
Australia. But if the rhetoric then brings such societies into the orbit of debate
they are likely to get pressed into other people™s agendas. Thus, regardless of
what national regimes of law do or do not allow, the international community
may have its own interests in whether or not persons are treated as property.
A contingency, in other words, of some effect.
To be blunt, the question of whether one can talk of persons possessing one
another has dogged my own anthropological and feminist sensibilities for a
long time. Ownership begins to look property-like in societies such as those
of Melanesia where payments pass hands for all kinds of services and rights
that people acquire in one another, where suitors expect to pay bridewealth
and killers hope to escape revenge by handing out huge sums. In the coarse
vocabulary of money, men and women may speak of buying and selling brides,
of buying off the victim™s kin.
Of course there are many ways in which people can negotiate interests
without having property rights over one another, as there are diverse ways
in which they might be said to own one another. What makes the question
newly interesting are recent debates that have sprung up in relation to intel-
lectual property. Along with them has come an arithmetic of sorts, that is, the
˜discovery™ that although there must be an identi¬able originator of a work or
product on whom the right is conferred (and this holds for works that meet
the criteria of either copyright or patent), it is a contingency of some ethical
moment that many others may also be involved in the working or supplying of
137
DIVIDED ORIGINS AND THE ARITHMETIC OF OWNERSHIP


raw material (e.g., Jaszi 1994; Woodmansee 1994; Biagioli and Galison 2003).
The point was brie¬‚y raised in Chapter Three. If rights confer the opportunity
of reward, the argument goes, these others should be rewarded too, whether
or not they are recognised as owners. The others may be counted as many
other individuals involved in making the thing in question or as a collectivity
with prior interests in a commons.
Now this is the moment, as Davies and Naf¬ne gesture at the end of their
book, at which materials from beyond the Euro-American tradition may start
to acquire comparative value. And where we may be reminded of the reason
why the Aboriginal artist was trying to withdraw from a copyright agreement:
it had led to the license holders to whom he had sold it to then sub-license the
design, and others moved in to protest. The others included people he would
count as kinsmen. It was clear that members of his clan both had claims to
the design and claims over him; the design had originated in the clan, and
the clan determined the conditions of its reproduction. I do not wish to step
into the mire of what is collective or communal here;3 the interests of a body
of people may be conceived as either singular or plural depending on context

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