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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
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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
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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.
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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
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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.
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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,

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