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Book the Second, Chapter the Thirteenth.  Of the TITLE to THINGS REAL, in General.

This chapter is about feelings and actions and how one leads to the other.  Of course Blackstone doesn’t talk about feelings or actions per se.  His discussion of title, or, ownership, is couched in terms of rights and possession. But I don’t think it is too much of a stretch to see the question of what it takes for someone to ‘have title to,’ or, own, property, as what it takes for us to feel right about someone’s act of occupying land.  The remarkable thing is that Blackstone refuses to choose between the two, or even, really, to prioritize one over the other.  He insists that both rights and actual possession are necessary to create legal ownership – and that the causal arrow runs both ways.  Property rights may be actualized in possession, but even wrongful possession can transform into ownership.

At first it looks like rights will be more important. (In a volume titled “The Rights of Things” this seems unsurprising. ) The chapter sets up a series of “stages or degrees” needed for ownership.  II, 195.  It begins with “naked possession, or actual occupation” which Blackstone describes as “the lowest and most imperfect degree of title.”  This is followed by “the right of possession.”  II, 196.  But then, as we move away from possession all the way to rights, the hierarchy dissolves.   Instead of a higher degree of ownership, we find the “mere right” of property, a situation in which “the estate of the owner is . . . said to be totally devested, and put to a right.” II, 197.   It turns out both rights and possession are necessary to form “a complete title to lands.”  When the right of possession is joined with the right of property and “to this double right the actual possession is also united . . . then and then only, is the title completely legal.”  II, 199 (my italics).

Blackstone explains that a rightful owner divested of his land may win it back by bringing a timely legal action against the interloper and making use of “a variety of legal remedies.”  II, 196.  So far so good.  This process matches our conventional picture of how rightful ownership is supposed to work.  Rights trump possession.  The person with legal rights proceeds to enforce those rights in order to make social reality conform more closely to the legal ideal.  But it seems the transformation works in reverse as well – reality can reform rights. If the person with the right to the land doesn’t take possession, and doesn’t bring a lawsuit, “his adversary may imperceptibly gain an actual right of possession.”  II, 197.  Eventually,  possession by someone with no right at all to the land “may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title.”  II, 196.  What’s more, it seems that the act of taking possession is not just an alternative route to ownership, but an essential key:  “without such actual possession no title can be completely good.”  II, 196.

Something very strange is going on here.  I know we say that possession is nine-tenths of the law, but isn’t that supposed to be an ironic statement about the way law caves to power?  After all, the very notion of property rights seems to take shape in opposition to possession.  Anyone can possess something by just grabbing it, or, in the case of a house, by just moving in.  Legal ownership must be based on something different, or else what distinguishes law from force?  So why should “actual” possession be a significant, let alone a necessary (“then and then only”), ingredient of legal ownership?

My discomfort with the process of turning possession into ownership reminds me of another dichotomy – yes, feelings and actions. In what I think of as the standard, modern Western view, feelings motivate actions and actions come from feelings — not vice versa.  Action without feeling is considered insincere — suspect, deceptive, not real. In a similar mode, I think, we generally think of rights as prior to acts and structures that express or instantiate those rights.  Blackstone’s description, note, doesn’t prioritize possession over rights.  Instead in this scheme the two are equal – and the goal is to get them together.  Likewise, no one would say that feeling is more important than action (and, to the contrary, we might say that deeds matter most).  Nevertheless, feelings are necessary, it seems, to fully validate actions – to make them authentic.

When I was a young actress, studying in New York City in the 1980s, there was quite a premium placed on authentic feeling on stage.  I thought, and I think it is safe to say that most of my fellow acting students agreed, that the only way to produce really “believable” performances of dramatic scenes was for the actors to experience certain emotions that would then naturally be expressed.  In other words, in order to play a scene in which a character was supposed to get really mad, you had to somehow first produce a feeling of outrage, which would then lead you to yell and throw things.  The most paradigmatic, mysterious and prized example of this feeling-action continuum was the ability to summon authentic tears.  This is a (vastly oversimplified) version of the “method” acting approach that was, and I believe still is, ascendant in mainstream American theater, but it is by no means the only way to go. My friend Christine, who was a great acting teacher, used to tell the story of the summer stock role she had early in her career that called for her to break down in tears at the climax of the second act.  Concerned about her ability to reach the necessary emotional peak on cue night after night, she sought advice from a company veteran.  “Sweetheart,” he said, “just put your hands over your face and shake your shoulders.”

Now, Christine told this story to get the laugh, but also to challenge the idea that actors needed to feel anything in particular in order to produce great performances. Of course burying your face in your hands and shaking could look ridiculous onstage.  But if one’s technique were excellent enough, presumably the audience would not be able to tell the difference between real tears and a well crafted simulation. For that matter, what did it even mean to talk about “real” tears deliberately manufactured for a public  performance of a fictional scene?  Under the circumstances, any feeling you ginned up would be the product of your imagination, not a response to real events.  Why should imagination flow only one way from feeling to action?  Why not free actors to meet the creative needs of the drama from the outside in, as it were.  Finally, Christine argued, if you really put yourself to the physicalization of crying – not just the gestures but all the sounds — and kept it up for some time, you would find that it is almost impossible not to begin to feel something like sadness, or even grief.  Eventually actions produce feelings as surely as feelings drive actions.

I have to say that at the time I did not buy it.  It just didn’t seem possible to me that a show of emotion produced technically could possibly be as compelling as tears that came as the natural expression of feeling.  Somehow my performance would not be as good – or as legitimate — if I produced it in this deliberate way, by acting as if I had a feeling I did not really feel.  This now seems silly to me – and romantic in a rather uninteresting way.   But although I suspect my discomfort with the possession to rights approach to property is in some way similar, it is harder to shake.

Certainly when the context shifts from theater to law something more, or at least something different, is at stake. For one thing, legal rights raise a problem of conflicting claims not present in a histrionic setting.  We are not just concerned about whether property authentically belongs to the one who possesses it, but that it might rightfully belong to someone else.  The problem is not just that the act of possession without rights seems illegitimate, but that it could actually prevent possession by the person who has a right of ownership.   On the other hand, if the outside-in, shake-your-shoulders approach to acting is potentially liberating and empowering on stage, so is the possession-to-rights road to ownership in real life.   Flipping the order of rights-possession makes property available to individuals and groups who have no access through the traditional progression.  If property rights are otherwise a matter of heredity and/or economic power, allowing someone to acquire legal ownership of land just by acting as if she owns the place gives the law of property democratizing potential.

This might be the place to reflect that the very notion of possession is quite problematic – with or without attendant rights – especially when it comes to “real” property, that is, land.  If possession means literal, exclusive physical control, what can it mean, really, to possess land?   Obviously, you can put up some fences.  That might keep most or at least some people out.  But really?  Only the ones who recognize the fences as a sign of exclusion and choose to comply.  How does a fence become not just a physical obstacle, but a sign of the force and exclusivity – and perhaps the legitimacy — of the fence builder’s control?  A fascinating article by Nicholas Blomley suggests that the process may have more to do with a summer stock scene than you might otherwise imagine.  Blomley offers a way to think of fences as a “performance” of property. As performance, “Property claims are continuously remade and re-enacted, and, as such, open to surprise and complexity, yet also capable of fixity and sedimentation.”  A fence neither simply bars physical access nor purely represents ownership, but acts in combination with other creative and conventional actions, words, and objects to bring property into being.

Instead of thinking of rights like feelings that motivate actions, think of them as part of that constellation of words and (imaginary objects) that, combined with possessive actions like fence building, complete the performance of property.  Indeed, the very fact that land cannot be possessed by individual humans in a physical, personal containment sort of way may be one reason the notion of rights developed.  In a world that conceives of property as a matter of private ownership, it is actually very, very hard to see how land could come to be owned (as opposed to just occupied).  One would need, it seems, some sort of conceptual, or, imaginary, connection between a person and the land to stand in for personal physical containment. Rights would be that imaginary connection.

If you can’t grab the land itself and hold onto it, you can be a “rights holder.”  As imaginary objects, rights can spring into being in any shape we choose and be held and transferred through any sort of conventionally agreed upon process. But of course, as Blackstone’s scheme points out, rights not actualized in tangible physical occupation are fictions – not just imaginary but invisible –without any real effect.  In its requirement of actual physical possession, then, Blackstone’s understanding of legal ownership acknowledges the fictitious, made up nature of rights.  And in allowing ownership to begin not just from rights, but from physical occupation, Blackstone, like the summer stock veteran, recognizes that if you are going to perform some new state of affairs into being, you are going to have to start somewhere.  Sometimes, you just have to put your face in your hands and shake your shoulders.

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Finders Keepers

Book the Second.  Chapter the Twelfth.  Of ESTATES in SEVERALTY, JOINT-TENANCY, COPARCENARY, and COMMON.

This chapter is about invention and discovery.  The ostensible subject is the different ways that people can own land together.  But the back story that grabbed my attention is the conflict between two different ways Blackstone presents the legal rights and limits he describes – as something we can find out based on the meaning  of property or as something we make up in order to decide what property means. This duality between finding and making seems to be ever present in law.  A moment ago I said these two views conflict, but actually the more I think about it, the more I think that law has to be somehow both found and made all at once in order to be law at all.

Sometimes the double nature of law as found and made gets split apart and chronicled as a historical shift.  One version of this story is that back in the day, people thought that law was something “natural” to be discovered like the physical world and dictated like the rest of the universe by God directly (or from God through us as reason or immemorial custom), but now we know that it’s really something we are just making up as we go along.  In another version of the story, there was once a golden legalist age in which lawyers and judges faithfully executed their duty to find, not make, law and developed powerful techniques for discovering the true answers to legal questions, but those techniques have been lost or discarded by modern lawyers and judges who just impose their own ideas and dress them up as legal interpretation.  This version is championed by ideological conservatives led by U.S. Supreme Court Justice Antonin Scalia.  Perhaps unsurprisingly, the moral of this story is that we should listen to Justice Scalia, who claims to be dusting off the old methods, in particular a narrow focus on the words of legal text, and once again finding rather than making law.

Neither of these stories is very convincing.  The Scalia version can be quite compelling until you realize that somehow every time he employs his “textualist” method the result turns out to be just what you’d expect him to say based on his conservative politics.   On the other hand, the story in which we now see the necessary subjectivity of law that our ancestors were incapable of recognizing feels like just another iteration of the tired Enlightenment tale of progress told to make ourselves feel superior to some relatively primitive and misguided predecessors.  What’s more, the story of purely subjective law leaves a gaping moral and conceptual hole.  Doesn’t the very idea of making a legal decision require that the decision maker looks outside herself to find the answer?

In the end, apart from the issue of political morality, neither of these stories captures the twisted now-you-see-it-now-you-don’t found-made way law feels.  In my experience, it is virtually impossible to look at any legal question carefully for a long time without realizing that there is more than one possible answer and eventually you are just going to have to choose.  But at the same time, even when you know that the answers to legal questions are ultimately made up, you have to see them as found somehow, or they don’t look like law at all.

Blackstone is sometimes tagged as a believer in found law, but I see both finding and making in his account.  In this chapter, he presents the complex rules about which co-owner gets what benefit from jointly owned land not as choices, but as discoverable features of whatever specific type of “interest” the co-owners have been given.  In this scheme, a judge adjudicating a property dispute isn’t trying to come up with the fairest, most socially beneficial or most economically feasible result.  Instead her job is to figure out which of the “three species of estates,” II. p. 179, the disputing landowners have, and then to tell them what their rights are based on her expert knowledge about the legal characteristics of estates.

So far, I admit, this all seems to be about finding. Blackstone reports the intricate rules associated with different kinds of traditional landowning as though finding and reporting on the characteristics of a strange group of creatures that have developed without any singular direction.  You can even see a ghost of Justice Scalia’s textualism in the way Blackstone treats legal language as the source for discovering the truth about who owns what.  Blackstone explains that the specific kind of estate created depends on the relevant document’s wording.  So if a will leaves land “to A and B and their heirs,” that makes them “joint tenants” instead of tenants in common and means that if one dies the survivor gets everything and the one who died does not get to leave his share to his kids. II, p. 181. The “thorough and infinite union of interest” says Blackstone, explains the doctrine of survivorship, “the grand incident of joint estates.” II, p. 183.  Because joint tenants all own the whole estate in the same way at the same time, if one dies the survivor still has the whole thing – and there’s nothing for the dead owner’s heirs to take.  The survivor just continues to own what she had all along. “This is the natural and regular consequence of the union and entirety of their interest.”  Id.

But here is where the made up part begins to come in. For what is being found?  For Blackstone, an estate is not the land itself, which always remains just outside the grasp of ownership, but an “interest” in the land. And these interests and estates are obviously, beautifully fictional.  As we are introduced to the joint tenancy, the coparcenary, the estate in common, there is a flickering sense that they exist in some external way, separate from the physical realm of houses, the politics of social relations and the mind of the person interpreting the legal documents that have called them into being. But at the same time, it is perfectly obvious that these marvelous “species” are fantastic inventions – the kinds of creatures that delight the readers of Harry Potter books because their features spin out such cunning creative choices. What’s more these estates are obviously works in progress.  Like all imaginary objects, they are open to any transformation that can be justified as consistent with previously descriptions. Blackstone refers repeatedly to historical changes in the rights and obligations associated with different traditional types of estates.  He also observes that the law favors certain forms of ownership, which seem obviously made to benefit powerful individuals, tending, for instance, to prevent breaking up large land holdings.

Blackstone has been criticized – mocked, really – for centuries for his apparently naive acceptance of a patently fictional approach to property law.  But this critique always seems to me to miss the point.  Isn’t the obviousness of the fictions the most interesting thing about this whole scheme?  There’s no evidence that Blackstone regards these made up estate structures as themselves naturally determined.  To the contrary, he goes out of his way to note that property law is shaped by social policy choices that can change even the most basic meanings over time.  For instance, he explains that the practice of inheritance, and the notion of a “permanent” right in property on which it is based, “is certainly a wise and effectual but clearly a political, establishment” and “no natural but merely a civil, right.”  II., p. 2.  More generally, he observes that “we often mistake for nature what we find established by long and inveterate custom.” II, p. 11.  Nevertheless it is true that Blackstone presents the complicated estate system as if it were a kind of  pre-existing structure that compels certain limits and privileges of ownership as the “natural and regular consequence” of the features of that system.

Wholehearted, unskeptical belief in the factual basis of this obviously fictional account would certainly be naive.  But Blackstone may not have felt the need to parse so carefully the difference between fact and fiction, nature and creation, that is so prevalent these days – in law and elsewhere.  In my own job as a teacher, it seems like every time I turn around someone is complaining that some pedagogical method or learning assessment is insufficiently “data driven,” or announcing that an issue we’ve been treating as conceptual is really an empirical question that ought to be tested.  There’s a kind of peas on this side of the plate mashed potatoes on the other feeling to these arguments that makes me wonder how much they have to do with the specific subjects at hand and how much they reflect a general anxiety to establish boundaries.

An oddly doubled version of this quest to separate the real from the invented pervades the U.S. Supreme Court’s opinion this spring in a case called Association for Molecular Pathology v. Myriad Genetics, Inc. , 569 U.S. ____ (2013). The Court’s analysis ostensibly focuses on distinguishing natural discoveries from synthetic inventions in order to allow patents only for inventions.  But the justices seem equally concerned to separate discovery from invention in their own work, in order to ground their decision in law that appears found as opposed to made by them.

In Myriad Genetics, the Court invalidated a patent granted to scientists who located and isolated two genes associated with an inherited tendency to develop breast cancer.  Right from the git go, the case had a problem for the conservative justices who emphasize the plain meaning of legal text as the most reliable source for finding law. The U.S. Constitution empowers Congress to provide patents for “Authors and Inventors” on “their respective Writings and Discoveries,” Art. I, Sect. 8, and the associated federal statute makes available patents for “Whoever invents or discovers any new and useful . . . composition of matter, or any new and useful improvement thereof.”  35 U.S.C. 101.  So the relevant constitutional and statutory text appear to authorize patents for both invention with discovery. Nevertheless, the Court brushes by this textual mixing to reassert the crucial divide.  The unanimous opinion written by Justice Thomas explains “We have ‘long held that this provision contains an important implicit exception[:] Laws of nature, natural phenomena, and abstract ideas are not patentable’.”  Myriad at 11.  In other words, patents are available only for creative inventions.  Products discovered in nature are not created and thus not patentable.

There is no mistaking the importance of the discovery/invention dichotomy here.  The opening paragraph of the Myriad opinion uses the word “discovery” twice and the word “natural” five times.  Myriad at 1.  The Court goes on to explain that the process described by the Myriad scientists as “the final step in an extraordinarily complicated set of inventions” was actually a discovery of something natural: “The location and order of the nucleotides existed in nature before Myriad found them.”  Id. at 12. The opinion does acknowledge that sometimes the line between discovery and invention is not so clear.  After all the most classically patentable machines are made of naturally occurring materials and employ the principles of force and motion found in the natural universe.  Indeed, “all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id. at 11Uh-oh . . . . does that mean it is up to the justices to decide where they think Myriad’s claims fall on blurry continuum of nature and creation?

Not at all.  According to the Court, the decision in Myriad is not a matter of the individual justices’ views about where best to draw the line in order to create a fair and economically beneficial patent policy. They are just applying the “well-established standard” separating discovery from invention in order “to determine whether Myriad’s patents claim any ‘new and useful … composition of matter,’ § 101, or instead claim naturally occurring phenomena.”  Myriad at 11.  The Court’s purported reliance on the statutory text about “new and useful” compositions is particularly striking, given that the whole project of drawing the legal line between invention and discovery flies in the face of the same statute’s language authorizing patents for anyone who “invents or discovers” some new composition. The statutory text was problematic, but luckily there was another source available.  Myriad’s patent itself revealed that their supposed invention was found not made:  “Notwithstanding Myriad’s repeated use of the phrase ‘present invention,’ it is clear from the text of the patent that the various discoveries are the ‘invention.’”  Id. at 14, fn. 4.

It is quite remarkable, really, how the Court’s determination in Myriad that the scientists who claimed to have invented something instead discovered it mirrors and reverses the Court’s own implicit claim to have avoided invention in order to  discover the correct legal result.  The scientists don’t deserve a patent because they didn’t make anything new, they just peered into their microscopes and found those genes.  The justices’ decision does deserve respect, because they didn’t make it up.  They just peered into the legal text and found the answer.

Did the justices look in the mirror of Myriad and see their own practice reflected? If they did, they don’t admit it.  But before I go too far in criticizing the lack of self awareness in the justices’ need to style their decision as the pure discovery of something outside themselves, I should note that this hardly seems to distinguish them from the rest of us these days.  Myriad Genetics is in a sense just one more example of our widespread faith that the empirical data points we find can reveal the truth about our world.  Such faith does seem a bit naïve, when you consider the way that truth keeps changing.  Remember when coffee and salt were bad for you?  No more.  A recent study shows the health benefits coffee provides, although the benefits are only definitive for those who drank at least four cups a day.  And it seems that no amount of table salt applied to make food more tasty actually has any ill effects.  But does anyone really believe these happy conclusions will not eventually be overthrown by some newly discovered opposite “truth”?

In fact the final irony here may be that the very difference between discovery and invention, nature and artifice, that seems so undeniably real and important, if difficult to discern, is just as ephemeral and made up as the traditional estates Blackstone describes.  Inventors don’t get patents for things they find in nature, and judges don’t get legitimacy for inventing legal answers, but in both contexts the line between finding and making turns out to be disappearingly fine.  It may be that both judges and inventors have to make do with the messy results of practices that cannot be defended as either wholly objective or entirely original.  These compromised methods are disturbingly messy and undifferentiated, and cannot produce a satisfactory feeling of either straightforward belief or unalloyed skepticism, but they may be all we have.  As for coffee and salt, I’m sticking with my (96-year-old) mother’s advice on how to handle the frustratingly changeable line between healthy and toxic foods:  Just don’t eat too much of any one thing.

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In Praise of Artifice

Book the Second.  Chapter the Eleventh.  Of ESTATES in POSSESSION, REMAINDER and REVERSION.

This chapter is about a marginal area of property law – the notoriously tricky doctrine of “future estates.”  As so often happens, poking around on the margins offers new views of the center.  The idea here is ownership without possession — a way to create and pass along estates that the recipients do not possess but expect to possess at some future date.  As we are introduced to the complex structures that have been developed for giving folks this kind of “future interest” in land, a certain doubt begins to form about the standard case.  After all, what does it mean exactly to possess land or, for that matter, to own it?

If you went to school in the United States in the 1960s, around the third grade your social studies textbook likely served up some version of the following story:  When the English and Dutch colonists came over to the American continent, they sometimes tried to buy land from the Native Americans – often for very little.  The island of Manhattan was supposedly purchased with beads and blankets.  The Native Americans didn’t realize the value of the land (so the story goes), and what’s more, they did not understand that by accepting the trinkets they were giving up the right to occupy and do all the things they usually did on the land – fish, hunt, live, etc. Strangely, they didn’t think of land as the sort of thing that you could possess or transfer in this exclusive way.

The idea that Native Americans were just too dumb to understand the deal they were offered has long been repudiated, along with other stereotypes about the ignorance of “primitive” cultures.  What strikes me now about this story is not its culturally ignorant presentation of Native American society, but its bizarrely distorted vision of the colonists’ world view.  Because, at least according to the Commentaries, the English colonists should have been quite familiar with the idea that land is not a thing to simply possess and freely buy and sell.  In the system that Blackstone describes, land is a deeply problematic and special kind of property.  Paradoxically, in AngloAmerican legal culture, land is both the paradigmatic object of private property and the sort of property that most evades exclusive private control.

All of the legal twists and turns in Blackstone’s chapter on future interests are  necessary exactly because in the English common law of property there are special constraints on transferring the ownership of land. During early colonial times land could not be willed freely to others after death: “it was not till after the restoration [c. 1660] that the power of devising real property became as unreserved as at present.”  II, p.12.  In Blackstone’s time, while it was perfectly okay to make a contract that promised to convey goods in exchange for services performed at some future date, it was legally impossible to convey land this way. For that matter, if you watch Downton Abbey, you know that even in the twentieth century England’s fanciest estates could not be simply sold or passed down as the current occupant desired.  So what’s up with this idea that the English colonists were surprised by Native Americans’ view that the continent’s fields and forests were not theirs to simply sell?

I suppose the old schoolbook version offers some cover for our country’s violent origins, but that’s pretty thin cover: Foiled in their underhanded attempts to cheat the Indians out of their resource laden homelands, the colonists were forced to resort to the more reliable land acquisition strategy of genocide. Not the most morally compelling  justification.  Maybe, rather than justifying colonial conquest, the story of Native Americans’ failure to grasp the meaning of private land transfers is a way to expel ambivalence about unlimited private ownership of land. Nothing rids a society of lingering doubts about the legitimacy and utility of private property like projecting those doubts on the people your ancestors conquered and darn near obliterated.

But what does any of this have to do with the Blackstone’s explication of the law of future interests? The story of the clueless Indians relocates traditional restrictions on private land ownership from the dominant legal culture to a presumptively primitive culture due to be destroyed. Think of the legal inventions Blackstone describes here as an alternative story about how to remove restrictions on the exclusive private control of property. To circumvent traditional limits on individual choices about who gets to have your land after you’re gone, “the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law.”  Id.  Nothing is swept away.  Instead the doctrines build on and around the old restrictions, finding ways to circumvent without destroying or even entirely obscuring them.  And yet things do become something other than what they once were – without ever acknowledging fundamental change. Against the expulsion of old-fashioned limitations, Blackstone pits a kind of intricate, artificial legalism — the “nicety” of English common law.

What does it mean for law to be “nice”?  Certainly Blackstone doesn’t mean that the doctrines of future estates are mildly pleasant.  Look up “nice” in the dictionary and you may be surprised. My old Webster’s Collegiate, offers a hopscotch of contradictions.  Skipping over the obsolete meanings (Wanton, dissolute), we first get “coy, reticent”  “showing fastidious even finicky tastes; particular” and next the most obvious candidate for Blackstone’s usage:  “possessing, marked by or demanding great, sometimes excessive, precision and delicacy.”   Then come the familiar contemporary meanings: “pleasing, agreeable” and “well-executed,” but bizarrely these are followed by what seem to be their opposites:  “most inappropriate: bad” only to swing back to the other pole: “socially acceptable: well bred” and “virtuous, respectable.”  Was there ever such a catalogue of contrary meanings packed into a single syllable?  It’s as though the word packs into itself the understanding that every instance of a quality is in some sense a performance, an act, and thus a manifestation of the very lack of that quality and the presence of its opposite.

“Nice” turns out to be a fine word, really, for the kind of tricky legal artifice Blackstone is exposing and celebrating here.  This is the chapter where Blackstone presents the art of law as art.  Legal doctrines appear here not as the result of some kind of necessary functional evolution, but as the handiwork of individual creative practitioners whose skill should inspire both respect and suspicion. We get names: Sir Orlando Bridgman, Sir Geoffery Palmer – who are credited with the “invention” of the doctrine of remainders, and thus with developing a method of providing “for the future of children of an intended marriage, who before were usually left at the mercy of the particular tenant for life.”  II, 172.  The way this works is that the person who gets the land first gets a present interest and the person who gets it later gets “the remainder.”  That terms make it look like the second person is just getting the leftover scraps, but actually, in most of the deals Blackstone describes, the “remainderman” winds up with the whole megilla, while the first person just gets to use the place temporarily.  Nice!

Blackstone is clearly proud of the professional craft on display here.  The discussion of future estates ends with a rare direct reference to his audience:  “Thus, the student will observe how much nicety is required in creating and securing a remainder” — and an even rarer shift into first-person singular address:  “I trust he will in some measure see the general reasons, upon which this nicety is founded.”  II, 172. This is an amazing paragraph because it goes on to say that the way it all works doesn’t actually conform to the basic rules at all:  “It were endless to attempt to enter upon the particular subtleties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries has been spun out and divided:  neither are they consonant to the design of these elementary disquisitions.”  Id. (my ital.)  But wait, there’s more:  “I must not omit,” Blackstone goes on (still using, please note, that direct first-person singular to comment self-reflexively on his own authorial choices) “that in devises by last will and testament . . . in these devises, I say, remainders may be created in some measure contrary to the rules before laid down.”  Id.

In contrast to his fondness for the creative invention of new forms of property rights, Blackstone is deeply suspicious of a natural right to property.  He takes a dim view, in particular, of the colonists’ dealings with the Native Americans and of the colonial project’s foundation in the idea of natural rights.  Under the principle of natural right, he observes,  colonists have taken to “seising on countries already peopled, and driving out or massacring the innocent and defenseless natives, merely because they differ from their invaders in language, in religion, in customs, in government or in colour.”  II, 7. That approach fails on its own terms, Blackstone points out, because it leads to conduct that violates the basic tenets of all three of the purported sources of natural rights, being “not consonant to nature, to reason, or to Christianity.” Id.

In a sense, Blackstone offers the “nicety of common law” – the nicer and more abstruse the better — as an alternative to the violence of natural rights.  But here, of course, is where the critique of Blackstone as an apologist has some force.  Does legal protection of private property really replace violence or only mask it?  Because of course what makes a property system legal is that if you don’t go along with it you get violence.  If you pop over to your neighbor’s estate to pick some of his potatoes because your kids are hungry there likely will be very little nicety of any kind in the treatment you’ll receive; you’re going to get the men with guns.  It is not all that different, in the endgame, from what would have happened to the Indians of Manhattan if they had not taken the beads and the blankets.  If law does not replace violence, but only defers and monopolizes it in a way that will sometimes prevent the justly violent taking of food for starving children, is law still something we want? Blackstone thinks so.

In the end what struck me most reading this chapter was the faith Blackstone puts in legal creativity and guile – his delight in the inventive duplicity of the lawyers who manipulate legal fictions to reshape reality.  I get the sense that Blackstone feels about natural rights the way I feel about clothes made out of “natural fibers.”  He doesn’t seem to see anything necessarily better about a natural right than a right that’s been designed and manufactured by a bunch of crafty professionals for a handsome profit.  He is not a purist.

Once upon a time I was more concerned with purity, or at least, authenticity, but my friend Ruth set me straight.  We were walking in Manhattan’s West Village – this must have been 20 years ago – and we passed a then relatively new, fully appointed re-creation of a cozy English tea room: floral prints, tiered platters, bangers n’mash, the whole nine yards.  How ridiculous, I remarked, to put all that energy into tricking out such a place in New York City.  “What’s wrong with it”? Ruth asked.  “It will never be real,” I responded, “no matter what they do it will just be a pretend English tearoom.”  “Why is real better than pretend,” she persisted, “why isn’t it just as good – or better, really, to make something up?  It isn’t like an English tearoom is a fact of nature, but suppose it was?  What’s the great virtue in being natural?  Why not just make things the way you want them, instead of feeling like you have to stick with the way they are”?  Well, if he were alive, I’m pretty sure Blackstone would happily dine at Tea and Sympathy on Hudson Street in lower Manhattan.  Although, of course, he would still disapprove of the way the land on which the shop stands was taken from its original inhabitants.

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Our Bodies, Our Castles, Our Countries, Ourselves

Book the Second.  Chapter the Tenth.  Of ESTATES, upon CONDITION.

This chapter is haunted.  The estates Blackstone describes here have an almost animate quality, popping up or disappearing “upon the happening or not happening of some uncertain event.”  II. p. 152.   At the same time, as I noted in my previous post, there’s a sense that personal identity is more closely tied to, more explained and expressed by, real estate than it is today.   You might even say that in the Commentaries, identity is more about the land and less about the body.  This makes a certain amount of sense, I suppose, given that back in the eighteenth century bodies were seen to come and go a lot more frequently and unpredictably than they do now.  Individual and social status in the world Blackstone describes are matters of real property, paradigmatically land.  Nowadays, it seems, our bodies are our estates.

Ever since I was a little girl I have wondered how our lives will look to people in the future.  What are the things that now seem so naturally, unquestionably true but in a few centuries or even decades will seem laughable, idiotic and possibly evil?  The irony, I suppose, is that my fascination with future spectators itself marks me as the product of a late-twentieth-century generation with an overblown sense of our unique place in history. But be that as it may, I can’t help but wonder what aspects of my own worldview will look just as strange to the folks 200 years down the pike as estates in vadio or in gage  look to me now.  II. p. 157.  I’m guessing that a certain frantic fascination with all things corporeal may be on the list.  While Blackstone seems obsessed with land ownership, I see bodies everywhere.

In Blackstone’s world everything mysteriously turns into hereditary property.  You probably wouldn’t think that being fired for not doing your job involves a transfer of real estate.  But Blackstone figures a park keeper’s poaching or a judge’s corruption as the violation of an estate each man was granted, that had “a condition annexed to it inseparably, from it’s [sic]essence and constitution, although no condition be expressed in words.” II. p. 152.  So the keeper can be fired for killing the deer he was hired to protect, or the judge for taking a bribe, because he acquired his job as a kind of estate to which “the law tacitly annexes . . .  a secret condition, that the grantee shall duly execute his office, on breach of which condition it is lawful for the grantor, or his heirs, to oust him.” II.  pp. 152-53.

Before you dismiss the job-as-conditional-land-grant approach to professional corruption as a quaint old-fashioned twist on social problems we now approach directly, consider the propensity of our own age to turn practically any social issue into something to do with the nature and well being of individual human bodies.  The failure to nurture and support young people becomes a childhood obesity epidemic; the debate about how much government should intervene in social welfare and redistribute wealth comes down to a battle over access to personal medical care; and criminal guilt or innocence is determined by the presence of microscopic amounts of saliva, dandruff, or ejaculate.

Was there ever a culture so body-obsessed as upper-middle-class America in the twenty-first century?  So tirelessly devoted to constructing and reconstructing explanations of who we are and how we should live in terms of the human body? So endlessly engaged by the pleasures and dangers of eating, the need and lack of time for physical exercise; the benefits of organic vegetables and the hazards of genetically engineered produce; breastfeeding; DNA evidence; genetic mapping; doping scandals; athletes’ salaries, injuries, triumphs and corruption; cancer, cancer and more cancer; neuroimaging; Oprah’s weight swings; yoga, pilates, water aerobics, and the importance of a good night’s sleep . . . the list goes on and on.

These days, physical appearance is understood to be a transparent reflection of character.  A certain rail thin aerobic fitness is now generally thought to be a must for a national politician. So much so that when Chris Christie, the portly governor of New Jersey, was considering a run for the Republican presidential nomination, pundits immediately predicted his defeat on the basis of obesity   (but see Frank Bruni).  Consider the way the power of the first couple is expressed in their physical fitness, compared with, say Franklin and Eleanor Roosevelt, the Eisenhowers, Ronald and Nancy Regan. Michelle Obama’s arms have been the subject of much greater fascination than her professional career or personal history.  Off the top of my head I can’t recall where she went to law school, but I do know what time she gets up in the morning to work out (5:30). Think about Michelle’s arms and Eleanor’s teeth.

It isn’t just individual character traits that get expressed in bodies today.  In the millennial United States, status maps directly onto our bodies.  Higher socioeconomic status correlates relentlessly with healthier, more beautiful (by mainstream media standards) and longer-lived bodies.  In the U.S. today, men in the top half of the country’s wage distribution live about 6 years longer than those in the bottom half, and whites have an average life expectancy at birth about 5 years longer than African Americans.  Brookings Institution; U.S. Census.  We hear a lot about growing socioeconomic inequality, but less about the effects on longevity for those on the wrong side of the equality gap.  Apparently, the life expectancy of the least educated Americans is actually falling.  Olshansky et al.  For instance, between 1990 and 2008 white women in the U.S. with less than a high-school education lost an average of 5 years from their life expectancy. Id.

While the magnitude of the loss was startling, the strong correlation between privilege and longevity didn’t surprise me.  I am very used to the idea that a life further down the ladder of socioeconomic status is a shorter life.  Indeed this relationship qualifies in my mind as a “natural” correlation.  But a book my daughter brought home recently for a social studies project taught me otherwise.  This book (sadly I can’t recall its title or author) informed me that during the American colonial period members of many Native American nations were generally taller and longer lived than the colonists. Now of course this comparison doesn’t involve different statuses within the same society and has one easy explanation – at the time, the Indians were much better fed. Still, it reminded me that the correlation between longevity and capital is contingent and led me to wonder whether that correlation could be traced to a particular time and place.

Sure enough, a fascinating paper by S. Ryan Johansson informs us that in pre-modern Europe the upper classes did not enjoy any particular health or longevity benefits.  Medics, Monarchs and Mortality 1600-1800.   In modern times “economically and socially privileged groups invariably live longer than average, while the lowest income groups live the shortest times or all.”  Id.  But it was not ever thus.  Indeed, according to Johansson, up to the 1700s, mortality rates were approximately the same for “princes and peasants.” Id.  It seems the eighteenth century was a watershed in this as in so many features of our modern Western society.   Until the 1700s, “Europe’s wealthiest and most socially advantaged families had surprisingly low levels of life expectancy, levels that were very much the same as those of the European peasantry.”  Id. at  8.   But something happened in Blackstone’s century – at least in Europe — that connected bodies to economies in ways that had not been true before.

Since that time the correlation between social class and longevity has held despite huge changes in when and how we die. In the eighteenth and nineteenth centuries it was still infectious illness, accident and childbirth that did most folks in, and death was frequent, if not routine, across the life course.  Now it is mostly chronic illness, cancer and heart disease that finish us off, and mostly in a very compressed period at the end of our life span.  Yet, despite all these shifts, for the last three hundred years–but only for the last three hundred years –the correlation between social privilege and longevity has not budged.  It does kind of make you wonder about the claim that modernity brings class mobility.

It makes perfect sense that bodies would become more important socially, and that individual identity would come to be more closely associated with the body, just when socioeconomic class distinctions became more consistently expressed in the most basic bodily characteristic — mortality.  If you wonder why twenty-first century America is such a body-obsessed culture, look no further than the fact that lower social class correlates reliably and dramatically with increased morbidity and earlier death. Then again, the same correlation may have explanatory power for Blackstone’s property-centered worldview.  After all the connection between wealth and longevity was just beginning in his time.  Possibly Blackstone was clinging , consciously or not, to an index of social hierarchy that cuts against the grain of mortality rather than along it.  In the feudal society that produced the property structures Blackstone so lovingly chronicles, lives may have been “nasty, brutish, and short,” but they were no shorter on account of class differences.

The same cannot be said of the U.S. today, where people with less money, power, education and, yes real property, are more likely to die sooner, to die violently,  to get sick, and to suffer crippling and painful disabilities.  If land and houses were once upon a time the primary exposition of social status, now it is written on our bodies.

There is an interesting reversal of the land-to-body trend where government is concerned.  Nowadays we tend to associate a state with its geographical territory, whereas premodern nation states were more immediately identified with the bodies of their rulers.  Recall that kings were called by their countries’ names: Henry VIII is “England,” Louis  XIV simply “France.”  In a sense that is hard for us to understand now, a country was actually located in the body of the man who ruled it.  To most twenty-first century eyes the identification of the man and the realm looks like a kind of mysticism, but you could also see it as a more accurate perception about the man-made character of nation states.

Nowadays we tend to identify the state of, say, Pennsylvania as the land represented by the irregular pastel rectangle on the map.  Somewhere along the line we substituted geography for personality as the preeminent basis of state identity.  We think of the territory as the real Pennsylvania and the state’s power, policies and civic spirit metaphors for the physical reality.  But of course that is backwards.  And every bit as primitively inaccurate as the identification of the real England with Henry VIII’s body.  To the extent that a state has a reality outside of collective metaphor it is in that numinous power, that ghostly corporate planning, that shared sense of collective identity — and the land is the metonym, the material place holder that we use to think about and refer to a reality that is otherwise hard to grasp.  The territory mapped by the U.S. geographical survey comes about as close to representing Pennsylvania the State as those plastic models we used to have in grade school with their golf-ball-sized electrons and protons frozen on thick wire orbits came to capturing atomic energy.

It seems unavoidable that models from bygone days appear clunky and misleading, even downright false, while current versions escape criticism.  It isn’t exactly that today’s models seem better.  It’s more that we just don’t notice them, or their ‘modelness’ at all.  Take costume dramas.  In films shot in the 1950s, medieval royal robes and peasant jerkins look obviously fake, and different from the costumes designed in the 1930s or the 1970s, even when they all mimic the same historical designs. In period dramas made today, the cuts and colors of the present are transparent; but in a decade or two they will start to appear in costumes that look wonderfully authentic to us now.

Likewise we cannot help but see our current human-body-centered sense of self as more realistic than the eighteenth century land-based self.  It seems far more natural to identify with the unique physical entities that pop from our mothers on our birthdays and end at the moment of their inevitable demise.  After all, to connect yourself with your body you don’t need a complicated ritual involving clots of earth and fancy phrases, you don’t need legal documents – all you need is a mirror (and incidentally mirrors were quite rare in feudal times).  Except it turns out that, biologically speaking, the whole idea of the human body as a singular, skin bounded, individually organized entity with a unique birth and death date is pretty much a fiction.  Another clunky model.  As Scientific American puts it “the human body is not such a neatly self-sufficient island after all.  It is more like a complex ecosystem.”  Over the last decade microbiologists have identified literally trillions of organisms that live inside, outside, on and around the space we call our bodies.  Apparently the idea that each of us inhabits a separable human body on a single discrete pathway through time and space is every bit as mythological as the premodern idea that the royal version of such a body is the home of the nation.  In fact it seems that most of the stuff inside the space we call “the human body” is not human at all.  In that “ecosystem” microorganisms outnumber human cells ten to one.  Id.  Any separation between our bodies and the rest of the world is utterly permeable.  Suddenly the idea of a castle or a fenceable farm embodying my one true self doesn’t seem quite so deluded.

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Property, Liberty, Identity

Book the Second.  Chapter the ninth.  Of ESTATES, LESS than FREEHOLD.

This chapter is about how to give somebody property without giving him the right to vote.  Now you might think that is sort of like explaining how to bake a cake without launching the space shuttle, as in, “any damn way you want.”   But you would be wrong.  Once upon a time voting rights depended on owning land –no land, no vote.  And law’s peculiar double edge can make a power of every prohibition.  If lacking land makes you politically impotent, getting land can immediately enfranchise you.  Of course, nowadays universal voting rights have unhooked the old, strange connections between property and political emancipation.  Or have they? Curiously, it seems that if you stare long and hard enough at the historic links between citizenship and real estate you may start to see shadow outlines of our own current electoral system.

In formative feudal days a person’s status and estate were basically the same thing.  The rule was: You are what you own. It was obviously more complicated than that— for example, women owned land but had very different social and political roles than men.  Still the basic point holds.  All the folderol and fiddle-dee-dee of tenures in gavelkind and estates for life par autre vie was not only about how much property someone had.  It constructed a fine-gauged hierarchy of power relationships and political identities.  There were barons with manors in grants from the crown, the original landlords, who were themselves tenants of the king.  Then there was a whole interwoven network of folks attached to their homes, lands, and farms (or certain parts or uses of them) with as many different cannily designed connections as you find in a Lego set — tenants in fee simple, tenants in fee tail, tenants by the curtesy of England, tenants for life, for years, at will, at sufferance etc. etc. etc.

Finally, on the same land owned by the lords and the various tenants, there lived another group of people who were more or less owned by the land. These serfs, or “villeins,” farmed and labored for the landlords and for subsistence.  Villeins were not “freeholders” of the property they worked and literally not free men – they were forbidden to leave their allotted plots.  But neither were they the personal slaves of the landowners.  Their primary connection was to the estate itself, and if the land changed hands they went with it.  In a system that equated land ownership with political status, villeins had a definite, albeit almost negative, identity.

Now, you can stabilize social hierarchy in different ways.  The people with all the wealth and power can protect their position with ad hoc charity, bribery, threats and violence.  (And you can be sure that plenty of that was going on in the Middle Ages just like today.)  Alternatively, or in addition, you can explain the distribution of wealth and political power as the result of some deeper, natural, inevitable structure.  Sexual anatomy is one possibility, with which we remain familiar.  Land, it seems  is another.

Apparently in feudal times one’s relationship to the land had the sense of core reality that gender identification retains today.  Just as we often take for granted that there are certain things a person can do, or do better, if he has a male body, feudal society took for granted that there were certain political acts he could do only if he had a particular kind of real estate.   Landowning was shifted across the cause-effect dichotomy.  Nowadays we tend to see owning land as a result of wealth and power.  Rich big shots get to buy themselves fancy homes. In the feudal world where common law property rules were formed that story is flipped.  Land isn’t what you get when you get rich and powerful, wealth and political power are things you get because  you own land.  The hierarchy of land ownership had the kind of born-this-way identity-determining power still retained by the “natural” dichotomy of male and female.

By now you may be practically screaming, “Wait a minute!  We are born with penises or vaginas (and, perhaps, more controversially, with genetic predispositions toward certain sexual responses), but we aren’t born attached to land.”  But you see, in the common-law property scheme, you are.  That is actually the whole point of all this stuff.  You are born – and you die – with a specific predetermined connection to a specific piece of terra firma and the architecture attached to it – and that connection determines your social and political trajectory every bit as much as the shape of your personal anatomy.  When you know what you own you know who you are and where you belong.  Finally I understand why the common law term for selling land is “alienation.”

The entire second volume of the Commentaries is devoted to the way property law knits together social identities and networks of identities.  Yet in Blackstone’s account, law plays a double role.  The stabilizer of the social structure is also the great liberator.  Law accomplishes its heroic feats of individual liberation through its generality.  Common law property rules might be insanely multifarious, but the different rules are all rationally applied in the same way to everyone.

Law frees individuals from the feudal web by ignoring the intricate ranking of estates and treating everyone the same.  Sometimes this has ironic results.  Blackstone delights in stories of the rich and powerful tripped up by law’s implacable generality.  You can almost see his Cheshire smile as he explains that when a landlord sued one of his serfs (rather than simply seizing the serf’s goods), the lord freed him: “the law, which is always ready to catch at any thing in favour of liberty, presumed that by bringing this action he meant to set his villein on the same footing with himself and therefore held it an implied manumission.” II. pp. 94-95.

By the same legal tit for tat, if lords could vote in parliamentary elections because they owned land,  then anyone who lost his land should lose his voting rights — and anyone who got land should get to vote.   And so it was, Blackstone explains, that “a grant of any estate of freehold or even for years absolutely, was an immediate enfranchisement of the villein.” Give a serf a piece of land, and Poof! He’s a free man.  (Fans of Harry Potter will recognize this as the transaction J.K. Rowling reimagines when the sack-clothed house elf Dobbie is freed from bondage by the gift of a piece of his master’s clothing.)

When law reneges on its promised generality, Blackstone disapproves.  He frowns on the legal fiction “contrived” to accommodate the lords of the manors who wanted to grant land to their villeins “yet did not care to manumit them entirely.” II. p. 149.  Such adaptations compromise what Blackstone sees as the reality of general legal rules.  The serf who gets land but no political status is disenfranchised through a kind of false legality, “for though he really holds to him and his heirs for ever, yet he is also said to hold at another’s will.” Id. (emphasis in the original).

Differential legal treatment is bad for law’s image. One of the most basic qualities of justice, if not the most basic quality, is that what goes for one person goes for the next. Creating exceptions to keep individuals in their assigned status makes that status seem lawless.  What’s good for the goose is good for the gander, if the lord gets his political rights from his inheritable real estate, so should the serf.  The key to law’s power to justify social hierarchy is the number one common law rule: treat like cases alike.

But this is where there begins to be some tension between justification and justice.  What is really striking about the story Blackstone tells is the way it frames the choice completely between (bad) laws that create different rules for individuals of different statuses and (good) laws that create general rules that stay general even when they happen to run against the social grain in an individual case.   This is liberal political ideology, pure and simple.  In this story, law promotes justice so long as it is generally applied.  A law requiring land in order to vote is fair, so long as anyone who gets land is enfranchised.  If there are people who for some reason can’t meet the voting prerequisites, that doesn’t make the law unjust, so long as anyone who does manage to get his hands on whatever the law requires then gets to vote.

I said the outlines of our 21st century American election system would appear eventually, and, just like that, here they are.  Nowadays, generality is thought to be pretty much the sine qua non of legitimate voting rights regulations.   The problem is that, contrary to Blackstone’s narrative, applying general laws to stratified societies doesn’t necessarily produce justice, let alone liberation.  To the contrary, general laws can sometimes entrench and amplify existing inequalities.

Take, for example, Pennsylvania’s new requirement that all voters show government issued photo ID at the polls.  On the surface this law looks perfectly calibrated to the democratic principle of “one person, one vote.”  It is certainly general – everybody has to show the same kind of ID.  And most voters already have a satisfactory ID, namely a driver’s license.  But the fact is that a sizable number of registered Pennsylvania voters (the state says over 700,000, Applewhite v. Pennsylvania, Brief of Appellants at 9) don’t have a license or some other  ID card that meets the applicable standards.  The folks who lack these IDs are not randomly distributed .  They are disproportionately impoverished city dwellers who don’t own cars.  In Philadelphia, for instance, it is estimated that as many as one in three  registered voters lack the ID that would enable them to vote in November.  Most of them can theoretically get a state issued non-driver ID, but it means at least a trip to a state agency during business hours — presumably on public transportation.

The state’s response to worries about the law’s potential to disenfranchise eligible voters is basically Blackstone’s line:  it’s a general law that imposes the same requirement on everyone, and a general law is always just.  Opponents point out that there is no evidence that the state has a problem with the sort of voter impersonation fraud photo identification would prevent.  They charge that the ID requirements are being imposed by Republican politicians who aim to suppress the votes of the urban poor, thought to skew Democratic.  Meanwhile some two-thirds of the state’s registered voters apparently support the law.

Maybe there’s something more basic, and less conscious, at work here.  To some, I daresay the ID law sounds like a good idea not because it prevents a rare and specific form of election fraud or because it helps one political party defeat another, but because the people it keeps from voting are threatening – marked by their very lack of identification as somehow shady, socially marginal and potentially dangerous.  Explaining how anxieties about a “dangerous and degraded urban population” drove property qualifications for voting in nineteenth-century America, Alexandar Keyssar describes sentiments that I can’t help feeling might explain some of the current popularity of voter ID laws.  Proponents of linking property and voting “were not simply worried that the propertyless lacked good and independent judgment;’ they were overtly hostile to manufacturing workers and the urban poor.  Not only would the ‘motley assemblage’ be covetous and threatening, it also would be . . . a repository of ‘ignorance, vice, and corruption.’”  The Right to Vote at 49.  I wonder if this year’s voter ID law isn’t supported by some as a way to exclude folks whose imagined “ignorance, vice and corruption” is demonstrated by their very inability or unwillingness to obtain the requisite identification.

Who are these unidentified people anyway, who apparently lack the wherewithal or the desire to drive a car, travel on a commercial airline, or gain entry to any office building in midtown Manhattan?  In the past, law justified giving political voice only to those whose social identities and economic power were firmly marked by their ownership of land.  In today’s world, it might likewise seem “natural” to limit political participation to those who have what it takes to drive a car, fly the friendly skies and do business in the office towers that–with their bustling retinue of round the clock workers, on site stores and food service, and cordons of uniformed guards– are surely the medieval castles of our times.

The problem, of course, is that we are supposed to live in a democracy defined by its total rejection of this kind of status-based enfranchisement.  That its persistence is promoted by the kind of one-size-fits-all regulation Blackstone championed is a big black eye in the face of his claims that general laws liberate.   Our new voter identification laws don’t create the literal and social immobility of the folks who lack government issued photo ID.  But they don’t just passively reflect that immobility either.  They double down on it.  Instead of insisting that democratic politics personify those who lack a face and voice in the social and economic  mainstream, these laws take the lack of ID for the lack of personhood that is the ultimate disqualification from citizenship.  On this logic, photo ID is what owning land was in Blackstone’s day: the mark and source of personhood that justifies withholding political power from all those who don’t have it.

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Blackstone Plants a Tree

Book the Second.  Chapter the Eighth.  Of FREEHOLDS, NOT of INHERITANCE.

There’s a saying that the rich plan for three generations while the poor plan for Saturday night.  Never poor (though often broke), I’ve always been pretty much a Saturday night kind of gal.  Blackstone, of course, is off the chart on the other end of the scale. In this chapter, you can almost hear him sniff when he announces that his subject is estates “not of inheritance, but for life only.” II. P. 120.  Only a lifetime?  In Blackstone’s scheme, a lifetime is like, maybe, cocktail hour: when it’s over the night has just begun.  But of course it’s not that simple. In fact this chapter on “life estates” exemplifies a central ambiguity in the Commentaries.  Historically and philosophically, Blackstone stands on the uneasy cusp between the view that individuals live to develop transcendent social structures like the common law, and the idea that such social structures exist to allow individual lives to transcend social structures.  This ambivalence interests me especially because lately I’ve been thinking that we seem to be undergoing some kind of cultural shift in our views on individual and collective development.

Blackstone’s interest in collective social structures matches his time horizon.  Throughout the Commentaries, he’s scanning an arc from time immemorial to the indefinite future.  That kind of time frame tends to put individual strivings into puny perspective.  Blackstone’s individuals are worker bees — it’s the hive and the honey that count.  If a life tenant dies before the harvest, his executors “shall have the emblements, to compensate for the labour and expense of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a pubic benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it.” II. 122. There’s a Breughelish quality here, a feeling that Blackstone only refers to individuals in order to flesh out the landscape of rights that is his main subject, that they are not quite as real as the “real” property they hold.

But that is not to say that Blackstone is uninterested in what individuals  do and produce.  To the contrary, Blackstone’s joy is projects.  The Commentaries catalogue the projects enabled by the common law— agricultural projects, military projects, commercial projects.  At the next level the books present the common law as a great collective project.  And then there are the Commentaries themselves.  There is something literally projectile about Blackstone’s reshaping the fusty conglomeration of history, customs, decisions, and doctrines into  four solid volumes of categorically organized prose in order to launch them out into the future. Just when it seemed like common law would need to be jettisoned to get liberal democracy off the ground, Blackstone came along and managed to rocket it into modern times.  Three-hundred years later, I’m not really sure, but I think maybe I just lived through the end of modernity.  And part of what makes me think so is that this kind of ambitious project-oriented approach suddenly feels so old-fashioned.

Of course there are some big collective projects going on – tracing the human genome, for example, or the Obama Administration’s passing the health care bill (and for that matter the organized effort to take down that bill and privatize social services).  But don’t big instrumental projects like these seem rare these days?  Now, as I write this it occurs to me how Western-centric it is.  By all appearances projectile modernity is still going on in China, where whole cities continue to be built and rebuilt.  So let’s just talk about the 21st century United States, where the newly common projects seem to be more about sharing than building, connecting rather than creating.   I’m thinking of social networks, naturally, which seem to be the iconic group projects of our time.  At least in my world, social networks are more about promoting the individual trajectory of every member than developing any kind of collective path.

It’s now possible to instantly document the thoughts, actions and events of every moment and communicate them immediately across virtually limitless spaces.  And yet this seems to lead less to actual networks than to an iteration of individual narratives that are curiously lacking in interactivity.  On Facebook, for example, there’s a quality of relentless linearity as one scrolls down through the list of unrelated posts, each stamped with its little postage- or passport-like photo.  Yes, the comments sometimes develop a dialogue of sorts but it usually runs out pretty quickly.  And more often it seems like everyone just weighs in with a single terse remark and moves on down the line.

Apparently Twitter and other online networking tools have been great for getting folks to turn out for political demonstrations and publishing crucial bulletins about government violence and resistance to it.   That is obviously not to be sneezed at.  But in my world these things get used mostly to provide the thinnest possible chronicle of individual movements and judgments: “Janet just checked in at Red Room,”  “Paul likes this.”  Sometimes the story gets thicker and weirder and more poetic, and here the real power of the internet to connect individuals’ interior lives and reveal and revel in their idiosyncratic creations far and wide kicks in.  What phenomenally beautiful and strange things are available!   But spreading this amazing stuff rarely seems to feed back – it’s available for consumption and private enjoyment but there is very little collective participation. For that matter, Wikipedia notwithstanding, the internet is still conceived by most people I know as a vast open store of information for individual consumption rather than as a site for collective knowledge building.

This bias for sharing over building seems especially odd given the recent turn toward collaboration in learning theory and practice.  Classrooms at elementary schools never have individual desks in rows anymore, it’s all groups of kids around tables, working together to solve problems, reading to one another, commenting on one another’s work, designing projects together. Just when electronic communication decreases the need for physical gathering, there’s new esteem for embodied interaction in real time and space.  In law school (where I teach) students still sit in rows, but the advice to professors from learning theory and from professors to students is all about collaboration.  Five years ago I would probably have said that the best way for you to make sure you understood a complicated legal analysis would be to restate it in your own words.   Now I’d tell you to talk about it with three other people.   But is the goal any different?  We’re still aiming to produce a collection of learned individual intellects, after all, not a true hive or cathedral or cloud of learning.

Which brings me back to Blackstone, and his vision of the common law as really transcendently common, or collective. His picture of a legal system as almost a kind of collective unconscious –fulfilling our individual needs and desires without deliberate individual choices — is at once bizarre and culturally ingrained in the U.S. today.  And the funny thing is that in Blackstone’s scheme law is a project that develops in a very Facebook kind of a way — with everybody kind of looking out of the corners of their eyes at what others are doing while doing what seems right to them.  For all the references to god and natural rights, the common law of the Commentaries is basically an almost accidental creation – an amazingly complex and resilient bulwark of human liberty that developed through the contingencies of history, not because of some divine, or human, plan.  The common law he describes is a system of great complexity, flexibility and responsiveness that, despite its lack of top down order, is capable of promoting certain virtues and values instead of breaking down into a cacophony of competing individual interests.  If, for all its annoying atomization, the internet is or can become such a system today, I daresay Blackstone will be partly responsible for it.  After all, he did as much as anyone to popularize the dream of a system that develops coherently without the control of a single sovereign intelligence, a system that is both a mirror and a driver of civil society, rather than simply a tool for individual striving.

There’s no question that to some extent this vision is a fantasy.  The cumulative results of so many unconnected individual judgments must be either far less organized than the picture Blackstone presents or driven by powerful shared interests toward one end or another.  Critics from Jeremy Bentham to Duncan Kennedy make both charges:  Common law is rife with irrational tendencies, and it is disproportionately shaped by economically and politically powerful individuals in their own interests.  Doubtless both are true.  There are plenty of contradictions in the legal doctrines Blackstone describes, and part of why he’s so dismissive of life estates is that the really rich folks all have inheritable property. Yet there remains a kind of organization in the common law that seems to escape both the noise of randomness and the deliberate control of powerful individuals, and Blackstone recognizes and celebrates this quintessentially social organization.

Indeed, Blackstone celebrates the promotion of humanity’s collective future in the content as well as the structures of the common law.  He explains approvingly, for instance, that if a tenancy ends abruptly, the tenant gets to reap some of what he sowed, even though he’s no longer on the land.  But not everything.  A tenant has no right to the harvest of grass or fruit trees. “For even when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to future successions of tenants.”  II. p. 123.

The final irony is surely Blackstone’s lasting individual stature in the modern United States.  How does someone who devoted his life’s work to adumbrating the details of a collectively generated social structure wind up one of the most enduringly influential authors in a time and place that prizes individual narrative? In fact, you might say that Blackstone’s popularity suggests that American culture is not as relentlessly individual-focused as I’ve suggested, and I guess you’d have a point.  But I have a different explanation.

Like most great modern authors, Blackstone is in love with his central character.  What makes the Commentaries so compelling is the heat and depth of that attraction. Of course it’s also an argument that the common law is well suited to a modern liberal society.  But the power is less in the argument than in the incredible, obsessive lengths to which Blackstone is willing and able to go to make you too fall in love with this unwieldy, randomly generated, thousand-year-old, crazy-assed structure.  The Commentaries are a love story.  No doubt Blackstone wants to convince you that the common law will help you live a more successful, more fulfilling individual life. But ultimately, he’s just not that into you.

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Trickster Lawyer, Trickster Daughter

Book the Second.  Chapter the Seventh.  Of FREEHOLD ESTATES, of INHERITANCE.

This chapter is about the way you need to own something in order to pass it down to your children.  “Estates of freehold then are divisible into estates of inheritance, and estates not of inheritance. “  II., p. 104. Actually, the chapter is mostly about what you have to do to give something away so that it will not ultimately be passed down to your descendants.  It’s about the idea that owning something entails the power to sell it or give it away, and the contrary idea that owning something means being connected to it in a way that makes it very difficult to separate yourself from your “estate.”   And of course, Blackstone being Blackstone, it’s about how the law creates, overcomes and tangles these two different aspects of ownership.

Blackstone explains that there are basically two kinds of estates – the kind that you can inherit and the kind you can’t.  But the not so hidden subtext is that the law – and lawyers – have ways to turn one into the other, sometimes without the owner’s realizing what is happening.  It seems there is more than one kind of inheritable property interest.  To own something “in fee” is to own it in a way that allows you to pass it down after you die “clear of any condition, limitation or restrictions to particular heirs.” II., p. 106 . “Tenant in fee simple (or as he is frequently stiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs forever; generally, absolutely, and simply.” II., p. 104   On the other hand, there are “limited fees, or such estates of inheritance as are clogged and confined with conditions or qualifications.” II, p. 109.  But much of the chapter is devoted to describing how lawyers have found ways to turn one sort of estate into another.

Blackstone is a stone cold positivist when it comes to property rights in general, and the right of familial inheritance in particular.  Regarding children’s right to inherit from their parents he observes, “we often mistake for nature what we find established by long and inveterate custom.” II., 11.  He unequivocally declares that “the permanent right of property, vested in the ancestor himself,” is a matter of positive law, “no natural but merely a civil, right.”  Id.  Nevertheless, when it comes to inheritance, the law has an ambiguous role to play.  On the one hand, it’s the law that determines the default rules of succession that property owners must overcome if they want things to go differently.  On the other hand, they can only overcome those rules through the law, and the whole process is channeled through lawyers,  cast as the intermediaries who know how to use the statutes and craft a “devise” to defeat the common law.

Property rights may not be natural, but there’s an element of  accident here – a potential for slips and trickery.  It turns out that it is quite possible to give away things that one meant to keep, and to fail to make the gifts one fully intended to proffer. According to Blackstone, for instance, “if a man grants all his estate to another, every thing that he can possibly grant shall pass thereby.” II., p. 103  Thus the hapless owner who intends only a limited gift may inadvertantly give away the whole kaboodle by using the powerful “estate” word. Conversely, someone who intends a complete alienation may fail by omitting other magic words:  “The word, heirs, is necessary in the grant or donation in order to make a fee, or inheritance.  For if land be given to a man for ever, or to him and his assigns for ever, this vests in him but an estate for life.”  II., p. 107.

The image of lawyers slipping words in and out of donors’ grants and using legal structures to defeat structures put me in mind of the trickster figures who Lewis Hyde says work through both accident and guile.  Trickster is the ambivalent culture-antihero who pops up in various guises (or who is identified by Western anthropologists in lots of different places) — the border-crossing, boundary- flaunting, fooling thief and messenger.  Coyote is the Native American trickster; his Greek counterpart is Hermes.  Above all, tricksters are conduits, and figures of reversal, through whom all things travel and who can carry messages back and forth between the living and the dead, make the river flow backwards and reverse the otherwise one-way arrow of time.

For Christmas, my 94-year-old mother gave me a check with which to buy presents for myself, my husband and my daughter – who’s eleven.  It was the day my daughter and I went over to the assisted living facility where my mom lives, to put a few Christmas decorations in her room.  My mother’s short term memory is completely shot along with much of her orientation in time and space.  One minute she’s clear about her own whereabouts on the outskirts of Pittsburgh as a result of my having taken a job at the university here, the next she’s asking me if she remembered to phone her father to tell him she won’t be home for dinner at “8630” – that would be 8630 Oak Street, the address of the house in New Orleans where she was born in 1917.  On this particular day having learned that the holidays were upon us, she was asking me over and over again whether she had given me a present.  “Did I get you anything for Christmas,” she would ask, and I would say, “no, not yet, but if you like, I’ll write a check from your account and buy presents for me, Doug and Lincoln.”  “Oh,” she would reply, “that is the best kind of present from my point of view – you do all the work! Now tell me, did I get you anything for Christmas”?

While my daughter busied herself stringing beads on a dinky potted Christmas tree and setting up the little carrolling figures from Rite Aid, my mother and I must have repeated this litany ten times.  I use the word “litany” advisedly.  I’ve learned that if I approach these conversations as a kind of ritual call-and-response the repetition is less frustrating.  It’s a kind of game in which I sometimes strive for exact choral repetition and other times riff on my repeated lines with variations of syntax and expression.  After this particular round, I wrote myself a check, and on Christmas Eve I drove over to the Macys in the mall across the river and bought presents – shirts for my husband, a robe for my daughter and a really nice pair of pajamas for me.  Later that afternoon, as we sat wrapping presents my daughter came up with the idea that she should wrap the pajamas without me watching, so that it would seem more like I was getting a gift chosen especially for me, instead of something I bought for myself, albeit with someone else’s money.  And so it was that in the Christmas scrum, when my daughter handed me the familiar box, now swathed in gold gift wrap, the card she had attached to it was addressed to me from my mother.   In fact, it was addressed  to me “from your great and amazing mom, who loves you till infinity.”

I was struck by the apparent ease with which my child had, almost casually, moved to reconstruct for me a mother intact and undiminished by dementia.  And I was struck by the fact that I have never really applied the terms “great and amazing” to my mother.  Long before her senility, indeed for as long as I can remember, my mother has been a puzzlingly diminished presence.   There is a quality of semi-transparency about her, as though she were in some way fading, however gently and nicely, from view – a watered down quality, as though nothing about her was exactly at full strength.  I have always put this down to the loss of her own mother when she was just 19, a death apparently treated by her whole family with such total and unwavering Germanic denial, that, in my narrative anyway, it left my mother forever after unable to live entirely in the present.  In any case, whether because of the unmourned loss of her own mother, or for more mysterious reasons, my mother has always had a subtly absent quality. Not that she was ever cold or distant.  To the contrary, she was and remains unfailingly kind and sensitive to others’ feelings.  I have no doubt that she appreciates me and is grateful for my care – because she tells me so every single time I see her.  Unlike so many of my friends’ mothers who complain that they don’t visit or call enough, my mother never fails to thank me for my efforts.  “I’m so glad you could come,” I hear, whenever I stop by even for a few minutes, and “I’m so sorry you have to take so much time to do these things for me.”  “What would I do without you?” she asks over and over, and I reply (again in litany) “You would muddle through,” and we laugh.  So, gratitude?  Yes.  Heartfelt appreciation? Definitely.  But love till infinity?

How “amazing” then, indeed, that my daughter, a child overflowing with feelings of all kinds, for whom it is probably inconceivable that a mother could not love passionately and infinitely, and who perhaps has inherited some of her grandmother’s thoughtful attention to others’ feelings, came up with a little trick through which to give me a sort of backwards inheritance, a gift of mother love, full strength and undiluted, pouring back through time out of her into me.

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