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.

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. 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 have tea 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.

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.

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 21^st 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.

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 21^st 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.

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.

Castles in the Air

Book the Second, Chapter the Sixth.  Of  the Modern ENGLISH TENURES.

Okay, I finally get it.  I get why it’s such a big deal to ‘own your own home’  in the United States – why it is so much better to send a “mortgage” check to a banker who will take your money than to send a “rent” check to a “landlord” who will take your money and fix the roof. I get it, and it is Blackstone who made me get it.  Did you know that in the classic English  system of property rights only the king actually owns property?   This chapter is about renters.

Technically, the chapter is about “tenures” – otherwise known as tenants’ rights.  It is about how paying the English land lord “rent in money” replaced feudal payment by personal services “where the render was precarious and uncertain.” II p. 79.  By the late 18^th century when Blackstone was writing it seems that British landholders’ money rents had in many cases shrunk to “nothing more than a bare fealty.”  II p. 86. Nevertheless, at the time the U.S. was being founded all the occupants of British homes – from aristocrats to peasant farmers — were still basically tenants. Id.  To be sure, many of them were also landlords, who rented some portion, or use, of their property to someone else, but they were not the outright owners of any of it.  At least not in the eyes of the law, which contrasted property tenures with “allodial” property – that is with property “owned freely without obligation to one with superior right.”  Barron’s Law Dictionary.  Blackstone puts it bluntly:  “This allodial property no subject in England has.”  II. p. 105.

So, according to Blackstone, no Englishman ever owned a home in what Americans now take to be the timeless paradigm of ownership, that is, in the “free and clear,” mine-all-mine, nobody-gets-to-come-here-and-ask-me for-any-damn-thing-unless-I-say-so kind of a way.  With one exception  – the king.  That’s what it meant to be king, for god’s sake – you owned your own place.  For everybody else, having a home came with a whole complicated web of obligations.

This entire volume of the Commentaries is devoted to tracing out that web.  It’s ironic, then, as others have pointed out, that Blackstone is most famous for a vision of ownership as total individual control:

“There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”  II. p. 2.

The operative word here is “imagination.”  As the rest of this chapter and this volume makes clear, this evocative passage is not a description of any applicable legal theory of property rights, let alone the reality of how people actually owned property at the time.  It is a fantasy, not to say delusion, of a kind of pure autonomous ownership that exists only in people’s “affections” – in short, a dream.  That is, the American Dream.

I am not offering a causal explanation here.  I’m not saying that the founders of the United States government – or the guys who later wrote, say, the Homestead Act or the IRS exemptions for mortgage interest – all said, “hey, let’s create a society where everybody gets to do what only the king got to do back in England.” And I’m certainly not suggesting that every person drinking her morning coffee and fantasizing about buying her dream house is out to create some private-property utopia.  What I am saying is that somewhere along the line the idea of owning – as opposed to renting — a home came to be idealized and heavily subsidized in this country, and that after reading this chapter it strikes me as unlikely that it would have happened in quite the same way without the contrary model of English tenancy Blackstone describes, and for that matter, without his description.

In the U.S. today, homeowning is not just a practical  achievement – or a means toward economic prosperity.  It’s a kind of status that in and of itself constructs social standing and virtue.  And it’s a status that is less liable to corruption than any other I can name.  Successful entrepreneurs, for instance, may be hardworking and smart, but they may also be selfish, and cold hearted – misfits in their communities and absentee parents who care more about making a buck than nurturing their kids.  And speaking of parents, compare homeowners to mothers, that other American ideal of virtue.

Good mothers come in different heroic types, from the selfless full-time homemaker to the hard-working single mom, but, in a kind of maternal example of Tolstoy’s famous happy families line, there are many more, and more interesting, ways for moms to be bad than good. There are crack mothers and welfare mothers; driven, desperate stage mothers; selfish career moms who “want to have it all” and pathetic, overinvested  helicopter moms with no lives of their own; manipulative, guilt-inducing Jewish mothers; rigid, repressed WASP mothers; and dangerous libertines of all ethnic and religious persuasions who leave their children to their own devices while they are off enjoying sex, drugs and rock and roll.   In fact, our culture seems constantly to churn out compelling new stereotypes of depraved motherhood, most recently the infamous “tiger mother,” a narcissistic tyrant so obsessed with childhood accomplishment that she threatens to burn her daughter’s beloved stuffed animals if she can’t manage to play that etude flawlessly.

There are myriad ways a mom can go terribly, dramatically wrong.  But the only really wrong thing a homeowner can do is to stop being a homeowner. Of course it’s possible to do other bad things that overcome the virtues of home ownership.  A serial killer is not saved by timely mortgage payments, even if homeownership, like motherhood, is generally seen as tending to make criminality less likely. But unlike mothers, homeowners get more than the benefit of the doubt. Mothers who misbehave easily swing to the other side of the spectrum, to be reviled as far worse than their childless counterparts.  But a homeowner’s virtuous reputation has real resilience despite other bad characteristics and even neglect of the home itself. It’s a good thing to cut the grass, shovel the sidewalk, and keep the noise down at parties.  But even a really crummy neighbor is still a full-fledged homeowner.  Whether the place is immaculate or falling down around your ears, party central or a hermit’s cave – just owning your own home earns you some respect.

And mind you, “owning” need not include paying for your home.  It can be mortgaged to the rafters.   So long as you avoid actually getting kicked out, even this kind of “ownership” is better than nothing – and better than renting.  Renting is nothing. Though not necessarily a strike against you, renting is at best neutral, and usually something worse than neutral — shifty, questionable.   Even model tenancy – paying your rent on time every single month, say, or renting a really big fancy place– is not going to add significantly to your status.  Sure it shows that you have a lot of money, but it is not going to gain you any additional respect.

In contrast, not even financial default destroys the status that comes from home owning. While making rental payments absolutely precludes ownership, not making mortgage payments doesn’t really change your status until you are physically removed from the house.  If you stop paying but manage to stay in the house through legal manoeuvers, the lender’s lassitude, or sheer blind luck, you are still a “homeowner.” People who “walk away” from both their mortgage obligations and their homes are bitterly resented.  But so far as I can tell, it is the decision to go live somewhere else that makes default unpardonable. Even if you are not paying a cent, so long as you occupy the premises and are not paying rent to someone else you retain the basic virtuous status of homeowner.

This talk of occupying of course made me think of Occupy Wall Street and the other Occupy protests. Occupying territory evokes a military metaphor.   And the image of a campaign for popular sovereignty over public space may be the primary significance.  But it is worth considering the protestors’ determination to live where they are demonstrating as a move that evokes property as well as territory, occupancy as well as occupation. The imagined ideal of the Occupy movement is collective rather than private ownership. Despite this crucial difference, I think the paradigm of exclusive homeowning is part of movement’s resonance. People in tents are a different, and perhaps a more powerful, symbol in a culture that puts so much stock in individuals’ relationships with, and control over, their homes.

The tents evoke absent houses, and the failure of the American property dream to produce reality. At the same time, occupying the protest sites may appropriate some of the virtue that comes with homeownership.  The protesters don’t pay rent, which puts them in the disreputable category of “squatters” on somebody else’s land.  But it’s a funny thing about squatters – unlike renters, if they occupy a place long enough and openly enough, eventually they turn into owners.   In this sense the occupiers in their tents look like nascent American homeowners staking out and already occupying the site of their future homes.

If you doubt that homeownership has any role to play here, take a look at the way the media has treated the presence of “the homeless” at the Occupy sites. While conservative pundits have dismissed the protestors variously as “bored trust fund kids,” hippies, and “drug dealers, criminals, teenage runaways” the mainstream media seem to have translated this critique entirely into reporting on the role of “homeless” people in the protests.   The working assumption seems to be that including people who actually have no homes detracts from the encampments’ power as a symbol of political commitment.  No other participants’ motives are questioned. But articles about “the homeless” suggest that their presence threatens to delegitimate the protest. As a New York Times story, headlined “Dissenting or Seeking Shelter”? explains, “they have come less for the cause than for what they almost invariably describe as an easier existence.”

Now, anyone who has ever been to any kind of organized political action can attest that people come for all kinds of reasons in addition to political commitment — from loneliness to curiosity to religious convictions to a chance to hang out with the cool kids to unrequited love.  Indeed, part of the work of a political organizer is making events — from marches to picket lines to fundraisers — appealing enough to attract those who would not necessarily show up out of pure solidarity.  Doubtless that’s as true of the Occupy protests as in every other political setting. So why single out “the homeless” as potential evidence of the Occupy movement’s inauthenticity?

I think it has something to do with the way the encampments evoke home owning and both duplicate and challenge its moral mystique in American politics.  The Occupy tents do not primarily embody economic need (like Depression Era Hoovervilles) or resistance to existing state or military power (like the crowds in Tahrir Square).  They are more a performance of an alternative kind of American virtue – that both looks something like homeowning and enacts its opposite – collective occupation of public space.  The tents demonstrate the homeownership myth in both senses of the word:  a narrative invoked to explain reality and something that is not realistically possible.

Of course calling on police to remove the protesters was the ultimate invocation of private property owners’ right to exclusive control.  That forceful dispossession was a sharp reminder that property is “private” only to the extent that its owner can call upon public violence.  At the same time the widespread criticism of the way that force was deployed demonstrates the potential limits of exclusive ownership, even for the politically powerful. The loss of the tent cities raises the question whether the protesters should focus on rebuilding or move on to other forms of action.

After the Berkeley encampment was dispersed, some ingenious protestors returned with helium balloons and launched a floating tent.  Doubtless they meant it to be a sign of their creative persistence.  And it is.  It is also a reminder to the owners of the property over which the tent floats that there are limits to the kind of ownership violence can enforce.  But to me, squinting through Blackstone, the airborne tent looked like another remarkable incarnation of the myth of autonomous property. In the YouTube footage, the small domed structure hovers above the protesters’ heads like an image in a cartoon thought balloon.  It’s a dream of perfect shelter, floating free of state control or obligation to “any other individual in the universe,” II. P. 2, a white nylon homestead, a little empty castle, beckoning and unreachable, lit up like a cloud in the California night sky.

Sing in me, oh Muse!

Book the Second.  Chapter the Fifth.  Of the Antient ENGLISH TENURES.

This self-consciously historical chapter describes a kind of land ownership that was, as the chapter’s title indicates, obsolete by the time Blackstone wrote about it.  Some say this was effectively true of the whole common law system Blackstone explicated and celebrated. Certainly many of its intricacies – the elaborate procedural writs, the separate courts of law and “equity” – have long since disappeared.  And it wasn’t just technicalities that time undid.  Within a decade after the Commentaries’  first publication, the new United States set up a republican government in the teeth of Blackstone’s insistence that a monarchy of limited powers was the best, maybe the only, way to protect civil liberties.  So why are the Commentaries still a go-to source not only for the law of Eighteenth-Century England, but for a sort of timeless original set of structures and principles thought to explain, if not to describe, current United States law?

One answer is that the Commentaries are just beautifully written. Blackstone’s literary achievement was obvious even to his critics, including his contemporary, Jeremy Bentham, who put it this way: “Correct, elegant, unembarrassed, ornamented, the style is such, as could scarce fail to recommend a work still more vicious.” Fragment on Government (Preface). But besides  the elegant prose, an accident of history probably accounts for some of the Commentaries’ staying power. Ten years after they were published, the United States was founded.

Blackstone’s description of English common law is not exactly objective.  Though critical in many particulars, overall it has a distinctly valorizing cast.  This was a work with an agenda, and that agenda was to demonstrate that traditional common law practices could and did embody the best Enlightenment political theory.  It was a tall order.  As Duncan Kennedy explains, Blackstone needed “to show that it was possible to turn the liberal political slogan ‘rights’ into a plausible account of several thousand common law rules.”  The Structure of Blackstone’s Commentaries, 28 Buffalo L. Rev., 205 261 (1979). The Commentaries present a vision of a body of legal rules and structures built up case by individual case over centuries that still somehow manages to  actualize the set of governing principles and civil rights prescribed by the liberal political philosophy of Blackstone’s day.  Not every reader was convinced.  In Bentham’s view, the Commentaries found coherence and liberal principles in a retrogressive legal system and in the process stifled reforms that might actually bring law into line with liberal politics.

But across the Atlantic Blackstone’s rose colored view of common law could be used as a kind of utopian blueprint for a legal system that married revolution to tradition. The Commentaries were  not unambivalently embraced by the American founders.  Jefferson reviled them as antidemocratic (even as he, too, praised Blackstone’s writing style).  Still, in the new republic, Blackstone’s vision wound up being treated both as an authoritative source for the substance of British common law and as a model for how to blend traditional common law rules with liberal rights. Today, it’s practically impossible to figure out to what extent Blackstone held back the growth of rights in the United States and to what extent the Commentaries helped actualize the utopian project of carrying liberal rights and democratic structures all the way down through everyday legal process. But one thing’s for sure – the coincidence of Blackstone’s rationalization of 18^th century common law with the start of the U.S. legal system tends to make the Commentaries even more of a legal Genesis here.  It isn’t like anyone today thinks the Commentaries describe current U.S. legal rules and doctrines. Still they are not treated entirely as an artifact of another era.  Blackstone is seen as describing something that was not just antecedent but foundational – even despite its subsequent wholesale transformation.

This, of course, is Blackstone’s own view about the relationship of the legal past to the present.  In this chapter’s account of legal history, feudal rules that make virtually all land beholden to the king are replaced by a more flexible system of private property.  This is not a story in which all laws are necessarily good. In fact, in these historical chapters about property law, Blackstone seems committed to a view of law as a secondary social institution reflecting more basic economic and political power structures. There’s an odd whiff here of Marxist superstructure.  And like both Marxist and Whig history, in Blackstone’s account everything happens for a reason. Though the rules for  land ownership by knight service originally promote a sensible form of military defense, they quickly degenerate.  The pyramid of personal service and loyalty up from vassals to lords and lords to king breaks down.  Instead of service, the people at the top get money: “the tyranny of the lords by degrees exacted more and more; as, aids to pay the lord’s debts . . . and aids to enable him to pay aids or reliefs to his superior lord” and so on up the hierarchical chain of ownership. II., p. 64.  Thus, “all the advantages (either promised or real) of the feudal constitution were destroyed.”  II., p. 75.  Instead of producing an army of nobleman “bound by their interest [and] their honour. . . to defend their king and the country” the old laws were “a wretched means of raising money to pay an army of occasional mercenaries” by imposing intolerable financial burdens on landholders and renters alike. II., pp.  75-76.  The legal evolution recounted here isn’t smooth.  In fact it’s hard to characterize it as evolutionary at all.  After some back and forth, the loathsome military tenures were “destroyed at one blow” by statute. II. p. 77. The key, of course, is that it all comes out right in the end – and the end is now (that is, now for Blackstone).

Apart from its political implications, I sometimes wonder whether the project of Whig history, that is, the view that over time society is inexorably improving, isn’t a reaction to our own individual aging. Faced with my own mortality, it is unbearable to think that nothing else is making any headway either.   In support of this view, consider that so many different people with apparently different views about what constitutes social progress all seem to be equally certain that, overall, things keep getting better.  In any case, I’ve been thinking a lot lately about aging, and about how the subjective feeling of individual aging is particularly weird these days in the context of the eternity culture of the internet.  What does it mean to grow old and disappear bodily in a world where now the virtual traces of one’s youth exist indefinitely? We used to say “nothing lasts forever,” but now everything does – as pixels — everything but us. I think this might be part of what I find so peculiarly draining and immobilizing about spending so much of my limited embodied time online – i.e., reading and writing text that comes to me and issues from me via electronic means and so is never actually embodied at all – but exists in no time and all time, transiently and eternally as light patterns that can be instantly dispersed and recreated without the slightest degeneration.  I experience a kind of intense alienation when I am the only body in the room – when the objects of my cultural contemplation, interpretation and creation are never embodied at all, have no boundaries or location or mass – and are not subject, as I am, to time’s destruction.

It sent me back to Walter Benjamin, this train of thought, that is, to Benjamin’s famous essay on cultural meaning and (dis)embodiment, The Work of Art in the Age of Mechanical Reproduction.  This is somewhat ironic, given that Benjamin was the preeminent “it girl” philosopher of my youth, and is thus embedded for me in a specific historical time and place – downtown New York City in the 1980s – and a particular moment in my personal chronology – that point when one is momentarily actually and objectively the full blown vigorous young adult self that one imagines ones self to be all along from early childhood through middle age, and (I imagine) old age. Benjamin’s essay about the cultural and political significance of photography in the early 20^th century was uncannily on point re the internet age, with its observation of new form of cultural “reception in a state of distraction” and an audience viewing works of artistic expression from a position that is at once critical and “requires no attention.”  Illuminations (trans. Harry Zohn), 240-241.

If Benjamin is the cultural prophet of internet alienation, Gertrude Stein was the herald of the psychological insight that the internet’s unalterable images of our youthful selves may mirror, namely that we “are always all our lives, to ourselves grown young men and women,” and “we never know ourselves as other than young grown men and women,” even when we are very old indeed.  The Making of Americans at 5 (Something Else Press, 1966).  Stein said, in a wonderful simile, that to feel ourselves as children would be “like the state between when we are asleep and when we are just waking, it is never really there to us as present to our feeling.”  Id.  Likewise, though we of course know it when we grow old and feel tired, or unable to think and do what we once could, or maybe even act more wisely than we once did, and even though our age is visible “just by looking,” still “no one can be old like that to himself in his feeling,” or if we do feel ourselves as really old, or as children, “it must be a horrid losing self sense to be having.”  Id.

Does the internet culture of virtual imperishability, correspond to the unexamined image of ourselves in eternal young adulthood?  Or is that internet timelessness exactly the opposite of our unconscious eternal youth?  The latter, I think. In its very dependence on images, this phenomenon is totally different from the kind of inner stability of feeling that Stein describes – that abiding self recognition despite all external information to the contrary, that unshakeable, visceral feeling of constant youthful maturity in the teeth of everyone else’s responses to our outward selves as children, middle aged or senescent.  Eternal internet youth, in contrast, is constructed of images — a compilation of our outward selves split into thousands of moments that now all coexist and outlive us in perpetuity.

It is striking how different this kind of internet biography is from both the evolutionary tale Blackstone deploys in this chapter and the transcendent ahistorical view of common law that the Commentaries presents overall.  An internet subject’s susceptibility to constant addition gives it a kind of imperviousness to point of view.  As a result, internet history has a resistance to being permanently pared down that is at once uncontrolled and in another sense supremely manipulable.

Then again, the whole notion of spinning the facts of one’s personal history into a coherent biographical narrative may be passé.  It seems that now the causal chain between life and life story may run in the other direction.  The worst news I’ve had lately came in a small article below the fold in the New York Times last week.  The piece (by Jenny Anderson, 8-5-11 at A1)  describes a practice among socially elite teenagers of employing paid consultants to design summer “experiences” (for instance, an internship in China) that will make them more compelling subjects for college entrance essays.  Why struggle with the kind of self-reflection that could produce engaging biographical narrative when you can pay someone to design your life so that those essays “write themselves”? Id. at A3. Leaving aside what this story says to kids who can’t afford these kinds of “adventures,”  its most depressing aspect may be the grim realization that even if you manage to get into Harvard or Yale with a genuinely insightful piece of writing, you’ll be surrounded there by a bunch of people who think picking the right prepackaged tour is a sign of intellectual curiosity.

I  could easily spiral down here into a screed about the damage this silly practice threatens to inflict on both a generation of young people and the culture of higher education.  But I’m not going to go there.  I’m going to assume, instead, that somehow, as Gertrude Stein observed of her millennial generation, and in common with the experience of every middle aged person I know, these young people are somehow, in their hearts, resolutely and delusionally already fully themselves.  That somehow inside they are bursting, blooming, and authentically in possession of an abiding, albeit illusory, identity that no moronic college entrance culture can shake.   That in the teeth of this ridiculous attempt to live life as an instrument for the thinnest possible retelling, the roiling, misguided relationship of history and reality lives on, like Blackstone’s version of the common law, in all its factually questionable and politically compromised glory.