Law Makes the World

BOOK I.  Chapter the Eleventh.  Of the CLERGY.

Just when I was thinking that there wasn’t a single point of interest in this chapter’s dry taxonomy of English clergymen, I realized that it provides an excellent example of an idea that I’m always pushing but often at a loss to explain concretely.  We tend to think of the legal protections and exemptions accorded the clergy as a response to their unusual social situation.  That is the story Blackstone sets out to tell:  ”This venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of almighty God, have thereupon large privileges allowed them by our municipal laws.”  p. 364.  Instead, though, he winds up showing us that the situation is just the reverse — or, just as much the reverse anyway.  Law isn’t just shaped to fit the clergyman’s role.  The clerical identity is shaped, even created, by law.

First there are the rules Blackstone recites:  ”A clergyman cannot be compelled to serve on a jury, . . . . During his attendance on divine service he is privileged from arrests in civil suits. . . .Clergymen . .. are not allowed to take any lands or tenements to farm . . . nor shall engage in any manner of trade, nor sell any merchandize.”  p. 365.   Even these sorts of regulatory afterthoughts surely have an effect on the reality they regulate.  In the developing mercantile society of late 18th-century England, a total prohibition on selling matters.  And notice that the prohibition is going to have an effect even if it is not treated with reverent obedience.  For all I know the parsons in Blackstone’s day came up with all kinds of ways to get around the letter of the law, like those little cardboard tickets that one always has to buy at PTA events and then exchange for hotdogs and cokes, apparently because there is some rule against selling refreshments at school.   I’ve been buying those tickets for so long now that  just the sight of one conjures up a certain kind of community event — rummage sales, block parties, spring flings — with an atmosphere that is distinctly different from ordinary commercial shopping and entertainment.  Of course I realize that there are other differences, too, but I actually think that little ticket ritual is the sort of thing that sets this aspect of experience apart.  Rules of this kind — that sort things and people into categories and prescribe behavior according to those roles — are the kind of line drawing that we usually associate with traditional religious practices.  So it is interesting here to see the law of the political state carving out the social space for the religion that will, in turn, set out its own internal behavioral restrictions.    

Now, here is something else.  By a quirk of syntax I discovered that the very concept of a “cleric” derives from a legal disability!  Blackstone uses the word “clerk” quite a bit in this chapter.  I assumed he was using it  as a catchall category for his carefully delineated parsons and vicars — but I couldn’t be sure.  So I went to my trusty copy of Webster’s Collegiate, which confirmed that “clerk” is a synonym for “cleric” and then explained  that both words derive from the Greek word kleros meaning “‘inheritance’ in allusion to Deut. 18:2.”   Being almost totally ignorant of the contents of the Bible, I was puzzled  about what being a clergyman could have to do with a Greek word for inheritance.  When I  looked up the biblical text, I found this:  ”They shall have no inheritance among their countrymen; the LORD is their inheritance, as He promised them.”  

Are you with me?  The modern English word for a churchman comes from a biblical law that excludes them from the ordinary rules of inheritance.  Don’t forget that rules about who gets to inherit what from whom and how are the alpha and omega of the English legal system.  If a ”cleric” is someone biblical law disinherits, that is not a question of regulation at the margins, that is an act of social creation.  But it’s tricky, because English law doesn’t actually disinherit parsons and vicars.  As far as I know they can inherit land and other property like everyone else.  Always could.  So this isn’t a functional legal prohibition creating a separate identity.  It’s still interesting, because it puts a legal structure right there at the source of a social category, but it is purely conceptual.  Or is it?  I’m speculating here, but it occurs to me that there is a famous English legal inheritance structure — primogenitor — that might have something to do with the creation of a professional clergy as diagrammed in Blackstone’s chapter.  Because what are all those second sons going to do?  How are they going to make a living, and find some social space for themselves, without either inheriting the family property or descending to the ranks of tradesmen?  Well, how about entering a vocational sphere bounded by legal rules and exemptions that both separate it from ordinary trade and insure a steady income through the mandated system of tithes?  

It’s one thing to see how legal rules two hundred years ago constructed a social status that we have long conceived as special and apart from ordinary life.  But what of the rest of us now?  I don’t think there’s any difference.   If law makes the 18th-century English clergyman it just as surely constructs the identity of a civil rights litigator/law teacher/ mom in twenty-first century New York City.  This is one of the most rewarding things about reading Blackstone — the chance to see at some distance the ways law and culture shape either other.  And once I’ve seen these things in Blackstone, I know that they’re here too, like ghosts whose presence I can sense, even if I can’t see them when I look in the legal mirror.

Ties that Bind

BOOK I.  Chapter the tenth. Of the PEOPLE, whether ALIENS, DENIZENS, or NATIVES.

This chapter is about the different legal statuses of residents within a governmental territory.  The part that caught my eye was Blackstone’s elucidation of  the concept of “allegiance.”  According to Blackstone, “Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.”  p. 354  Now, the Commentaries are full of these wonderful etymologies, but reading them I always feel a bit like I’m playing that  party game, in which false, but formally plausible, definitions for some unknown term are mixed up with the  dictionary entry, and the object is to pick the authoritative one.  If the game goes on long enough with canny enough participants, the false entries get better and better until eventually the published dictionary definitions begin to seem as contingent as the outrageous lies your fellow players are inventing.  In this case, though, I don’t think it really matters whether the word allegiance actually comes from the word for a physical tie, or whether this is a linguistic creation myth.  Either way, the notion that allegiance to a government leader is like being tied to that person with ligaments illuminates something about Blackstone’s concept of government.  

There is something so personal, even physically intimate, about the relationship Blackstone draws between sovereign and subject — and between the law and the people.  Quoting Sir Edward Coke, he explains that even without taking any express oath, “all subjects are equally bounden to their allegiance . . . because it is written by the finger of the law in their hearts.”  p. 357  Is this a sentimentalized characterization of subjection by governmental force?  (I can almost hear Nietszche cackling.)  Or does it offer us a glimpse of some authentic affective connection between a citizen and her government once more readily experienced and now almost completely lost?  Is there any difference? 

Here is a conversation I had recently with my nine-year-old daughter, Lincoln, as we were leaving the house on some quotidian errand:

• Lincoln:  Mom, you know what’s really funny?
• Me:  No, what?
• Lincoln:  If you weren’t my mom, I wouldn’t love you.
• Me:  Unh.
• Lincoln:  I mean, I can’t imagine not loving you, but if you weren’t my mom, I wouldn’t.

 Though I find this particular structural analysis of affective connection a bit unsettling, I don’t for a second doubt its accuracy.  My child is passionately attached to me and I to her, and there is no question that our roles as mother and daughter begat the passion, not vice versa.  She didn’t see me one day across a crowded playground and think to herself — “now there goes a womanI would like to be my mother.”  More to the point of this essay, she didn’t check off my name on a list of candidates vying for that position.  She didn’t choose me, nor I her.  We were thrust into our role relation by an accident of genetics — just like the sovereign and subject of a hereditary monarchy.  

Here, I realize that I need to clarify that the mother daughter role relation I mean to reference as the source of maternal/filial connection is practical, not biological.  Just as my daughter did not fall in love with me on a playground, so I did not instantly love the baby that came from inside me.  I did the things mothers do and love followed.  And though it is, as she said, impossible to imagine, if she were not my child, I would not love her.  

The way I love Lincoln seems utterly bound up in her unique individual self — in the way she raises her eyebrows when she makes a joke, in her voice, her joyousness, her smell.  And yet, it is undeniable that if she were not my daughter — if she were just exactly who she is in every other way but some other relationship brought us into daily contact — I might recognize and appreciate all those same qualities, but I would not love her — passionately, totally and beyond all reason or restraint of any kind, indeed I doubt I would love her at all.  And just as soon as I write these words I want to take them back.   That can’t be right!  It’s not possible, it can’t be so — and, I feel as if in saying it I have just somehow threatened the safety of that connection — it is like a kind of sedition, true as it may be.  For how can a relationship be both so contingent and, once formed, so indissoluble?

I pledge allegiance to the flag, of the United States of America, and to the republic, for which it stands . . . .

So, going back to Blackstone’s allegiance between sovereign and subjects the thing that strikes me now is what this all means for the importance of the role of “choice” in democratic government.  Because in the standard Lockean, libertarian account of representative democracy, choice is everything.  The entire legitimacy and a large part of the efficacy of government and the rule of law is supposed to flow from the fact that in a democracy citizens choose to be bound to that government and by its laws.  Moreover, in an electoral democracy, citizens choose who that government is.  We think this guy is absolutely great, so we make him  our president.  And that is supposed to matter.  

Of course I’m not suggesting that the feeling of connection doesn’t also depend on how good a parent or a sovereign the person turns out to be — however s/he is selected.  But in the classic social contract story, quite apart from how good they are at their jobs, or how good they are, period, it is supposed to matter greatly that government leaders were freely chosen instead of genetically determined.  But for my connection to my daughter — and hers to me, that doesn’t matter a bit.  Just as she wouldn’t love me if I were not her mother, I dare say that she would not love me more if, instead of having me thrust upon her, she had selected me.  But why not?  Shouldn’t her allegiance be greater to a mother she had picked for her excellent qualifications — or because of a mad attraction — than to a mother she got stuck with in the biological lottery?

It’s interesting that the role of choice is so different in these two kinds of connection, in our 21st century democracy.  Choice is the source, the fountain of our allegiance to government.  In our allegiance to children and to parents it’s out of the picture.  Of course as soon as I say that, I realize that in terms of the choice to have a child at all (as opposed to the ability to choose who your children will be) “choice” has a huge role in the liberal conception of maternal allegiance.  Indeed, a big part of the argument in favor of abortion rights is the idea that if someone is forced to be a mother, rather than choosing to be one, she won’t be a very good one.  And indeed isn’t one of the, often unspoken, critiques of that position an idea that in rationalizing motherhood in this way — in making the relationship between a mother and her child more chosen and less accidental — something is lost,  that in some way the depth of feeling I have been describing between a parent and child depends on being flung into that relationship by fate, rather than walking into it with your eyes open, as a matter of deliberate choice?  And come to think of it the choice-based allegiance of modern electoral democracy has its counterpart in family relations too:   Unlike one’s child, in the U.S.A. today, one’s spouse is a matter of individual choice, with at least the ideal that affective connection precedes marriage.  In this light the move from monarchy to electoral democracy looks like the shift from arranged marriage to a love match. 

For that matter it would be easy to see the development of electoral democracy as part of a larger modern trend toward rationalization and abstraction in all forms of social relations in families and governments generally.  You might think that the founders of our republic were looking to repudiate exactly the kind of heated up, emotional, irrational connection between sovereign and subject that appears in the Commentaries.  Blackstone himself laments the rationalization of the British oath of allegiance that took place after the English revolution, substituting a “more general and indeterminate” promise to be “faithful and bear true allegiance to the king” for the older, more visceral promise “to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom.”  p. 356  The thing is, as everyone knows, there is nothing cooly rational about our modern system of electing government officials.  

Finally, all this makes me wonder about  that crazy rumor that our current chosen leader was born abroad and is thus ineligible to be president under the constitutional clause that says the U.S. president must be “a natural born Citizen.”  First of all, focusing on the role of choice in ties to democratic government makes me wonder why the U.S. Constitution includes the requirement that a presidential candidate be a native in the first place.   Because if the choice to be governed is what distinguishes a democratic citizen, you would think that naturalized citizens would get priority when we chose our governmental leaders.  After all, these are the people who come closest to actually instantiating the social contract ideal — the ones who have stepped forward and selected the United States and its governmental structure as their government of choice and sworn an oath to defend them.  (I seem to recall Sanford Levinson arguing this point in his excellent book Constitutional Faith, which I don’t have in front of me so I can’t check the reference.)  

This chapter of the Commentaries suggests that the native birth requirement in the U.S. constitution may be just another vestige of the English system that sort of came along for the ride without a great deal of consideration.  Blackstone reports that in England, although naturalization puts an alien “in exactly the same state as if he had been born in the king’s ligeance,”  no naturalized citizen could be a member of either privy council or parliament.  p 362  The more I read Blackstone, the more I realize how much of the 18th Century British parliamentary monarchy got passed along to our U.S. government.  It may be that the native birth prerequisite was simply transposed by the constitution’s framers from the parliamentary to the presidential context, without stopping to consider that the U.S. Constitution’s underlying political theory ought to reverse, or at least erase, the preference for accidental native birth.  Then again, the fact that the constitution expressly allows legislators to be naturalized citizens makes this theory less plausible.

If I were looking for a more geneaological explanation, I might say that in the nativist preference for the presidency, we seem to have preserved a role for chance in determining the object of our allegiance.  Maybe the important feature is not so much the requirement of native birth as the absence of rational choice in meeting that requirement.  It’s as though on some level the constitution injects back into the carefully structured method of choosing our nation’s leader a role for a kind of arbitrariness, of luck and fate, more associated with emotional than rational ties.

Peace and Beer

Book 1. Chapter the ninth. Of subordinate MAGISTRATES.

This chapter is about the keepers of the king’s peace – sheriffs, under-sheriffs, constables, coroners, bailiffs, and justices of the peace, all of whom “may apprehend all breakers of the peace, and commit them,” (p. 338) i.e., it’s about the police. Reading it, I realized that although I have occasionally heard the police referred to as “peace officers,” I am much more likely to think of them as “law enforcement officers” a term which, with its encapsulated “force,” carries almost the opposite valence of Blackstone’s peacekeepers. Whose description is more clear-eyed, mine or Blackstone’s?

Does Blackstone’s emphasis on government’s peacekeeping function reflect a widely shared sentiment back in 18th-century England, identifying hardworking local constables with social serenity? Or is this Blackstone looking at law’s coercive force through rosy hegemonic glasses, seeing legal peacemaking where some of his contemporaries saw state violence – particularly those from economic classes more likely to end up on the receiving end of the government stick? For that matter, Blackstone’s approach may be an attempt at selling the peacekeeping aspect of government force to an audience more attuned to its violent intrusions. And at one point he does acknowledge that constables “are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like.” (p. 344) Interestingly, the last section of this chapter is devoted to the overseers of the poor (pp 347-353), i.e., officials charged with maintaining – and containing – Britain’s indigent citizens, suggesting that then as now government force concentrated on certain sectors of the society perceived as more likely to disrupt the civic peace. My own squeamish ambivalence about government coercion is obviously at least partly class and culture bound. Some of my fellow 21st century Americans are happy to embrace the bond between peacekeeping and force. Up here on the Maine coast, where I am lucky enough to be spending a few weeks this summer, we have an elderly neighbor with a big, black truck. There’s a round decal on the truck’s back door, printed with what looks, from a distance, like a peace sign, but up close you can see that the familiar symbol’s three-pronged fork is actually formed by the body and wings of a fighter jet, and around the edge of the sticker it says “peace the old-fashioned way.”

Blackstone’s official peacekeepers are conceptually central, because “the common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society.” (p. 338) But there is  little discussion of either peacekeeping or law enforcement in law school today. Modern (and post-modern) literature on government structure makes a sharp division between the government officials who make and administer the law and the ones who enforce it, and the enforcers are marginal if not invisible. If the Commentaries were written today, I doubt you’d see much about government officials whose job it is to actually put their hands on people. Again, the class division is palpable. It reminds me of a commercial that used to run on local television late at night when I was a kid for a truck driving school, the tag line of which was “for the man who likes working with his hands but doesn’t like getting his fingernails dirty.” Peacekeeping can be hard on the manicure.

There’s a kind of Hohfeldian point here. For non-lawyers, Hohfeld was a 19th-century Harvard professor who wrote an essay that every law student still reads at least excerpts from, in which he pointed out the reciprocal nature of legal rights and duties. In other words, my right always corresponds to somebody else’s duty and vice versa. If I’m going to be (legally) privileged to enjoy a quiet cup of coffee alone on my front porch, then someone else – in fact, everyone else – is going to have to be (legally) constrained from disrupting my tranquil morning ritual. There’s a tendency to naturalize privileges. But Hohfeld showed the network of laws that not only protect but construct my quiet morning coffee, and this chapter of Blackstone points out the extent to which that construction depends on government officials who enforce those laws.

Indeed, at another level, the whole thing is a construction. We don’t just need laws, we need law breakers in order to have peace. Hohfeld’s binary conceptualization leaves out the first – or is it the last — step in which our very idea of “peace” becomes a belief in the existence of identifiable peace breakers to be constrained by designated peace keepers. In the United States those roles have long been assigned according to race and class. African Americans of all economic classes are the breakers, white working class men are the keepers, of a civic peace to be fully enjoyed only by white folks from the professional and moneyed classes. Of course people sometimes stray from this type casting. But when they do, they are always suspect. Thus the Obamas’ fist bump was seen by some as a “terrorist” gesture and black undercover cops are liable to be shot by fellow officers who mistake them for perps, while job applications from white men with felony convictions draw a more positive response from prospective employers than resumes sent by black men with no record of criminal conduct.

The society-shaping nature of law enforcement, its tendency to disrupt someone’s peace in order to maintain someone else’s, the race and class politics of those roles – and for that matter, the link between government administration and hands-on law enforcement – were all brought home recently by the dust up between another Harvard professor, Henry Louis Gates, and a police officer who wound up arresting Gates at his Cambridge home. The officer was investigating a neighbor’s report of a man breaking into Gates’s home. That would be Gates, who was apparently trying to force open a jammed door and was already inside by the time the police arrived. Professor Gates, who is African American, was nonplussed to be taken for a burglar in his own house, especially after he produced identification proving that he lived there. According to the police, Gates was arrested for “disorderly conduct” (a charge that was later dropped) because of his belligerent behavior toward the officer; according to Gates he had every right to be thoroughly put out by a white policeman’s refusal to back off and recognize that the black man he was confronting was a rightful peace enjoyer not a trespassing peace breaker.

This already freighted episode took on an additional symbolic load with the personal intervention of President Obama, who is, after all, another African American resident of a hitherto exclusively white neighborhood (namely, the oval office of the aptly named “White House”) and the person ultimately responsible for national law enforcement, aka, peacemaking. Artfully combining the householder/peacemaker aspects of his role, President Obama invited both Gates and the officer over to the White House for a beer. Sweet are the (symbolic) uses of adversity, for with this homely invitation the President managed to establish himself as (an African American) man with a pretty classy house whose idea of quiet enjoyment still includes a brewsky with the (working class white) guys. At the same time, the occasion was an opportunity to model the Obama administration’s commitment to peacemaking a “new fashioned” way, i.e., with diplomatic conversation instead of martial coercion and to transform an official building lately much identified as a headquarters of government coercion both at home and abroad into a place of domestic hospitality presided over by a friendly householder whose very presence there offers new hope for achieving a more universal kind of peace that “is the very end and foundation of civil society.” ( p. 338)

The Royal Fish, or, Blackstone is Boring

Book 1.  Chapter the Eighth.  Of the KING’S REVENUE.

Well, I promise I will never again complain about short chapters.  This one, enumerating the various sources of government funding for merry old  England circa 1760, seemed to go on forever.   I was put in mind of the observation that a life without any bad habits might not actually be longer but it will certainly seem longer.  This is pretty bland stuff.  Though there are occasional amusements –mostly in the form of historical ephemera that reveal the source of some modern term or custom.   For instance, I now know that the term “treasure-trove” derives from the French trover, to find, and originally meant “where any money or coin, gold, silver, plate, or bullion, is found hidden in the earth or other private place,” p. 285, which, back in the day, were apparently considered the property of the king.  In the end, though, I concluded that what was most interesting about this chapter was how boring it was.

Why is this part so boring?  I think it’s the lack of a certain linear drive — at least at first glance, there’s no plot here, just a really long list of all the different kinds of the king’s “ordinary” and “extraordinary” revenues.   The “ordinary” parts of the king’s revenues are the customary ones, which, along with the basics like rents on the king’s lands and profits from the king’s courts, include quite a range of oddball assignments like the aforementioned treasure trove.  It is typical of Blackstone that he spends only 8 lines on what must have been one of the greatest original sources of royal wealth, “escheats of land,” i.e., the rule that any land that had no heirs to claim it reverted to the crown, and pages and pages on things like the rules for shipwrecks and the right to the “royal fish,” namely, whale and sturgeon, which “on account of their superior excellence”  were considered the property of the king when they either beached or were caught offshore. (p. 280)  Not surprisingly perhaps, these sources are insufficient to support the executive government of eighteenth century England, where the people “are now obliged to have recourse to new methods of raising money, unknown to our early ancestors.” (p.  296)  The “new methods” that produce the king’s “extraordinary revenues” are not bake sales and raffles, they are taxes raised by parliament, and the whole last half of the chapter is devoted to an exhaustive explanation of the various types of taxation in force in Blackstone’s time, the imposts and excise duties on “printed silks and linens, at the printers; starch and hair power, at the maker’s; gold and sliver wire, at the wiredrawer’s; all plate whatsoever, first in the hands of the vendor, who pays yearly for a licence to sell it, and afterwards in the hands of the occupier, who also pays an annual duty for  having it in his custody; and coaches and other wheel carriages, for which the occupier is excised; though not with the same circumstances of arbitrary strictness with regard to plate and coaches, . . . . coffee and tea, chocolate, and cocoa paste . . . all artificial wines, . . . paper and pasteboard . . . malt . . . vinegars; and the manufacture of glass . . . .” (p. 310)  It is a list, Blackstone remarks darkly, “which no friend to his country would wish to see farther encreased.” (p. 310)

Of course one can find, or invent, a story or an argument in this itemization.  I could say that this whole chapter is really Blackstone’s defense of the relatively modern idea of taxation imposed by an elected legislature, and his critique of the mess the current government has made of that idea.  First he details all the odd traditional revenues and points out that these no longer can support the government. He insists that the thing “to be wished and aimed at in a land of liberty, is by no means the total abolition of taxes,” but “wisdom and moderation” in a tax scheme. (pp. 296-97)  Then he comes down hard on the unwieldly and irrational system of national debt, excise taxes and customs duties and the associated retinue of tax collectors and administrators that have “extended the influence of government to every corner of the nation” and  ”thrown such a weight of power into the executive scale of government as we cannot think was intended by our patriot ancestors.”  (p. 324)  The end of the chapter is wistfully utopian.  Blackstone envisions a future in which “our taxes shall be gradually reduced” and the “adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose.” (p. 326)   

Okay, so there’s a story there after all.  But I really had to dig for it.  And as always, I’m both eager for narrative and impatient with it.  In a way, boring as it was, the initially exhausting,  just-one-damn-thing-after-another, messy list-like quality of this chapter is ultimately more intriguing to me than the political argument I found to structure it.   At one time I would have said that was because the messy list is more like life.  But now I’m not so sure.  Now I wonder if it’s more about a struggle between two different kinds of structure and the value different cultures place on those structures.  

The linear narrative/argument structure is so much the quintessential modern way of framing the world and, for all our talk of “post” modernity, still so ascendent in my world that I can do it in my sleep.   (As a matter of fact I practically am doing it in my sleep right now at my kitchen table in Brooklyn at 5 a.m., having been driven from my bed hours ago by anxiety about all the things I have to somehow accomplish and fear I never can accomplish in the next few weeks.)  I both crave and resist the trajectory of narrative and analytic argument.  Things seem incoherent without them, vague and, as I said at the beginning of this essay, hopelessly dull.  But with them they seem forced, driven and single minded, and ultimately false.  I am aware, by the way, that in this discussion (digression?) I am mixing up two forms that many readers, perhaps especially lawyer readers, will regard as distinct or even opposite, i.e., narrative and analytic argument.

There is a fascinating critique of traditional legal analysis that maintains that while legal opinions are generally structured as analytic arguments, they can be better understood as stories, with stock plots, characters and morals.  (See, e.g., Minding the Law, by Anthony B. Amsterdam and Jerome Brunner (2002)). While the narrative analysis of law has illuminated the extent to which judicial outcomes rely on drama rather than logic, in a sense I have always found that analysis frustratingly limited because it has always seemed to me that drama and logic are a lot alike.  Both stories and arguments have this kind of projectile drive that sets them apart from the kind of structure that seems at once much simpler and more impenetrable to me, namely the kind of repetitious, static categorizing itemization that made me yawn my way through this chapter.  

It seems to me that, in a way, Blackstone’s leaden recitation of the idiosyncratic rules and customs for financing the king of England may be more threatening and more illuminating to a modern legal-analytic way of thinking than traditional narrative can ever be.  That’s because it lacks the forward motion, the striving, the getting-from-point-A-to-point-B quality of both conventional legal argument and a conventional story line.  Like a good story, a good  argument has a sense of direction, of having set a course from the outset that determines the journey and the destination.  Not only does this mostly list-like chapter lack this kind of teleological drive, if there is any equally complex structure at work in Blackstone’s survey of revenue sources and the rules and practices that govern and surround them, I can’t see it.  But that may just be because this kind of itemized categorization is not as familiar to me as narrative and analysis.  I may be missing the articulation — and the artifice — in Blackstone’s tax catalogue just because this structure is unfamiliar to me.  

The irony here is that the careful ticking off and description of every single thing that belongs in some category is a recognizable legal genre.  In fact, isn’t this still what contracts seem to be all about, and all those other quintessential legal documents — wills, deeds, codicils, amendments, plea bargains, marriage settlements, insurance policies, prenups, etcetera etcetera etcetera?    Then why does it seem so foreign to me — a trained lawyer and, for that matter, a law teacher?  No doubt it is partly because my legal experience is as a litigator, not a transactional attorney, but I think it is more than that, more about legal culture and 21st century American culture than just about my own idiosyncratic experience.   Blackstone’s revenue taxonomy is recognizably legal but also recognizably old fashioned.  Compared with a legal argument from premises through facts to conclusions it looks dodgy and unsophisticated, and (I keep coming back to this) tedious.  

In the United States in 2009, I’ll bet most people would see it the same way.  But there might be another way to see it — a perspective from which this kind of listing provides a long, deep look into life and into legal structures — a kind of picture of the intricate and disordered, or partially ordered, mixed up customary and codified systems that refuses to smooth out the complexities, to shave off the bits that don’t fit neatly, and above all that doesn’t move — that doesn’t seem to drive toward some conclusion and so provides a marvelously rich view.  When I think about it this way,   I think of my friend Aileen, an artist and art education teacher who grew up in a little Scottish town where her grandma used to call to the neighbors, “come and look at Aileen’s drawings — she’s so smart”!  What strikes me now is that this chapter may be boring not because it’s dull but because I’m not smart, at least not smart enough in the almost visual way that it is organized.  I don’t have the kind of brain that can take something like this in.  Lord knows I haven’t had much practice.  Legal-institutional culture in the U.S. today — certainly legal education —  and  popular culture, too, so privileges both the driven analytic intelligence of conceptual argument and the ability to recognize and decode an unfolding narrative that this other more descriptive, for lack of a better word, way of thinking is rarely required.  When it is, we tend to see it as a stodgy, highly conventional form of legal practice, one that may be financially rewarded but that has little potential to generate  interesting legal theory or to shed any light on the role of law in society. What would happen if we really studied and consciously practiced this profoundly anti-narrative, anti-analytic way of thinking that is still so present in so much legal writing?  I have an inkling that we might be surprised at what it would show us about our own legal culture.  Okay, now I’m going back to bed.

Torture and the Legal Pen

BOOK THE FIRST.  Chapter the seventh.  Of the KING’S PREROGATIVE.

Blackstone Weekly is sorry for the long hiatus between entries.  Given that this section of the Commentaries is all about the legal limits on executive power, I realized that I had to say something about the recently released torture memos, and it’s taken me this long to get some kind of grip on what I think about them.  In this chapter, Blackstone explains that while the king himself (or herself — see my previous post, “Blackstone’s Sister”) is immune from legal liability, the people who advise him are not.  If the king’s power is abused, his advisors will be called “to a just and severe account.”  (p. 244) From there, you’d think it would be an easy segue to some trenchant remarks about how our own sovereign’s legal advisors failed in their duty to prevent a horrid abuse of arbitrary power.  And there my troubles began.  

My problem is that, unlike a lot of the legal experts opining on these memos, it is not at all clear to me what’s wrong with the legal analysis in what looks like the worst of them.  Take the one written on August 1, 2002 that explains why the specific, horrific techniques the CIA plans to use are A-okay.  I have no trouble seeing that that conclusion is wrong, or, rather, that it is WRONG! WRONG! WRONG!  But I’m less sure that what’s wrong with it has much to do with any lawyer’s failure to correctly analyze the law or to go about that analysis in a legally ethical fashion. 

This is disturbing.   I mean, we’re talking here about a government attorney writing up a legal argument for why it is okay to put somebody into a box with insects. (Aug. 1, 2002 memo at 3)  If I don’t know what’s legally wrong with that, what good is law to me?  And what good am I to the law?  And yet, I don’t know.  

There are two main explanations I’ve heard from other lawyers about what went legally wrong here.  Neither one seems right to me, but going over them helps illuminate the problem.  One critique is that the lawyers who wrote the memos set out to give Bush administration officials what they wanted, i.e., a legal license to do the awful things the memos describe, rather than to faithfully interpret what the law would allow.  David Luban, a well-known scholar of legal ethics has criticized the memos on this score.  He says the memo writers failed in their professional duty to “tell it straight, without slanting or skewing.” (May 13, 2009 testimony before Judiciary Committee) Luban acknowledges that this can be hard to do in the sense that nobody likes to disappoint a client.  But he seems to think that competent, honest lawyers can and should analyze the law relevant to a client’s desire in a ’straight, unslanted’ way, unshaped by the client’s goals.  I disagree.

I certainly agree with Luban (and the ABA) that a lawyer advising a client has a duty to give “candid advice” about the law even when “that advice will be unpalatable to the client.”  (Id.) But I disagree that it is desirable — or possible — for a lawyer to ignore her client’s desire and produce a memo that would (as Luban contended in testimony attacking a precursor of the memos released last month) “say the same thing it would even if you imagine your client wants the opposite from what you know he wants.” (May 6, 2008 testimony) And I am mystified and exasperated by the suggestion that this kind of neutrality is, or should be, the professional standard. 

A lawyer’s bottom line job — and ethical duty — is to help her client.  Of course that doesn’t mean just telling the client what she wants to hear — partly because the lawyer has an ethical duty to be honest about what she believes the law says, but also because that wouldn’t really help the client. Clients need lawyers to give them a sense of how the client’s desires map onto the legal landscape — how existing and potential legal rules, policies and decisions might facilitate, block or shape what the client wants to do.  Legal interpretation is worthless and deceptive if it ignores the aspects of the law that are problematic for the client’s project.  But it would be perverse, and arguably unethical, for a lawyer to ignore  the client’s goal as she went about interpreting the law.  

More to the point, I don’t think that it is possible to produce this kind of perspectiveless view of law.  Legal analysis is a matter of interpretation, and any interpreter has a point of view.  If I reject the client’s perspective, whose outlook should I adopt?  My own?  That of some imagined tribunal?  The average American?   Honestly, it is not possible to write a memo that looks the way it would if I were trying to see if the opposite goal were legal, because there is no such memo.  The law looks different depending on what you want to do — so those are two different memos.   Now, that doesn’t mean that they should reach two different conclusions.  A lawyer for a shopkeeper who wants an awning over her storefront might agree with the neighboring store owners that zoning law forbids it.  But she should get to that position in spite of her efforts to find a valid interpretation of the law that would support her client’s goals, not because she ignored, or claimed somehow to transcend, those goals.  

The question this raises, of course, is how the lawyer knows when to give up trying to get the law to take her client where she wants to go and tell the client that in her opinion it is just not possible.  The second critique I’ve heard about the torture memos suggests an answer to this question: the lawyers writing these memos should have been able to tell that the interrogation methods they described were illegal by how hard they were having to work to prove that they were legal.  This is the view put forward by Peter Shane, author of a recent book on executive power, who characterizes the memos as “about as monstrous a corruption of the lawyering process as one can imagine.” (Duke Executive Watch Blog) Professor Shane offers this advice for government lawyers: “If it takes you more than a paragraph to explain persuasively why something is not torture, it’s torture.”  (Id.)

That certainly has a nice ring to it.  But it just can’t be right that if it’s difficult to reach a legal conclusion, and requires a lengthy discussion to get there, that conclusion is necessarily wrong.  It does mean that you can’t honestly or accurately present that conclusion as easy and unproblematic.  But these memos don’t really give that impression; as Shane suggests, they are nothing if not effortful. 

Professor Shane is right, though, that the most disturbing feature of these memos is the way they go on and on with obsessive specificity about the awful practices they describe, breaking them down into a series of detached details that create an oddly pornographic effect:  ”The facial hold is used to hold the head immobile.  One open palm is placed on either side of the individual’s face.  The fingertips are kept well away from the individual’s eyes.”  (Aug. 1, 2002 memo at 2.)  So it’s appealing to think that’s how you know when you’ve gone wrong as a lawyer — when you read back over the memo, or opinion, or brief you’ve written and the factual details refuse to dissolve into the arguments, when you can’t escape a kind of fetishistic attachment to certain descriptions of objects, bodies, times, numbers, procedures.   When that happens, maybe you ought to stop and think ‘hmm, something seems wrong here. . . .’  

But wait a minute, isn’t it is just this kind of extraordinary cataloguing of insoluble details that we all recognize as typically “legal” or lawyerly?  Verbally dissecting and scrutinizing the particulars of some situation to see whether it can be said to fit a set definition is a classic mode of legal inquiry. When the question is “what is chicken” and the author is a famous appellate judge, it makes for an ironic casebook classic.  When the question is “what is torture,” not so much.  But the arduous, snaillike slog through paragraph after paragraph of repetitive prose as one pickayune fact after another is dutifully segregated and held up against a few ritually significant terms is not an atypical or degenerate feature of these legal memos.  It’s a generally shared, indeed, paradigmatic, feature of much respected legal analysis.  And it’s no wonder, really, that when the details at stake involve human bodies, legal writing verges on pornography.   In law, as in porn, the whole picture or whole story is held at bay while the viewer/reader is led to engage with certain selected details of the picture in repetitive, highly formalized ways. What makes legal analysis rigorous is what makes porn arousing — a kind of resistance to ordinary narrative scale and flow — a refusal to allow certain aspects of the story to get submerged into a familiar plot and mise en scene.  And now that I think of it, yes, porn is a kind of analysis.

Maybe the point is that, outside of pornography, the things we do to human bodies and the sensations those acts produce should just never be subjected to this kind of fragmented hypertechnical review.  Maybe a more holistic analysis should have done the trick.  No.  If the memos eschewed their skin crawling itemization of the procedures they end up authorizing (“The individual is bound securely to an inclined bench, which is about four feet by seven feet . . . . The water is usually applied from a canteen cup or small watering can with a spout.” August 1, 2002 memo at 3-4.) in favor of a more general approach, describing waterboarding, say, as ‘forced, simulated drowning with a wet cloth’ — that would make it easier, not harder to authorize those procedures.  Whatever else, a legal analysis is supposed to force us to confront — and keep confronting — the most difficult aspects of what it is we’re trying to decide (or argue for or against), exactly to ensure that we don’t make those judgments (or arguments) without facing up to what they will mean in the real world.  It is, in fact, the memos’ relentless catalogue of grimly parsed assaults on the bodies of the prisoners that convinces me and every reader I know that the actions they describe are torture.  Ironically, if the memos had concluded quickly and summarily that all the proposed techniques were not torture, they would  be at once more persuasive and less lawyerly.   

If anything, it may be that the memo writers could and should have worked even harder and at greater length.  Several analysts (including Luban) have pointed to the memos’ failure to mention a 1984 federal appeals court decision affirming the convictions of several Texas law enforcement officers for subjecting prisoners to “water torture.”  United States v. Lee, 744 F.2d 1124 (5th Cir. 1984).   Supposedly, the “torture” at issue in Lee was waterboarding.   (I can’t tell from the published opinion; I’d have to search the trial court record, which costs 26 bucks, so forget it).  Luban is right that any half-decent search for court decisions involving torture would have turned up U.S. v. Lee, and Justice Department lawyers could have picked up the phone to find out whether what was going on there was waterboarding.  If it was, that case should be in the memo. Heck, even if  the case is about some different kind of water torture, they probably should have put it in the memo and compared the conduct Justice prosecuted in 1984 to the conduct they were authorizing 20 years later.  

But here’s the thing.  Just as any good lawyer could find that case, any good lawyer could distinguish it.  Assume that the trial court records show what David Luban says they do — that the Texas officers in Lee were convicted of civil rights violations for “waterboarding prisoners to make them confess,” that wouldn’t necessarily mean that waterboarding constituted a form of torture under the law the memo analyzed. And it wouldn’t necessarily mean it was beyond the legal pale for interrogations in other circumstances. 

 I wish that I could share the view that these memos are a clear failure of legal craft and ethics. I badly want to believe that our legal system at least has the potential to prevent government 0fficials from torturing people, and it would be much easier to sustain that belief if I could put what happened here down to the unprofessional conduct of the lawyers who wrote those memos.  But, frankly, it seems to me that that point of view is just the latest version of the “few bad apples” story about our government’s use of torture.  For lawyers, it’s especially appealing.  If these memos are obviously flawed legally, then I’m in the clear.  As a conscientious lawyer I can never be implicated in such terrible acts, and the legal system with which I am identified cannot reasonably be used to allow such horrors.  

But the truth is that our laws are  interpreted every day by conscientious lawyers to allow — even to require — all kinds of dreadful things.  Indeed one of law’s main social roles seems to be to institutionally suppress individual moral scruples in the service of government actions from which reasonable and empathic people would otherwise shrink.  We use legal interpretation to take children from their parents, to lock up young men for the rest of their lives, to evict families from their homes, to send people back to countries that they fled in terror.  And those are all relatively common, uncontroversial examples of legal violence, all of which are accompanied by myriad legal writings that purport to legitimize them in various degrees of detail.  

It may be that the torture memos are different — that their conclusions rest on weaker interpretations of the law than the thousands of legal memos, court briefs, and judicial decisions that authorize other forms of state violence.  But I can’t tell that by reading them.  I devoutly wish it were possible to distance myself as a lawyer from the authorization of such horrors, but in four weeks of trying, I haven’t found a way.  

So what’s left of my belief that law can restrain arbitrary state violence?  Something Blackstone says may be about all I can offer here, namely, that the best proof of law’s limiting effect is the “power of discussing and examining, with decency and respect, the limits of the king’s prerogative.” (p. 230)  Sovereign authority is, after all, “[a] topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject.”  (Id.)  Answering Blackstone, you might say that the torture memos are an attempt to sanctify the most profane aspect of sovereign power.  Or, you might say that with their public release these memos continue the project Blackstone celebrates, the endless opening of government power to a — flawed, partial, subjective, ultimately disappointing — legal analysis.  It would be much more comfortable to believe that there is an objectively correct analysis of the law out there somewhere that the memo writers could have delivered that would necessarily have prevented any interrogation techniques that we now must acknowledge are forms of torture.  But given that I don’t think that’s the case, I have to be glad that there were legal memos written about such things at all,  glad that the Obama administration saw fit to release them, and, ironically, glad the memo writers went about their task with the dogged legalistic attention to detail that exposes and allows us to “discuss[] and examin[] with decency and respect”  the atrocity of the policy they authorized.

Protection/Subjection

Book the First.  Chapter the sixth.  Of the KING’s DUTIES.  

Blackstone Weekly is growing weary of these little bitty chapters.  This one is only about three pages long. Still, there’s always something to chew on.  Here, in the very first sentence, Blackstone explains that “in consideration of” the king’s constitutional duties, “his dignity and prerogative are established by the laws of the land: it being a maxim of the law, that protection and subjection are reciprocal.”  (p. 226).  Now, in legal arguments, “maxim” is one of those words that’s often code for “I don’t have any support for this proposition.”  It’s like when my Aunt Mary used to tell me that if I didn’t know how to pronounce some word, I should be sure to say it extra loud.  So naturally I was suspicious.

At first, it did seem pretty obvious that protection and subjection are reciprocal, that is, that by giving one, you get the other.  In fact, once I started looking for it, it seemed like  reciprocal protection/subjection was everywhere.  There were economists explaining that the global financial meltdown happened because of relaxed government regulation (i.e., not enough subjection equals not enough protection; tsk, tsk).  There were headlines like the NY Post’s “Obama fires GM boss” (i.e., if I’m going to protect you, I’m damn well going to subject you).  There was the flaw in Congress’s plan to retroactively tax AIG bonuses at 90% (the same constitution that protects Congress’s legislative power subjects that power to certain limits, including a ban on legislation that aims to punish individuals by stripping them of their property without any legal process).  And there was the news that Alaska and South Carolina will forgo millions of stimulus dollars because the money comes with federal strings attached (as in, “we don’t need your stinkin’ ‘protection’, thank you very much”!).  

So far, so good, but then I looked back at Blackstone’s statement that started me off on this quest — that law establishes the king’s prerogative in consideration for his duties, because protection and subjection are reciprocal — and I realized that I didn’t really understand what he was talking about.  

He may have meant ”because the king subjects  himself to the law, the law protects the king.”  That would make sense as part of his ongoing argument about the virtues of legally limited monarchy.  But the discussion that follows seems to suggest a different meaning.  Blackstone keeps talking about a “contract” between the king and the people.  Along with his assertion that the king’s prerogative is established “in consideration” for his duties, that sounds more like “I protect you [English people], and in exchange I get to subject you,” with the King as the protector and the people as the subjects. This familiar Lockean social contract theory also seems like a perfectly plausible point for Blackstone to be making in this context.   So it does seem like there’s a point to be made here that entails a reciprocal relation between protection and subjection.  But it’s hard to see that point as the straightforward application of a maxim, when it could mean two completely different things. Even the parties it supposedly applies to are different:  in the first it’s the law and the king and in the second it’s the king and the people.  

Also notice that there’s nothing other than the jargon (Blackstone’s “in consideration” or my “in exchange” that makes the relation between the government’s protection and the citizens’ subjection look agreeable, or even consensual.  Lose the contract language, and we might be talking about coercion or even logical necessity.   Does government get to subject people in exchange for protecting them?  Or is it that government protects people by subjecting them?  In a darker view, is government subjection the price extracted for government protection, or is protection just subjection in disguise?  If it’s the latter, the whole contractual aspect of Blackstone’s point disappears.  We’re no longer talking about a trade-off to which parties agree (okay, I’ll let you subject me, just as long as you protect me).  We’re not even really talking about a coerced quid pro quo.  Protection always entails subjection.  It follows as the day follows night.   In fact, in this view, protection may actually be subjection; reciprocity has collapsed into identity.  

That’s the view from Alaska, I guess, and South Carolina.  And of course it’s true — at least somewhat true.  In life as well as law, once you’ve got protection, you’ve got some amount of subjection, because protection implies superior power.  How protect if you’re not in charge?  But that can’t be the whole story.  Because lots of times the less powerful member of the pair or group is called upon to protect the more powerful ones.  Just take a look at who’s in our armed forces.  Sometimes the subjected one is the one doing the protecting.  

On the flip side,  isn’t it  true that sometimes a more powerful protector winds up subjected by the protection she extends to her subjects? So long as she remains a protector, the protector is subjected, too — by her very role or duty of providing protection.   Think of parents and children.  Or, to go back to the geopolitical, how about the U.S. and Iraq?

Ugh.  Now everywhere I look I see protection and subjection, but they never seem to go together in the same way.  So far, just in the discussion above, here are the different protection/subjection relationships we’ve got:

1.   Because I subject myself to you, you protect me. 

2.  In exchange for protecting you, I  get to subject you to my will.

3.  I subject you to my will, and, therefore, you (must) protect me (if I say so).

4.  I protect you, and, as a result, am necessarily subjected to your will (at least to the extent that I am bound to keep on protecting you).

In every one of these you give protection and get subjection or give subjection and get protection.  But there the similarity ends.   Wait a minute, is the reciprocal relationship of protection and subjection a “meme”?  Just the other day I was railing against the nonexistence of any actual referrents for this trendy term — can it be that I’ve finally stumbled across one?  Maybe.  In any case, I’m left feeling that my instinctive distrust of the “maxim” of reciprocity between protection and subjection has been vindicated.  True, staring hard at the protection/subjection pair didn’t uncouple them, or make the relationship seem false or meaningless.  Instead it multiplied its meanings.  In fact, there seem to be nearly endless different ways to give protection and get subjection or vice versa.  I guess the point is that if you can imagine all these different (reciprocal) relationships between these terms in all these different contexts, then it’s not at all obvious that there is anything necessary about their connection in any particular set of circumstances.  Because you can always scramble the players and the terms and set them up another way.  So the maxim holds — but it doesn’t really tell you anything about what follows — or should follow — from protection on the one hand, or subjection on the other. Now what?

Conventions of Peers

BOOK THE FIRST.  Chapter the fifth.  Of the COUNCILS belonging to the KING.

This chapter describes the four different consular bodies that advise the King of England: parliament, the peers of the realm, the judges of the courts of law, and the privy council.  Among other things, we learn that along with parliamentary sessions, “instances of conventions of the peers, to advise the king,” were once common.  (p. 221)

One of pleasures of reading Blackstone is catching sight of the cultural ephemera he occasionally uncovers (or, for all I know, invents).  The sections on governmental structures have been particularly rich.  For instance, in an earlier chapter we were informed that a member of the house of lords, on his way to and from parliament, may, while passing through the king’s forests, ”kill one or two of the king’s deer without warrant,” but only “in view of the forester, if he be present; or on blowing a horn if he be absent, that he may not seem to take the king’s venison by stealth.” (pp 161-62)  In this chapter, Blackstone mentions a real estate deal between Henry IV (1366-1413) and the earl of Northumberland, in which the lands’ value was to be settled by parliament “if any should be called before the feast of St Lucia or otherwise by advice of the grand council (of peers) which the king promises to assemble before the said feast.” (p. 221)  

I don’t know why exactly, but I find these evocations of aristocratic life in Ye Olde England oddly engaging.  I am not at all interested in the kind of detailed histories that readily provide this kind of information.  But there’s something about having it slipped in on the edges of a more abstract project that makes it kind of shimmer — little concrete bits of lived experience that are inevitably so much more involved than even complex legal rules and governmental structures.  Catching just a glimpse of this stuff out of the corner of one’s eye makes it seem mysterious and meaningful.  

The other thing that makes these descriptions resonant, I think, is the ritualization — which over the distance of centuries appears in all its strange distinction.  The customs Blackstone describes are part of lived experience, as opposed to the abstraction of legal doctrines, but not ordinary lived experience.  There’s a kind of performed formality that overwhelms intention here — I mean, blowing the horn before killing the deer?  (And by the way, are these tame deer that just stand around while people blow horns at them?  I mean maybe so — they’re in the royal forest after all — maybe they’re tame.  Ugh.  Surely not.  Maybe you’re supposed to blow the horn just after you’ve killed one?  That makes more sense.)  In any case, reading about the horn blowing and the feast of St. Lucia and the king “issu[ing] out writs under the great seal to call a great council” (p. 221) made me think of the observation in my new favorite book, that “ritual creates and re-creates a world of social convention and authority beyond the inner will of any individual.”  Ritual and Its Consequences: An Essay on the Limits of Sincerity, Seligman et al. (Oxford 2008) at 11.

It so happens that when I read this chapter of Blackstone I was myself attending a kind of consular session.  It was a gathering of county election officials, voting rights advocates, and academics convened by a midwestern Secretary of State to advise on policy reforms.  And I began to reflect on all the ways the familiar forms of the conference that I usually take completely for granted might shimmer to some future observer as selected tidbits of ritualized twenty-first century governmental culture.   The shiny folders with the state seal on the front, those clear plastic pockets on braided black cords with the little aluminum clips that held the preprinted name tags we all wore around our necks.  The “working lunch” at round tables draped in heavy white cloths, with rolls served with tongs, little round butter pats molded into rosettes, and waiters in black jackets passing plates and pouring out coffee from brown plastic beakers.  And the clothes — the care each participant put into choosing what to wear —  the men in suits, or a least shirts and ties; the women in suits, too, mostly, and stockings, heels, makeup.  Local voting rights advocates wore brighter colors and drapier textures — as if exercising their prerogative to dress in this freer, livelier more comfortable style, as a reward, or a badge of honor, for eschewing official power, national visibility, and/or academic tenure, all of which for some reason demand clothes that are tighter, darker and less forgiving.  

It’s easy to trivialize or mock the modern equivalents of the ceremonies accompanying the policy convocations Blackstone describes.  These days, any mention of such details generally signals an intent to do just that.  But I actually think these things are important. Without them you have a lot of smart, experienced people who would be better occupied at home by themselves thinking and writing and maybe talking to each other sometimes, but you don’t have a council, you don’t have a conference, you don’t have a convention.  It’s the conventions that make the convention.  And, in some sense, it’s out of this kind of conventional formality that policies get made.  Otherwise you just have ideas. Policies are something more concrete than ideas — though maybe not as concrete as, say, practices.  

It’s almost as if you take the participants’ theories and ideas and memories and suggestions and mix them with the concretized ritual practices and objects of the conference — the milling and talking, the hugs and handshakes and pecks on the cheek, the agendas and water pitchers and cardboard name placards and little gelatinous chocolate mousse cylinders and somehow the very concreteness of these predictable “conventional” acts and objects mixes with the abstract content of people’s thoughts, opinions and proposals and becomes that abstract-practical hybrid thing:  policy.

Then I had to come home from that convention of my peers because my mother — who is 91 — fell down.  And on the plane I was thinking how picky my generally easy-going mother was until quite recently about a certain few things, for instance the way she drank her coffee (the cup had to have a thin lip) and the way she always opened up one corner of the little sugar packet and poured in just a few grains and stirred, stirred, stirred with a spoon and then set the spoon down on a napkin — and how if there wasn’t a spoon or a napkin she kind of acted like civilization might just be coming to an end.  And I was thinking, well, maybe so.  Because, as Seligman et al. put it, such rituals “create[] a shared and conventional world of human sociality.” (p. 17 ) And for my poor mother, the loss of the ability — or inclination? — to drink her coffee in her own particular ritualized fashion snuck in there sometime shortly before she lost the ability to drink coffee without spilling it, and really seems to have been the beginning of the end of the world.

Blackstone’s Sister

BOOK  the First.  Chapter the Fourth.  Of the KING’s Royal FAMILY.

This short chapter is mostly about queens.  Blackstone explains that there are three kinds.  Most of the chapter is about the queen consort –  the wife of the king.  The others are the queen dowager (the king’s widow) and the queen regent, regnant or sovereign, who holds the crown in her own right and “has the same powers, prerogatives, rights, dignities, and duties, as if she had been a king” (p. 212).  Blackstone describes some of the ways queens’ legal status differs from that of ordinary women — and why.  He explains, for instance, that unlike other married women the queen consort is allowed to own property, in order not to burden the king with her affairs (pp. 212-13). But he doesn’t offer a reason why at a time when ordinary married women lost all public and legal identity, the queen regnant actually got to be the most public person of all — that is, the king.  

Maybe it’s because in some ways a king is more like a girl than a man.  Both kings and girls live life more from the outside in, more as the object of knowledge, curiosity and reverance than the one who knows, inquires or reveres — more seen than seeing.  To paraphrase Catherine MacKinnon’s famous line, one’s body is, for both girls and kings, that which is at once most one’s self and least one’s own.  

I’m speaking, of course, in generalities — skipping over individual differences and, maybe more important, centuries of change.  Still, ruminating on the Queen Regnant, I find myself in a place where I seem to end up again and again — staring in disbelief at how little change there seems to have been, really, about this business of women’s bodies.  Whatever else has changed for girls and women since Blackstone’s time, and whatever we individually choose to make of those changed opportunities, our appearance is invested with meaning.  Like kings, from infancy our bodies are the subject of much more attention than the average man’s– both other people’s and our own.

Eight years ago (can it really be that long now?), when my daughter was a new baby girl, I was struck by the intensity and persistence of our society’s attention to feminine appearance.  Over forty myself, and thus having stepped well out of the spotlight shown on young women’s bodies, I was shocked by the extremity of the responses my curly-headed tot elicited. Strangers would drop to their knees before her stroller on the sidewalk and cry “oh, what a beautiful little girl.”  (I should explain here that while my daughter is a perfectly nice-looking little girl, she is in no sense spectacularly or even unusually beautiful.  And, indeed, I soon noticed that most little girls receive these accolades.)  Every piece of clothing and physical attribute is ritually catalogued and celebrated — “that’s a pretty dress,” “ooh, look at those sparkly shoes,” “what long lashes she has. . .  those cheeks, her smile . . . .” Or the whole package may be lauded together.  To this day a neighbor, himself a strikingly tall, white-haired man reputed to have once been Mayor Lindsay’s bodyguard, hails my daughter from his yard as she walks by on her way to school — “Hello, Miss Lovely”!   

He seems like a really nice man.  And I feel churlish for even suggesting there’s anything wrong with the well-intentioned appreciation he and other well meaning people have lavished on my child.  One of the great joys of having a child is the way the quotidian world cracks opens and serves up this amazing outpouring of appreciation and, yes, love.  But isn’t it obvious that being showered with this kind of  attention before you can even speak is going to set you on a course quite different from the one you would be inclined to take if you were not constantly being reminded of how important your appearance is?  

Not to everyone, apparently.  At the same time all this was going on I was having conversations at the swing set with other 21st-century liberal moms who were saying things like, “you know, it really is amazing how different they [i.e., boys and girls] are; we’re always trying to give her trucks, but she really is only interested in dolls.”   The idea that girls “have naturally, that is from their birth, independent of education, a fondness for dolls, dressing, and talking” was already subject to critique in Blackstone’s time. Mary Wollstonecraft (quoted in the previous sentence), considered this viewpoint, which she attributed to Rousseau, among others, “so puerile as not to merit a serious refutation.”  A Vindication of the Rights of Woman  (Ch. III) (1791).  Noting that she “probably had an opportunity of observing more girls in their infancy than J.J. Rousseau,” she contended that girls’ fondness for dressing up their dolls basically reflected the interest all the grown ups around them showed in dressing up the girls. Id. Two hundred years later on the playground in Brooklyn I had nothing to add to that argument, and it was just about as effective as it had been in Blackstone’s and Wollstonecraft’s England.

Of course some things are different now, among them the fact that women can be lawyers and law professors and publish writing about law.  (Although, I note that in a recent survey of the top 10 most cited law professors, not one is a woman.) I wonder how our different treatment of little girls and boys physical appearance is implicated in the ongoing professional gender divide.  In particular I wonder if it is part of why we are not producing more women mathematicians, scientists and engineers.  It strikes me that in the quantitative world of lab science, hard drives, and pure math, there is so little narrativity that the presentational self all but disappears, at least until the point at which a few stars emerge to win prizes. In professions women have entered in large numbers — doctor, lawyer, professor — physical presentation of self is definitely part of the game.  To be sure, that presentation is a source of conflict and confusion for professional women. (Must I wear a skirt for that appellate argument or do I chance the pants suit?) But it may be even harder and more confusing to find one’s way in a profession that virtually does away with physical image.    The sheer anonymity may be too hard for women to accept.  It may be impossible for most young women to imagine themselves into these disembodied roles — both because they sense they will fail at the requirement of corporeal invisibility and because they are afraid that if they do succeed, they will be totally erased. 

So far, I’ve been writing as if I lived somewhere apart from the feminine attachment to physical appearance that I’ve been describing. Of course it is not so.  Nor is it the case that I always experience that attachment as onerous.  Sometimes it seems like this life on the outside gives women an opportunity that men lack to connect more readily with other people. Actually, it can really cheer you up.

On my way home recently from a meeting in Washington, D.C.  I stepped up to the Amtrak counter, to change my ticket for an earlier train.  The ticket agent looked weary, already yawning at nine in the morning.  He punched up the numbers for my exchange, took my credit card and asked me for the obligatory post 9/11 picture ID, which I produced.  Glancing at it, he remarked, “good looking.”  I was feeling depressed.  ”It’s an old picture,” I said.  At this, something in this man woke up.  Looking me in the eye he said, “Well, now that’s something they can’t take away from you.  If you got it, you got it.”  The kindness of his statement was all the more apparent because the statement was so obviously untrue.  After all, physical beauty is quintessentially, paradigmatically transient — the part of one’s self that time most certainly does carry away.  For some reason it makes me think of something I only just found out about physical identity — that it is not in fact only skin deep.  A friend who is having to go through a slew of internal medical examinations tells me that one of her too many doctors explained that people’s insides are as different from one another as their faces.  It turns out that the shape and spatial relationship of a person’s heart, lungs and liver are as much her own as the parts of her that are more routinely visible.  I find this comforting.

The King Is Dead; Long Live the Law

Book the First.  Of the RIGHTS of PERSONS.  Chapter the Third.  Of the King, and his Title.

In this chapter you really see how Blackstone both inspired and pissed off the American founders.  It’s a hymn to the hereditary right of kings whose main theme is that the representative legislature gets to decide everything — including who gets to be king.  Of course, in Blackstone’s world that legislature included not only the unelected lords but the king, who had veto power, but still . . . . It’s a long way from the kind of divine right of  royalty that often gets opposed to the idea of elected democracy.  Is there anything that isn’t more complicated than we think it is?

Blackstone’s England is all about compromise. The British ship of state steers between the extremes of an elected sovereign, which “may sound like the perfection of liberty, and look well enough when delineated on paper, but in practice will be ever productive of tumult, contention, and anarchy” and a monarch with a “divine indefeasible hereditary right,” which “is surely of all constitutions the most thoroughly slavish and dreadful” (p. 211).  In the government the Commentaries celebrates (and to some extent instantiates), the sovereign’s hereditary right is limited by the absolute individual rights that every Englishman inherits. Id. 

This stuff must have driven Jefferson insane.  On the one hand, here’s the blueprint for representative government, based on “the natural liberty of mankind” (p. 121), in which legislators — and legislation — reign supreme.  That’s good.  On the other hand here is an equally well-articulated condemnation of elected sovereignty.  That’s bad.  Plus, Blackstone’s got some serious rhetorical skill.   Making the British monarchy look like the modest middle ground between two wacko polarities is a strategy known to every good negotiator:  The more persuasively you can situate that bailout plan, brand of panty hose, political ideology you’re trying to sell as a compromise between risky extremes, the more likely you are to make that sale. And then there’s the part where Blackstone claims elections are a primitive survival of our less civilized past:  ”in the infancy and first rudiments of almost every state, the leader, chief magistrate, or prince, hath usually been elective” (p. 186).  Finally there’s the argument from experience:  as “history and observation will inform us” only hereditary monarchy  prevents “periodic bloodshed and misery.”  Id.  

The funny thing is, though, after all those canny rhetorical moves, the chapter’s argument that hereditary succession is necessary to stabilize society fails.  At least for this reader.  And I have to think it probably misfired for a number of 18th century readers, too, which may be part of how Blackstone wound up more revered in the new world he reviled than in the old one he celebrated. What’s more, the defense of sovereignty by birthright falls apart so slowly and obviously that I actually wonder if it wasn’t part of Blackstone’s plan all along to sacrifice this point in order to shore up another idea that was way more important to him:  that it’s laws that ultimately secure successful societies.

The whole long middle portion of the chapter is devoted to a blow by blow chronology of the passage of the English crown down from King Egbert in 800 to “our present gracious sovereign, king George the third,” and it is just really hard to see how anyone confronting this twisted saga of intrigue, accident, insurrection and compromise could come away with the idea that hereditary succession is a good way to decide who gets to govern.  It’s just one royal mishap after another.  Queens die “without issue,” princes get deposed by interloping uncles who “usurp[] the royal dignity,” and every time you turn around there’s another exception being made to an already incredibly complex (but still apparently hopelessly indeterminate) set of rules for sorting out where the crown lands when the music stops. The one constant, really, is the legitimating authority of parliament — which is always having to step in and declare that the current reigning monarch is actually the right one.  Which is what makes me just a little bit suspicious that Blackstone, who I must say I am really starting to think of as someone with a rather subtle sense of humor, may have wanted his readers to have this reaction.          

If there is an institution here that looks solid and dependable it is — surprise, surprise — the law.  In the monarchy Blackstone describes, laws don’t come from the king — the king comes from the laws. Hereditary succession to the English crown is a choice that “laws have created and vested in the royal stock” (p. 211).  And these aren’t natural — or divine — laws, either.  Blackstone mocks the idea that “the finger of providence was visible” in the king’s title, insisting that “it was clearly a human institution” and “no natural, but a positive right” (p. 202).  What makes this all the more remarkable is the fact that, to the contrary, Blackstone contends that the basic rights of human beings do come from God. (See, e.g., pp. 119-123).   So we wind up with a complete flip of the regal appeal to divine intervention with god on the side of the monarch’s subjects who are ultimately in charge — through the laws their representatives enact — of who gets to be king.  In the end, it seems a very short distance, if any, from Blackstone’s vision of the government that “it is is the duty of every good Englishman to understand, to revere, to defend” (p. 211) and Thomas Paine’s avowal, in the tract that urged rebellion against that very government, that “so far as we approve of monarchy, . . . in America the law is king.”   

 

 

 

 

Equality and Ooze

Book the First. The RIGHTS of PERSONS.  Chapter the Second.  Of the Parliament

In this chapter, Blackstone explains (p. 142) that for the rest of Book I he intends to discuss “the rights and duties of persons, as they . . . stand in various relations to each other. ” Why start that discussion with an analysis of the British Parliament?  Well, because, “The most universal public relation, by which men are connected together, is that of government, namely, as governor and governed, as magistrates and people.”   Wow.   This is one of those times when I realize that the author of the Commentaries looks at the same picture I’m staring at and sees something completely different.  Blackstone surveys social relations and the “most universal” one he sees is governor/governed.  In case the reader missed the hierarchical crux of the matter, he ellaborates: “Of magistrates also some are supreme, in whom the sovereign power of the state resides; others are subordinate.”  This chapter will start erecting the gorgeous legal edifice of variable privilege and duty out of the crude — and equal — rights that belong to everyone “merely in a state of nature.”    

Child of the American sixties that I am, I tend to think of “equal rights” as an ideal to be aspired to, not as the baseline muck from which we all struggle upward. And aspirational talk about equality is very much in the air these days.  In his inaugural address, President Obama urged us “to carry forward that precious gift, that noble idea, passed on from generation to generation, the God given promise that all are equal . . . .”  Of course, in one sense Blackstone is a precursor to this modern view, exactly because of that first chapter on absolute individual rights.  It’s that part of the Commentaries you hear echoed when our new President declares that our rights, “come not from our laws, but from our maker.”  

But reading Blackstone’s description of the sovereign legislature in this chapter, you  feel his antagonism to any view of equal rights as ennobling. Rights may come from God, but then so do bugs.  For Blackstone equal rights are basic to mankind as a kind of common, primitive origin. This is the equality of molecules, of micro-organisms, of mud — the primordial human ooze out of which law develops higher forms of social existence — like mammals from amoebae.  

In Blackstone’s worldview, law promises not rights, but order —  and not just order as a matter of keeping the peace.  This is not your crude, gunslinging, tough-talking Nixonian, primetime “law and order.” For Blackstone, law’s order is articulation — crystalizing civilization out of the muck of human rights. Blackstone even rejects Locke’s view that citizens in a democracy retain the power to unseat a legislature, calling any such exercise of popular sovereignty a “devolution” that “reduces all the members to their original state of equality.”  In Blackstone’s legal cosmology, and in Book I of his Commentaries, equality is where we start, not where we finish, and our legal system is meant not to keep us all equal but to allow us to differentiate.

Of course the view of equality as something we might fall back to, rather than struggle to attain, is not confined to an 18th century defense of constitutional monarchy.  It remains very much alive, for instance,  in today’s critiques of  affirmative action.  For that matter, the two senses of equality, high and low, are mirrored in the two normative slants we give the same term, “discrimination” as (1) a prejudicial judgment that fails to recognize individuality and (2) the discernment that registers and rewards individual differences.    

Our understanding(s) of the meaning and role of equality will of course affect governmental structures (and be affected by those structures). Consider voting rights.  Blackstone notes approvingly (p. 166) that in the parliamentary democracy he is describing, “comparative wealth, or property” is reflected in the electoral scheme — “for though the richest man has only one vote at one place, yet if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives.”  In contrast to the contemporary American mantra of “one person, one vote,” for Blackstone it’s natural that your voting rights expand with your property holdings.  He wants voting laws to reflect and amplify individual differences; we want voting laws to level them. In Blackstone’s England voting in two jurisdictions is a way of reflecting a highly developed social order, in the U.S. today it’s voter fraud.  

And consider Blackstone’s explanation (p. 165) for why people with no property can’t vote: these individuals are “in so mean a situation that they are esteemed to have no will of their own.”  If poor men had votes “they would be tempted to dispose of them under some undue influence or other.”  From our equality perspective today, this looks obviously trumped up.  Why are poor people any more likely to sell their votes than middle class, or even rich landowners?  Doesn’t everyone want something?  Doesn’t every man have his price?  And even if it were true that someone with very little is more vulnerable to influence, the solution is not to disenfranchise anyone who doesn’t own real estate but rather to use that fine governmental and legal structure to protect their voting independence, e.g., with rules that create secret ballots and criminal penalties for trying to buy votes.  

But here is where I begin to get that queasy feeling that maybe I don’t see things so differently from Blackstone after all.  Just the other day my 8-year-old daughter was trying to enlist me in her campaign for children’s voting rights.  Of course I was being all parentally supportive and proud of her initiative, but I was also offering counterarguments.   I pointed out that since kids don’t live independently, they could be influenced by their parents or might even agree to vote the way their parents want them to in exchange for, say, a new video game.  Uh-oh . . . now I sound like Blackstone and the poor folks!   And the answer is the same, isn’t it?  Just because kids aren’t financially (or emotionally) independent doesn’t necessarily mean they can’t be politically independent.  It just means you’ve got to create the legal structures that will generate and support that independence.  Of course my immediate thought here is to protest that no, no, there’s a real difference — because we’d never want to build such structures for kids — think how disruptive they would be to family life as we know it.  But, curses!  That would probably be just how Blackstone would feel about the idea of creating a voting structure that messed with the dependent social relations built around the English class system.   So much for my smug 21st century moral superiority and my highfalutin conception of equal rights.  Somewhere in the back of my highly differentiated but totally equal 21st century brain, I think I  hear Blackstone laughing.