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.

3 Comments

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3 responses to “Our Bodies, Our Castles, Our Countries, Ourselves

  1. Very interesting. Most interesting to me as I read this was Blackstone´s use of land and real estate as metaphor for all property, hence the judge was violating the terms of his “estate” by taking a bribe when no obvious connection to real property is actually present as opposed to whatever intangible, professional rights and duties inhered by virtue of the occupation. This feels uniquely common law in its origins, neither Islamic law nor Roman law makes this association and in fact might regard it in some sense as bizarre as we moderns do. The word “property” in Islamic law, mal, is more¨”wealth” than anything else, certainly no connotation to land exists as it does in English with “property.” “Get off my property” translated into Arabic has to be made “get off my land”, no less specific word works.

    What you describe as the reversal of the land to body trend, by contrast, is more global I think and well beyond the sole example of government when looking outside common law. Hence in civil law, from the Romans, comes the concept of the patrimonium, defined as all that may be inherited, be it real property such as land, personal property such as slaves or intangible property such as a debt owed to the decedent. (Distinct would be the commons, whether that be real like a river or intangible like light or air). The civilians always tell you that patrimony is nontransferable, that each individual must have their own independent patrimony and may only have one. For civil lawyers, it all sounds so natural, for common law folk a little bizarre, The American might ask “if you can transfer all of your rights and obligations individually, why can´t you be said to transfer all of your patrimony?” “if I can hold all rights and obligations jointly with another person, why can´t we say we are sharing patrimony?” The answer is that patrimony is the emanation of the personality of the one who holds it, and so even as its parts can be transferred or shared, the emanation itself cannot so be shared any more than any other aspect of personality can be shared (like my pedantic nature, for example–it´s mine even if others are as or more pedantic than I). That conception immediately strikes an American Realist as silly metaphysics, transcendental nonsense, the emana-what of who? Of course a metaphor with which the Realist is familiar might not seem as silly, as you point out.

    I think, however, that this notion of the body representing the estate or state for that matter did seep into Anglo American law earlier than the 20th century. Hence the whole notion of the corporate “personality” with its own estate. For the civilians it is easy, that thing you just invented has its own patrimony. It´s not hard to extend the metaphor once you invent the body. But in the common law we did it too and just as early–when we looked to create these fictional things called corporations we didn´t turn to real estate analogies, the corporation is its own piece of earth, but to bodies. The corporation has its own personality, and has rights and obligations over stuff just like any other body does, much like the personality of Louis XIV subsumed the rights and obligations of the French state ´l’etat se mois and so forth. . .

    Again very interesting, thanks.

  2. blackstoneweekly

    Thanks, Haider, for such a thoughtful and provocative response. i particularly like the point about corporations, and I totally agree that the my-body,-my-self thing gets started well before the 20th century. It must date at least to the beginning of modernity (and of course some kind of identification with the body goes back to ancient times and beyond — it’s a matter of degree or priority that we’re talking about). I’m not enough of a cultural historian to verify this, but my instinct is that development of corporations is again coincident with the modern shift away from land to personal wealth, contract, and body identification. I know there were corporations well before the 18th century (and weren’t some of the first corporations states and cities?), but as you point out they really took off in a new way in the 18th and 19th centuries.

  3. You might be right about the origins of the corporation though when Coke is writing in Sutton´s Hospital about¨”incorporation” in the 17th century, it feels much like embodiment as the term suggests, or would suggest if we hadn´t domesticated it so thoroughly. A Hospital is a physical place though, surely, in a way that Facebook is not. I´d have to be a historian to say more about the nexus between geography and the corporate form.

    But now as you mention the origins of the corporation, it does make me think about the entity in Islamic law that came closest to being regarded as the legal person, and that was the waqf, a form of trust for charitable or religious purposes. The debate among the jurists was largely whether or not one could have a waqf composed of liquid assets rather than, say, land, whose usufruct could be donated for some purpose or other (say, provision for one´s descendants). The latter was uncontroversial, I got about $3.43 a few months ago as my share from a date farm that my great great grandmother put into waqf after purchasing the property from an Ottoman landlord. The former was much more troublesome. If you think in terms of bodies perhaps it need not be, yet if you think in terms of physical places, the matter is more difficult. What´s the ¨thing¨being put into trust? So perhaps the jump from real property to the body as the source of the independent estate is more natural in jurisdictions beyond the common law than I originally gave credence. Definitely worth serious thought.

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