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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For Blackstone it is an article of faith that the way things are can be explained by the way they were.  This chapter is entirely devoted to excavating the feudal origins that, according to Blackstone, still shape contemporary British property law. I don’t have the background to critique his view of history. What I can say is that Blackstone’s historical narrative, however accurate, does a marvelous job of advancing one of the Commentaries’ main  (if implicit) themes, namely, the preeminent power of legal institutions to shape society.

At the same time, Blackstone’s historical approach creates some real problems for his more commonly observed project of legitimating the current system of legal rights.  After all, if we have to look to the ancient past to see law’s order, that suggests a certain degeneration.  Things fall apart, or at least get more complicated than their original structures.   The remaining forms may be less clear, less rigorous than the law of the past.  More particular to the specific historical tale Blackstone is telling, there’s a definite problem of what nowadays might be called “transitional justice.”  Remember that Blackstone is all about tracing English common law to “time out of mind.” What the common law system lacks in rationality it needs to make up in cultural authenticity and sheer antiquity.  But there’s the little matter of the Norman Conquest blowing a huge gaping French militaristic hole right through the story of English legal rights reaching back to ancient times.  Whence the legitimacy of a property system that begins with a conquering king confiscating his subjects’ land and redistributing it at the point of a sword?

Watching Blackstone finesse his way through these thickets was quite a lawyerly treat.  On the first point, Blackstone seems utterly untroubled, even delighted, by the prospect of contemporary law as the tumbled remains of an earlier scheme.   In fact, he fairly revels in the idea.  He compares the study of property law to “viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra,” and suggests that both activities furnish “rational entertainment as well as use.” II., p. 44.  As an aside, it seems that in matters of aesthetics, as well as politics, Blackstone’s sensibility is utterly contrary to that of his great contemporary critic Jeremy Bentham.  The panopticon’s designer surely would prefer a planned legal system that functioned according to plan.  For Bentham, unplanned deviations from the original would be obviously a corruption.   But Blackstone shows no nostalgia for the “pristine proportion and splendor” of the original. As between an edifice of “pristine proportion” and the “majestic ruins” of some ancient structure, there’s no real question which Blackstone finds more compelling.  Id.  The ruins, the ruins any day.

As for the second issue, I admit that I did not even think about the problem the Norman Conquest posed for Blackstone until I saw his solution.  If, as Blackstone says at the beginning of the chapter, modern English property law is built on feudal foundations, and if European feudalism was imposed on a defeated English people by William the Conqueror, that hardly seems to validate the overarching story here of the ancient and uniquely British origins of common law rights. It seems instead that the whole caboodle can be traced to 1066, and the triumph of military force.  Worse yet, how can a legal system whose sine qua non is private property rights possibly be squared with the “grand and fundamental maxim of all feudal tenure” that “all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown”? II., p. 53.  Not to worry, Blackstone will show that the received view of feudalism in England is all a “strange historical mistake.”  II., p. 48.

According to Blackstone the introduction of feudal property structures into England by William the Conqueror “does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror; but to have been consented to by the great council of the nation.”  II., p. 48.  He weaves a tale of a Danish invasion some years after the Conquest, before which, “the military constitution of the Saxons being then laid aside, and no other introduced in it’s stead, the kingdom was wholly defenceless.”  Id.  No one was happy about the foreign army of Normans and Bretons the king brought over to repel the Danes, and thus the advantages of a feudal system for raising a domestic army became apparent.  As a result, “all the principal landholders submitted their lands to the yoke of military tenure, became the king’s vasals, and did homage and fealty to his person,” after which feudal land tenures were formally introduced into British law.  II., p. 49.

Okay, now Blackstone can trace property law back through the Norman conquest into the misty British legal past undisturbed by the rupture of any foreign force.  So far, so good; but how will he maintain that continuity through the shift from feudalism’s basic principle that the sovereign owns everything to a legal system that protects private property rights?

According to Blackstone, when the English landowners agreed to the feudal maxim “that the king is the universal lord and original proprietor of all the lands in his kingdom” that wasn’t exactly what they meant. II., p. 51. That is, they did not really intend to give up their independent property rights.  Theirs was a formal agreement that at the time “probably meant no more than to put the kingdom in a state of defence” by obliging themselves to defend the king’s territory “as if they had received their lands from his bounty upon these express conditions.”  Id.  The whole deal was fictional.  Remember that in Blackstone’s version, the oaths of fealty in exchange for a gift from the king came years after the land actually had been distributed.  Because the nobles already owned the land the king was ostensibly granting to them, they were “by no means beneficiaries” and so could not be expected to really provide everything they promised in exchange. Id.

This looks like a nice point for an English contract lawyer, but is it any surprise that the Normans didn’t agree?  Indeed, isn’t the whole point of a feudal system that when the king makes you a gift of land – however fictional – he is making you an offer you can’t refuse?  Apparently that is how the Normans saw it, in particular the Norman “interpreters,” i.e.,  lawyers.  But note that now we are back in familiar legal territory – and once again legal property rights are being determined (at least immediately) through interpretations and arguments, not bloodshed.

To be sure force is in the background.  If the English landholders had lawyers, one doubts they could have prevailed, however skillful.  Nevertheless, force has been deferred.   In what is really the money shot of Blackstone’s historical revision, he explains that Norman lawyers “skilled in all the niceties of the feudal constitutions” willfully misinterpreted “this fiction of tenure from the crown” and used it “to impose “fruits and dependencies . . . hardships and services,” which the British landowners “with reason looked upon  . . . as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth.”  II., p. 51.   Of course, you know how this is going to end. Eventually force comes back into the picture. The oppressed English landholders “rise up in arms” against the “rigors of the feudal doctrines.”  II., p. 52.  But when they do, they have the legitimacy of law on their side.  They don’t fight for “mere infringements of the king’s prerogative” but to restore the rights of Englishmen under the ancient Saxon law that predated the conquest and under the ‘true’ interpretation of the gentlemen’s agreement that the Normans misconstrued.  Id.  They fight, as it were, inside the law.

Now look where we’ve arrived:  (1) The shift to a feudal property system in England came about not “by the force of Norman arms,” but by the English landholders’ agreement to feudal structures “as ordained by the general council,” and (2) the subsequent shift away from feudal structures to private property rights came about “as a restoration of that antient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers.”  II., p. 52.  The law giveth, and the law taketh away.

In Blackstone’s history, not only is the modern system of private property descended from legal norms that have existed from time immemorial, any twists and turns in that descent take place within the legal system.  Legal rituals, not force, or politics, accomplish the evolution from ancient Saxon law through feudalism up to contemporary property structures. Private property rights are “not (as some arbitrary writers would represent them) . . .  extorted from our princes by taking advantage of their weakness,” but fundamental cultural values that have been around from the dawn of recorded history. II., p. 52.  And even when property rights were corrupted, during the bad old feudal days, it was not so much the fault of a megalomaniac king or bloodthirsty soldiers, but of those crafty lawyers who can make and remake rights and obligations in the forms they choose.  For better or worse, in Blackstone’s world a nice legal argument is always mightier than the sword.

Blackstone isn’t famous for making something out of nothing, but for giving a new twist to something as old as the hills. In this chapter, he casts the arcane privileges associated with inherited land in Britain as imaginary objects passed down through the generations.  Each invisible right-object produces a distinctive form of wealth or power catalogued here: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies, annuities and rents. Of course Blackstone did not invent these customary forms. He is the Josiah Wedgewood of property theory; the Commentaries are a prose factory producing traditional rights in a distinctive pattern. All of this seems so quintessentially a matter of old-fashioned English property law that I was surprised when it helped me figure out what I found so troubling about the killing of Osama Bin Laden.

One imagines that in the Eighteenth Century, like today, people rarely sat around asking, “what is a right, anyway”?  But Blackstone apparently did.  And he came up with an answer that captured some of the felt, phenomenological difference between taking or doing something because you can and taking or doing it because you ‘have a right’ to take or do it.  For Blackstone, it was crucial to separate rights from the material things and physical acts they protect and the government force that protects  them.  In a situation in which, say, the police come and drag one person out of a building in handcuffs while another gets to stay, you might tend to focus on the building or the cops, but Blackstone has something else in mind – the right to call the cops and stay in the building.  Admittedly, such a right is elusive, because it “is the object of neither sight nor the touch,” but for Blackstone it is as real as it is immaterial,  and “perpetually exists in the mind’s eye, and in contemplation of the law.” II., p. 21.

Many very smart people have a problem with this vision.  In fact, the idea of rights as imaginary objects has been excoriated from the day Blackstone put pen to paper, first by his great contemporary critic, Jeremy Bentham, then by the Legal Realists of the early twentieth century who called it “thingification” and “transcendental nonsense.” Felix Cohen, Transcendental Nonsense, 35 Colum. L. Rev. 809 (1935).  Envisioning legal rights as discrete, though invisible, objects suggests they have a kind of natural existence apart from the political and economic hierarchies they were designed to protect.  But where do rights come from if not from those hierarchical structures of power? Rather than saying that a landowner could have the police drag away trespassers because he had a property right, the Realists said the landowner had a property right because he could get the police to drag away trespassers.  From this critical perspective, instead of a moral justification, Blackstone’s formal approach to rights provides a “mystical foundation” for property holders’ authority.  Jacques Derrida, “Force of Law,” 11 Cardozo L. Rev. 919, 938 (1990) (quoting Blaise Pascal, Pensees, Section V, No. 294,“le fondement mystique de leur auctorite”).  Indeed, Blackstone stresses the mystical nature of the invisible rights he describes: “Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses.”  II., p. 20.

The visibility and legitimacy of government force and the bodies it affects were on my mind recently with the news that a United States military team had been sent to kill Osama Bin Laden.  What a weekend that was for formality and force. On Friday, a powerless state figurehead was wed in a spectacular ceremony joined in real time by hundreds of invited participants, public throngs on the street and millions around the world who got up in the middle of the night to tune in live. Two days later, a powerful state enemy was put to death in a secret operation watched by no-one and announced after the fact as a pragmatic act of power with very little formal justification.  It was an extraordinary illustration of the degree to which formal legal justification seems increasingly relegated to a ceremonial role and disconnected from the serious business of state government.

But isn’t that all to the good?  Isn’t it just proof that our democratic government is more candid, more rational, and less concerned with masking the truth about government force than the monarchy Blackstone defended, and thus when it authorizes force has no need to fall back on legalistic illusions of invisible rights and spectacular rites?  Wouldn’t putting Bin Laden on trial have been at best an empty ritual, at worst an elaborate and dangerous charade whose outcome was preordained?  After all, as my 10-year-old daughter commented, if Bin Laden had been put on trial he probably would have received the death penalty. There is at least a  reasonable argument that going through the formal motions of a trial whose “guilty” verdict and capital sentence seem preordained would obscure rather than answer questions about our government’s prerogative to take Bin Laden’s life.

Here is the problem.   In place of the formal ritual, it isn’t like we got much of an argument about morality and policy.  Like Bentham and the Realists, the cool-headed policymakers of the Obama Administration apparently believe that invisible legal rights and spectacular formalities cannot legitimate sovereign force. But what they gave us instead was not really a reasoned justification for Bin Laden’s execution (which they seemed to view as self-justifying).  Instead we got a kind of personal dramatization of the decisionmaking process.  The Administration seems sincerely to have wanted to present an account of sovereign force unobscured by a fantasy of invisible rights and ritual legal formality.  But there was nevertheless a great deal of stagecraft in their plainspoken statecraft.

Instead of a live public courtroom spectacle leading up to an execution, the Administration released a remarkable series of photographs and video after the killing.  In the photos, the President and his advisors stare at a screen outside the frame where (we are told) another government official is providing a running verbal report of the mission as it unfolds: “They’ve crossed into Pakistan . . . .”   The photos look like stills from an episode of Law & Order or, yes, The West Wing, with its band of attractive, conscientious public-servants.  Forget black robes and formal choreography, this looks recognizably real.  And rather than evoking feelings of awe for the power they wield, the pictures invite us to identify with characters going about the  business of ordinary day to day existence even as they bring about momentous world events (“A staffer went to Costco and came back with a mix of provisions — turkey pita wraps, cold shrimp, potato chips, soda.”  F3, NYT 5-3-11).  The irony is that, exactly because it appears so unstudied, this kind of naturalistic drama is much more heavily masked than a formal legal ritual, whose artifice is readily  apparent.

To judge from the public response,  most Americans did not miss the visible rites or invisible rights of a more formal, public authorization of state force.  Cloaked in a story of conscientious executive decisionmaking, we were given, and apparently accepted, a direct assertion of the most basic of all government prerogatives – the sovereign’s power to en-force its authority by authorizing force.  This kind of blatant and effectively unlimited executive power was the focus for much liberal criticism of the Bush administration.  It was also the principal aspect of the British monarchy that Blackstone sought to limit and legitimate with his marvelous structure of invisible legal rights.

So this is a very old story.  Indeed, despite its modern situation-drama format, the story of Bin Laden’s killing had a biblical quality, as a kind of triumph of verbal purity, of the eternal sovereign word, over the mortal human body.  As Elaine Scarry showed in her brilliant, still wholly relevant, book, The Body in Pain, the god of the Old Testament enacts his disembodied power by wounding and destroying human bodies.  Likewise, it seems the risky mission to capture and/or kill Bin Laden was chosen over an air strike precisely to produce a wounded body.  Then that body was obliterated, leaving only verbal traces of its destruction. “You won’t see Osama Bin Laden walking on this earth again,” President Obama assured us, as he announced that his administration would not release the “gruesome” photos of Bin Laden’s corpse. As much as a mission to rid the world of Osama Bin Laden, this was a mission to show the world that the United States could make him disappear. No graven images remain to challenge the authority of the one true sovereign’s word.

Next to this masterful use of dramatic disappearance to make sovereign power appear, Blackstone’s imaginary invisible rights look rather quaint and homespun.  Yet it is striking how both schemes depend upon the play of visibility, invisibility and power. Which is the greater hedge against tyranny – envisioning rights as intangible objects and demanding their ritual appearance as a basis for state violence, or candidly and pragmatically justifying violence after the fact? Going through a public formal procedure that purports to impersonally trigger state force or chronicling conscientious personal decisions to authorize that force?  This seems like a particularly compelling question given the current struggles to replace dictatorships with democratic governments throughout the Middle East. Whether democracies born in the twenty-first century will eschew formal rights and spectacle in favor of more personal narratives of government power remains to be seen.  As for Bin Laden, now you see him, now you don’t.

This chapter is about things that last.  Blackstone’s property law is obsessed with permanence and impermanence, transience and immobility, with passing down and passing on and passing away. With fixing the intangible.  And ultimately with evanescing the solid land beneath your feet into a fantastic network of ideas, ethics, symbols, recognitions, understandings, and institutions that can structure social customs and individual behavior beyond the grave.  Reading this chapter I remembered the Bodies exhibit I visited years ago in New York, in which human cadavers had been treated in some special way developed by a mad (and now, I presume, fabulously wealthy) Swiss scientist.  In room after cavernous room the bodies had been abstracted into their components – here the hall of tendons, their the gallery of bones.  The most stunning was a huge darkened space in which some twenty bodies had been stripped of all substance except for their nervous systems, which were dyed and lit up in glorious reds and purples, like so many intricate human-shaped corals or crochet projects.  It was the closest I have ever come to standing in a room with ghosts.

How funny, really, that the classic explication of real property, of “things . . . such as are permanent, fixed, and immoveable,” II. p. 16, should be passed down to us by a man whose legacy is the transformation of centuries of shifting uncodified doctrines into fixed immoveable text. Sitting in their blocky dark-blue box on the corner of my desk, the Commentaries themselves seem to embody the peculiar power of that system to make objects and concepts both more real by rubbing them up against each other.  Here things that are usually polarized as being “substantial and sensible, or of an unsubstantial kind” are all grouped together as potential real property, that is, “provided it be of a permanent nature.”  II. p. 17. Thus property law gives to natural landscapes the immortality of ideas and to ideas the primal solidity of dirt.

With such wide coverage, there is a lot of organizing to be done.  Blackstone is up to the task.  Briskly, he corrals a wildly disparate bunch of “hereditaments” – those “corporeal and incorporeal” objects “the benefit of which may descend to a man from his ancestor” – into strict categorical order.  II.p.17. The chapter begins by laying out a set of dualities (though sometimes a layer of categories comes in threes) that intersect and overlap.  Blackstone tells us that the objects of property (or “dominion”) “are things, as contradistinguished from persons,”  II. p. 16, “and things are by the law of England distributed into two kinds; things real, and things personal.”  Id. Descending one more level, he proceeds to offer three different real property taxonomies:  the kinds of real property, i.e., lands, tenements, hereditaments; “the tenures by which they may be holden”;  and “the estates which may be had in them.”  Id. Are you dizzy yet?

Blackstone’s categorical structure reminds me of the sort of “intermediary” order Michel Foucault describes in The Order of Things. Property law’s categories are neither “common sense” givens – blue/red,  boy/girl, alive/not alive nor scientific theories that universalize and philosophize common sense – the laws of optics, X and Y chromosomes, the elements necessary for life as we know it.  Rather, property classifications seem to occupy a space in between, or perhaps apart from, both ordinary perception and high theory.  In light of property law’s alternative order, everyday categories lose some of  “their original transparency.” Foucault at xxii.  So, for instance, Blackstone informs us that “tenement” has two meanings.  Colloquially, it means houses, or buildings.  But “in its original, proper, and legal sense it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind.”  II. p.17

There is a  sweeping feeling here — a suggestion that the legal language has the power to supercede, or maybe to excavate, common sense.  And you can sense the political project.  At a really basic level, before prescribing any modern features, like freedom of contract, the very strangeness of the elaborate system Blackstone describes plants the suggestion of contingency.  In Blackstone’s version, the traditional real property system “frees itself sufficiently to discover that these orders are perhaps not the only possible ones or the best ones.”  Foucault at xxii.   I think Foucault has it exactly right here.  The main work Blackstone’s book does is not introducing us to the particular values and structures of Anglo-American property law.  Of course it does that.  But the more important point is that the familiar landscapes, objects and relationships of our lives all can be reorganized along another set of lines that were somehow there all the time without our noticing them.  Property’s categories don’t replace the everyday ones.  I still think I live in a house, not a corporeal hereditament.  But the effect is to throw into relief the order we live by and take for granted. The new system offers a kind of silent critique of the world as we know it.

Crucially, the legal categories are presented as both more basic and more sophisticated than the ordinary objects of experience.   Tenements and estates and hereditaments are offered as fundamental categories that have been there all along, underneath, as it were, our everyday perceptions of houses, owners, and your grandmother’s bracelet.  At the same time the legal realities are implicitly more refined, more carefully constructed and thus more perfectly suited for their role as the cutting edges that will define who receives the powers of ownership and exactly what those powers will mean.

One of the most interesting moments in the chapter comes when the categories fail.  Towards the end of the chapter, Blackstone notes with obvious discomfort “that water is here mentioned as a species of land.”  II. p. 18.  Uh oh, property law seems to have made a categorical shift that even Blackstone finds unbelievable.  It’s as though, rather than saying that a tomato is a kind of fruit I announced that a tomato is really a banana.  Oh no it isn’t!  After his initial embarrassment, however, Blackstone collects himself and proceeds to rationalize this apparent categorical blunder in terms of the technical legal rules for pleading property claims:  “I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water.”  II. p. 18.  Hmmm.

The thing to keep your eye on here, it seems to me, is not so much how the legal rules deal with water as the way they magnify the importance of land.  The approach Blackstone describes constructs land as a symbol of permanence way beyond any natural characteristics.  Doesn’t water regularly wash away the land it borders?  Never mind, in Anglo-American property law, land has been transformed into a literal, eternal baseline for all natural space.  Land is the most elemental element, the alpha and omega, that without which nothing.  Without land nothing, but with it — permanence.  You can get ahold of that elusive water by getting the land underneath it — and getting it for all time.  And yet (and here is what I have grown to love about him), Blackstone is too good a writer to completely pull this off.  Fatally, he continues, with an observation that I can’t help thinking reflects metaphorically the ultimate futility of a legal project to forestall loss through a language of permanent rights:  ”For water is a moveable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein: wherefore if a body of water runs out of my pond into another man’s, I have no right to reclaim it.” II. p. 18. In the end, it seems, you can’t take it with you.

Book the SECOND, Of the Rights of Things.  Chapter the first.  Of PROPERTY, in general.

The title of Blackstone’s second volume makes it look like it’s about something that it isn’t. “The Rights of Things,” is not about the question, for instance, whether robots have a right to avoid injury. It is not about the proposal to protect the environment by giving the natural landscape a right to preservation, rather than depending on individual citizens or government to enforce their respective rights to enjoy and regulate nature.  In this first chapter, Blackstone explains that “the objects of our inquiry in this second book will be the jura rerum, or, those rights which a man may acquire in and to such external things as are unconnected with his person.” (p. 1) Ho, hum, more rights for men.  Still, the oddness of the title alerts us to a divergence between our usual focus and Blackstone’s point of view. Blackstone’s approach to property rights implies a relation, between a person and a thing, and among persons through things and things through people, that changes the nature of all concerned.

The idea that owning something can transform it is not necessarily a sophisticated concept.  When my daughter was about six, she came home one day from a play date and announced, “I like Ewan’s house better than ours – it’s cleaner, and they own it.”  Now, reading Blackstone, it occurs to me that there is something of the six-year-old in his famous evocation of the thrill of exclusive ownership:  “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”  (p. 2)  Actually, that sounds more like a two-year-old.  Sorry, William, but you have to share!

I am reading another book, however, that illuminates a contrary aspect of Blackstone’s property romance.  In The Meaning of Property, Jedediah Purdy makes the case that for Blackstone (and Adam Smith) private property was a force for social cooperation rather than savage competition.  Purdy explores the Enlightenment notion that private property’s exclusive character — combined with the potential to buy, sell or otherwise exchange property from one owner to another — fosters “a society of negotiation.” Purdy at 15.  In this vision, property owners’ right to exclude others is the feature that allows them “to decline any proffered relationship or joint venture” and so forces the profferer to negotiate, to convince the owner to go along – by practicing the civilizing skills of “interest based persuasion.”  Id. at 17. To be successful in such a world, men needed “sensitivity” and “awareness of others’ interest and feelings” and earned the respect of their negotiating partners through “steady and solid execution of their commitments.”  Id. at 16.  As Blackstone himself puts it, property “has been the ennobling of the human species, by giving it opportunities of improving its rational faculties, as well as of exerting it’s natural.” (p.  8 )

It seems that Blackstone (and Locke and Smith) would agree with Marxist critics that our legal system is an “epiphenomenon,” created to serve the interest of private property: “In order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants; states, government, laws, punishments . . . .” (p. 8)  They just have very different ideas about the moral and social consequences.  Critics see a legal system enforcing an inequitable distribution of property among parties whose differences in buying power are so extreme that every “negotiation” is more like a Godfather-style offer the owner could not refuse.  What Purdy points out is that for the Enlightenment founders of capitalist democracy, protecting private property meant something more than creating the conditions for economic prosperity.

In Blackstone’s story,  private property is not just – or not directly – the key to individual liberty.  Property changes human nature as it goes about building social institutions – transforming a bunch of grabby toddlers clutching toys and shouting “mine, mine, mine” into a complex society of cooperating six-year olds who know how to “use your words.” I have no idea about the empirical soundness of the underlying causal claim here.  What interests me is the continued vitality of the idea of negotiation as character-forming communication.   For instance, after Purdy’s book, I now hear echoes of this theme in accounts of the recent housing crisis.

There certainly is a way to narrate the housing market meltdown as a cautionary tale about the way deteriorating modes of property transfer undermine social structures.  In this story arguments about different individuals’ interests give way to a collective fantasy that real estate prices can never fall. Far from “a society of negotiation,” this was a world in which it became either unnecessary or impossible to persuade anyone to make the deals being undertaken.  The previously legible structures of real property transfers got hopelessly tangled and unintelligible – even to those who ordinarily fared well in the old system of unequal opportunity.

For many prospective homebuyers, the terms on which they were being offered the American dream of home ownership were so irrational that actual insight into one’s own interest (to say nothing of the other guy’s) would only kill the dream.  Remember the banks that “checked” prospective home buyers’ income estimates by estimating what people in their occupations generally made?  When the mortgager is encouraging the borrower to misstate  reality in order to qualify for the loan, both parties are invested in non-communication (or outright misrepresentation.)

At the other end of the economic chain, so this story goes, a voracious foreign credit demand outstripped not only supply but any need or ability to understand, let alone thoughtfully negotiate transfers of the novel products created to satisfy this insatiable market.  The language of property no longer kept up with the material reality it sought to describe and construct.  The things on the other side of the property relation became increasingly transubstantial and unarticulated – from houses to mortgages to mortgage backed securities that were conglomerations of pieces of different debt transactions that had themselves passed through so many previous transfers that no one had any idea anymore who owned what.  In this imagined market-babble, nobody could talk fast enough to articulate the complexities of the transactions that just kept on growing and anyway no one was really sure to whom they should be talking, and for lack of anything more intelligent to say, everybody just wound up screaming “Buy! Buy!  Buy!”

What does it mean to figure the sub-prime mortgage fiasco as a failure of property communication? Most obviously, if the foreclosure crisis came about because the language of negotiation got garbled, we might hope to set things right by adjusting and better controlling property transaction structures  – rather than facing a need for increased state regulation of private property itself.   From a cultural perspective, the coherence of this story suggests that we have internalized a foundational liberal-Enlightenment notion about the way private property can lead to a good life – i.e., by helping us articulate ourselves to one another.

The problem with this communication-deterioration account of the housing crisis is that the Enlightenment belief in the of property exchange as socializing language never entailed any actual persuasion or negotiation.  Purdy quotes Adam Smith explaining that the exchange of a shilling “is in reality offering an argument to persuade one to do so and so as it is in his interest.”  Purdy at 15.  The idea seems to be that payment itself is a ritual of persuasion – a condensed communication — somehow capable of attuning buyers and sellers to one another’s “interests.”  If that is the case, it doesn’t really matter how incoherent the real language of property exchange becomes.  So long as payment is taking place, Smith’s implied negotiation should still work its socializing magic.

Then again, perhaps the notion of a silent humanizing discourse of property makes most sense as a kind of Anglo-American cultural ideal. Like other rituals, we might see it as an imagined pattern that we aspire to emulate but never to actually achieve in our own dealings. (See, e.g., Seligman et al., Ritual and Its Consequences) What is striking is that looking back to an earlier time in my life, the real patterns of property exchange appear much closer to this ideal of silent communication.  In the quintessentially middling society I grew up in – as a middle-class kid of the Midwest in the mid-twentieth century — there was always something vaguely disreputable about overt bargaining. Persuasion had a shifty, feminized, aspect – the opposite of the upright, character-building interactions envisioned by Blackstone.  It was as though negotiation implied at once weakness (the inability to simply proffer the named price) and a tricky desire to get more than one deserved. The respectable thing to do was to pay the amount discretely printed on the tag and never mention price.  In the booming U.S. economy of the 1960s, middle-class Americans could and did buy everything from groceries to houses through these wordless payment rituals.

As a matter of empirical reality, it seems highly questionable that silent payment rituals could ever generate Blackstone and Smith’s humanizing discourse of self interest.  But the fact that we can see those rituals brought to life in a previous “golden age” of economic stability and social and political creativity – and find them spoiled in a current socioeconomic crisis – suggests how powerful the myth remains. As an ideal cultural pattern, developing ourselves through payment seems still to capture American imaginations.

This chapter is about death — and the attempt to outlaw it. Blackstone puts it right out there in his first paragraph on the legal concept of incorporation: “[A]s all personal rights die with the person . . . it has been found necessary . . . to constitute artificial persons, who may maintain a perpetual succession and enjoy a kind of legal immortality.”  p. 455. Corporations are the law’s end run around the grave.

Nowadays we worry whether our legal system is treating corporations too much like real people by giving them political rights, and whether multinationals are using their economic power to undermine state policies.  Or, from the other side of the ideological spectrum, we worry that inflexible and corrupt state governments are keeping creative businesses from bringing us all the liberty and prosperity we might otherwise enjoy.  In other words, we worry that corporations are either insufficiently or overly regulated by law.  But Blackstone reminds me that law’s original relation to corporations was not regulatory but creative, and that the creative goal was not to make something equivalent to a natural human person but something crucially different:  ”a person that never dies.”  p. 456.

Blackstone captures so well the dull monotony of mortality – and the restless drive to escape its quotidian demands.  Law’s “artificial persons” are the answer to the “inconvenient if not impracticable” necessity of keeping up with death by “investing a series of individuals, one after another, with the same identical rights.”  p. 456  Here is the way off the treadmill of maintenance so maddeningly required by mortal limits – the need every morning to wake up and replace the holders of legal rights, powers, and duties who have kicked off overnight.  Without such deathless legal bodies, the entire structure of legal rights, powers and duties either dies with their current mortal placeholders or must be constantly reconstituted – the way breakfast must be set out, lunch packed, dishes washed, bed made, dinner planned – over and over and over again.  Corporations exist to transcend all that – not only to outlast their transient constituents, but to provide a different, perhaps superior, vessel for the obligations, rights and powers law generates, replacing a dodgy mass of doomed human individuals with something more like an epic feature of the natural world through which we mortals temporarily plod, “in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant.” p. 456.

Perhaps carried away by the prospect of his beloved common law’s triumph over death, Blackstone makes what is surely the most radical claim in the eighteen chapters I’ve read so far.  He is careful to say that common law corporations require at least the implied consent of the King.  p. 457.  But after nodding to the hierarchy of state and corporate power, he proceeds to flatten it by explaining that the King himself is a corporation:  “Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had.  In this sense the King is a sole corporation.”  p. 457  (see also p. 460)  So law makes corporations with the consent of the sovereign, but law also makes the sovereign.  Who’s your daddy?

There is a less sensational, but in a way more surprising, aspect of Blackstone’s view that law incorporates the king. Nowadays, we tend to think that public governments and private companies are very different kinds of entities. But once upon a time, it seems, the legal roles of “these artificial persons” were not entirely dissimilar.  From Blackstone’s outlook, business corporations and sovereign governments appear as two members of a larger class of legal characters. One of his first examples of a common law corporation is the city of London.  P. 460.  He explains that corporate rules and regulations “are a sort of municipal laws of this little republic.”  P. 456.   So in Blackstone’s chapter, corporations’ ideal existence not only distinguishes them from natural individuals, it aligns them with governmental collectives.

Disagreement about the legal roles of nations, corporations and individuals surfaced recently in a U.S. appellate court’s split decision on corporate liability for international human rights violations.  The case involved allegations that European oil companies instigated and supported the Nigerian government’s violent suppression of protests against the oil companies’ activities there. In Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2010), the question was whether a corporation can be held to pay damages for injuries that constitute human rights abuses under international law.

The majority of the Kiobel panel (Judges Cabranes and Jacobs) held that a U.S. statute that creates liability for human rights abuses under international law does not extend to corporate defendants. The majority opinion points to the fact that no international court sitting to hear claims of human rights violations has ever imposed liability on a corporation.  For example, Hitler’s notorious corporate partner, I.G. Farben, was not prosecuted at Nuremberg. According to the Kiobel majority, that omission indicates that corporate liability for acts like torture, genocide and slavery is simply not a traditional norm of the “law of nations,” i.e., customary international law.

Judge Leval dissented, arguing that holding corporations to pay for human rights violations is both consistent with customary international law and necessary to protect fundamental human rights under an international legal regime. According to Judge Leval, the absence of corporate defendants in international human rights tribunals does not reflect any hesitation to make corporations pay damages for human rights violations of international law.  Rather, it is a function of those courts’ criminal justice jurisdiction and the traditional view that corporations are not appropriate targets for criminal prosecution and punishment.  In most countries corporations cannot be criminally punished.  The thinking is that only natural individuals can suffer from — and thus justify — punishment. But holding corporations liable to pay damages for injuries they cause is widely accepted.  After all the goal of such damages is not to punish the perpetrator but to compensate the victims.  So, corporations’ absence from international courts set up to criminally punish human rights violations doesn’t indicate that international law fails generally to ground corporate liability.

Both the majority and dissenting opinions cite Blackstone, but unsurprisingly their focus is on the section of the Commentaries that deals explicitly with the law of nations. Book 4, Ch. 5. I think Blackstone’s chapter on corporations has something to offer, too.

One paragraph in the chapter appears to support the Kiobel majority’s conclusion that corporations are exempt for liability for acts like torture and genocide.  Besides asserting the traditional view that corporations are not proper subjects for criminal punishment, Blackstone goes further.  He suggests it would be similarly absurd for a corporation to “maintain, or be made defendant to, an action for battery or such like personal injuries.”  P. 464  For Blackstone this limit apparently flows from corporations’ ideal status:  “for a corporation can neither beat, nor be beaten, in its body politic.” Id.

The majority in Kiobel, however, does not rely on the notion that corporations lack all personal injury liability, and with good reason.  This particular aspect of Blackstone’s view of corporations was rejected long ago. Under garden variety tort law, corporations are generally considered liable for personal injuries. As the U.S. Supreme Court explained well over a hundred years ago:

“An action may be maintained against a corporation for its malicious or negligent torts, however foreign they may be to the object of its creation or beyond its granted powers. It may be sued for assault and battery . . . .”

First Nat’l. Bank of Carlisle, Pa. v. Graham, 100 U.S. 699, 702 (1879).

Indeed the Kiobel majority opinion itself concedes that “corporations are generally liable in tort under our domestic law.”  621 F.3d at 117.  So Blackstone’s point that corporations – as imaginary bodies – can neither inflict nor sustain personal injuries creates no modern day bar to corporate liability for international human rights violations.

On the other hand, Blackstone’s observation of the closely related legal status of corporations and sovereign governments supports such liability.  This point goes to the traditional understanding of corporations’ legal role and their consequent fit within the  structures of international law.

According to the Judges Cabranes and Jacobs, corporations are not liable for human rights violations under international law because “[f]rom the beginning . . . the principle of individual liability for violation of international law has been limited to natural persons – not ‘juridical’ persons such as corporations.”  621 F.3d at 119.  But, of course, international law was primarily constructed not for individual liability but for another kind of “juridical persons,” i.e. nation states.  And Blackstone’s chapter points out that corporations are in some ways more like those other artificial “bodies politic” that are the traditional parties to international law, than they are like the natural individuals who have only recently been deemed appropriate subjects for prosecution under the “law of nations.”

This is more than a nice conceptual point. It emphasizes that (from the beginning) international law was built to find ways to hold legally unified collective entities responsible for their acts as collectives.  For that matter, the focus on collective social action is still apparent in the limited bases for liability under customary international law.  Even the modern additions of genocide, torture, and slavery bring to the list acts distinguished not entirely by their badness, but also by the salience of their collective aspect.  Unlike, say, murder, genocide and slavery are at their core offenses by an organized collective group against another group for collective aims.  And while torture may be practiced by random individuals, its has historically been understood and practiced as a means of enforcing collective power.

Both the opinions in Kiobel focus on whether corporations’ differences from individual persons somehow exempt them from the liability only recently extended to individuals under international law. It seems worth considering also what corporations have in common with the traditional subjects of “the law of nations.”   Blackstone suggests that nations and corporations share a common legal conceptual genus. Among other things, both outlast and transcend the limits of natural personhood.

In a sense, the Kiobel majority seems to have misjudged what kind of human limit the legal structure of incorporation was built to surmount, transposing immortality into moral impunity.  There is a kind of Faustian logic at work here.  But I doubt that Judges Cabranes and Jacobs meant to embrace doctrinally the tragic connection between mortality and moral accountability.  It may be that only beings with a consciousness of their own capacity for death and pain can be morally culpable for inflicting those fates on others.  (“Tyger, tyger burning bright . . . .”  ) And Blackstone notes (with a wink) that a corporation “has no soul.”  p. 465.  But whatever their traditional metaphysical or moral status, corporations have always been subject to many kinds of legal rights and legal responsibilities.  What’s more, it is  clear from Blackstone’s discussion that even in the eighteenth century, it was understood that corporations do not just naturally possess certain legal rights and liabilities, but were artificial legal creations shaped to be the holders of certain kinds of legal powers and liabilities.

In this context, Blackstone seems to have slipped his usual role as formalist icon to appear as a kind of realist precursor.   In what is probably the most famous piece of realist writing ever, Felix Cohen railed against judges’ metaphoric approach to determining whether a state court could adjudicate a corporation’s liability by asking whether the corporation had “come into the state” rather than, “Is it the right policy to allow a corporation to be sued in this particular court”?  Transcendental Nonsense and the Functional Approach,  35 Colum. L. Rev. 809 (1935). Writing 150 years earlier, Blackstone repeatedly hammers the point that corporations have no real corporal existence, as “invisible” constructs “existing only in intendment and consideration of law.”  p. 464.”

In a way, Blackstone’s chapter goes beyond Cohen. From Blackstone’s perspective, the problem with using metaphoric presence to determine jurisidiction is not that a corporation has no real singular body that can be located geographically inside a state’s territory the way natural people can.  The problem is that both corporations and states are imaginary legal creations — made precisely to transcend the limits of embodied personhood.  Once you recognize that the state sovereign is every bit as much a legal fiction as Exxon, you see that natural people can’t be “in” a state any more than corporations can.

In a deeper sense, of course, Blackstone confirms Cohen’s main point:  we have a choice.  Because corporations and states are not natural beings but creations of law, they can be whatever legal actors make of them.  For that matter, like the king, all parties to lawsuits are first and foremost creations of law, whether they inhabit natural bodies, corporate structures or geographic territories.  Jurisdictional rules for corporations in civil litigation in the United States can be – and since Cohen wrote, have been – reconstructed in ways that make physical presence within a state’s geographic boundaries unnecessary to establish legal liability.  See, e.g., International Shoe Co. v. Washington, 326 U.S. 310 (1945).

Likewise, we should be clear that deciding corporations cannot be sued for damages when they violate international human rights norms is a choice – not the natural result of a necessary relation between corporations and international law.  As Cohen said in the 1930s, it’s not that a corporation’s metaphorical similarity to — or difference from – an individual human being determines its legal liabilities, but the other way around.  Legal liability is part of what shapes corporate nature.  As with personal jurisdiction in the twentieth century, so with international human rights law in the twenty-first.  Law makes the corporation, not the other way around.  The irony is that this message comes through Blackstone.  In the realm of legal immortality, I guess even arch-antagonists of legal realism are realists now.

This is a small chapter about a big and vexing subject.  The very word “guardian” fills me with vague unease.  For one thing, I don’t really know what it means, but I think I should.  It’s a common word; unlike a lot of legal terms, you hear this one in everyday conversation.  So how come I don’t know the definition?

Blackstone says the relation of guardian and ward “bears a very near resemblance” to the parent-child relationship and “is plainly derived out of it.” (p. 448  ) But it turns out that parents themselves are guardians, though only some parents – or is it all parents, some of the time? “For if an estate be left to an infant, the father is by common law the guardian, and must answer to his child for the profits. . . . There are also guardians for nurture, which are, of course, the father or mother, till the infant attains the age of fourteen years.” (p. 449 ) So, in the course of a couple of pages we’ve got guardians as substitutes for parents, something like parents but not exactly like them, and we’ve got parents who are guardians.

Is guardianship an aspect of parenthood?  If so, which part is it?  Or is the guardian role something additional to parenthood that some parents take on? Or is it a substitute, a kind of synthetic parenthood — a polyester or Splenda parent – when the real thing isn’t available, or isn’t good for you?

The problem isn’t just ambiguity.  There is an aura of danger associated with the guardian role, reflected, for instance, in the rules for appointing “guardians in socage,” when a minor is entitled to lands.  Blackstone explains that under the common law this type of guardianship goes to the child’s “next of kin to whom the inheritance cannot possibly descend.”  (p. 449)  Got that?  The point is, as Blackstone delicately puts it, “the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust.” ( Id.)  In other words, someone in charge of a kid whose property the guardian could inherit might just kill the kid in order to get the land.

Impossible to figure out the chicken-egg question here.  To what extent are the law’s queasy regulations protecting people from their guardians the product of a widespread societal distrust of protectors and to what extent are those regulations helping generate the distrust?  You might think this is all about a classic Anglo-libertarian mistrust of any motive other than narrow self interest. Blackstone, however, notes that Roman law assumes guardian behavior that is just as self-interested, but far more benevolent, and so gives the guardianship to the person next in line for the land on the assumption that someone who stands to inherit land is going to take good care of it. (p.Id.)

Confusing as all this is, there wouldn’t be much reason to get all het up about it if the guardianship relation was confined to the limited situation Blackstone’s chapter delineates, namely some temporary period during which an adult is responsible for a young child or her property.  But  of course the whole concept of guardianship has a much more wide ranging and central, though just as ambivalent, role to play in our legal culture.  In some sense we all are wards of a guardian state, and in another, it is the very business of law to interrupt that relation – to ensure the autonomy of citizenship and protect our capacity for independence.  Guardians, on some level, always represent the state – and that raises the whole problem of the force needed to guard citizens from evil and to guard the state from evil citizens.

The dementors of Azkaban come to mind as a current cultural icon of  extreme distrust — and aversion — for government officials charged with protecting citizens from harm.  These are the monster prison guards in the Harry Potter books — vaporous supernatural creatures whose presence literally brings a chill and who maintain control by threatening and inflicting the “dementor’s kiss,” leaving their victims in a soulless state worse than physical death.  Originally charged with keeping the enemies of the wizard state in line, the dementors eventually begin attacking ordinary citizens.  Note that the problem here is not self interested corruption.  The dementors aren’t going around sucking out people’s souls to get their inheritance.   Rather they embody the problem of government authorized violence and the idea that bad government means eventually overwhelm good government ends.

Prison guards are obviously different from guardians.  No one wants to be in prison, but all of us want to have someone looking out for our interests.  Guardians, at least in theory, are doing just that – looking after us, taking care of us and our property, safety, security – keeping evil at bay, making good things possible.  What is so unappealing about that?  Why does the idea of a having a “guardian” leave me as cold as room full of dementors? For that matter, if you stick with Harry Potter, you’ll find guardians who are practically as noxious, if not as dangerous, as dementors, in the persons of Harry’s hideous aunt and uncle, whose care of him might be characterized as a kind of malign neglect.  Come to think of it there’s an even more recent mainstream cultural incarnation of an unambiguously evil legal guardian:  the sadistic Advocate Bjurman in Stieg Larsson’s wildly popular Girl Who . . . series. What gives?  Why are guardians so distrusted?

The fact that Bjurman is a lawyer highlights the relationship between the legal system and the guardian role, and it has to be said that there is a certain amount of bad faith here.  Guardians stand up for those who are unable to stand up for themselves in legal matters.  If there is one thing our legal system cannot (in theory) abide it is a person who is less than ready to defend his own rights, needs and desires — because an adversarial system like ours obviously can’t produce just results if the parties engaged in legal combat can’t take care of themselves. Appointing guardians suggests that the system is alert to the issue of some individuals’ inability to assert their rights and has instituted the necessary compensations.  The problem, of course, is that many more such people exist than the ones who get guardians. Leaving aside finer grained issues of quality, many people simply can’t afford legal representation — and there is no right to a lawyer in most civil cases.  So the appointment of legal guardians helps cover up inequalities of power in the legal system that routinely lead to injustice.  But that isn’t weird and creepy, it’s just predictably institutionally self-protective.  What makes guardians so goddamned scary?

Here’s what I think it could be.  It’s that guardians are simultaneously real and not real.  On the one hand, a guardian is someone you might meet for coffee. On the other hand, guardians exist only in law—they are a conceptual creation born to fill an abstract need. That explains why the guardian job description is so illogical – why it is both a parent and not a parent, a part of a parent and something different than a parent, an aspect of parenthood generally and a special role played only by some parents in some situations.

The guardian’s role can crisscross and conflate the boundaries of the real world, because it’s a legal fiction, as imaginary as J.K. Rowling’s dementors, if not as monstrous.  And just as shallow.  Guardians—as guardians — are never protagonists.  They are one dimensional. Ironically, what makes guardians less than human is not their ruthless self interest but the utter lack of it.   Nothing empties out a character and makes it harder to identify with her than the absence of desire.  Guardians are oddly superficial not because they are corruptible, but because they have been definitionally determined to set aside their own appetites in order to pursue faithfully someone else’s goals and interests.

There is something else.  While there are plenty of other legal fictions out there – for instance, corporations, or, for that matter, states – I think the guardian’s correspondence with something that occurs “naturally” in our culture makes it peculiarly distasteful.  Whereas a corporation is plainly not like anyone’s corporal body, a guardian (to return to Blackstone and where this all began) is something like a parent.  We understand what a legal guardian is supposed to do – and the need for one — in part because of our ordinary experience with parents.  But a guardian is not a parent. Isn’t that Freud’s definition of the uncanny – something at once familiar and strange?  (Sigmund Freud, The Uncanny, 1919) There is something uncanny about the way the person appointed guardian never quite matches up with the guardian role. Either there is more to the person or more to the role – the edges don’t align – so we keep seeing the person outside the guardian character.   And, of course, once you glimpse that gap between person and persona, once you recognize the potential for the familiar mask to drop, revealing who knows what, it is hard to avoid the realization that this problem is not limited to roles as recognizably artificial as “guardians in socage,” but in fact pervades social relationships.  You might see it, for instance, in the relationship of marriage – a relation primarily legal, that is both like and not like the biological relation of  a mate in much the way guardians are both like and not like parents.  Now that’s scary . . . .

This chapter is about “the most universal relation in nature.” (p. 434)   My nine-year-old universal relation climbed into bed with us the other morning to report a nightmare.  She was about to be eaten by a troll.  I murmured sympathetic nothings into her hair as she related her plaintive tale.  ”And you were there,” she continued, a note of irritation entering her voice, “and you kept saying, ‘Just a little piece, honey’”! Blackstone’s legal schema assumes that parents’ natural tendency to protect their children works “so strongly as to need a check rather than a spur,” (p. 438) but in my daughter’s dreams, apparently, not so much.

Not so universally in life, either, of course.  The news was recently full of the story of the American mom who sent her adopted seven-year-old son back to Russia on a plane with a note explaining that his behavior was so terrible she didn’t want him anymore.   The media blitz that followed was focused mostly on the special problems of kids who have been institutionalized before being adopted and the incidence of “disruption” in adoptions when those problems manifest. But, really, isn’t what is so fascinating about this story that it fulfills a common, but usually empty, parental threat, namely, “if you don’t stop that, I’m going to send you back where you came from”?  Here was someone who followed through on the forbidden – and, for biological parents, impossible – impulse:  Return to sender! 

For the kid, the abandonment would have been just as total if his mother had gotten on the plane herself, leaving him behind.  Indeed, it might have been worse for a little boy in a strange country who presumably didn’t speak the language. But it would not have gripped our imaginations in the same way.  The parent who leaves practices an altogether familiar kind of abandonment. More than one in four kids in the U.S. today has a parent who lives somewhere apart from his child. U.S. Census Bureau, Current Population Reports P60-237 at 1 (2009).  In case you are tempted, as I was, to speculate optimistically that most of these long distance parents might nevertheless maintain close emotional ties with their children, note the Census Bureau’s odd and depressing table revealing that only slightly more than half of them even manage to come up with birthday gifts for the kids.  Id. at 11, Figure 7.  The story of the adoptive mother who put her child on a plane distracts our attention from all those biological parents, mostly fathers, who just walk away.  Narratively, if not logically, the scandalously defective adoptive parent validates our belief in a universal, unquenchable biological parental role,  which is an article of faith today as much as in Blackstone’s time.

For his part, Blackstone’s description of universal parental love naturalizes the legal imposition of parental duties.  According to Blackstone, nature precedes the laws requiring parents to maintain, protect and educate their children by “implanting in the breast of every parent that . . . insuperable degree of affection, which not even the wickedness, ingratitude, and rebellion of children can totally suppress or extinguish.”  (p. 435) So the laws mandating that parents provide for their children’s welfare are represented not as positive commands imposed by government but as reflections of the natural order of things.  Here Blackstone’s ambivalence about the sources of law takes a decided turn for the transcendental. In this scheme, child protection is “a natural duty, . . . rather permitted than enjoined by any municipal laws.”  (p. 438)  

I still remember when, in my early twenties, I read Phillipe Aries’s Centuries of Childhood.  It was one of the first times I confronted the likelihood that something I took to be natural bedrock might be culturally specific and fluctuating.  What could be more constant and naturally determined than the difference between children and adults?  But Aries argued persuasively that the idea that children were psychologically (and therefore morally) different from adults was a relatively modern invention – that in other times and places,  children were more or less miniature grown ups.  It was stunning.  The book didn’t much change my view of children, about whom, at the time, I was singularly uninterested  (OMG, I was so obnoxious: I used to tell my friends who had babies that when their kids were ready to discuss Hegel I’d consider hanging out with them).  But the larger moral of Aries’s book – that seemingly inevitable aspects of the natural world might instead be utterly mutable historical contingencies — was the beginning of a continual intrapsychic disturbance for me, a kind of nagging intellectual itch that has yet to resolve. 

In some ways, the Commentaries supports the view that childhood in the United States today is a more developmentally distinct and much more protected stage of life than it was in Eighteenth-Century Britain – at least where the law is concerned.  Blackstone reports, for instance, that seven-year-olds could be subject to the death penalty. (Bk 4, Ch. 2, p. 23-24)  Can childhood, and the parent-child bond, mean the same thing to us that it did in a society that sent seven-year-olds to the gallows? Then again, as a relative matter, the treatment of children may not have been so different.  In Blackstone’s time all felonies were capital crimes.  Hanging was the prescribed penalty for any serious crime of violence. In the U.S. today, only a tiny fraction of criminal defendants ever face a death sentence. Nowadays, incarceration is the punishment of choice.  With that in mind, we don’t have so much reason to see our juvenile justice system as developmentally distinct or progressive, just because we don’t sentence kids to death.  Only last month the U.S. Supreme Court held that a child who kills someone can be thrown in prison for the rest of his life with absolutely no possibility of ever coming out.  The big news was that the Court grudgingly ruled that children given life sentences for  “nonhomicide crimes” had to have some chance of eventual parole.  In other words, in the U.S. today, kids of all ages are still subject to the harshest criminal penalties routinely meted out to adults who commit the most serious crimes – just as they were in Blackstone’s England. 

Oddly, in the particular cultural corner of parenthood I inhabit, childhood looks both profoundly developmentally structured and interminable.  Parents are encouraged to compare every aspect of their children’s behavior and misbehavior with chronologically defined developmental norms, and every toy, game, book, or after-school activity is calibrated for its “age appropriate” audience.  At the same time, there’s a feeling that becoming an adult no longer requires putting away childish things.  Bars serve alcohol infused cupcakes. More than a few parents ride skateboards and scooters as they drop off their children at my daughter’s school.  I daresay almost all of us have items of clothing that our own parents would have scorned for their juvenile style. Besides warding off our own mortality, I wonder if incorporating childlike features into our adult lives isn’t a way to mask the inevitable separation that a developmental view implies.  If we can’t keep our growing children forever close, we can maintain a connection to childhood in our own lives.   I don’t find this idea particularly consoling.

One recent unusually chilly spring morning, my daughter ran out of the house and headed for school in just a sleeveless shirt and shorts.  I dashed after, remonstrating – but she outpaced me.  About two-thirds of the way up the block she turned and waved very slowly overhead, as though from the deck of a liner, and I waved back the lavender hoodie I was still clutching.  Oh, my girl!  Can it be that you are on your way out into the world, unprotected — and away from me — so soon!