No Surrender!

Book the Second. Chapter the twenty second. Of ALIENATION by SPECIAL CUSTOM.

This chapter is about how legal rituals can put some flexibility into social boundaries. Blackstone describes an obscure customary procedure called “surrender,”  through which peasant farmers acquire ownership rights to the land they work for the lord of the manor. As usual, Blackstone presents this liberalizing effect as only to be expected, because for him, law is a one-way ratchet that, over time at least, always “favours liberty.” II, 366. Ordinarily, my critical response would be to point out that if law’s rights-conferring rituals restrict a sovereign’s exercise of absolute power, they also legitimize it, and thus tend to consolidate social hierarchy and government’s monopoly on force. But this is no ordinary time. Next month the President of the United States will be a man who shows little interest in law’s legitimating capacity. So, instead of a critique of legal process, the chapter led me to consider what alternative sources of governmental legitimacy Donald Trump might claim, and how such a lawless leader came to govern in the first place.

The surrender custom Blackstone details involves farmers granted plots of land to work by the local land baron in exchange for agricultural services. By going through a prescribed ceremony in manorial court, a farmer could give, sell, or will that land (along with its service duties) to another person. The tenant farmer brings “a rod, a glove, or other symbol” and, “as the custom directs, resigns into the hands of the lord or his steward . . . all his interest and title to the estate; in trust to be again granted out by the lord.” II, 366. If the ritual is properly observed, the lord has to go along with the peasant’s choice of who gets to farm the land next.

Except, not really. Because, the lord only has to honor the deal if he still wants the property farmed by a peasant. He can always take the lands back for himself, or decide to grant them to someone else as a permanent, hereditary estate. It is only “if he will still continue to dispose of them as copyhold, “ a decidedly second-class type of ownership, that “he is bound to observe the antient custom” and accept the original farmer’s transfer to a new copyholder. II, 366. Not to mention, of course, that presumably lords of manors sometimes just ignored the customary rules and did whatever the heck they wanted.

Still it is remarkable that, partly through this customary role play, tenant farmers gained a limited power to sell or bequeath their right to farm particular pieces of land. That might not seem like a big deal, but you have to remember that in feudal property systems all land grants were purely personal. Originally, even knights could not sell their land, or leave it to their children. In that context, creating a way for peasants to transfer their farming privileges without getting the lord’s consent is a pretty significant power.

But nothing comes for free. Legal rituals that intervene in hierarchy –not just odd medieval customs, but modern criminal trials and civil rights cases –- also legitimize and perpetuate existing power relations. Making the powerful answerable to the powerless within a public legal ceremony winds up legitimating and entrenching political and socioeconomic inequality.   This, of course, was Marx’s problem with law, and why he tended to discount the legal system as a lever of significant social change. Even if, like Blackstone and today’s human rights advocates, one believes that law can effect real structural change, it seems clear that any social justice achieved through legal process exacts the price of increased legitimacy for the surrounding social order.

If only that were our problem now.

There has never been a time when I wished more fervently for the reciprocal restraining and legitimating power of law. And there has never been a time when the President (elect) of the United States showed so little interest in law’s capacity to shift or to consolidate power. Donald Trump is the least legalistic president I have ever seen – and the most unabashedly delighted at the prospect of exercising sovereign force: “Lock her up! Lock her up!”

Trump publicly asserts that he will use his executive power in ways that obviously violate constitutional and legal limits: He has declared that his administration will authorize torture (violating the Fifth Amendment, the International Convention against Torture, and federal statutes), require Muslims to register (violating the First and Fifth Amendments), and deport three-million undocumented immigrants (necessarily entailing a level of surveillance and arrest and detainment proceedings that violate the Fourth and Fifth Amendments). It’s as if the lord of the manor suddenly announced that henceforward he would pay no attention at all to the customary rules. To Hell with this silly “surrender” business. What’s in it for me? The answer of course, is legitimacy, or the appearance of legitimacy, something that must concern any popular leader. Trump needs some popular legitimacy in order to govern, but he is obviously banking on a different source.

I would call that alternative source something like the cult of authenticity. Remember that long before Trump began his own presidential campaign, he was obsessed with the authenticity of Obama’s claim on the presidency. While others attacked Obama’s policies or rhetoric, Trump focused single-mindedly on the idea that the President was not who he claimed to be, not a real American with a real American birth certificate. Against that background, Trump (the reality TV producer), positioned himself as more transparently self-revelatory, more risk-takingly candid, more “what you see is what you get,” than Obama or that other moralizing pretender, Hillary Clinton. In this story, Trump’s character flaws become proof of his sincerity, and of his bond with the people who support him. Voila, the improbable rise of a leader who reflects and promises to redeem his followers’ fatal flaws.

Is it just me, or have we seen this movie before? Since his election Trump has been compared to various historical figures, including Mussolini, Hitler and Julius Caesar. But the more I think about it, the more Trump’s startling ascent recalls the trajectory of another famous world leader: Jesus of Nazareth. Although Trump’s hate-filled rhetoric is obviously at odds with Christ’s message of hope and love, to my eyes the structure of Trump’s rise and his relationship with his followers eerily recapitulates The Greatest Story Ever Told: the turn away from established procedures and roles toward a charismatic individual who defies formal limits, the rejection of accepted knowledge in favor of faith in “the evidence of things not seen,” and most of all the repudiation of authorities who claim the right to govern by virtue of superior wisdom and character to identify with a leader who flaunts his intellectual and moral failings as badges of shared humanity: “For we have not a high priest which cannot be touched with the feeling of our infirmities, but was in all points tempted like as we are yet without sin.” Hebrews 4:15.

But hold on, what about that “without sin,” part? Trump is an infamous sinner – greed, cruelty, lust, and adultery being just a few of his more obvious failings. Doesn’t his sinfulness derail any structural parallel with Christ’s leadership? It certainly would, if Trump were ever held to account for his sins. But, in fact, if I had to pick the one aspect of Trump’s persona that most clearly marks him as sacred, it would be his unaccountability. Acceptance of apparently criminal, profoundly immoral conduct is the ultimate acknowledgement of divinity, as in, for example, Abraham’s submission to God’s command to kill his child Isaac. As Trump himself observed, he could “stand in the middle of Fifth Avenue and shoot somebody,” and not lose any followers. Just so, a king legitimated not by law but by divine selection is, as Alexander Hamilton put it, “unaccountable for his administration and his person sacred.” Federalist 70. It might seem obvious that it is the King’s sacred nature that makes him unaccountable, not vice versa. But Nietzsche (and the Legal Realists) taught us to turn the causal arrow and see what we could see. If divinely appointed kings are unaccountable because they are sacred, Trump is sacred because he is unaccountable.

All of this is quite far from the customary proceedings Blackstone describes, but not without connection. Medieval surrender is a ritual not just because it is a ceremony that incorporates symbolic objects, but in the wider, conceptual sense that it “creates and re-creates a world of social convention and authority beyond the inner will of any individual.” Adam Seligman et al., Ritual and Its Consequences, 11. Surrender participants are aware of the gap between the ideal ritual order and the flawed real world: the lord and the peasant are not confused about who retains the real power. But if the lord also wants to maintain the peasants’ peaceful acceptance of the existing farming order, he needs to engage in and accept the outcome of the surrender ritual, which like most rituals, subordinates individual identity. As Blackstone puts it, “in this respect the law accounts him custom’s instrument.” II, 370. The surrender procedure neither aimed at nor achieved an ideal social order. It did not reverse or equalize the hierarchy of power. But it played with that structure, and generated momentary openings for individual rights, and, over time, a contingent shift toward greater social mobility.

For a long time, our government has failed to provide any procedures that reliably do the kind of boundary-crossing work of the surrender ritual Blackstone describes. Trump, of course, offers no such process, either, but he was ready to take advantage of lost faith in the permeability of social boundaries. Indeed, you could say that Trump’s presidential campaign was all about boundaries: open borders across which flood imagined hordes of terrorists, rapists, and job stealers threatening Americans trapped on the wrong side of intangible, but very real, socioeconomic barriers that wall them off from the benefits of our “global” economy.

What is to be done? Our newly elected sovereign has no interest in restoring legal structures that, like the surrender ceremony, could put some play back into social boundaries. But note that surrender was never available in the King’s courts. It was a local phenomenon that sprang up in “some manors by special custom.” II, 365. Perhaps, then, taking a cue from this provincial ritual, we might focus on how local government can do the hard, creative work of building ways around, under, and through the social barriers that, without such penetrating procedures, become more impassable every day.




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Actores Fabulae

Book the Second. Chapter the Twenty First. Of Alienation by Matter of Record.

The common law of property doesn’t get much more arcane and insular than the procedures Blackstone describes in this chapter. So imagine my surprise when his directions for establishing land ownership through a fictional lawsuit helped me understand some things about the current U.S. presidential race between Donald Trump and Hillary Clinton.

At first, the chapter’s subject might sound quite contemporary. After all, we often establish ownership by “matter of record.” Whether it’s a printed receipt, an e-ticket on an iPhone, or the deed to a house, you produce the document to prove that something belongs to you. And the procedures Blackstone describes here all do generate some text that can “be a perpetual testimony to, the transfer of property from one man to another; or of it’s [sic] establishment, when already transferred.” II, 344. But these are not records of any real world property transaction, and the written records themselves are almost incidental. The chapter’s focus is on the complicated legal performances that generate them.

Take, for instance, the “common recovery,” an esoteric proceeding undertaken when legal restrictions would otherwise bar a gift or sale of land. This elaborate courtroom ritual harkens to an ancient public performance aspect of law that predates law’s obsession with written text. Indeed, according to M.T. Clanchy, in Medieval England legal records were themselves oral performances: “In the twelfth century to ‘record’ something meant to bear oral witness, not to produce a written document.” From Memory to Written Record at 77 (Thanks, John Cairns for turning me on to this fantastic book!) The common recovery is a doozy of a legal ritual, and Blackstone is “greatly apprehensive that it’s form and method will not be easily understood.” II, 357. Although he vows to be concise and avoid “as far as possible all technical terms,” it still requires a full three pages that are spotted with plenty of Latin italics. II, 358.

So let me try to nutshell this. Basically, two people who want to transact a legally prohibited sale of land get together and act out a fictional lawsuit that concludes by transferring ownership from the would-be seller to the would-be buyer. Here’s how it goes: The would-be buyer sues the would-be seller, alleging that he (the would-be buyer) is actually the legal owner of the land and the would-be seller got possession illegitimately. The would-be seller defends by calling a person he claims sold or gave him legal title to the land. This third person appears, is made a party to the lawsuit, defends the title, and then, after an out of court conference, disappears – causing a default! Whereupon judgment for the would-be buyer against the defendant would-be seller. The would-be seller now has a claim against the disappearing third party to compensate him for the land he lost because of the default due to that disappearance. But he will never prosecute that claim. The disappearing third party was hired by the other two parties to testify and then abscond. In the end, everybody goes home happy: Title to the land is transferred to the would-be buyer from the would-be seller, who was paid his asking price before this whole charade began.

Note that a common recovery lawsuit, as Blackstone describes it, is not fraudulent. It is fictional. There is no real adversity between the parties who are formally on opposite sides, but no one is fooled by this collusion. Everyone – judges, witnesses, and the public at large — is in on the joke. These are pretend collusive lawsuits. Everyone is acting a part – acting as if they are arguing, testifying, or reasoning – in a performance whose conclusion is understood by all to be as preordained as the final scene of Hamlet. The difference of course is that at the end of the play somebody goes home to a house that he didn’t own before.

Actually, as Blackstone points out, enacting a common recovery requires a complicated blend of fiction and fact. The disappearing third party witness is an entirely fictional character, played by anyone the principals can scare up. Blackstone notes that this role was often played by the court crier — the clerk responsible for opening and adjourning court sessions and generally maintaining order in the courtroom. Like a theatrical stage manager, the crier had apparently seen the play so often that he was able to fill in for a missing actor on a moment’s notice. In contrast, although the part of the defendant in the lawsuit is fictional in the sense that he is only pretending to defend his property rights and actually hopes to lose, this character must be played by the real owner of the property at stake, “else the suit will lose it effect.” II, 362. Why this real ingredient is required for the fictional performance to work is never explained. Blackstone simply asserts that “though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulae, properly qualified.”Id. And here, of course, is where things start to get complicated – and open to question. Because if the common recovery is a fictional lawsuit, brought by fictitious parties (the translation of the Latin actores fabulae), why should they need any real connection to the land at issue? On the other hand, if there is something real about this law suit after all, how can it be okay for so much of what goes on in it to be fake?

You might think that this interleaving of ritual and reality is a quaint feature of ancient property law with little relevance today. But it strikes me that a fascination and anxiety about combining and confusing reality and fiction is a hallmark of modern cultures. By the eighteenth century when Blackstone was writing, there was already something embarrassing about common recovery lawsuits. Even Blackstone, ordinarily an admirer of legal fictions, wants to distance himself. He shakes his head at the “awkward shifts . . . subtile refinements, and . . . strange reasoning [to which] our ancestors [were] obliged to have recourse.” II, 360. And then he makes a telling (and, for him, unusual) gendered comment: “Our modern courts of justice,” he says, have “adopted a more manly way of treating the subject.” Id. Now, it doesn’t seem that the actual procedure has changed. What is different is the attitude of the legal audience. They have stopped regarding these performances as any sort of real law suit and now see “common recoveries in no other light, than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands.” II, 360. The elaborate performances with their combination of real and fictional elements remain the same. But they are no longer viewed as courtroom dramas with fabulous actors, fictional conflicts and real effects. They are just a peculiarly complicated, highly formal method that some people have to use to sell their land.

Why should this shift matter? If everyone still needs to slog through the whole complicated rite, why should the change in observers’ attitudes reassure Blackstone and reduce the threat the twisted common recovery poses to the “manly” nature of legal process? I think it is because adopting the frame of formality resolves the conflict between reality and fiction. By characterizing the performance as a purely formal matter, Blackstone avoids the need to judge what is real and what is fictional. A formal performance loses all contingency. There is no longer any need to deal with the queasy combination of truth and fiction and to judge whether the real parties have performed their fictional parts well enough to produce the desired “force and effect.” II, 361.

Crucially, pulling back from performance to legal formality tends to comfortably unite the performers with their audience. In any performance – whether ritual or theatrical – there is always some risk that the audience’s perceptions will diverge from what the performance is intended to produce. Blackstone’s anxiety about the potentially deceptive, unmanly nature of the traditional common recovery is an indication of such a gap, which he quickly moves to close by adopting the modern formal view.

Woe to any performer who finds himself and his audience on opposite sides of the line that separates artifice and reality! For a performance to “work” we do not have to believe that everything we see is real, but we do have to think that we are seeing what the performer wants us to see. In a naturalistic culture, in which fiction is treated as a representation of reality, performances often fail because something looks jarringly artificial. An actor “overacts,” say, and exposes the effort she is putting into her performance, so that we are unable to maintain the illusion that the feelings she displays are genuine. But the problem is not artifice per se. The problem is artifice that is supposed to look real and doesn’t. Nor is the problem always a failure to look real. The reaction to Donald Trump’s Access Hollywood tape is a fine example of how disastrous it can be for a performer if an audience understands something as genuine that the performer wants to be seen – or heard — as artificial.

It might seem that Trump’s problem is simply what he says on that tape – that “when you are a star” women will let you “do anything. Grab ‘em by the pussy.” But I think that it is not only, or maybe even mostly, the content that accounts for the tape’s impact. What we have here is a record of Trump saying things when he did not know he was being recorded. In other words, we are hearing things we were not meant to hear. Trump now insists that what was recorded was not a truthful account of his behavior in the real world but a swaggering fictional performance. He even has a name for the genre of that performance: “locker room talk.” But much of Trump’s public isn’t buying. Which is odd, because up till that point he had been fantastically successful at getting audiences to follow him as he stepped in and out of role in a complex blending of reality and illusion.

Twisting the skein of truth and fiction has been a theme, perhaps the theme, of the Trump campaign. There’s a repeated choreography in which Trump says something provocative, and then when it is criticized as insulting or dangerous, responds that he was only kidding, that we should know better than to take him at face value. At the same time, much of his popular appeal seems based on a claim of unusual authenticity. Unlike “crooked” Hillary, he plays it straight – even if that means being straight up awful. At one of his campaign rallies, Trump remarked somewhat wonderingly, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters”! Ostensibly meant to praise his supporters’ extraordinary loyalty, Trump’s observation also marks the extraordinarily powerful appeal of his performance of authenticity.

The success of that performance persists in the face of repeated revelations that much of what Trump says is totally false. Indeed, paradoxically, his wild claims tend to reinforce his artless image, because by making them Trump reveals his authentically desperate need to score immediate points no matter what the cost. We see someone who, in the heat of a competitive moment, is driven to say almost anything to score — fact checkers be damned! — without stopping to calculate the potential repercussions.

I know something about this tendency, because I share it, albeit in less consequential settings. My husband still teases me about the game of Scrabble, years ago with his parents, in which I laid down a score-busting letter sequence that, when met with skepticism, I confidently declared to be a “sailing term.” I know nothing about Scrabble and less about sailing, and I certainly didn’t know what this “word” meant. But once the letters were on the board ringing up that amazing score it seemed entirely within the realm of possibility that they spelled out a word I vaguely recalled as having something to do with . . . boats, maybe? Let’s just say I was willing to err on the side of winning.   Mercifully no one reached for the dictionary, and I was saved from humiliation before my future in laws. It was only later that night, when Doug, still skeptical, did look it up, that we discovered that there was no such word. I say, “we discovered,” because a part of me really was surprised by my own deception. So while Donald Trump is practically the last person on earth I would wish to see President of the United States, I have to admit that in this regard, I am Trump!

Maybe that is why when the Access Hollywood tape first came out I found it hard to believe that it would make much difference. After all, Trump had already stood up in front of plenty of cameras and said and done things that were just as bad or worse than the behavior he described on the tape. This is a man who says he would authorize torture. Why should talk of pussy grabbing prove his political undoing?

The answer, I think, has as much to do with the form of the video as with its content. No matter how much Trump insists that the tape records him playing a fictitious character, most of the audience sees – or hears – it as a gotcha moment of hot mic truth — an accidental peek into a reality the performer did not intend to reveal.

Hillary Clinton, of course, perennially has the opposite problem. The performances she wants to be viewed as truthful often appear artificial. It is a truism among professional actors that the hardest character to play onstage is yourself. You might think it would be easy to just “act natural.” But it turns out to be incredibly, humiliatingly, difficult to stand up in front of an audience in any sort of formal setting and “be yourself.” People who are not used to performing, or who do not like being the center of attention tend to react in ways that make them look and sound artificial. Trump’s ability to perform himself in public settings without obvious artifice is in fact rare, much rarer than Clinton’s effortful discomfort. But it is odd that Clinton, with all her years of practice, her appetite for public office and her relentless work ethic should still be so inept at pulling off a performance that appears artlessly authentic. I can’t explain it, but as an ex-actor I can say with some authority that it almost certainly has nothing to do with any lack of sincerity in her character off stage.

Unfortunately, for Clinton, her inability to master the art of performing artless authenticity plays into age-old characterizations of women as naturally artful and duplicitous. This is the same gendered construction that over 200 years ago caused Blackstone to worry that overwrought common recoveries threatened the manliness of legal procedure. As a matter of fact, Blackstone’s lament about the common recovery’s unsuccessful attempt to hide the artifice with which it accomplished its “laudable” goal, could serve to express my own consternation at some of Clinton’s most contorted campaign performances: “such awkward shifts, such subtile refinements, and such strange reasoning”! II, 360. And so it seems that the confusion of fact and fiction in performance, and the power of such performances to unsettle reality, is not limited to archaic property law. Performers’ ability to manage, and audiences’ ability to decode, the complex interaction of appearance and reality may play a determining role in the most bizarre political campaign of my lifetime.




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Actions Speak Louder

BOOK THE SECOND, Chapter the twentieth, Of ALIENATION by DEED.

This chapter is about words and deeds. Is this really the first time I have noticed that this quintessentially wordy legal document — “Witnesseth, that the said grantor for good and valuable consideration . . . .” — is called a “deed” ? It’s like naming a chihuahua “Killer.” Or not. Blackstone explains that “it is called a deed . . . because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property.” II, 295. A deed doesn’t just say something, it does something. So even though it’s only words, a deed isn’t only words, and so a deed is a kind of legal trick. To many people (including Blackstone’s great contemporary critic, Jeremy Bentham) this looks like fraud. I see it more as a kind of legal magic show, made to do what most magic does: deal with death.

Legal deeds’ ability to create property and transfer it from one person to another is an example of language’s “performative” capacity, an idea developed by the philosopher J.L. Austin in How to Do Things with Words. Austin’s book was ground breaking when it came out in 1960, but now I’m thinking that if Blackstone could have spun forward in time and read it his reaction would have been, “no duh!” Somehow in the two centuries since the Commentaries we lost sight of this characteristic active power of legal language so completely that it came as a surprise when Austin pointed it out.

Nowadays we think of legal documents primarily as recording actions already performed or to be performed in the future. If you want to hold someone to his bargain or to prove you have fulfilled yours, you make sure to ‘get it in writing’.

Doubtless legal documents do have an expressive, memorializing function. Blackstone goes on at some length here about the requirement that a deed be on paper or parchment precisely because these materials best preserve the written text. II, 297 Wood and stone are more durable, he notes, and linen less erasable, but “writing on paper or parchment unites in itself, more perfectly than any other way, both these desirable qualities.” Id. Nothing else is “so secure from alteration, that is at the same time so durable.” Id.

But here is where it starts to get tricky. The very existence of a durable written document pulls meaning into the future, where it cannot escape change. Words necessarily call to our minds meanings that come from the context in which we read them. Even when we have other reasons to think we know what someone meant when he put quill to parchment, we may still be able to, or even forced to, read off different meanings from the words preserved there. So here is another of law’s riddling paradoxes – the very thing meant to make meaning more stable – putting it in writing – introduces instability.

Take Section 9 of Article I of the U.S. Constitution. The clause provides, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” So, no ending the slave trade before 1808. For the white abolitionist William Lloyd Garrison, that passage, among others, made the Constitution a “covenant with death,” a durable document meant to preserve the deadly institution of slavery. But, as Shoshana Felman says, “Speaking bodies . . . commit literary speech acts that exceed all . . . intentions.” The Scandal of the Speaking Body ix The ex-slave Frederick Douglass thought the Constitution’s slave clauses committed a different act than the one Garrison envisioned.  In an 1860 speech, Douglass declared that the question “is not whether slaveholders took part in the framing of the Constitution,” and “it is not whether those slaveholders, in their hearts, intended to secure certain advantages in that instrument for slavery.” Instead, what matters for Douglass is the words of the document protecting the slave trade only until 1808, which he reads as an expiration date that “makes the Constitution anti-slavery rather than for slavery.”

I had a fight with a historian about this. The historian reckons that Douglass was a great man, a great orator, and a great advocate, but he can’t see how Douglass could justify his anti-slavery reading of the Constitution “intellectually.” When I endorsed Douglas’s reading, he was incredulous. How could I honestly maintain that the Constitution was not intended to protect slavery? I started to say something about performative language but thought better of it. The historian is probably familiar with the concept, and even if he isn’t I doubt that it would change his mind. Historians are after truth and accuracy, and performative language has nothing to do with either. As far as the historian is concerned, performing some legal act with the words of the Constitution betrays the text’s real meaning. What looks to me like classic legal interpretation looks like fakery to the historian, like a cheap lawyer’s trick.

There was a time when I would have denied that Douglas’s reading was tricky and sought to defend it as honest and above board. But now I rather think that tricks are a part of law because they are necessarily part of all performance. Performative legal words are always somehow at odds with the truth, at least in the sense that they do not simply reflect the truth of the everyday, linear, historical world from which they unfold. Indeed, the escape from that truth is part of what identifies performance as performance.

It might seem that we have drifted very far from Blackstone’s property deeds, but there is a link. The property deeds convey, after all, is produced with performative words, and only words – you don’t even need to add water. Before legal word acts, what you have is land, and after the words, magically, the land becomes property – something to own and, crucially, to inherit and pass down after death. By legal word magic, property survives us, and gives us a way of affecting a future in which we no longer inhabit our own bodies, but still appear in that notoriously spooky “dead hand” side show of estate planning. And so deeds perform a trick, a trick that does not exactly conquer death, but at least leaves us feeling a bit ahead of the game.

There has been quite a lot of death in my world of late. In the midst of what felt like a storm of mortality, I got Cicero’s On a Good Death out of the library. Then I lost the book and had to pay for it – twenty bucks for a ratty paperback. I was annoyed with myself until it occurred to me that my carelessness might be seen as a bit of luck, a little accidental sacrifice on death’s alter, a sleight of hand that might make death look elsewhere for awhile.

Embodied vulnerability is the site where legal language separates from all other texts. I said before that words alone produce legal property, but of course the real meaning of property in the world depends on the promise, or the threat, that owners’ rights will be enforced if necessary with state controlled violence that can only be effective because of our mortality. As the geographer James Tyner puts it, “the principal expression of state sovereignty resides, to a large degree, in the power and the capacity to dictate who may live and who must die.” Genocide and the Geographical Imagination 22 (In this respect, at least, Garrison was right that the Constitution is a covenant with death, as is any legally enforceable document, including property deeds.) So law doesn’t really outstrip mortality at all – law depends on mortality for its power.

And yet, in some sense all recognized legal subjects defy their own mortality. In some sense that is what it means to be a legal subject, not to be confined and defined forever by the chaos and vulnerability of our temporary embodied trajectories. And legal language is the switch, the mechanism of transport, the crossroads where chaos and violence come in and depart as order and meaning. For some. I recently re-read Patricia Williams’s great essay Alchemical Notes, in which she observes that for African Americans in the Ante-Bellum South, there was no “slave law.” A slave is either owned or un-owned, never an owner, that is, either outside law or subject to it, but never a legal subject.

So, while legal words’ performative power turns some folks into owners, subjects able to escape their corporeal limits through inheritable property, it turns others into outlaws – with bodies that are themselves never fully their own. Frederick Douglass was not a lawyer, but as an escaped slave turned lecture-circuit star he knew a thing or two about both performance and the interaction of property law and bodies: “I appear this evening as a thief and a robber,” he told his audience, “I stole this head, these limbs, this body from my master and ran off with them.” And so, today, in the legal battles taking place in North Carolina, transgender people find themselves alternately subjected to and made subjects by the play of words and bodies. Indeed, with legally performative text written not just on paper but on bathroom doors, it is hard to imagine a clearer demonstration of the trick of legal subjecthood, and how that trick both depends on and exceeds the boundaries of our embodied mortality.



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The Mystery of the Floating Pumps

Book the Second. Chapter the Nineteenth. Of TITLE by ALIENATION.

This chapter is about a conflict in property law. I’ve written several times lately about the way ownership constructs identity through individuals’ connections with stuff, especially land and houses. At the same time, the definitional aspect of private property Blackstone discusses here is an owner’s right to dispose of her property as she chooses. This ability to do what you want with your property– including letting go of it– is part of how property law helps create autonomous individuals in charge of their own destiny. But now you see the conflict. Property law constructs individuality by empowering individuals to separate themselves from the very thing that constructs their identity. Somewhat incredibly, this paradox is encapsulated in the English word lawyers use for selling or giving away property: “alienation.”

As Blackstone explains, in law “alienation” means a transfer of property by “any method wherein estates are voluntarily resigned by one man and accepted by another.” II, 287. Ever since I first encountered this usage in law school, I have marveled at the way a piece of legal jargon manages to bring together the two omnipresent critiques of late capitalism – commodification and estrangement. Of course others have noticed this, too. Margaret Radin wrote a great essay on the subject, that I’ll come back to later. Generally, though, lawyers use the word “alienation” with no irony whatsoever, and no hint of its critical potential. And explanations of the development of a right of alienation in the shift from feudal to mercantile society typically ignore the word’s pregnant double meaning. Blackstone is no exception, pronouncing here that “experience hath shewn that property best answers the purposes of civil life, especially in commercial countries, when it’s [sic] transfer and circulation are totally free and unrestrained.” II, 288. It kind of makes you wonder if there was more to feudalism then we are generally led to believe.

Toward the end of her life, my mother’s attachment to her birthplace appeared almost feudal in its timeless stability. “I have a home,” she would say, a bit solemnly, “at 8630 Oak Street in New Orleans.” Relentlessly realistic, I would respond, “Mama, we sold 8630 years ago.” She would be momentarily incredulous – “No! We did”? And she’d shake her head and change the subject. The thirty odd years she spent in Chicago with my father? Gone. Not to mention the ten years in Brooklyn before we moved to Pittsburgh. People who met her at the assisted living home always assumed she had moved directly from the house her father built in New Orleans. To all appearances, no feudal oath of allegiance could have bound her more closely to that place and her life there.

In fact, though, my mother had left that house early on, and in an unusual way. After she died I spoke with her oldest (in all senses) friend, Dottie, who reminded me that as a young woman, my mother had moved out of the house where her father and brothers still lived, and rented an apartment on her own. According to Dottie, this move had shocked the neighborhood. I knew that my mother had lived by herself for a while in a small basement apartment, because she used to tell a story about waking up one morning to find it flooded. “My shoes were floating,” was the punch line. I always pictured a beautiful pair of pumps spinning slowly in a little whirlpool in the middle of a darkened room. Somewhat obtusely, however, I had never considered the social significance of my mother’s decampment from the family “estate” as a young single woman in the 1940s. “Nobody did that,” Dottie said flatly.

My first thought was, why wasn’t that part of the story my mother told me? How come she never mentioned the socially daring aspect of her move? The raised eyebrows of her friends and family? Is it possible she was not aware of them herself? Was she trying to hide that part of her life from me? Or did she keep telling the story of the floating pumps because she wanted me to get to the other meaning on my own, to recognize that she had done something assertive and brave and completely contrary to the image that she always presented to me of this unassuming rather timid person. Oh.

It is rather striking how from generation to generation alienation as commodity keeps producing different forms of alienation as estrangement. And why does that development always seem to involve a coming of age drama? When I was a kid in the 1960s and 1970s, the alienation of the “younger generation” was understood as a conscious choice to drop out of the materialist mainstream. Nowadays I think it is very widely agreed – among people of a certain age — that alienation is a product of the “social media” that constitute the signal structure of our global market economy. The basic thought is that the more swept in you are by the virtual world the more alienated you are from the real time, face to face, body to body relationships that construct the kind of social attachments long thought to nourish individual and collective human development. This time everyone is involved, but the young are thought to be most at risk. How will kids who never learned the basic social art of conversation and eschew “real relationships” for the easier, cheesier pleasures of virtual reality ever develop into full fledged, contributing members of society?

Of course this high-toned individualized alienation is another kind of exclusive property. Fillipo Mirelli is an Italian artist whose project is painting the names of social media sites on buildings and walls in poor neighborhoods around the world. The words MYSPACE and SECOND LIFE in big sloppy colors on corrugated walls in a Phnom Penh slum mark the real detachment of the individuals in that community from the virtual networks that generate the other “first-world-problem” kind of alienation.  As Santiago Zabala observes, Mirelli’s work calls out the gap between “advanced technological capitalism and its social detritus.” But there’s another lurking contradiction here. On the one hand Mirelli’s paintings criticize the exclusion of these communities from the global “community” of social networking, and even intervene in it, if only because the painted words are evidence that someone of that other world of virtual connection and real privilege has crossed over, been physically present in that Phnom Penh neighborhood at least long enough to mark the gap. But there is a predictable irony, here, because of course the photographs of the painted buildings that I saw were brought to me via a Google search on my laptop. And thus the same techno capitalist society that Mirelli’s work momentarily disrupts reconstitutes his disruption as another virtual product for my virtual amusement. It’s as if the marginalization of the people whose lives constitute what Zabala casually labels “detritus” has been recycled, reworked into another clever handmade object of aesthetic pleasure, like the South African scrap-tin sculpture that stands on a table in my living room. Here it seems the usual order is reversed: instead of commodification producing estrangement, this is estrangement as commodity.

After my grandfather died, one of my mother’s brothers bought out his siblings’ inherited shares in the house on Oak Street, and lived there until his death about 20 years ago. My mother was his executor and still in full possession of her faculties when she decided to sell the place. At the time it seemed like the only sensible option — no one in the family was then living in New Orleans, and the house was in dreadful shape and in need of major repairs. But, looking back, if it meant that much to her, why not try to work something out?

Whenever I visited my mother at the assisted living home, I would always find a way to work into the conversation the story of how she came to be where she was. So I would say, “well I had a good class today.” And she would ask, “you teach”? And I would say, “oh, yes, I teach at the law school at the University of Pittsburgh. You remember, that is why we all had to move to Pittsburgh! Because I got the job at the University. And that’s why you are living here, now, in this assisted living facility, which is very near the house where Doug and Lincoln and I live. You remember, you were there for dinner a few weeks ago, right? We had shrimp. . . .” And she would nod and “mm hmm” and do a reasonably good job of acting as if she was hearing something that she already knew.

But when I was not there, which of course was most of the time, estrangement would overwhelm enacted orientation. She wanted the staff to call her father, her brothers, someone who could come and pick her up and take her home. They would call me, and I would get on the phone with her and talk for twenty minutes, half and hour, an hour, repeating over and over the facts of her coordinates. I remember one conversation in particular: “Look around you – where are you – in the dining room? That’s where you have meals. Do you see the library across the hall – the fake fireplace with the big hurricane lamps on the mantel? With the yellow couch? You and I were sitting there just the other day.” I must have gone through five or six variations of this tale pointing to different details, trying to spark some familiarity that would orient her to her surroundings, when she stopped me cold. “Jessie,” she said, “I understand what you are saying, and I would really like to believe you, but I just can’t because I have never seen this place before in my life.”

The crazy thing is that at the same time I was spinning these little GPS stories for my mother, I was engaged in a similar struggle to adjust my own internal compass to the external evidence. For all kinds of reasons, our move to Pittsburgh from New York was a no brainer. But it turns out to be harder than you’d think – or then I thought, anyway– to leave the place where you have grown from adolescence to late middle age. I don’t mean hard emotionally. I mean cognitively. I was ready to be sad, but I was unprepared for the possibility that five years after leaving, every time I set foot in New York City I feel as if I am at home. When I walk down a Brooklyn street to, say, get a coffee, or visit a friend, I am completely unable to convince myself that I no longer live there. This is not a cozy feeling. Sometimes I literally walk along mouthing “you don’t live here, you don’t live here.” I would really like to believe myself, but I just can’t.

The question, of course, is what any of this has to do with the property structures Blackstone is expounding in this chapter. Here is an idea. You might say that for my mother and for me, it turned out that on some level our connection with a particular piece of real estate was “inalienable.” The attachment survived despite the monetary transaction and the legal ritual, and indeed despite our own freely willed decision to detach ourselves from the property we once called home.

Margaret Radin points out that, like “alienation,” the word “property” has a double meaning. In legal discourse, “[p]roperty refers to an owned object,” as in, this house is my property, “or to the rights and duties of persons with respect to control of owned objects,” as in, I have a property right to keep you out of my house. Reinterpreting Property 191 (U. of Chicago 1993). But outside law there’s another meaning: “property means an attribute,” something that is part of the identity of a person or thing. As Radin explains, these two kinds of property can be correlated with the two kinds of alienation. Id. at 192-193. Ideally “object property” can be freely alienated on the open market, but selling “attribute property” splits the seller from herself. In my mother’s and my experience, it seems that somewhere along the line one kind of property morphed into another. Somehow object property became attribute property.  Which brings me back to the duality I observed at the beginning of this essay, the way our modern property law system constructs and protects individual autonomy both by establishing secure connections to property and by making the ability to freely undo those connections a core property right. At a more systemic level, this contradiction is often framed as two different views of property law itself – as a branch of contract law that enables individuals to shape their relations to one another however they choose and as a complex web of finite possible forms of ownership that connect, divide and secure individuals in recognizable relations to each other.

Now, thinking again about these contradictory or complementary modes of building personhood, it strikes me that I may have misread my mother’s insistence of inseparability from her family home. After all, it seems that early in her life, to an unusual extent, my mother availed herself of the autonomy-creating potential of the free market in real estate. Tired of cooking dinner for your dad and brothers? Want more space to live life on your own terms? Pack a bag, call a cab, sign a lease. Maybe instead of an unbroken spiritual connection, her relentless assertions of attachment to the home she left early and later sold without hesitation actually sprang from conflict and ambivalence. Or maybe this is a modern property structures success story. The story of a woman who self-actualized by using unrestricted alienation to disconnect herself from the restrictive role imposed in her family home while still somehow maintaining a deeply sustaining identification with that place.  In the larger scheme, I’m left wondering if the tension in property law between the right to freely transfer property and the ability to build secure connections is dysfunctional or admirably nuanced. Is this apparent contradiction a defect that reveals just how ill suited the law of private property is to the project of human flourishing, or is it part of the way property law reflects and accommodates the unresolvable complexity of our life here on this earth?


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Nothing Certain

Book the Second, Chapter the Eighteenth, Of TITLE by FORFEITURE.

This is one of those chapters where Blackstone revels in the tricks of the legal trade. Nominally, it’s about forfeiture doctrine – that is, the rules by which property is lost as punishment for “some illegal act, or negligence, in the owner of lands.” (II, 267) But the main thrust here is the great artifice of law, and the ins and outs of a system of property rights designed to survive our individual demise. So this also turns out to be a chapter about mortality. No surprise there, I guess. A chapter about forfeiture is a chapter about loss.

I must have heard the expression, ‘nothing’s certain but death and taxes,’ about a million times, but it wasn’t until I read this chapter that it occurred to me that these two phenomena are not just similarly unavoidable but causally linked. As Blackstone reminds us, in feudal society all land grants were for the life of the individual recipient only. Every feudal landholder’s death precipitated a transfer back to the lord, or his descendants, and a redistribution – all of which occasioned various payments and fees that amounted to taxes on the property. So, where there was death, taxes were sure to follow. Here, of course, is where the craft of lawyers comes in. You might think taxes would be easier to avoid than death, but medieval lawyers attacked the problem from the other side. Their solution was to create a kind of legal person who would never die, and so would never transfer land and have to pay taxes. That legal person was, of course, the corporation.

These days we worry about corporations getting too big and too powerful, and influencing politics in undemocratic ways, see Citizens United. But whatever political problems they may cause, corporations are generally figured as the lifeblood of a healthy economy. Blackstone worries about corporations, especially charitable corporations, lasting too long, that is, indefinitely, and interrupting the circulation of property’s fruits and profits.

The chapter opens with six pages on the 500-year-long battle of wits waged between Parliament and the church to collect/avoid taxes on land held by the church corporations. Naturally, as Blackstone points out, this was actually a battle between Parliamentarians and lawyers for the churchmen, “who, Sir Edward Coke observes, in this were to be commended, that they ever had of their counsel the best learned men that they could get.” (II, 270) The state’s main legal tool for keeping land out of the tax-free hands of the church was a license in mortmain – a dead-hand license, so called because land sold to the church effectively ceased all circulation. No more circulation, nor more life.

Reading this, I couldn’t help thinking of private colleges and universities. Some time ago, I heard the president of Vassar College on the radio celebrating the increased “economic diversity” of her college’s student body. Vassar has an endowment of over 800 million dollars and by my rough calculations from the website is taking in another 60 million a year from tuition, but as a non-profit corporation is exempt from most property taxes. That of course means that to some extent, the experience Vassar offers its students is being subsidized by the rest of us taxpayers.

A lot has been written about the high price of college lately. The Vassar president explained that it is hard to keep costs down because elite colleges compete for the progeny of the economically privileged who are “investing a lot in their children.” These families want “great things” for their kids, including “lots of single rooms, and great faculty, and small classes.” Standing in my kitchen, slicing a tomato and listening to this out of the corner of my ear, I thought, Single rooms? Really? Spending on financial aid, the Vassar president continued, means cutting back on other things. Apparently not on single rooms, though. The Vassar website informs me that “a high proportion” of dorm rooms are singles.

I know I shouldn’t be surprised by this. I teach property law, and I’m forever pointing out to my students the tight, tangled connections in the United States between private real estate and personal identity. But honestly it kind of blows my mind that with all the outrage about income inequality, lack of access to educational opportunity, and the insane cost of college these days, single dorm rooms are still regarded as one of the indispensable “great things” a top quality college has to offer. It’s just that it enacts the basic privilege of exclusion in such a primitive way that it’s almost funny.

I don’t mean to single out Vassar. The whole reason Vassar’s president was being interviewed on the radio show I happened to catch is that the school is a standout for its efforts to broaden its student base. Harvard admits a lower percentage of low and middle-income students and is sitting on an endowment of over 30 billion tax-free dollars. Plus, all of this has a nitpicking quality. The real question, I suppose, is what becomes of all the resources poured into the young people who attend these schools. To return to Blackstone’s framework, we might ask whether the fruits and profits of all that tax free property ever emerge back out into the wider world. Clearly the answer is yes. Harvard and Vassar grads have cured diseases, solved engineering challenges, written great poetry, sung great songs, worked to bring about transnational peace accords, and served as national and international leaders, including, of course, our current POTUS.

Still, there’s reason to think the dead hand metaphor may have some continued relevance. In the spring of 2014, precious few of Harvard’s graduating seniors were going to public interest jobs. Only “3.5 percent were headed to government and politics, 5 percent to health-related fields, and 8.8 percent to any form of public service.” Washington Monthly And it’s not just a question of opting for more commercial paths. In the mid to late twentieth century ivy league grads interested in corporate careers “tended to choose management training in industrial, aerospace, or chemical industries.” Now, not so much. Today nearly a third of Harvard graduates go to financial jobs on Wall Street or work for one of the big corporate consulting firms, like McKinzie and Bain, where, presumably, there talents will circulate in a very narrowly elite market indeed. Maybe the picture of a gnarly old hand squeezing shut the channel through which these resource-laden young graduates pour back out into the world is not so far off after all.

This chapter makes clear that the whole dead-hand problem is a function of a foundational property law concept: the idea that property rights extend over time. It is only because of the great common law invention of inheritable estates that we face the dead-hand problem of property’s failure to circulate. Then again, it is only because of the concept of estates in time that property can defeat death.

In a sense the very notion of property rights, rather than sheer violent control, a vision of how things should be rather than just the way they are, begins with ownership over time. This may be hard to see today, because in mainstream U.S. culture desire for real estate is mostly figured in space and stuff. It’s all about the square feet and original detail. But Blackstone and the common lawyers who came up with the legal rules that still inform today’s property concepts were obsessed with “estates in time.” I try to imagine the moment (of course it wasn’t a moment; it must have been a long spotty period) when the idea took hold, when people realized that they could construct an institution of land holding that extended beyond immediate occupancy into a continuous future beyond an owner’s lifetime. How must that have felt? In my imagination it is slightly disorienting, and kind of hysterical.

By coincidence, at the same time I was reading this chapter I was finishing the first book in Karl Ove Knausgaard’s absurdly long and meandering series of autobiographical novels, My Struggle. Here is what the narrator Knausgaard has to say, as he views his father’s dead body for a second time: “Now I saw his lifeless state. And that there was no longer any difference between what once had been my father and the table he was lying on, or the floor on which the table stood, or the wall socket beneath the window, or the cable running to the lamp beside him. For humans are merely one form among many, which the world produces over and over again, not only in everything that lives but also in everything that does not live, drawn in sand, stone and water.” Book I, 441.

Reading this it struck me how perfect it is – was, to construct a legal triumph over human mortality by investing these inanimate things with human identity through the idea of ownership. It’s a cliché by now to point out that our system of inheritance functions as a way for people to achieve a kind of immortality, or at least to strive toward a kind of fictional substitute. But what we don’t think about, or, I didn’t, anyway, until I happened to read Blackstone and Knausgaard in the same week, is that this immortality is achieved through a means that is far from accidental. What I mean is, that the symbolic immortality here has a double meaning, because not only does the person who dies manage to live on in some way through passing down her property but, at the same time, as property, the material world – the sand, stone, and water and even the electrical sockets – acquires a life, or afterlife.

Once again I’m forced to consider how much our modern legal consciousness has in common with animistic practices that connect the living and the dead through various forms of “possession” and “invest” the space a person occupies with her spiritual identity. This rather magical identification may explain how I’ve been feeling recently about my own house. I’ve never been a particularly meticulous housekeeper, to put it mildly. But lately, dirt fills me with dread. I’m looking now at the streaky window by the sofa where I’m writing and the slightly dingy curtains, and the sight of this unkept stuff is almost more than I can bear. The insouciance of youthful chaos is entirely absent here. I have a premonition of things coming apart, body and mind and spirit separating in the sandy bed sheets, the stain on the formica; entropy coming for us all.

Something has to be said here about the property law doctrine of waste, which Blackstone introduces in this chapter. Waste is “a spoil or destruction in homes, gardens, trees or other corporeal hereditaments to the disherison of him that hath the remainder or reversion in fee simple or fee tail.” 281 In other words, if you have a right to live on land or in a house for a limited time, for instance on a lease for a term of years, or as the owner of a common law “life estate” (meaning that the property is yours until you die), then you can’t do, or not do, something that ruins the property for the person entitled to it after you are gone. Note that this is not just a question of actively looting or destroying a place. As Blackstone puts it, waste is not just “pulling down a house,” but also “suffering it to fall for want of necessary reparations.” (II 281) Waste can be a simple lack of maintenance, giving entropy free rein.

Nor is the prohibition against waste just a matter of preserving value. Even profitable alterations are forbidden. It’s a question of transformation, of changing or erasing the identity of the land from which the estate springs, so that the property becomes unrecognizable.: “The conversion of land from one species to another is waste. To convert wood, meadow or pasture into arable, to turn arable or woodland into meadow or pasture; are all of them waste.” (II, 282) Why? Because it changes “the evidence of the estate.” Id. This seems literally to mean that such a change might make it harder for the person entitled to inherit the property to prove ownership. And I suppose that could be true in a system where land parcels are identified not by surveys and GPS coordinates but descriptively. But as is often the case in law, it is hard, if not impossible, to separate the proof of the right from the right itself. If you’re entitled to inherit a meadow and the meadow disappears and in its place there’s a wood someone might ask if you’re entitled to anything at all. What you were in line to get seems to have changed and in a system that constructs individuals’ identities through their relationship to lasting landscape, that’s a big problem.

The social free fall linked to the sort of landscape transformation that counts as waste makes an appearance in one of the few English texts more famous than the Commentaries, Shakespeare’s Macbeth. Recall the last prophecy Macbeth receives (from an apparition in the shape of a child holding a tree) that “Macbeth shall never vanquished be until Great Birnam Wood to high Dunsinane Hill Shall come against him.” Act IV, Scene 1. Is this not a kind of shock-and-awe version of converting woodland into meadow and meadow into wood? Macbeth responds in an odd third-person speech that I now see is suffused with the morality of common law inheritance and its power to animate ordinarily inanimate objects.  He declares that because an uprising of trees is unthinkable, “our high placed Macbeth shall live the lease of nature, paying his breath to time and mortal custom.” Id.  It’s as though he’s looking down the wrong end of the telescope at the metaphor coupling hereditary property and immortality.   Instead of seeing ownership of an inheritable estate as a way to conquer death, Shakespeare’s doomed anti-hero figures his human lifespan as a temporary form of property, the kind that is subject to waste, a natural “lease” that he must “pay” with his breath to the landlord time. Literally, as a great lord, Macbeth certainly owns inheritable property. But he has no children. More to the point, Macbeth is nothing if not narrowly self-absorbed, obsessed throughout the play with enhancing his own immediate position with no thought of lasting consequences. With no sons to whom his property could pass, and with no apparent concern for establishing his succession, Macbeth is not in a position to take advantage of the common law invention of estates in time. Live by the ethic of fleeting individual triumph, die by it. Having opted out of the whole social system of inheritable property rights, all the land and power in the world cannot help him transcend the mortal “lease of nature.”  Ultimately, of course, the landscape does move against him, and even that limited lease is cut short.


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Make the Law by Walking

Book the Second, Chapter the Seventeenth. Of TITLE by PRESCRIPTION.

This chapter is about a legal doctrine that is easy to articulate and hard to believe: by using land for a long time as if it were rightfully yours to use, you acquire a legal right to use it. Prescription turns trespassers into stakeholders, while owners who have purchased or inherited their land through a flawlessly formal legal process lose the right to exclude them.  No wonder the students in my Property class are scandalized.

The right to exclude other people from your property is considered a crucial part of individual autonomy and a backstop against government tyranny. Yet under the common law doctrine of prescription, if you don’t intervene the folks who beat a path across your lawn day in and day out acquire a prescriptive right of way. Stop and think how perverse this is. One of the main reasons we have a legal system is supposedly so individuals don’t have to enforce their own rights.   Law enforcement takes over so that private citizens do not have to resort to force to protect what’s theirs and send us all back to the old “war of all against all.”   But with prescription, it’s use it or lose it.

Generally, when life and law face off directly, it’s the law that comes out on top. Law’s rituals – signed contracts, deeds of sale, jury verdicts – may be consistent with quotidian behavior or in conflict with it, but it’s understood to have priority – otherwise it’s not really clear what legality is, or what law is for. Sure every day life goes on its way heedless and often contrary to formal legal rules. But once it comes to formal legal action, once legal rules are invoked on their own terms and routines called to account, law masters, interrupts and shapes the relations and activities of everyday life. In fact law seems almost definitionally about this kind of interruption, these hesitations and callings to account – -from papers that must be signed to traffic signals that must be obeyed to the licenses we have to wait in line to obtain. There’s an annoying commercial on the sports radio station here in Pittsburgh about a local requirement to alert the gas company before putting in a new fence or foundation, with a jingle that captures the glitchiness of this legus interruptus: “Before you dig, call 811, it’s the law, call before you dig . . . .” There goes the law again, breaking up the flow, chopping life into little pieces with discrete edges that have to be arranged just so. You can’t just go about your business, putting in those fence posts – you’ve got to follow the law.

Prescription upends this order. Picture all these folks just shuffling along from here to there. Not only does the law not hold them up when they trespass on your land, not only do they get to keep on walking unless you take it upon yourself to stop them, but by walking they acquire a legal right to keep on doing exactly what they’ve been doing all along, which is, of course, breaking the law!

Blackstone is very clear that the property rights prescription creates are just legal as the rights that were disrupted. In fact, he makes a big deal in this chapter about the difference between prescriptive rights, which he classifies as personal legal rights and custom, which “is properly a local usage, and not annexed to any person. So, for example, there might be “a custom in the manor of Dale that lands shall descend to the youngest son, but if “Sempronius, and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege,” that’s a personal prescriptive right. II, p. 263 Another example of custom that he gives is “if all the inhabitants of the parish of Dale “may dance on a certain close, at all times, for their recreation.” Id. According to Blackstone, “this is strictly a custom for it is applied to the place in general, and not to any particular persons,” while, if the owner of the Manor of Dale “alleges that he and his ancestors . . . have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate.”Id. at 263-264.

Notice that functionally custom and prescription seem to convey the same opportunity to use property that is not formally your own. Any of the conduct Blackstone cites as customary could be allowed to someone via prescription, and vice versa. The manor owner could be dancing on the green under a prescriptive right and the villagers could be pasturing their sheep there by custom. The difference isn’t the kinds of activities allowed, or even, really, how people acquire the ability to keep on engaging in those activities, since both custom and prescription basically develop just by people living somewhere in particular and doing something in one particular way for a long, long time. The difference is the way we think about those activities.

There’s a kind of foreshadowing here, of H.L.A. Hart’s observation that obedience to law doesn’t just involve doing or not doing something but also what you think about what you are doing or not doing. As Hart pointed out, our concept of law entails recognizing a difference between habitual and law-abiding behavior.  An observer from Mars likely wouldn’t see much difference between someone stopping every day on the a street corner to adjust her hat and someone stopping there regularly whenever the light is red. But to those of us living in the culture of traffic regulation these two acts have quite different meanings. Stopping for hat adjustment is some kind of routine or maybe just a repeated accident, while stopping for the red light is obedience to law. Blackstone’s distinction between custom and prescription isn’t exactly the same as Hart’s contrast between habitual and law abiding conduct, because the idea of custom still seems to incorporate some sort of normative permission or even a kind of informal mandate, but the big idea is there: Law isn’t just about what people do, but also what they think about what they are doing. Dancing according to custom and dancing by legal right might look exactly the same, but the dancers don’t think they are doing exactly the same thing.

The crazy thing, of course, is that the legal rights Blackstone is contrasting with custom come about by erasing and reversing the line between habit and obedience, trespassing and lawful use. Prescription turns interlopers into rights holders, and makes law abiding performance out of daily routine, and a law violating routine at that. But maybe that’s the point. It’s not just that law depends on a difference between quotidian habit and formal rule following, but that law can transform one into another. And what better evidence of the ultimate power of the law than its ability to make legal rights out of the dross of everyday existence.

In the end, I think part of why my students are so irked and mystified by prescription is that even before coming to law school, they were steeped in a culture that puts belief before practice, planning before action, mind before matter. All their lives they’ve been taught to identify a goal and go for it – eyes on the prize! You dream big, discipline yourself, and work to fulfill the ideals you envision. That’s how they got into law school, for God’s sake. And now that they are here, they find that the dominant concept of law is a version of the same instrumental approach: law is figured as a tool for accomplishing social projects.

Prescription messes with that whole neat scheme. Prescription is like an intersection, a crossroads or a doorway between the ordinary moves of daily life and the meaning laden work of formal legal action. It’s a place where everyday life and the lives of every day folks enter into law’s work of regulating and constructing social structures. A place where the unscrutinized world of daily routine and the legal world of pregnant meaning meet and change places – where we discover that legal meaning comes from daily life as much as it controls and orders it, and that the potency of legal rights need not come from carrying out abstract concepts of universal human rights, or predictions of socioeconomic utility, but can materialize out of the ordinary human grind. As Bronislaw Malinowski said of Trobriand magic, it is “a primeval possession of man to be known only through tradition and affirming man’s autonomous power of creating desired ends.” Argonauts of the Western Pacific 75-76.


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Why Begin at the Beginning?

Book the Second, Chapter the Sixteenth. Of TITLE by OCCUPANCY.

This chapter is about where things begin and what they become. For Blackstone, “the true ground and foundation of all property” is occupancy, or, “the taking possession of those things which before belonged to nobody.” II, 258. You might expect that Blackstone would want to show that his beloved common law reflects that original justification, the only one that “natural reason suggested.” Id. Possession is still a crucial factor in determining who owns real estate, so Blackstone easily could have stressed its continued legal role. But no. Instead he chose to emphasize that private property’s original justification had been “confined by the laws of England within a very narrow compass.” Id. What’s up with that?

As John Berger says, origin stories are always about trying to understand the way something is, not just the way it started; otherwise we wouldn’t care. About Looking, 6.   In the story Blackstone tells, the original mode of acquiring land has been reduced to a single, oddball circumstance – a way to patch the failure of a particular cranky form of ownership known as a life estate pur auter vie. II, 258. At first it just seemed perverse to me that in the property scheme Blackstone describes possession, the only natural law basis he recognizes for private ownership, is relegated to this tiny stop gap. Then I began to think about how marginalizing that natural law justification expanded the importance of the creative legal fictions that Blackstone celebrates.

In Blackstone’s vision, the artificial structures of property descent — the tables of consanguinity, the counting of degrees of connection, the lineal and collateral lines, the confabulated treatment of a newly purchased estate as something passed down from a distant ancestor – extend to cover virtually every contingency. Once land has been owned, it will always belong to someone. If the family bloodline runs out, it goes to the descendants of the lord who gave or sold the land to the owner’s ancestor. Failing that possibility, it goes to the king. II, 259.

So when Blackstone writes, in an oddly emphatic first person, “This, I say, was the only instance; for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law,” II, 261, he is reporting a stunning triumph of legal creativity. Think of it! All those cunningly crafted estates spread out and interwoven through various forms of purchase and descent to cover all of English time and space – all except for this one tiny gap where artifice fails and we see natural law peeking through the gorgeous man made surface. It reminds me of the Persian carpet flaw, the deliberate glitch in the otherwise flawless pattern, supposedly put there in deference to God’s unique capacity to create a perfect object, but, of course, by its very presence proving just the opposite — that the mortal master weaver could and would have produced perfection, had he not chosen to make a purposeful mistake.

Blackstone tells a story of the English landscape’s complete conversion from common space to private property through the application of common law artifice and fictions, a story that stands in striking contrast to the founding American property myth of the wide open spaces. But there’s a crucial link. All the ostensibly unowned American land is ripe for transformation through those same common law fictions and doctrines into private property. The techniques Blackstone describes, can be used to appropriate that land, not just for the luxury of personal privacy, but as a source of real political power. Remember that in both eighteenth-century England and the early U.S., the privilege of choosing law makers belonged exclusively to men who owned property. Only owners could vote. Think of the potential, then, lying out there in all that unoccupied American land, just waiting to be converted into politics through the application of common law property doctrine.

There was only one problem: the American continent was not actually unoccupied. The colonists’ land acquisition was less a matter of taking “things which before belonged to nobody” than of eradicating the previous occupants. This was a time honored colonial practice, which Blackstone described with gimlet clarity as “seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from the invaders in language, in religion, in customs, in government, or in colour.” II, 7.   Given the obvious application of that critique to the American project, it is rather surprising that Blackstone’s Commentaries was the most popular legal text in the early United States.

I’ve heard lots of explanations for Blackstone’s early American popularity: because the Commentaries was available at a time when case reports were hard to come by; because of his readable style; because his emphasis on natural rights and limited government lined up with the political philosophy of the new republic. Probably all of these were at work. Personally, though, I wonder if the American affinity for Blackstone had more to do with Blackstone’s appreciation for legal creativity. For better and for worse, legal imagination is what the American founders needed. They needed the fictions and artifice of the common law to reconstruct colonial violence and transform an occupied landscape into wild commons and then into exclusive private property. Blackstone made those common law techniques accessible.

Without such a creative tool for transforming past violence into present legitimacy, you’d be unable to investigate the past. You could never face the violent past of any valued institution. Your only resort would be blanket denial. That’s what seems to be going on, for instance, in a strange New Yorker article I read recently about, of all things, the Parthenon. The article, by Daniel Mendelsohn, reports on a book by anthropologist Joan Breton Connelly, expounding her theory that the Parthenon was built as a site for human sacrifice, specifically ritual killings of young girls thought to guarantee Athenian victories in wars with neighboring city states. Mendelsohn trashes the idea. He pokes fun at the “emotionality” of Connelly’s argument, and makes her sound like an overwrought Girl Scout leader flapping her hands at the dirty bits of an established classic. Mendelsohn can’t deny the violent strain in Athenian culture, including “tales of virgin self-sacrifice.” Apparently, he has read Antigone.  In any case, he explains condescendingly that these killings are “old hat”; they “were clearly to be taken metaphorically” The unsophisticated girl scout leader just doesn’t get the joke! But the whole point of Connelly’s book – which I have not read and am only getting via Mendelsohn’s critique – seems to be that the presumed metaphoric nature of the violence is exactly what we ought to reconsider.

At this point the article takes a weird, and decidedly Freudian, turn. It turns out that Mendelsohn has his own longstanding fascination with the Parthenon, and a deep investment in the innocence of that interest. He describes how as a young boy he labored over models of the building – first a cardboard version with toilet paper rolls for columns and, later, in junior high school, a table-sized project with a modeling clay frieze – the same frieze Connelly now contends depicts teenage girls on their way to the slaughter. Mendelsohn’s description of his relationship with “the maiden chamber” is a textbook gendered reversal of the overheated response he attributes to Connelly. Even as an adolescent, he manages not to succumb to crudely literal fantasy. Instead he’s down there in his parents’ basement night after night busy with his mathematically proportioned model, because, after all, what else would a teenage boy be doing with his hands?  And while Connelly is still ranting hysterically about the terrible things being done to virgins in some secret chamber, Mendelsohn has moved on. He never finished his model and has no idea what became of it. Recently, though, “out of sentimentality” he bought a flea-market plaster cast of the Parthenon frieze and hung it in on his living room wall, where he likes to contemplate it by candlelight (I am not making this up!). So he has come up out of the basement into the light and his adolescent need to get his hands around the object of desire and find out how the thing is put together has matured into a dignified visual appreciation. So should we all be satisfied, he suggests, with what we know and what we don’t about our cultural icons. After all, Mendelsohn assures us, we “know that they are beautiful.”

Here is an attitude Blackstone never would have tolerated. He may be criticized as the purveyor of imaginative historical and legal fictions contrived to legitimate political violence, but he was not afraid to uncover that violence. Indeed, Blackstone’s faith in the imaginative, transformative power of law seems to allow him to look with unusual directness at the social and political hierarchy he wants to legitimate. In contrast, Mendelsohn is both afraid to imagine the blood bath origins of his personal favorite icon of Enlightenment culture, and unable to imagine that culture has the capacity to recognize and repair a horrific past. He doesn’t even seem to realize how his need for purity all the way down tends to diminish the creative power of the Enlightenment culture he cherishes. Not that this attitude separates him from most of us most of the time. We all want to maintain as much innocence as possible – Blackstone included.

Blackstone’s antipathy to the U.S. is generally understood to be a product of his Tory politics, but possibly his antagonism owed something to the Americans’ use of the creative legal fictions he championed to legitimate acts of horrific violence. It is striking the way he repeatedly connects the U.S. with its recent violent abuse of the same first occupancy that he discounts as having any role in contemporary English property. It’s as though the more Americans embrace Blackstonian legal fictions to legitimate settlers’ property in the new republic, the more Blackstone wants to emphasize that American private property is still tainted with the injustice of its original acquisition.

Finally, it strikes me that there is another lurking appropriation of property here, an individual occupation of previously common cultural ground. I am thinking of the Commentaries itself. In fact, what better way is there to describe Blackstone’s packaging of centuries of wildly disparate court opinions and social practices into four coherent volumes than as his “taking possession of those things which before belonged to nobody” and to everybody. With the success of his treatise, Blackstone became in a way the private owner of the common law, the singular authority in charge of what had previously been a vast, untamed commons. Maybe, in the end, Blackstone identified with the American founders. Now that I think of it, the most creative legal fiction of them all is the notion that once Blackstone was through with his appropriation, the common law was still common. Of course it continues to be shaped and reshaped by judges, lawyers and changing social norms. But at the same time we surely see Blackstone as a kind of common law proprietor.   To this day, through interpretations of his text, he exercises an owner’s power to police the boundaries of his property, to say what belongs in and what doesn’t, and maintains a private estate whose temporal reach, so far, appears infinite.



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