Lost Property Department

Book the Second, Chapter 26. Of Title to Things Personal by Occupancy.

This chapter is about loss. Talk about entitlement to property usually focuses on how to get things, how to make them rightfully and exclusively ours. But Blackstone says that he will treat gain and loss together.  They will be “blended in one and the same view, as it is for the most part impossible to contemplate the one, without contemplating the other also.” II, 400 Maybe he is thinking reciprocally, as in, one person’s gain is another person’s loss. That would be interesting, because it’s a more modern, critical view than is usually attributed to Blackstone. But when I read that line it made me realize something about private property that I had never thought of before. For all personal property, loss—or at least separation–is not just a possibility, it is an eventual certainty.

Property held in common need never be separated from its owners, so long as the society that recognizes the commons endures. Collective farms administered by a central state and South Pacific Kula rings can go on forever. But private ownership comes to an end with its mortal individual owners. So, making private property outlast a human life is going to take some pretty fancy cultural craft.  Enter the law of property.

A lot of Anglo-American property law is obsessed with time. The classic estate system of land ownership is all about the different consequences of various events projected into the future. The best types of estates, the so-called “freeholds,” all have one thing in common, namely, that they exist for indefinite periods of time. Unlike human beings, these estates, and their associated landholding statuses, might go on forever; they are not ‘naturally’ limited. The focus on time makes sense in a system that treats “occupancy,” or, possession as “the original and only primitive method of acquiring any property.”  II, 400. In fact you could see all the ways of transferring property from one individual to another– gifts, sales, trades, etc., and especially wills and inheritance by descent– as inventions made to defeat time.  Because one thing is for certain: whatever space you currently occupy, at some point in the future you will cease to be there, whatever you are holding onto you will eventually let go of.  So in a way the first question for property law is how to create rightful ownership that continues after you are gone – whether gone for a morning ramble or gone after you are dead.

In my day to day doings, I rarely think about the source of  property rights. I just “see” property. Things just look like they belong to someone, and are therefore off limits, whether anyone is holding them at the moment or not. In fact I often see the presence of what I take to be someone’s personal property as generating more property.  If you leave your backpack on a table at the library and go off roaming in the stacks, not only do I assume that the pack and its contents continue to be exclusively yours, I would probably regard the table as reserved for your future use. All of this feels obvious, almost automatic. But of course it is not. Behind all these responses there is a complicated set of signals about what counts as property, signals that I have internalized to the point that I don’t even notice myself seeing them.

What it takes to occupy, or, possess, something so that it becomes your private property is contextual. One culture’s obvious signs of exclusive ownership become invisible, or at least ambiguous, from a different cultural perspective.  Or maybe they just get easier to ignore. Supposedly, the British colonists did not see Native American property because the land lacked familiar agricultural forms. From the British point of view, the Indians were not really occupying the land at all, or, worse, they were wasting the land by failing to farm it properly. The invisibility of Native American occupancy is sometimes presented as a universal European blind spot, but there were contemporary skeptics, including, as it happens, Blackstone. Early in the Commentaries he observes that England’s “American plantations” were obtained by “driving out the natives (with what natural justice I shall not at present enquire).”  I, 105.

Contested occupancy isn’t always intercultural or historically significant. Earlier this summer I was in a crowded pub watching a World Cup quarter final. There were many more patrons than chairs, but at the table in front of us, a young Brazil fan had her purse on the seat next to her and was saving it for a friend who she claimed would be arriving late. As the minutes of the match wore on, I found myself more and more annoyed by her refusal to let the seat go to a soccer fan eager and industrious enough to show up on time. The situation seemed dreadfully unfair to me. My own daughter was standing. What’s more, this woman’s selfish chair grabbing looked like just the sort of bad-faith, bad-karma behavior that could jinx the game’s outcome. “If Brazil loses, it’s her fault,” I hissed to my husband. I was like the American settlers — only prepared to recognize rightful occupancy where the available resource was being used the way I thought it should! And within minutes, my doubts about this young woman’s property claim turned righteous. If I had had an invading army, who knows what I would have done. And, by the way, Brazil did lose. I’m just saying.

How long and how hard do you have to hold onto something for it to become yours?  And once you have possessed something, if you eventually find that it is gone, does that always mean you lost it? What if you used it up, like soap or wine?  Is consumption a kind of loss or is that entirely different?  What if you intentionally let it go? What if what you once had has turned into something else, the yarn now a sweater, the kitten a cat, the child a college-bound young woman who keeps talking about how this is her “last summer” at home?  But I digress.

There is really only one way to establish a stable personal relationship with something so that it can never be lost, and that is to never acquire it in the first place. Sometimes that relationship can be surprisingly satisfying.  My best personal example of this is a lime sherbert donkey. (“Sherbert,” which my lap top’s spell check does not recognize, is, or was, the Midwestern version of what I would now call “sorbet.”  Possibly it was never spelled that way, but in my mind that is how it appears.) When I was about six, my parents went to a Democratic Party fundraising dinner, and the next morning my mother described the dessert – lime sherbert molded into the shape of the Party’s symbol, a donkey. “Oh,” she said, “I wanted to bring it home to you so much.  I thought, ‘Jessie would love this’, but I couldn’t because it would have melted in my purse.” To this day, over fifty years later, I can recall that dessert–its color, its adorable animal shape, its cold deliciousness in my mouth, the exact combination of tart lime and sugary sweetness–more vividly than any dessert I have actually eaten.

I wrote most of this essay on a Greek Island surrounded by what seemed to me almost absurd abundance. The morning sun would heat up the gardens surrounding the house where we were staying and start up a percussive Cicada chorus, shockingly loud for sound made by creatures you almost never see; there must have been millions jingling away out there. In the afternoons we slept as if drugged, and woke to a sharp breeze cooling the valley, tearing at the thatch over my writing table on the terrace, which sat beside an enormous fig tree, its bulky trunk like an elephant’s foot, its laden branches reaching up to the roof above me and down to the ground on the opposite side. Once a woman came by and explained to me that figs were so ubiquitous on the island they were considered free for the taking, no matter where they grew. Walking to the car, I would grab the purple grapes that hung over the path, still heated from the sun, and shove them in my mouth where they tasted between fruit and wine.

In such a world, loss seemed like the farthest thing from anyone’s mind, but of course Greece is full of stories of things that have been lost. Most recently and systemically, many Greeks lost jobs and pensions after the 2008 economic crisis. Unemployment is still high — 20% overall and a whopping 43% for young people, meaning that young Greeks face the prospect of leaving their country in order to make a living. People who do have jobs often have lower wages. There’s no question that the increased need for tourist dollars is what made it affordable for us to be there this summer eating those grapes.

Sometimes things that are lost can be regained.  Earlier this year after 27 years of fighting over the name “Macedonia” the Greeks got it back. The Balkan Republic of Macedonia finally agreed to become the “Republic of Northern Macedonia,” and “Macedonia” will henceforth refer exclusively to a region in Northern Greece. Exclusive possession of a name might not seem particularly important, but apparently in this case it was a really big deal. It has something to do with the fact that Macedonia is the birthplace of Alexander the Great, perhaps the figure most identified with connecting ancient Greek culture and modern Greece. But simple historical facts cannot entirely explain the depth of feeling.  Earlier this year, 140,000 Greeks staged a “Macedonia is Greece” rally at the parliament building in Athens, chanting that the name “is in our soul.”

At the new Acropolis Museum in Athens, another deeply felt loss is on display. There, in a glass room with a clear view of the Parthenon, the temple’s marble frieze has been reconstructed interspersing warmly golden original panels with white plaster copies of the panels that were removed and taken to England in the nineteenth century. As a museum archeologist explains, the contrast between the beautiful old stone and the plaster is intentional: “Everyone understands at once what is missing.”  Indeed, this may be the first museum built to exhibit loss.

Greece has been protesting the Parthenon sculptures’ removal and demanding their return for nearly 200 years. The missing marbles are on display in London, in the British Museum, where a pamphlet does its best to transform the Greeks’ loss into the world’s gain. Exhibiting the sculptures in two different contexts is said to be an opportunity for “different and complementary stories to be told” about the Parthenon’s “significance for world culture.” The marbles are the “universal legacy” of a “shared heritage that “transcend[s] cultural boundaries,” a claim that might be more convincing were Britain not currently engaged in its bitter nationalist “Brexit” from the European Union.

The Greeks don’t really dispute that in some way the Parthenon sculptures belong to the world: “They don’t belong to the British, they don’t belong to us. They belong to history,” declares the director of the Acropolis Museum.  But they still want them back.  And no wonder.  Besides the sheer aesthetic pleasure of seeing the frieze complete, there just seems to be something about possession that generates a perception, a visceral sensation, a kind of seeing-is-believing feeling of rightful ownership. In fact, if there is anything legitimate about the British Museum’s claim to the sculptures, it’s not because the guy who took them and sold them to the museum may have been trying to preserve them.  And it is certainly not because the museum’s collection of far fetched antiquities “allows the world’s public to re-examine cultural identities and explore the connections between them.” I love the British Museum, but please! If anything feels right about seeing the marbles there, it’s just because the museum has managed to hang onto them so openly for so long.

Somehow seeing something in someone’s possession for a long time just makes it appear to belong to them, assuming, of course that it is of the sort of possession or occupation one is disposed to recognize, not, for instance, a purse on a chair in a pub jammed with standing World Cup fans. And if the thing in question was taken from someone else, it’s unlikely that person will ever see the taker’s claim of ownership as legitimate. If anything, seeing another’s open possession just feeds the rage and grief over the object’s loss. But ordinarily the rest of us can’t see that loss; we don’t see absence. That’s what makes the Acropolis Museum display so brilliant. By making the missing marbles’ absence visible, it makes a kind of property of loss.

 

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Everything Changes

Book the Second, Chapter the Twenty-Fifth. Of Property in Things Personal.

The property in this chapter is always escaping. The objects of our desire are captured and subdued but recover their original wild nature and are lost, pursued, recaptured and lost again. It’s about possession – but who is possessed, and by what, or by whom?

The story starts out quietly enough, describing personal property in inanimate objects with the first of many lists: “goods, plate, money, jewels, implements of war, garments, and the like.” II, 289 (Although, notice that oddly foreboding “implements of war” tossed into the otherwise quotidian still life.) Things start to get interesting with property in animals, which “have in themselves a principle and power of motion.” Id. Again, there’s initial calm: “horses, kine [cows], sheep, poultry,” II, 390 but you can feel the tension building as captivity becomes more obvious and less stable: “deer in a park, hares or rabbets in an enclosed warren, doves in a dove house, pheasants or partridges in a mew, fish in a private pond.. . .” II, 392 Then, a cascade of increasingly precarious and vexed connections – “my tame hawk that is pursuing his quarry in my presence. . . . my pigeons that are flying at a distance from their home,” Id. “the deer that is chased out of my park or forest and is instantly pursued by the keeper or forester,” “a swarm, which flie from and out of my hive, . . . so long as I can keep them in sight and have power to pursue them.” II, 393 Everywhere, abandoned owners stumble after galloping, flying, evanescing property.

“Once there was a little bunny who wanted to run away./ So he said to his mother, ‘I am running away.’” Margaret Wise Brown, The Runaway Bunny

Ownership of these wild things, the wonderfully alliterative ferae naturae, lasts only as long as you control them, or at least have some imminent prospect of regaining control. So, hawks, swans, deer, foxes, bees are free (meaning free for the taking, not endowed with any autonomy that law protects) until they are captured, or “tamed and confined by the art and industry of man.” II, 392  And it’s not just animals.  This kind of “qualified” property “may subsist in the very elements of light, or air, and of water” on account of their “vague and fugitive nature.” II, 395  No particularly commanding force is required. It’s all relative, and all about the object’s capacity to slip from its owner’s control.  Animals can be owned without the aid of traps, leashes or cages “on account of their own inability.” II, 394  So, when “coneys or other creatures make their nests or burrows in my land, and have young ones there, I have a qualified property in those young ones, till such time as they can fly, or run away, and then my property expires.” Id.

“’If you run away,’ said his mother, “I will run after you.”

It’s often said that the U.S. Constitution’s fugitive slave clause denied slaves legal personhood and relegated them to the status of property.  But reading Blackstone makes clear that the text goes even further.  By declaring that property in human beings would not be subject to the fluctuations long understood to affect ownership of non-human animals, the American founders created a new category of super (or sub) property. Actual possession is no longer necessary or even relevant.  A deer that escapes my park is no longer mine, but a slave is a slave is a slave.

Notice that the new acontextual property in human beings has a modern, rational feel to it. It seems factual.  Things are what they are.  Animal, vegetable, mineral. In comparison, the malleable common law has a fairy tale quality, with its shape-shifting changes from property to natural resource and back to property again. Dred Scott v. Sandford, the infamous nineteenth-century case holding that a slave taken to a free state was still a slave and denying citizenship to all African Americans, is on everybody’s list of all-time U.S. Supreme Court fails.  But when I teach the case in my property class, my students often struggle to find the opinion’s flaws.  In fact there are many mistakes of history and logic, to say nothing of politics and justice, but they are masked with a great sense of consistency and stability. No more need to assess the meaning of uncomfortably complex and changing relationships of ownership, control and identity. No more border crossing. No more of this frog, prince, frog nonsense. Everything and everyone is going to be what they are and stay that way once and for all. Indeed a concurring justice in Dred Scott mocked as a “kind of magic” the idea that contextual shifts could change the “essential character” of property.

But notice also that the common law’s transformational approach to personal property aligns with what we now claim to recognize about the categorical identities—the properties– of race and gender, namely that they are social constructs subject to change, not unchanging universal facts. And maybe a familiarity with fairy tales goes along with that understanding.  I still remember when the daughter of a white friend of mine came home from school and told her mother about the day’s lesson on Rosa Parks. In response, my friend proudly recounted her own participation in a civil rights march in the 1960s. “Mommy,” exclaimed her excited kindergartner, “were you Black”?

In Blackstone’s common law account, the things one owns are not themselves “property.”  Instead, at least grammatically, property is something that permeates or inhabits certain objects under various circumstances and then disappears when the circumstances change. Think of it as a quality, or a spirit, perhaps, or, even more materially, as a substance – some kind of liquid or gas that occurs invisibly (although I sometimes imagine it imparting a kind of metallic shine or glow to the objects it invades). Sometimes property even seems to be a living thing, as when, explaining qualified ownership of wild animals, Blackstone refers to the “species of property” that “may subsist in such animals.” II, 391 The animal within the animal. The ghost in the machine.

This simultaneously material and contextual approach to property rights seems utterly alien to both our current way of thinking about law and our rational scientific understanding of the physical universe.  These days we assume the separation of these two worlds: on the one hand moral sentiments, legal rules and political relationships that constitute property rights and, on the other, the amoral reality of their biophysical background. It’s just too strange and silly to treat property as a mysterious spirit or substance, let alone a kind of creature, that slips in and out of objects and animals, binding them to us with its presence, and with its disappearance releasing them. Maybe I am unusually prone to this kind of thinking at the moment, because of all the changes going on around me. Don’t ghosts traditionally appear at the crossroads?  In my house we are betwixt and between a pair of transformations as my husband finishes grad school and our daughter, our only child, turns eighteen and prepares to leave for college, to be released, as it were, back into the wild.

In defense of my sanity, let me just point out that property law today is still very much in the business of enacting transformations, changing things from objects of ownership into legal subjects and back again, personifying and depersonifying.  In Blackstone’s day, “dogs, bears, cats, apes, parrots and singing birds” occupied a borderline status. As creatures kept “for pleasure, curiosity, or whim” whose value was “not intrinsic, but depending only on the caprice of the owner” they were not quite fully personal property. II, 393 Stealing a dog might be some kind of “an invasion of property,” but it could not be a crime. II, 392-393 Today dogs and other “companion animals” still occupy an unstable marginal status, but they have moved to the other end of the property-personhood spectrum.  In one case a dog might be treated as a thing that belongs to its human household and in another as a member of that household.  Judicial decisions about where the dog of a divorcing couple will live sometimes read more like custody arrangements than property allocations.

Nor is it only domestic animals that approach legal personhood.  Several years ago a group of whales sued Sea World through their “next friend,” the organization PETA (People for the Ethical Treatment of Animals). It was a Thirteenth Amendment claim. The whales alleged that by kidnapping and confining them, and forcing them to breed and labor for their human owners’ profit, Sea World had enslaved them. The federal judge dismissed the complaint on the ground that in the Thirteenth Amendment “the terms “slavery” and “involuntary servitude” refer only to persons.” Tilikum v. Sea World, 842 F. Supp. 2d 1259, 1263 (2012)  Whatever you think of the judge’s ultimate ruling, it is certainly ironic to find a federal court assuming without argument that for purposes of the Thirteenth Amendment, the categories of legal personhood and humanity are coincident. After all, the constitutional text it amended and the institution it outlawed were based on a similar assumption regarding whiteness. Why is the twenty-first century assumption that only human beings can be constitutional persons any more unassailable than the nineteenth century conclusion that only white human beings can be constitutional persons?  Especially once you recall that legal personhood extends to corporations, which enjoy some constitutional rights.

If anything, the whale case makes glaringly obvious that we reach for biological facts to define legal rights only when we choose to, and there is no reason at all to assume the coincidence of rights and any given physical realities.  At the same time, crossing up legal rules and physical realities is a ubiquitous, if only half-conscious, legal practice. Law leans heavily on physical metaphors to enact and explain its rulings. We speak of judges being constrained, “bound,” to rule as they do.  Judges “weigh” interests and “balance” specified  circumstances, and when they make policy choices it is only to fill “gaps” in a preexisting “body” of law.  There are plenty of other discourses and institutions that harness (see, there’s one right there!) physical metaphors to carry out persuasive projects. But as I talk with my students and colleagues it often strikes me that we sound as if we are talking about some mechanical or other sort of physical system that can set things in motion or stop them with words alone.  At the same time, these discussions rarely mention actual physical coercion by real embodied humans, the police and soldiers who enforce legal rules and judicial decisions. It’s a discourse that denies its materiality at the same time that it is defined by it.

Critics occasionally note law’s substitution of metaphor for violent reality.  “Metaphors in law are to be narrowly watched,” Benjamin Cardozo warned. Berkey v. Third Ave. Railway Co.., 244 NY 84, 94 (1926) But the grammar of physical capacity is so pervasive and familiar that it generally does not even strike us as metaphorical: a binding contract, a broken law, a statutory constraint. Consider Blackstone’s bland assertion that inanimate objects of personal property cannot “be moved out of the owner’s possession without his own act or consent.” II, 389.  It’s as if property law is a force that immobilizes things and makes them stick to their designated owner (imagine a kind of magnetism or chemical bonding), so that they literally can’t be moved unless the owner does something, or, perhaps, in the ‘consent’ case, says something that, like a magic spell, undoes the attachment.

Blackstone himself seems to recognize the odd materiality of his description, because he immediately backtracks, explaining that he means that the objects can’t be taken from their owner “without doing him an injury, which it is the business of the law to prevent or remedy.”  II, 389  Of course, you could read that qualification as a further physical description of ownership as a kind of adhesion, so that tearing an object away from its rightful owner takes some of the owner’s flesh with it – a kind of band-aid theory of property.  Probably, though, you read it to mean that violations of legal property rights can be understood as the legal correlative of physical harms, another physical metaphor.

Now here’s where things get really strange. Blackstone’s use of “injury” in this sentence is not a metaphor at all. “Injury” originally means the harm of legal violation or injustice. You can see this in the morphology of the word, which contains the root “jur” as in jurist, jurisprudence, jury. In this case, the metaphorical arrow is reversed.  “Injury” is a metaphor when we use it to express a purely physical, nonlegal harm, a broken arm or a stubbed toe. So it turns out that the confusion of physical realities and legal rules does not just complicate and constitute our understanding of law.  Our observations of the physical universe are shaped in part by our application of legal concepts to what we observe. Indeed, the term “law” itself is routinely used metaphorically to describe observed physical regularities, as in the second “law” of thermodynamics.  The “laws” of nature are not an empirical fact that we found in a world completely untouched by social structures.  The idea that observed regularities are somehow prescribed or necessary comes not from observation but from legal culture. All the world’s materiality is already pervaded by law.

Goods, plate, money, jewels, implements of war, garments. . . . fire, light, air, and water, as long as they are in actual use and occupation, but no longer. . . . hawks that are fed and commanded by their owner. . . . baby hawks, herons, coneys or other creatures who make their nests or burrows in my land, till such time as they can fly or run away. The common law of personal property seeps in and out of the world’s common objects, materials and creatures. In the process, the familiar comes to seem strange and is reshaped, made familiar again from a different perspective. Categories shift, disappear, are transformed and reappear. Through it all there is a kind of conservation, as if, just as nothing is ever guaranteed to stay the same, nothing is ever irretrievably lost.

Recently I was visiting a friend in another city, and she gave me a key to her apartment so I could come and go as I liked. Holding it, I was struck by how atavistic the thing was – this hunk of worn metal warming in my hand. It’s not just that for years we’ve been opening hotel and office doors with a magnetic tap or swipe.  It’s the nature of the thing itself: how heavy for such a small object, how rigid, thick and shiny. The key seems like a relic of an earlier age it shared with subway tokens and the glass bottles that used to hold everything from shampoo to Coca Cola. Yet there must be millions upon millions of keys currently in the pockets and backpacks and purses of people all around the globe.  How strange that something could be so ubiquitous and at the same time so plainly marked for extinction, as if it already belonged to the past.

“’If you run after me,’ said the little bunny, /‘I will become a fish in a trout stream and I will swim away from  you.’/ ‘If you become a fish in a trout stream,’ said his mother,/ ‘I will become a fisherman and I will fish for you’.”

A Moveable Feast

Book the Second.  Chapter the twenty fourth.  Of Things Personal.

Property is comedy in the Commentaries: it always ends well.  But along the way there are problems and sometimes sadness and even terror, and beneath it all a constant reckoning with mortality.  This chapter is the hinge between Blackstone’s accounts of real and personal property. Real property is based in things that, as Blackstone puts it, are “imagined to be lasting.” II, 384. In contrast, personal property is a will o’ the wisp, comprising “all sorts of things moveable, which may attend a man’s person wherever he goes.” Id. Permanence and immobility, then, are the crucial qualities that make things real, and the kicker is that in this scheme land and houses are more resourceful, more trustworthy, more real than the people who own them.

Some of that invested reality rubs off. The OED eventually gets around to defining “estate” as “a landed property” and noting that this is the most common meaning of the word today, but before that there are twelve other definitions all of which involve a “condition of existence,” rank, social status, standing or occupation. Once upon a time “real estate” meant a person’s condition and standing in the world.  The real deal.  Objects of personal property, on the other hand, “being also of a perishable quality” (like their owners), “are not esteemed of so high a nature, nor paid so much regard to by the law.”  II, 384. In between real estate and things personal, the person herself appears, the legal subject, framed in relation to her property.

Cultural analyses of property law today tend to focus on the dichotomy of personhood and property, and the mediating work these mutually defining concepts do.  Persons are legal subjects who have rights and standing to enforce those rights, including rights to own property, which is therefore by definition a class of rightless objects. Moving something or someone in or out of one of these categories has consequences. Classifying slaves as property, to name the historically most infamous and consequential example, transformed the self-evident truth of their humanity into their captors’ “unalienable rights” to rape and kill them. Sometimes the person/property distinction blurs.  These days non-human animals are crossing and complicating that boundary, so that a judge’s decision about the fate of a divorcing couple’s dog might involve some consideration of the animal’s best interests.  Generally, however, in this dichotomous scheme it is incoherent to speak of the objects of property as having rights; property is generated and controlled by its personified owners.

The scheme Blackstone is working with here looks different. People are in the middle, not on the top.  It’s a spectrum that moves from “things that are in their nature more permanent and immoveable” through the here-today-gone-tomorrow owners of those interests, to the even more ephemeral “things moveable.” II, 384. At one end, real estate is the literal horizon against which you appear and are measured; at the other, personal property comes and goes–as do you. Looking at this picture, which goes back to medieval times, you might see a rather desperate attempt to split the human condition in two.  Our embodied vulnerability is extracted and shoved into all the stuff we walk around with and the social transcendence of individual mortality is projected onto a topographical and architectural world to which we lay claim.

Looking out my window in twenty-first century Pittsburgh, the houses with their shingled roofs and vinyl siding appear at best weakly permanent, too fragile to “answer to posterity the trouble and pains that their ancestors employed about them.”  II, 384. But I’m thinking that “owning your own home” is still a sign of stable character, and transience a sign of vulnerability and subversion:  Renters.  Drifters.  Homeless people. Immigrants.  Papa was a rolling stone.  And I’m thinking how hard it is to know whether what you see is anything like what is really there.

“’When it hit’, he said of the first plane, ‘the first thing you saw was this big crystal burst; before you saw any smoke, before you saw any flame, the sky was just filled with crystal glass’.”

As it happened, when the planes hit I was underground. In fact, the C Train that was carrying me from Brooklyn to my office in downtown Manhattan ran through the World Trade Center station and stopped there shortly after the attack. I know this because when I emerged from the subway two stops uptown there was a small knot of people on the corner of Spring Street and Sixth Avenue, looking up, and joining them I saw smoke billowing from the towers. Later, watching television in the office kitchen I saw the first tower fall. I remember the development director gasping and crying out. This must have been only about a half hour after I arrived, because the South Tower collapsed around 10 am, and the second tower came down half an hour later. Even knowing this, however, I still “remember” watching the towers burn for what seems like hours.

I had never seen or heard anything about that initial crystal burst until a few days ago when I read the above quote in the obituary of Jack Whitten, a painter who apparently watched the whole thing unfold from his studio on Lispenard Street. It sent me back to videos, including one that purports to be the only existing footage of the first plane hitting the North Tower. I didn’t see the crystal burst, but I did see a small glittering shower of something fall from the building pretty much on impact. In another video, when the second tower is hit you can see an even larger spread, maybe something like a burst, of what looks like rectangular pieces of something shiny.  These are identified as “aluminum cladding” in a third video entitled “CNN lied about 9/11: Believe Your Own Eyes,” whose main thesis is that the towers were destroyed by bombs and all the reports and videos of planes are either mistaken or deliberate lies. I remain unconvinced by this argument, but still I choose to believe the video’s explanation of the shiny showers as the buildings shedding their metallic surface.  So is this the crystal burst Whitten saw?  Probably. Maybe.  In any case, the obit provides a hint about why he would have focused on this relatively unremarked aspect of the spectacle. I had never seen Jack Whitten’s work before, but in the obit there are several photos of large abstract paintings that have a kind of mosaic surface made of, yes, shiny rectangles.

It seems that to see something, we have to know how to see it. And knowing how to see something seems to involve having a name for it, or at least a category for it to belong to. The stuff you are looking at may be real but the categories tend to be personal. If you make images that break the world up into shiny bits and put them back together, when the world turns upside down you are poised to see a burst of shiny bits when everybody else just sees smoke.  This of course troubles the relationship between the real and the personal in ways that have nothing to do with property rights, because it suggests that we never have access to a shared objectively real world, but are each stuck with our personal, moveable views of reality.

And it comes up in so many, many ways these days. There’s the whole “fake news” trope and the ubiquitous ideological correlations with opposing views of urgent highly consequential phenomena like climate change.  And there is the way we, most of us, fail to see the obviously, brutally real things that are right in front of us. The stories of the gymnasts sexually abused by the team doctor with the girls’ parents in the room.  It seems unbelievable, but then you think, how long have I been watching those girls on television, their bodies contorted into fantastic bends, or prancing across the mat, toes pointed, ponytails swinging, eyes focused and mascaraed? Haven’t I been watching a kind of extreme objectification, if not abuse, all this time? Plucked from the identifying context of houses, schools, churches, streets the leotarded girls on the screen edge closer to becoming “moveables” themselves, shift along the continuum from legal subjects toward perishable objects with which other subjects are outfitted and accompanied, used to enhance all of the rest of our personhood.

What’s incredible, really, is how quickly that line between personhood and personal property gets crossed, and how confusing it is when things travel back and forth across it.  The other night at dinner my husband Doug turned to our teenage daughter and said, “tell me one thing that happened at school today that was not awesome.”  “Well,” she said, “our fish died.” The fish was in the school music room, which is filled with all kinds of “things personal,” not only trombones and tambourines, but coffee makers, slinkies and light sabers, and now, apparently, a fish tank. “And the really sad thing,” my daughter continued, “is that he was really stressed before he died.”  “Oh,” I said, “that is sad,” and before I could stop myself, my eyes started to fill, and I started crying.  Now, I am known in my family as a crybaby – I’ve cried at TV commercials — but a stressed guppy is a low threshold even for me. Still I couldn’t stop thinking about that poor little fish, so worried and helpless at the end of his short life. To their credit, my husband and daughter didn’t immediately burst out laughing. For a moment we all just sat there, the two of them watching as I struggled to pull myself out of my empathic interspecies tailspin. Then my daughter sighed and put down her fork. “We’re eating fish,” she observed.

Maybe the problematic epistemology of things real and personal does have something to do with the project of property rights.  The title of the volume in which this first chapter on personal property appears, is “Of the Rights of Things.”  It is usual to explain, as I think did in my first post on this volume, that Blackstone doesn’t mean that inanimate things have rights, but rather that the book is about people’s rights to own things, aka property rights.  But it turns out that this is only half true. There’s nothing here about rights for robots or the idea of endowing rivers and trees with rights to prevent their destruction (both of which are live legal questions today).  But the idea that “rights of things” only means people’s rights to things misses an important point. In the scheme Blackstone is expounding things are a source of rights for the people who own them. In the common law imagining, rights are mined, brought up out of our surroundings like gold or lead or oxygen.  So, yes, of course people create property and control it, but at the same time, the immobility and permanence of the land and buildings from which real property rights are imagined to flow, cascade, burst forth, gives those rights a power and stamina that their creators lack, sharing as we all do, the “precarious duration of things personal.” II, 388.

A piece of a book blew onto the roof of our mudroom in Brooklyn that day. The wind was blowing in our direction across the river, and our whole neighborhood was blanketed by the dust from those enormous clouds you can see in the videos, and other random detritus, mostly paper. In 2001 we were living in two rented floors of a townhouse owned by the kindest of old school landlords and still paying the same monthly rent that I had beaten him down to when I moved in in 1987. I used to beg him to raise it.  Not to market value, which was way more than we could have paid, but by a few hundred bucks at least.  “This isn’t fair, Larry,” I would say, and he would say, “I don’t know, I don’t want to lose good tenants,” and I would say, “Larry, I’m telling you, you are not going to lose us!” us will o’ the wisps, vagrants, renters. The real and the personal. Larry loved me.  He never said so, but I knew it, and I felt guilty about taking advantage of his affection by paying him sub-market rent and keeping my ground and parlor floors while he struggled up the stairs, but not guilty enough to let go of a deal like that in gentrifying Brooklyn.

So on September 11 we had a mud room with a roof that was accessible from an upstairs window, and the next day we climbed out and picked up this piece of a broken book that landed there.  It was somebody’s personal property – or had been, until it was, what, “lost”?   “Abandoned”?  “Mislaid”?  Those are all property law terms of art with different consequences for ownership, and I’m sure Blackstone will get around to addressing them in the chapters to come.  What is the legal status of a book blown from a carryon or office cubby or possibly from the hands of its reader similarly blown into the sky and back down to earth in pieces who knows where? But this is beginning to sound a bit romantic, and property is a comedy, remember, which can never end with loss. And there is something ironic, if not actually funny, about the reversal of fortunes here – the fiery destruction of those enormous, steel girded, concrete-and-metal-clad marvels of modern real estate and the concomitant survival of those flimsy personal pages. So much for immobility and permanence—it crumbled to dust, while this trifling “transient commodity” endured. II, 384. It isn’t even a particularly good book!  Like I said, a comedy.

 

What Could That Be For?

Book the Second.  Chapter the Twenty-Third: Of Alienation by Devise

The push for coherence is irresistible, necessary for understanding, and doomed to produce illusory meanings.  Here’s a quote from the visionary doctor-anthropologist Paul Farmer that kind of sums it up: “We’re asked to have tidy biographies that are coherent. . . . But the fact is, a perfectly discrepant version has the same ending.”  Nowhere is this more true than in law.  Whatever reasons judges may give for deciding a case one way, the outcome is the same. Yet in our common law culture, the legal skill non pareil is an ability to take a tangle of judicial decisions and disparate legal theories and string them into a coherent story that ends in the outcome your client desires.

The Commentaries is a kind of legal super-narrative, one that Blackstone’s genius contemporary, Jeremy Bentham, attacked as a legal fairy tale.  Bentham charged that Blackstone obscured everything corrupt and irrational about the English legal system in order to find “in the whole and every part of it, the very quintessence of perfection.” Fragment on Government. The narrative technique that set Bentham off is on display in this chapter, where Blackstone recounts the history leading to the English adoption of wills for real estate. There is a pervasive feeling here of everything coming right at the end. For all the problems caused by allowing people to choose who gets their land after they die, it just so happens that, “this power, if prudently managed, has with us a peculiar propriety.” II, 374. Like the last piece in a carefully crafted plot puzzle, the power to divide up real estate in a will turns out to cure “the too great accumulation of property” that can result from another central feature of English property law, the “doctrine of succession by primogeniture.” Id. Thus, after many twists and turns and a few blind alleys, our hero – English common law – comes to maturity as a socially beneficial and morally justified set of rules and institutions.

Blackstone doesn’t hide his tendency to straighten and smooth the law he is describing.  In fact, he is surprisingly candid about his approach. At the end of this chapter, completing his survey of real property law, Blackstone straight up declares his narrative intervention. The Commentaries’ orderly scheme is not a transparent view, or even a representative selection, of the mass of judicial decisions that “have been heaped one upon another for a course of seven centuries without an order or method” and further complicated by a “multiplicity” of statutes. II, 382-83. Instead, Blackstone has chosen the parts of the law “where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed.” II, 383. He is giving us a greatly simplified and idealized account.

One thing Blackstone doesn’t try to do, however, is justify every aspect of his narrative in moral terms. He doesn’t make the mistake of insisting that his story’s actors all produce effects that line up perfectly with their roles as heroes or villains. Nor does he pretend to have a neutral, non-judgmental view of his characters and their actions.

Blackstone has absolutely no problem with the idea that sometimes very bad motives produce very good results. His account of how English law came to allow people to pass on land in their wills both reveals his own mean streak of anti-Catholic bigotry and gives credit to the “popish clergy” who sat on the chancery bench. II, 375.  It was in those judges’ self-interest, Blackstone speculates, to expand landowners’ ability to give away their property after death, because “men are most liberal when they can enjoy their possessions no longer,” and many would likely choose to give their property to “those who, according to the superstition of the times, could intercede for their happiness in another world.” Id.  So, in Blackstone’s legal history, the corrupt motives of a group he despises contribute to a result he regards as generally excellent.

We are not always so ready to accept stories that defy the moral alignment of character and action. There’s a New Yorker piece about Paul Farmer’s great project, Partners in Health, which brings medical care to people in impoverished regions. In the article, Farmer suggests that his co-founder, Ophelia Dahl, is so determined to help the people they serve because of her extraordinary empathic suffering – she is “physically anguished” by their pain – and that drives her to do whatever is necessary to make effective change.  I doubt it.  In fact, it has been my experience that acute empathic suffering generally drives people away from the things that cause that pain. And I don’t actually think visceral sensitivity to other people’s pain is all that rare, I think it’s part of what makes most of us avoid and deny others’ suffering. So my guess is that Dahl’s persistent focus and intervention comes from some other quality.  Some fortitude.

This isn’t really about Farmer or Dahl, or the work they do, which saves and greatly improves the lives of many, many individuals upon whose complex and unique personhood they admirably and morally insist. It’s about the tendency to push things into familiar patterns, whose familiarity we may not even recognize. It just struck me as remarkable that someone like Farmer, who pushes back against the desire for “easy biographies,” still seems to be following a timeworn pattern when he identifies Dahl’s ability to suffer as her most salient personality trait. And he picks that characteristic out in a person whose life and work reflects remarkable efficacy. I doubt I would have noticed, and it certainly wouldn’t have mattered, if I hadn’t been seeing this particular pattern unfold again and again in a different context.

There has been a focus lately on women’s suffering amidst strength in the outpouring of reports of sexual harassment. As Jennifer Egan points out, suffering has long been regarded as a sign of female virtue, and a way to make female power acceptable. In times gone by, women sometimes gained social efficacy as religious visionaries who mortified their own bodies or were martyred. Today our culture ostensibly seeks to eliminate women’s suffering, but “in subtle ways it endorses the equation of suffering with female power.” I observe this not so much in women’s original accounts of harassment and assault, but in the retelling. The recurring image is of a woman – usually a young woman — shocked, traumatized, violated – always distraught and often permanently damaged. It’s as if we cannot look at the perpetrator’s behavior and just judge it for what it appears to be, as if the woman reporting the conduct has no right or reason to complain if she has not been in some way undone by it. Even women who stand up to the harassment at the time it happens are rendered as fragile and broken. A front-page New York Times story describes an encounter between a young woman lobbyist and a state legislator. When he tells her she can have his vote in exchange for sex and kisses her on the lips, she pushes him away. But now watch how the reporters can’t resist ending this twenty-first century confrontation with this oddly Victorian image: “Only after he was gone did she let the tears flow.” Yuck.

Pretty obviously, sexual harassment law has not been a slamming success at stopping this crap from happening, even in the workplaces it ostensibly covers. But here is one thing the legal doctrine of sexual harassment gets right: you don’t need to be devastated to make a valid claim. To sue someone for sexual harassment you don’t have to claim that their treatment has broken you, sent you into therapy, triggered an eating disorder, given you nightmares, or even particularly surprised you. You just need to show that any reasonable person would have found it hostile and abusive and you did too. The standard for liability focuses on the behavior of the accused harasser, and so avoids a display of female vulnerability and violation.

This refusal to demand a sacrificial victim is explicit.  When sexual harassment was first developed as a legal concept, courts split on how to approach proof that a defendant’s behavior was sufficiently bad to be illegal.  Some judges held that plaintiffs had to prove that they had been seriously harmed psychologically. But then the Supreme Court said no. To bring a successful sexual harassment claim, a woman need not show that she was a doll dashed on the rocks of her abuser’s treatment.  As Justice Sandra Day O’Connor put it, the law of sexual harassment “comes into play before the harassing conduct leads to a nervous breakdown.” Harris v. Forklift 370. If the conduct makes your work place hostile and abusive, it’s illegal: “there is no need for it also to be psychologically injurious.” Id. In fact, the law requires a certain emotional toughness – because a plaintiff’s reaction to the harassment, her sense of its hostility and abusiveness, has to be shared at least hypothetically by other “reasonable” people, not a product of the plaintiff’s extraordinary vulnerability. This bracingly feminist approach is no accident. The legal theory of sexual harassment was conceived, and briefed repeatedly for the Court, by Catherine MacKinnon, one of the most rigorous, radical and generally badass feminist legal thinkers of our time.

Imagine how actualizing this view of sexual harassment might reconstruct the world. We would shift our attention from watching how individual women react to the way men “treat” them (and am I the last person on earth to notice just how bizarre that word is in this context?) to considering whether men’s behavior individually and collectively produces an environment that a reasonable person would experience as pervasively hostile, whether women are derailed by it or able to shake it off and move on.  It could fundamentally change how we understand men and women’s social interactions.

I had a great acting teacher who used to shout “what could that be for?” at the moment in the scene when you did something that seemed obviously wrong: clumsy or incongruous or suffused with some apparently inappropriate emotion. Her point was that what felt wrong might just be different than what you expected to find, not a mistake but a portal to a more illuminating performance. So rather than trying to ignore or cover up these embarrassing incongruities, you should investigate them, adopting an attitude of optimistic curiosity, and trying to see what they might reveal. In the New Yorker article Ophelia Dahl remarks on her own unfailing optimism, observing that “to not be optimistic is just about the most privileged thing you can be,” because then “you are basically deciding that there’s no hope for a whole group of people who can’t afford to think that way.” One of the things I love about Blackstone is his optimistic tendency to see potential social good in every dark, compromised legal corner. It is certainly possible to read the Commentaries as a falsely prettified account of an irrational and oppressive legal system that perpetuates inequality and subordination. In fact, that is definitely what the Commentaries is. It’s just that it might also be an optimistic rendering of a legal system whose rehabilitative potential we can’t do without. There are some awfully dark places in U.S. law and politics today, and I’m not fool enough to think it can’t get worse. But these dark places might also produce some liberating changes in patterns that we never expected to see.

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.

 

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.

 

 

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.