Mothers of Redemption

Book the Second, Chapter 31: Of Title by Bankruptcy

This chapter is about how law makes bad things good. Bankruptcy turns bad behavior into personal renewal; unpaid debts become a way to make good on the social promise of security. Law is full of these perverse transmutations – perhaps symbolized in the way Justice’s blindfold makes a virtue of disability. But alchemizing redemption from transgression turns out to be a tricky business. There’s persistent conflict between creditors’ rightful expectations and borrowers’ relief, and doubts about a debtor’s character cloud the opportunity to become “a clear man again.” II, 484  Only individuals of “honest and ingenuous disposition” are entitled to escape their obligations through bankruptcy. Id.  In Blackstone’s England, separating these deserving folks from ones whose financial problems come from “misconduct and extravagance” seems to have hardened the borders of a rigid class hierarchy. In the U.S. today it deepens the tectonic rift of race. 

Blackstone’s tale of transformative improvement begins with the law itself.  He describes the historical swing of bankruptcy from ancient Rome’s “terrible law” (debtors were chopped to pieces), to the too-lenient system “introduced by the Christian emperors,” to the current English  statutes that “more wisely, have steered in the middle between both extremes. ” II, 473 The moderate English system confers protection “not only on the creditors, but also on the bankrupt or debtor himself.” II, 472 Thus the law achieves a delicate balance “calculated for the benefit of trade, and founded on the principles of humanity as well as justice,” II, 473, a compromise position much approved by Blackstone who, after all, self-identified as a “Man of Moderation.”

This Goldilocks version of bankruptcy is the sort of thing that drove Blackstone’s great contemporary critic, Jeremy Bentham, crazy. Bentham trashed Blackstone’s “everything is as it should be” approach to law as a fairy tale spun to fool credulous English citizens into believing in an irrational legal system that utterly failed to deliver justice. Like Bentham, I’m put off by the Commentaries’ moderate approval of the moderate common law, but I doubt my distaste has much to do with justice. Blackstone’s moderation reminds me of my mother. 

Like Blackstone, my mother was nothing if not moderate, and tended to accent the positive.  When I was young, her self-containment, and her great, but always properly modulated, enjoyment of small things – a perfectly ordinary piece of crusty bread, the thin lip of a good coffee cup – used to infuriate me. Even when, near the end of her life, dementia unleashed her pleasures from conventional limits, they never became intense or volatile, but simply spread – calmly – across the entire world. “Oh, look at that beautiful red,” she’d say, pointing to a traffic light. Bentham saw Blackstone’s moderate, optimistic view of law as a lie, a way to cover up law’s conflicts and biases, or a foolhardy failure to recognize them. But over the course of the last decade or so, I’ve come to think that Bentham missed the moral ambiguity of Blackstone’s work, just as I took my mother’s calm for shallowness and missed the conflict beneath her smooth surface. And I almost think that working my way through Blackstone’s thoughts has helped recalibrate my judgment of my mother. I even wonder if I began reading – or kept reading — these off-putting books because something in them reminded me of the mild maternal opacity that so frustrated me. And you know those traffic lights really are a beautiful color.

Blackstone’s placid approval of English bankruptcy law gets troubled as he struggles to justify who is eligible for debt relief.  In the system he describes, bankruptcy is reserved for tradespeople – merchants of one kind or another. The mercantile economy is based on “mutual credit on both sides,” so debts are “not only justifiable, but necessary.” II, 474 Because a trader depends on credit, he is exposed to “accidental calamities,” a ship that goes down in a storm, or, more prosaically, another merchant or customer’s failure to pay. Bankruptcy is compromise that gives back something to the people owed without utterly destroying the tradesman whose inability to pay up comes “through misfortune and not his fault.”  Id.

Blackstone stresses that bankruptcy is only for “actual traders.” II, 473 Just because you buy on credit doesn’t mean you can resolve unpaid debts through the bankruptcy process. Farmers, for instance, don’t qualify, even though they have to buy seed and sell what they grow, because buying and selling is only instrumental to their real occupation, which is “to manure and till the ground, and make the best advantage of its produce.” II, 475  An innkeeper is likewise out of luck, “though he may buy corn and victuals to sell again at a profit,” because “that no more makes him a trader than a schoolmaster or other person is, that keeps a boarding house and makes considerable gains by buying and selling.” II, 476

Now, hang on, though, wait a minute. Why is it wrong, or undesirable, for someone who is not exclusively a “trader” to rely on credit?  Blackstone’s explanation that “trade is not their principal, but only a collateral, object” is really no explanation at all. II, 475 They probably do less buying and selling than full-time merchants, but so what?  Why should that justify excluding them from bankruptcy relief?  Don’t we want them to be able to buy in bulk at good marginal prices in quantities that they might be unable to afford without credit?  And if something goes amiss somewhere in this chain of credit, surely it is no more the innkeeper’s or farmer’s fault than the full-time tradesman’s. All this looks even stranger when you consider that in Blackstone’s day, bankruptcy wasn’t a process borrowers could initiate, but something done to them by creditors trying to get back some of what they were owed.  From the point of view of a wholesaler or shopkeeper who hasn’t been paid, it hardly matters whether the deadbeat is another merchant or a farmer. 

One possible explanation emerges when Blackstone almost offhandedly adds that letting farmers go bankrupt might allow them to avoid paying overdue rent, depriving landlords “of the security which the law has given them above all others.”  II, 475  In eighteenth-century England landowning was still the bedrock of social and political power.  Any law that disrupted landlords’ control of their tenant farmers threatened to destabilize the class hierarchy.

But keeping a gentle boot on a tenant’s neck can’t explain why bankruptcy was not available to the landed gentry themselves. And according to Blackstone, they are also to be excluded. In fact, Blackstone reserves his harshest words for members of the upper classes who deal on credit: “If a gentleman or one in a liberal profession, at the time of contracting his debts has a sufficient fund to pay them, the delay of payment is a species of dishonesty . . . .” II, 474 On the other hand if he incurs debts but “has no sufficient fund” with which to pay them off, “the dishonesty and injustice is the greater.” Id. A gentleman who gets into trouble borrowing “cannot . . . murmur if he suffers the punishment which he has voluntarily drawn upon himself.” Id.

Then again, maybe denying upper class people bankruptcy relief does serve to keep the familiar social hierarchy in place, not by benefiting wealthy individuals, but by preserving the apparent naturalness of existing class boundaries.  Perhaps some unlucky rich borrowers need to be sacrificed to keep doubt from creeping in about the inevitability and morality of a social structure based on class differences that are ostensibly stable and transparently real. 

There is an anxiety about authenticity here. Using credit to support an upper class lifestyle, and especially borrowing and then being unable to pay, casts doubt on the idea that the folks at the top really are different from the folks at the bottom.  A real gentleman has funds to support an extravagant lifestyle or, if he doesn’t, he accepts diminished economic circumstances as a badge of dignity. By declining to pretend that his income is higher than it actually is, he establishes that  social status does not depend on shifting external factors. Merchants who borrow are not pretending to be something they are not, they are simply doing what “actual traders” do. But professionals and gentlefolk who borrow to support their lifestyle undermine the integrity of the upper classes. They make it seem like performing a show of wealth is as good as being an actual gentleman, or, worse, that the performance is all there is to it.

You might think the old English law’s restrictions on eligibility and Blackstone’s anxious attempt to police those social boundaries distinguish the bankruptcy process he describes from the system we have in the U.S. today. But on closer view, there are some haunting similarities.

Unlike the system Blackstone describes, bankruptcy in the U.S. today is not formally restricted to any particular social group. But individual bankruptcy relief in the U.S. follows two quite different procedural tracks under two different statutes known as “Chapter 7” and “Chapter 13,” often with very different results.  Chapter 7, or “liquidation” bankruptcy is a relatively simple, fast-moving process in which debtors hand over their property (with some exemptions, e.g., an inexpensive car and retirement accounts). The property is sold, and the proceeds are distributed among the registered creditors. In practice, the process usually is made even simpler by the reality that most families who file under Chapter 7 have no significant assets to turn over. The result is that a few months after filing about 96% of Chapter 7 debtors emerge from bankruptcy with all their unpaid medical bills and unsecured consumer debt discharged. Pro Publica

In contrast, Chapter 13 bankruptcy enrolls petitioning borrowers in a three- to five-year court supervised payment regimen. I know little to nothing about bankruptcy law, but one thing that comes through clearly from people who do is that the difference between the Chapter 7 and Chapter 13 is stark. Bankruptcy is never going to be pleasant, but Chapter 13 is far more disruptive to people’s lives and requires much greater submission to public process.  As one bankruptcy judge explains, “Chapter 13 is no walk in the park. It requires public disclosure of every aspect of your life, examinations under oath by a trustee and creditors, allowing creditors to haul you into court on any objection, and relinquishment of control of your financial life for up to five years. If you falter, your case will be dismissed and you will lose the entire benefit of the bankruptcy law.” A pair of social scientists puts it more succinctly:  “Chapter 13 filing is substantially more costly, more time consuming, and less likely to discharge debts than a Chapter 7 filing.” (Morrison, Pang and Uettwiller at 270).

Here’s the main thing you need to know about Chapter 13 bankruptcy relief:  Most of the time it doesn’t work.  About two thirds of Chapter 13 filers never manage to complete the process. They wind up still saddled with the debt that drove them into bankruptcy in the first place. Id.

Theoretically anyone with an income higher than the state median must use Chapter 13. That rule is the result of legislative reforms in 2005 that were driven by an attempt to tighten what was seen as Chapter 7’s too easy-going process. As Senator Chuck Grassley declared at the time, Chapter 7 allowed “anyone to get free debt cancelation . . . with no questions asked, even if they have the means to pay off their debts.” (Cong. Rec., Lawless 356)  But, despite the new means test, perhaps because of exemptions for necessary expenses, bankruptcy filers under Chapter 7 and Chapter 13 are still mostly in the same general income bracket. There is, however, another salient difference. Black Americans who file for bankruptcy are much more likely to use Chapter 13 than Americans of other races. Around 55% of African American bankruptcy debtors file their cases under Chapter 13, compared with only about 27% of other filers.  ABI Commission on Consumer Bankruptcy Report at 159

On the face of it, African Americans’ overrepresentation in Chapter 13 makes no sense.  The legal factor forcing bankruptcy filers into Chapter 13 is higher income, and White Americans typically have higher incomes than Blacks ($76,057 v. $45,438 median annual household income in 2019).  Theoretically, Chapter 13 allows debtors to preserve valuable assets.  Again, though, that would seem to favor White debtors on average, because the disparity in assets between White and Black Americans is even greater than the income gap.  (Typical Black household wealth in 2019 was about one-eighth that of Whites.) 

So what is going on?  One possibility is that exactly because wealth is less common among African Americans they are willing to do more to hold onto hard earned assets, and choose Chapter 13 in order to do so.  But there’s no evidence to back up this speculative just-so story.  A recent empirical study of bankruptcy filings in Chicago offers a different explanation, finding that African Americans are more likely to need some specialized relief that Chapter 13 offers. Chapter 13 filers not only keep valuable property, they can force the return of some assets that have been seized, notably cars and driver licenses. The study authors conclude that, in the Chicago area, the racial disparity in Chapter 13 filers is due at least in part to the fact that “African Americans are more likely, on average, to experience debt enforcement actions, including seizure of a car or driver’s license,” and to live farther from their workplaces and so to have a greater need for a car and license in order to get to work. Morrison et al. 272

Some would attribute the higher rates of traffic and parking tickets among Black Americans to discriminatory law enforcement and explain longer commutes as the lingering effect of housing segregation due to the historic, and, in many cases lingering, exclusion of African Americans from many neighborhoods.  See Richard Rothstein.  Doubtless others would view the car study as confirming racial stereotypes, assuming that Blacks are more likely to commit traffic and parking offenses and to fall behind on car payments, in other words, to engage in the sort of selfish, irresponsible behavior that should not be exonerated by bankruptcy relief. Meanwhile, another study has turned up evidence that these sorts of stereotypical assumptions and discriminatory attitudes play a much more direct role in Chapter 13’s racial imbalance.

Three social scientists surveyed over 250 bankruptcy attorneys across the U.S., telling them, truthfully, that the researchers were studying “attorneys’ perspectives on bankruptcy and chapter choice.” Braucher, Cohen, Lawless.  What the lawyers were not told was that racial differences in chapter choice were the specific target. All the study participants received the same basic case file about a fictional couple with background facts that might reasonably lead a lawyer to recommend either Chapter 7 or Chapter 13.  But in some of the surveys the prospective clients were named Reggie and Latisha and went to Bethel AME church, while in others their names were Todd and Allison and they attended the First United Methodist Church.  (A control group couple was identified only by initials and said to attend “church.”)  The one other variation was that in some of the surveys the couple expressed a specific preference for either Chapter 7 or Chapter 13.

The racial differences in the survey results were stark.  Attorneys recommended Chapter 13 to Reggie and Latisha 47% of the time but only 32% of time for Todd and Allison. Braucher et al. 22.  In fact, the bias toward recommending Chapter 13 for African Americans was strong enough that, based on otherwise identical facts, the attorneys actually recommended chapter 13 to the African American clients who expressed a preference for chapter 7 at a rate slightly higher than the rate for Whites who came in preferring chapter 13!  There’s more.  The survey turned up striking differences in the attorneys’ attitudes about Black and White clients’ personal responsibility for their financial troubles. 

Attorney participants were asked to rate whether the couple seeking their advice had “good values.” When hypothetical African‐American clients or clients with no distinguishing racial information expressed a preference for Chapter 7, the attorneys tended to rate them as having worse values than a couple who expressed no preference or a preference for Chapter 13.  As the study authors note, “Presumably, the couple’s expressed preference for chapter 7 makes it more likely that attorneys will see them as illegitimately trying to escape paying off their debts.” But for White clients, the results were reversed.  Whites who preferred Chapter 7 were typically seen as having better values. Apparently, as the study authors observe, “a white couple expressing a preference for chapter 7 does not raise as much suspicion of the couple’s values,” as it does for nonwhite couples.

The idea that Black Americans’ motives and values are always suspect is tragically familiar.  It seems odd, though, that in Whites a preference for Chapter 7’s quick relief was perceived as indicating better values as against other White couples who chose the harder, longer Chapter 13 process, which would ultimately pay back more of what they owed. It’s as if Whiteness confers a positive entitlement to a “fresh start” that is not only deserved but somehow required for the good of others.  Braucher et al. 27 In this view, deserving (White) debtors who find themselves in financial trouble not only could, but should, take advantage of a legal method that will quickly free them from their obligations. Talk about making bad things good!

It strikes me that we may be seeing here the re-emergence of bankruptcy law as a device for shoring up shaky social boundaries. In eighteenth-century England, concerns for the resilience of a hereditary class structure show up in Blackstone’s worries about gentlemen acting like tradesmen, perhaps triggered by what historian Wilf Prest describes as that society’s “complex web of overlapping interactions between commercial, landed, and professional worlds.” Wlliam Blackstone Law and Letters in the Eighteenth Century 17 In the U.S. today, almost everyone would insist that we devoutly wish to put an end to racial inequity.  But undeniably, the bi-polar division of African-Americans and Whites continues to be one of the most basic ways in which our social world is ordered, and one of the deepest, and most fraught, social fault lines. Perhaps it should be no surprise, then, that bankruptcy would be called upon – along with practically every other legal structure – to police that racial line. 

If this structuralist account captures some similarities in the otherwise quite different eighteenth-century English and current U.S. bankruptcy regimes, Blackstone’s concerns about bankruptcy’s class limits and my focus on its racial effects may have something else in common. Oddly, it’s our relationships with our mothers.  My own interest in racial equity is undoubtedly traceable both to the horrifically racist world where I grew up on Chicago’s South Side, and to the influence of my mother, whose belief and participation in civil rights, like everything else about her, was quiet, careful, and utterly consistent and unyielding.  Likewise Blackstone’s insistence that authentic gentility required paying all one’s debts may be traceable to his mother’s example. 

Blackstone’s father, who died before Blackstone was born, was a silk merchant, who Blackstone described as “a London tradesman, not of great affluence.”  Prest 14  His mother, came from “a family of minor landed gentry,” who had recently purchased, rather than inherited, their estate. Prest 16.  Blackstone’s father had a shop that besides trading in silk, sold some retail goods, such as “belts, sashes, cord, gloves and lace.” Prest 15 When he died, Blackstone’s mother took over a business with debts that greatly exceeded its assets. Apparently, she was up to the task. She acquired a partner, printed up business cards (“Mary Blackstone and William Hay: At the Blew Boar near the Conduit”), and managed to turn things around. At her death—sadly, when Blackstone was only eleven–she left a thousand pounds to be divided amongst her late husband’s creditors, explaining that she was not “intirely satisfied how strictly justly I might proceed by quite excluding” them from the estate. Prest 20  It is easy to imagine the eleven-year-old Blackstone attributing this gift (from funds that otherwise would have been partly his) to his mother’s noble character.  Prest comments that Blackstone’s own “sense of personal responsibility” may have been “part of his mother’s legacy.”  21

It’s also possible that Blackstone saw his mother’s insistence on paying her debts as evidence of authentic nobility on one side of his family tree, a notion that may have made it easier for him to imagine himself worthy of the much elevated status he eventually attained. Blackstone climbed the social ladder through a combination of luck, extraordinary literary ability, hard work, and enormous drive.  Doubtless he reveled in his personal success and celebrity.  But no matter how much one longs to be recognized for one’s unique talents and accomplishments, in the end most of us also want to see ourselves enmeshed in social and familial networks that connect our achievements to others, that make us, among other things, our mothers’ children.

Horses

Book the Second, Chapter the Thirtieth. Of Title by Gift, Grant and Contract

This chapter has a hard time separating fact from fiction.  It’s sort of a ghost story.

There’s this numinous “property” floating around, apparently separate from the embodied items that are being bought and sold, stolen and recovered. Talking of sales, Blackstone explains that “[a]s soon as the bargain is struck, the property of the goods is transferred” to the buyer. II, 448. The “property of the goods” is not the goods themselves. So, what is it?  An idea?  A power? A right?  A spirit?  Realistically, nothing is transferred – no thing.  Instead something happens – the buyer agrees to pay for the goods and the seller to deliver them – and that formal commitment has consequences. Blackstone gives this example: “If A sells a horse to B for ten pounds, and B pays him earnest or signs a note in writing of the bargain; and afterwards, before the delivery of the horse or money paid, the horse dies” the buyer, or, “vendee” still has to pay, “because by the contract the property was in the vendee.” II, 448-449. You haven’t got the horse but you do have “the property” of the horse “in” you, so joke’s on you when the horse you don’t have dies. Thus does the metaphysical property spirit suddenly materialize and bite you!

What makes this legal magic trick work, of course, is not –or not only– some metaphysical thought object, but the fact that in our rule of law system, the parties to the agreement can call on state force to make it stick. When not just the goods but the “property” is yours, men with guns will come to protect it – or to make your buyer pay up. But Blackstone reframes these pragmatic consequences as ritual transformations. He actually describes a sale as “a transmutation of property from one man to another.” II, 446. These transformative market performances are all the more dazzling because they are accomplished with such mundane material – cloth, cattle, plates.  Tangible objects and intangible property are split apart and put back together again, and subjects are imbued with new roles and relationships as they acquire or lose property in things that seem to be possessed in more ways than one. 

 In one of the more remarkable feats of sales magic, someone who has no property can make it suddenly appear. Blackstone explains that “property may also in some cases be transferred by sale, though the vendor hath none at all in the goods.” II, 449.  I had to read this several times to get the point — that selling stuff you’ve stolen can make the buyer a rightful owner.  The thief who stole the watch doesn’t own it, but if she sells it to some credulous person who knows nothing of her crime, suddenly that invisible property spirit reappears – whooshing from the person from whom the watch was stolen, skipping over the thief, and landing in the happy purchaser. If the person whose watch was stolen spies it on the new buyer’s wrist, it’s too late to call the men with guns. When thieves become sellers, buyers get to be owners.

We tend to think of property as a story about objects, but in Blackstone’s version, it’s the subjects who change – as a result of their connections with the objects exchanged. Anthropologists describe personhood in hunter gatherer societies as “emergent, constituted by relationships which are not totally given but which . . . must be worked out in a variety of social processes.” Nurit Bird-David, Animism Revisited.  In this scheme, there is a social network first – a dense, complex set of twisting, interweaving overlapping ties among humans, places, animals, and things. Out of these dynamic connections selves emerge. There is little if any sense of an intrinsic identity that exists before or outside these relationships. The self –the person, the subject – is just a temporary knot in the social lines, a bump in the social fabric. In such a world, the opposition of subject and object is unstable.

The modern Western worldview is ostensibly committed to an unchanging dichotomy between persons and property. But in Blackstone’s property regime objects can have souls and legal rituals can turn persons into things. And if you think that animistic power has disappeared from twenty-first century law, think again. The United States Constitution explicitly accords criminal conviction the power to transform persons into property, in, of all places, the Thirteenth Amendment – the Constitutional provision that outlaws slavery “except as punishment for crime whereof the party shall have been duly convicted.”

What’s more, it appears that the treatment of the criminally accused person as a kind of chattel, is already underway well before a criminal conviction. Blackstone describes a transaction called a bailment as “a delivery of goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed by the bailee.” II, 452. In some bailments, the bailor pays the bailee to do something with the bailed object, like cloth “bailed to a taylor to make a suit of cloaths,” or simply to look after it, as when “a horse, or other goods, be delivered to an inn-keeper . . . he is bound to keep them safely, and restore them when his guest leaves the house.” Id.  In others, the bailee pays for the temporary use of the bailed object, the rented machine or borrowed library book – or, yes, the accused criminal. That’s why we use the term “bail” for the payment made to spring an arrested person from jail and secure his return to court at an appointed date.  It seems the state’s mere possession of arrested persons’ bodies – very much without their consent — undoes liberal self-possession and transforms those subjects into objects that can be exchanged for cash. Thus the state may bail their prisoners as property, even before they have been convicted of any crime, just as thieves who possess stolen goods may sell them and so sever the objects’ ties to their original owners. 

Except for horses. According to Blackstone, “there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent of the owner, and those are horses.” II, 450. What to make of this peculiarly immutable tie between horse and human?  There’s an obvious opportunity here for a mystical explanation, but Blackstone turns pragmatic.  He says the reason for the anomalous rule is that “a horse is so fleet an animal that the stealers of them may flee far off in a short space and be out of the reach of the most industrious owner.” II, 451. I guess it’s easier to run off with fleet-footed horses then, say, pigs or a plodding cow, but outside the agricultural realm, horses are hardly the easiest things to spirit away. Surely it is easier to pocket a diamond ring and hop a train. There must be something in play besides ease of transportation and concealment. Maybe there was a more widespread problem of horse theft and better-established black markets for horses than for hot jewels or stolen pigs.  But I spent a lot of time around horses at one point in my life, and I will say that few things in my experience more obviously reveal how little we understand the interactions of minds and bodies, and the permeable boundaries of both. If you asked me how a rider communicates with her horse, I could tell you about some things to do with your hands and legs and back, but I couldn’t begin to explain why any of it works. 

As it happens, my initiation into the mysterious connections between horses and humans was about as unlikely as finding animist magic in a Tory barrister’s eighteenth-century legal treatise. The Chicago Pony Club was installed uncomfortably in three rundown barns west of the city, alongside an interstate and just up the frontage road from a Ramada Inn.  Presiding over the whole iffy set up was a middle-aged émigré riding instructor, whose formal manners, stereotypical Germanic rigidity and contempt for all things American might predictably have been too intimidating — or too ridiculous — for a bunch of Midwestern teenagers, but we revered him. Nor was our faith in Hugo Schroeder’s rigorous dressage training shaken by the fact that he was, or had been, a Nazi. I mean an actual Nazi; he had served in Hitler’s army. 

In fairness – if there can be such a thing in this context – I doubt he had much if anything to do with Nazi ideology. He joined the army as a teenager and was shipped off to North Africa where he was first shot and then captured and so sat out the rest of the war in a prison camp. That was the story anyway. The truth is that I have no idea what he thought of the whole thing. I never asked him, and no one seemed to think much about it. Possibly our lack of curiosity had something to do with the times. This was during the Vietnam War, and boys sent off to kill and be killed in an immoral war was a familiar narrative. Mostly, though, I think that we found Mr. Schroeder’s presence so immediately compelling that we gave little thought to his past. 

Certainly I never had – and never would have – a teacher so passionately convinced of the value and beauty of what he had to teach and so transparently horrified by his students’ inability to absorb it. “Get off that horse,” he would cry, “I show you”! Or, worse, “She will show you” as he tossed some temporarily more successful pupil up into the saddle. In between explosions, he always seemed ruefully amazed to find himself stuck with the futile task of teaching horsemanship to a bunch of inept American girls, but he never once stopped trying.

I don’t know what kept me going with horseback riding.  From time to time, I had a good ride in a lesson or at a show. But mostly I was just bouncing around a dusty indoor arena, getting blisters. It must have had something to do with the proximity to those gorgeous, powerful beasts – the sheer physical joy of touching them, grooming them, leading them around, and with the wonder of actually getting to sit astride and direct these thousand-pound animals.  But I don’t recall having any such feelings at the time, or at least not in any sustained way. It strikes me now that there is something similar in my relationship to law. There’s the proximity to power and the insular hyper-technical culture mediating my tenuous connections with that power. There’s the specialized language, routines, and apparatus– blacksmiths and bailiffs, curry combs, injunctions, cross ties and motions in limine. And there’s the gap between these highly formal worlds and ordinary life, between the charged majesty of a courtroom or a cross-country course and eating yogurt on the couch.

On the landing outside my husband’s studio, I hear him administering a cognitive test over the phone to some subject of the Alzheimer’s research study that employs him.  I have memorized the answers to some of his questions: Daisy. Church. A banana and an orange both are fruits. A ruler and a watch both measure things. He reads them a story, a paragraph or two about boys playing soccer and the ball flying into a neighbor’s yard.  He tells them that when he is done, he will ask them to tell him what they remember, and that they should use as many of the words he read to them as possible. This seems wrong to me. I can’t help but think that the people who understand the story best would be most likely to recount it using different words. These are the people who will see things in the story that the person who wrote it didn’t realize were there. It seems perverse, even cruel, to penalize that capacity in a test of someone’s failing cognition. And it seems to me to be related to complaints about Blackstone’s metaphysical approach to property law.

The great U.S. Supreme Court justice Oliver Wendell Holmes mocked the idea that law consists of anything besides the words of legal texts and judges’ predictable rulings. He had nothing but contempt for people who inject their sentimental moral judgements into legal analysis. For Holmes, the idea that law created rights, as opposed to enforceable outcomes, perverted rather than legitimated legal rulings. The transubstantiated property in Blackstone’s chapter is exactly the kind of fantasy Holmes was trying to expose when he wrote that “for legal purposes, a right is only . . . the imagination of a substance supporting the fact that public force will be brought to bear upon those who do things to contravene it.” Natural Law, 32 Harv. L. Rev. 40, 42 (1918). The men with guns again. 

The conventional wisdom is that Holmes was the leading edge of a skeptical revolution that overthrew Blackstone’s old fashioned view of law. And you might see a kinship with today’s “textualist” justices who claim to be finding and enforcing the objective meaning of legal texts, uninflected by any value judgements of their own. But when Holmes gets down to it, his ‘just the law ma’am’ approach flies out the window. His own legal rulings are full of an appreciation for the creative capacity of positive legal sources that resonates with the same animist imagination as Blackstone’s doctrinal fictions.

Here is Holmes adjudicating a constitutional challenge to a treaty between the U.S. and Britain protecting endangered species of migratory birds. The State of Missouri claimed the treaty violated the Tenth Amendment, whose enactors would have viewed the killing and selling of birds as a matter for state control. But Holmes explained that legal “words that also are a constituent act, like the Constitution of the United States . . . have called into life a being the development of which could not have been foreseen completely by the most gifted of begetters.”  Missouri v. Holland, 252 U.S. 416, 433 (1920). The Tenth Amendment means more than what its enactors understood. “It was enough for them to realize or to hope that they had created an organism.” To understand what the constitution allows or prohibits today, the Court has to consider not just the text but “our whole experience.” Id. Holmes is famous for insisting that lawmaking is fundamentally a threat of lethal force. “[A]ll law means I will kill you if necessary to make you conform to my requirements,” he once wrote. Letter to Harold Laski, quoted in Alschuler, From Blackstone to  Holmes, 36 Pepperdine L. Rev. 491, 498 (2009).  But it seems that, like Blackstone, he was fascinated by what he could not help but conceive as law’s world-creating potential.

Most of my memories of riding are quite prosaic. There are little bits, though, that perform a semblance of the country-girl life I sometimes imagined as I was bouncing along the interstate in the bus that used to bring us out to the stable. I remember that another girl and I would occasionally ride bareback, the two of us together on one stout pony, Silver Dollar. We’d head away from the highway along the fence lines to some woods where we’d take turns jumping him over an old sofa someone had dumped there, as if it were a mossy fallen tree in a proper English forest. And sometimes in dreams, I am galloping through a city, clattering down cement sidewalks and stairs, and jumping iron fences and police barriers as if on some weirdly urban cross-country course, and I feel a familiar mixture of anxiety, determination and awe.

Comprehensive Legal Coverage

Book the Second, Chapter the Twenty-Ninth.  Of Title by Succession, Marriage and Judgment.

This chapter is about not being seen. Among the methods of acquiring property that Blackstone mentions here is marriage, “whereby those chattels which belonged formerly to the wife, are by act of law vested in the husband.” II, 433. This extraordinary redistribution of wealth “depends entirely on the notion of an unity of person between the husband and wife.” Id. And that person is the man. A married woman can’t have property rights because, having merged into her husband, the law no longer recognizes her as a separate person. On the same theory, she can’t make legally binding contracts or be a party to a lawsuit – can’t sue or be sued, because as far as the law is concerned she can’t be found. Blackstone explains that during marriage “the very being and existence of the woman is suspended . . . or entirely merged and incorporated in that of the husband.”Id. The name of this legal vanishing act is “coverture,” a term that originally meant “a bed cover, coverlet or quilt.” (OED) A woman subject to coverture – a femme-covert – was under wraps, undercover, invisible.

I have always thought of coverture as a peculiar and poetic doctrine, one of those archaic confabulations that distinguishes the imaginative common law mindset from today’s disenchanted outlook. Much as I might romanticize that bygone legal poetry, its absence does tend to validate the superior clarity of my own analytic perspective. But as often happens, when I looked closer at that self-validating difference it faded. In the end, thinking about coverture during a global pandemic brought together and complicated my understanding of both that eighteenth-century legal doctrine and a twenty-first-century marital custom.

Blackstone’s initial articulation of coverture is gender neutral. If anything, treating a married couple as if “they are one person in law” sounds like a recipe for equality. II, 433. But there’s no mistaking the devastatingly unequal consequences. Even Blackstone seems embarrassed as he spells these out. He goes on at great length about the ways a woman’s interests in real estate might come back to her, or at least to her heirs, after her husband dies, before noting that marriage permanently strips a woman of all her personal property, “as ready money, jewels, household goods, and the like.” Id. In what looks like a rather weak attempt to inject the doctrine with some reciprocity, Blackstone follows this dire catalogue by observing that “in one particular instance the wife may acquire a property in some of her husband’s goods.” II, 435. This consolation prize turns out to be literally the clothes on her back, which she gets to keep – after her husband dies! A woman’s “necessary apparel” and “ornaments . . . suitable to her rank and degree,” cannot be willed by her husband to anyone else. II, 436. During his lifetime, however, he is free to sell or give them away, if, as Blackstone notes uneasily, he is “unkindly inclined” to do so. Id.  So much for family unity.

As a moral justification for such total subjugation, coverture is jaw-droppingly ridiculous. There is no way that a poetic image of marital unity can legitimize stripping a woman of all her property.  How can people in the eighteenth century have believed this stuff? It turns out they probably didn’t. According to the historian Carolyn Steedman, eighteenth-century judges didn’t rely on the doctrine of coverture to justify decisions about women’s legal rights and liabilities, and most ordinary folks never heard of it (Blackstone and Women, Blackstone and His Critics, ed. Anthony Page & Wilfrid Prest).  Blackstone’s description of women’s legal invisibility wasn’t taken as an authoritative mandate, and it’s not an accurate report of contemporary legal practice. Sure women were greatly disadvantaged and subordinated in eighteenth century law and society. But the loss of agency and property didn’t depend on poetic imagery and it wasn’t absolute. Married women independently conducted some business, and courts enforced the bargains they made, especially with household servants. Women could sue for property claims in courts of equity. And despite their supposed incorporation into their husbands’ legal identity, women went to court for protection when husbands were abusive.

It seems coverture was always understood to be a fiction – a kind of legal myth. That doesn’t mean it was unimportant or innocent. Myths can have enormous cultural power. But they don’t have that power because people mistake them for reality. English men and women in the eighteenth century did not see coverture as the reason why married women were stripped of property and subjected to their husband’s control any more than ancient Greeks believed the sun was pulled up every morning by Apollo’s chariot.

In any case, coverture is history. Formally abolished in the nineteenth century by the Married Women’s Property Acts, it’s a relic of a bygone legal culture. There is, however, an ongoing practice today in which married women continue to be “merged and incorporated” into their husbands’ identities. I’m talking about women changing their names. The custom fell off a bit in the heyday of “second wave” feminism, and among a narrow slice of the baby-boom cohort it virtually disappeared. I never gave a second’s thought to the issue when I married in 1995, and I don’t remember ever discussing it with any of my friends. We just assumed we’d keep our own names. But taking one’s husband’s name has long been the majority practice, and it is nearly as prevalent today as it was in the 1970s. Estimates vary, but apparently around 80% of American women marrying today change their names.

For years I have wondered why women voluntarily perpetuate a practice that effaces their independent identity. And it seems especially strange in this #metoo era. One explanation many women give is that the name change is simply the path of least resistance. The notion is that in our no-nonsense era nobody’s attaching any deep meaning to symbolic rituals. It’s just something that we’ve always done — a sort of cultural habit. Still, women’s name change is expected, and there’s always pressure to conform to existing social customs. “I didn’t want to do anything too out of the norm,” said one woman.  Social expectations can make non-conformity a huge hassle. Explaining to your family and friends why you don’t want to change your name and convincing them that you are not denying your future children a secure family identity requires emotional labor. Changing your name avoids all that. Plus, as another woman offered, “it makes things easier in terms of hotel reservations and things like that.”

But just as the eighteenth-century confiscation of women’s property can’t be justified by belief in a married couple’s trans-substantial merger, today’s name change custom cannot be explained entirely as a matter of habit and expediency. I guess taking your husband’s name also makes monogramming cheaper, but really? In the first place, changing your name takes some doing – you have to change your driver’s license, your bank accounts and your passport, to say nothing of the endless internet accounts. But more important, if changing your name is really no big deal, why does it take so much effort to explain the choice not to do it? Why does your fiancee’s sister care?  It can only be because the name change retains some positive symbolic value, and it’s not all that hard to find some.

Like coverture, adopting your husband’s name ostensibly enacts a merger, a unified family identity. As the woman who offered the pragmatic hotel explanation observed, “It’s like you’re a unit if you have the same name.” But as with coverture, it’s not clear why this ideal unity has to be achieved by wiping out, or covering up, only one person’s identity–and why that is seen as a feminine role.

It so happens that right now another, literal, form of covering is eliciting a complicated set of gender associations. To stem the transmission of COVID-19, the U.S. Center for Disease Control advises that cloth face masks should be worn in public. But President Trump and Vice-President Mike Pence both refuse to wear them.  “Somehow I don’t see it for myself,” Trump mused last month. As others have observed, the reason seems to be that a protective face covering suggests vulnerability, and so is antithetical to the hyper-masculinity that is so much a part of both men’s public image. It’s about projecting an image of imperviousness, an ability to withstand exposure and literally face down danger. Pence was mocked when he explained that he did not wear a mask at the Mayo Clinic because he wanted to “look the health care workers in the eye.”   But it made a certain kind of sense. Hiding his mouth behind a protective covering might make it harder to carry off the stereotypically bold show of masculine power that look-them-in-the eye self-assertion is meant to produce.

The tragic irony, of course, is that the masks Trump and Pence refuse to wear are not primarily meant to protect the people wearing them, but rather to protect others from the wearer. So by rejecting this supposed sign of effeminate vulnerability, they are not actually foregoing self-protection at all; they are just failing to protect others. Then again, covering your own face to protect others is itself the kind of socially conscious self-diminishing act typically associated with feminine roles. Women are expected to think of and care for others, so even the low-cost self-sacrifice of mask wearing might diminish a hyperbolically masculinist image. It’s certainly not consistent with careless “grab ‘em by the pussy” machismo.  And because masking one’s face in the pandemic is government mandated, it also represents submission to authority.

Married women’s name change may have similar associations. Or, rather, since the name change itself seems to draw little conscious attention, failing to change one’s name may evoke responses indicating similar norms. As one psychologist notes, “Women are expected to be communal, sacrificing their individual interests to the well-being of the collective family.” Thus women who keep their own names may be seen as selfish and uncommitted to their marriage and family. At the same time that giving up one’s own name evokes self-sacrifice, taking one’s husband’s surname may look self-protective, like linking oneself with a more powerful male persona, verifying that one’s marriage embodies a stereotypically gendered power relationship. Sure enough, studies show that men whose wives do not take their names tend to be viewed as less masculine. In one, “a man whose wife retained her surname was rated as less instrumental, more expressive, and as holding less power in the relationship.”

None of this means that women who change their names today are thinking it will make their marriage more unified or their husbands more masculine. The reason so many brush off its importance when asked is probably that they understand it as a symbolic performance that does not aim at any instrumental results. Like coverture in the eighteenth century, women’s name change today isn’t believed to magically produce the condition it symbolizes. In fact, understood as performance, the name change custom calls attention to the gap between the ideal frictionless submersion of individuality that it symbolizes and the real conflict felt by many married couples today around gender roles.

With all this in mind, I might want to stop wondering why women keep changing their names and start wondering why it bothers me so much. I might even start to suspect that distancing myself from the name change custom is a way to validate my own supposed transcendence of  marriage’s problematic gender politics. Maybe I’m the one mistaking ritual for reality, imagining that by keeping my name – my maiden name that comes from my father and my father’s father and my father’s father’s father – I have somehow escaped the stereotypical gender roles that marriage tends to perpetuate.

I picture my law students (many of whom, to my consternation, take their husbands’ names) shaking their heads at my primitive credulity. How can Professor Allen be so dim? Does she really think refusing to change her name changes the material relations of her marriage? She teaches Catharine MacKinnon for Christ’s sake! If you’re going to bother to get married, you might as well enjoy the romantic fictions and save your energy for more substantial battles. What are you accomplishing by rejecting the symbols that decorate this troubling institution? Getting married without changing your name is like trying to cut calories by serving a wedding cake without frosting. Who are you kidding with this sanctimonious gesture?

Still, I’m not willing to call it quits on my critique of the name change custom. Ritual is not false belief, but neither is it  meaningless. What we call people matters. Surely that is the lesson of the movement in recent years to expand the range of available pronouns and accommodate individual choice, rather than assuming a binary reference based on phenotype. For that matter, I still remember the shock of joy the first time I heard a law professor refer to a hypothetical judge as “she.” It wasn’t that I was fooled into believing that judges were just as likely to be women as men.  I understood the reference as a fiction — a fragmentary performance of an imaginary world where gender equality was true. Alternating he/she pronouns has been the academic custom for decades now, so I just assumed that it had lost most of its frisson, but my college sophomore daughter reports that referring to an unnamed judge or engineer as “she” can still evoke a surprising sense of recognition.

Coverture is such a funny, revelatory word. For all Blackstone’s talk of merging and unification, the term literally just means being covered up. I have never been able to shake the image it conjures for me of a woman standing or lying awkwardly in the middle of a room covered from head to toe in some random fabric, as if someone had just thrown a sheet over her. But even literal covering can be ambiguous. After all, we cover things that are fragile to protect them and we cover things that are dangerous to protect ourselves from them. The conventional reading would seem to be that coverture protects the vulnerable woman, but as with the face masks in our pandemic, I think there’s some confusion here. Coverture only lasts for the duration of a marriage. Being “entirely merged and incorporated” in someone else sounds pretty permanent, but legally, a woman’s independent existence isn’t extinguished, it’s only “suspended,” as Blackstone says. II, 433. The femme-covert isn’t dead, she’s only sleeping, or ensorcelled. Like Sleeping Beauty in reverse, when her husband disappears, the woman under the sheet comes back to herself. When there’s no longer anyone close enough to be endangered, she comes out from under the covers, answers to her name.

Blackstone Sparks Joy

Book the Second, Chapter the Twenty-Eighth, Of Title by Custom.

The quirky doctrines in this chapter muddle the line between animate and inanimate beings. Reading about old legal customs that treat objects like people made me think of legal practices today that turn people into things, and wonder if there is any way to shift those practices.

Consider customary heirlooms. As Blackstone describes them here, heirlooms are not at all what we think them now, not pretty, sentimentally freighted objects that remind us of dead relatives and connect us to family history. Instead of jewelry and china tea sets we get “marble chimney pieces, pumps, old fixed or dormant tables, benches and the like,” heavy furniture and fixtures bolted to the floor or too bulky to be moved out of the house. II, 428. According to Blackstone, “loom” is a Saxon word meaning “a limb or member; so that an heirloom is nothing else but a limb or member of the inheritance.” II, 427. Heirlooms are things that can’t be “taken away without damaging or dismembering the freehold.” Id.

Heirlooms cannot be willed away from the land, although the things that become heirlooms can be sold or given away before the owner’s death. II, 429  For this seeming contradiction Blackstone produces one of his trademark explanatory fictions: While alive, an owner “might mangle or dismember” his property “as he pleased,” but at the instant of the owner’s death, his whole estate – looms included – passed by law to his heir. Id. Because a will takes effect only after death, it’s too late to “dismember” the estate; it has already passed intact to the new hereditary owner. Id.  The big problem with this rationale is that it doesn’t work for the estate itself. Ever since the Statute of Wills in 1540, an English landowner can will all his property away from the designated legal heir. If a will can pry the whole body of an estate away from the heir to whom it passed at the moment of the previous owner’s death, why can’t it cut off a few limbs?  You could try to rationalize this contradiction by pointing out that the power to will real estate comes from a statute, and statutory reforms sometimes mess with common law consistency. Or you could throw up your hands, protesting (as did Jeremy Bentham) that this is the kind of feeble illogical nonsense that you get with legal fictions. But as long as we’re spinning stories, why not say that the cohesive force that holds the inherited estate together is stronger than whatever binds it to the heir? It may be painful to tear oneself away from another person, but (in general) it is far more painful to tear oneself apart. Just so, the will can separate the body of the estate from the body of the heir, but it cannot dismember the inheritable body of property.

Becoming an heirloom isn’t only a matter of physical attachment. Animals can be heirlooms. Not ordinary farm animals, but creatures who are part of a specific grant allowing otherwise forbidden hunting or fishing. Thus “deer in a real authorized park, fishes in a pond, doves in a dove-house,” are heirlooms because they are “necessary to the well-being of the inheritance.” II,427. The last heirloom example is the Crown Jewels. Ordinary jewelry is not legal heirloom material, no matter how fabulously valuable it is or how long it’s been in the family.  But the crown jewels are “necessary to maintain the state, and support the dignity, of the sovereign,” so they both constitute and prove the royal role. II, 428. That ambiguity between creating and proving some legal condition is a familiar feature of the way law treats personal status. Compare the racial identity trials that, according to Ariela Gross, were common in the United States up through the early twentieth century. What Blood Won’t Tell. These trials had little if anything to do with ancestry and bloodlines and everything to do with a performance of race.  Proving whiteness was a matter of demonstrating character. By acting white and having others testify to the whiteness of their behavior, some people were able to become legally white.  Of course, as Gross observes, this kind of movement across hierarchical racial lines only reaffirmed those boundaries: “the very act of proving whiteness to win citizenship or freedom reinforced the idea that only whites were worthy of citizenship or freedom.”

There are no more racial identity trials, but law is still very much in the business of moving people across boundaries that delineate hierarchical degrees of personhood and confirming the reality of those limits. During the 2008 election, I worked on a voting rights case  in Missouri involving local election boards’ failure to put people with criminal convictions back on the voting rolls after they had served their time.  The state’s law provided for reinstatement, and the applicants’ names no longer appeared on the official monthly lists of those disenfranchised by conviction.  But the election officials refused to re-register them without some positive paper proof of renewed eligibility. The wanted a judgment, or a legal certificate—some written declaration that the people standing in front of them had been returned to themselves – something, in fact, like the deeds of manumission Virginia slaveholders used, writings that could set a slave free if proved in a county court by two witnesses. When we explained to the officials that no such papers were required – or even existed– they were incredulous. The documents they imagined were not just proof of a change in status but the mechanism necessary for such a transformation. How was it possible to turn someone back into a voter without some such paper?  It was like Harry Potter trying to get from one fireplace to another without floo powder.

My snarky reference to kids’ fantasy fiction makes the election officials’ confusion sound foolish, or perhaps pretextual, but actually I think it was both rational and sincere. Almost every U.S. state strips people of voting rights when they go to prison, and like most legal transformations, criminal disenfranchisement requires performance. The Missouri election officials were aware that the people wishing to re-register to vote had lost their voting rights through elaborate legal rituals, perhaps including a full-blown public trial, and certainly at least an appearance in public court while represented by a lawyer for the “allocution” of a guilty plea and sentencing by a trial judge. Then comes prison, in conditions that for many, if not most, inmates destabilize the sense of self and enact a material, psychological version of the “civil death,” that befell felons at common law. And when the sentence of incarceration is over, many of the legal disabilities that came with criminal conviction persist. There are literally thousands of these “collateral consequences,” which vary from state to state, and each amounts to a right taken forever from the convicted person – the right to serve on a jury, to work as a contractor, a barber, a cosmetologist, the right to be eligible for government benefits, such as food stamps, public housing and student loans – losses that, if not like limbs are at least like bites taken out of one’s legal personhood.  No wonder the election officials doubted that simply being released from prison could transform someone back into a rights-bearing citizen entitled to vote.

For better and for worse, law constantly redraws the boundaries between person and property, and moves human and non-human beings back and forth across the lines between calibrated subcategories of both.  Sometimes, like the men in Missouri, they get stuck on the wrong side.

The legal customs Blackstone recounts in this chapter perform a dizzying series of transportations and transformations. At the instant of the homeowner’s death, the house and land become a limbed body that must not be dismembered and some other living human becomes at once heir to that body. Along with marble chimney pieces and such, the inheritable body’s limbs include “a monument or tombstone in a church, or the coat-armor of his ancestor there hung up,” II, 428, but not the body of the ancestor himself, which somehow escapes altogether the category of personal property, even though it is buried in the manorial churchyard that is part of the body of the estate. II, 429. According to Blackstone, the heir has no legal action if grave robbers desecrate the body, although they can be charged with stealing shroud. Id. The body it wraps is no longer a legal person capable of ownership, but neither is it a thing that can be owned.

I get the feeling that Blackstone finds the weirdness and variability of personal property embarrassing. Almost all of this volume on property law is devoted to real estate with just these few chapters at the end covering what seems to be an almost random selection of personal property doctrines. There’s a kind of mixed wonder and anxiety here about the unchartable plenitude of this stuff.  Live animals and bulky furniture, signet rings and second-best dinner plates – what the hell are you supposed to do with them all?

I can relate. On my desk right now, besides the slag heaps of papers and notebooks, are some sea shells, a few seed pods, two smooth white stones, a piece of pink Deer Isle granite, an old typewriter ribbon can, a ticket from the Chiesa di S. Maria del Carmine, a “Lucky Mojo” candy tin, a green metal lizard, a lion-shaped terra cotta pot foot, a small white Day of the Dead skeleton, an old key, a coffee can filled with pens, and a blue ashtray that holds a wind up skull toy, a piece of coral, an expired rabies tag, a Chinese cookie fortune, an unused postage stamp, and a matchbook advertising the law offices of Jayson Lutzky – “Need a Lawyer? Divorce $99 Close Cover Before Striking.”  It’s charming and it’s totally counter-phobic. I get anxious when I look at it, but less anxious than when I try to ignore the chaos of materiality and my inability to make sense of it.

Marie Kondo is someone whose work I thought of more than once reading this chapter. If you are not familiar with her passionate evangelism for “the life-changing magic of tidying up,” check out her best-selling book by that title or her show on Netflix. Kondo’s basic approach to personal property is easy to summarize: Throw out everything that doesn’t “spark joy.”  At first this looks completely contrary to the heirloom doctrine.  Instead of identifying what’s necessary to an integral body of property, we’re picking up each individual tchotchke and deciding whether to keep or chuck it based on how it makes us feel. The insistence on maintaining the integrity of a bunch of things that are physically and conceptually connected seems far removed from any individual human’s feelings. But Kondo’s joy criterion is not altogether different from identifying “such things as cannot be taken away without damaging or dismembering the freehold.” II, 427. For one thing, both turn away from market value.  Kondo doesn’t care how much something cost or what kind of shape it’s in – if when you pick it up and hold it, the thing doesn’t enrapture you, out it goes. Likewise, heirloom designation is oblivious to price on the open market: silver candelabras and fancy china are worth a lot more than that old wood table, but it’s the table that has to stay.

Both systems seem to be about a kind of merging between a person and her property. Kondo explains that the order she is looking for is not a matter of skill or expertise: “As an organizing fanatic and professional, I can tell you right now that no matter how hard I try to organize another’s space . . . I can never put someone else’s house in order in the true sense of the term.” TLCMOTU at 6.  It’s true that Kondo emphasizes individual feelings and getting a home to embody “extremely personal values,” whereas the heirloom doctrine is geared to make sure an inherited estate retains its formal legal character. Id. From a slightly longer perspective, though, common law and Kondo don’t look so different. Like Kondo’s “KonMari” method, the heirloom doctrine is directed toward creating and preserving the authentic character of a home, keeping what belongs to it not because of some intrinsic value but because it is integral to that character.

More to the point, like Marie Kondo, Blackstone’s heirloom custom treats inanimate objects of property as if they were living beings with human attributes. The heirloom doctrine prevents owners from “mangling and dismembering” the body of an estate by tearing away its “limbs,” while Kondo urges us to bring stored “dormant” objects out into the light, “jolting them alive,” and, by letting them go,”[f]ree them from the prison” to which they’ve been relegated. TLCMOTU at 44, 61. From a modern rationalist perspective this looks like a childish pretend game or a big mistake. It’s another version of the worldview modern Western observers ascribed to “primitive” cultures and labeled “animism.”  Look at these people treating inert material objects as ensouled beings! What a whopper of a category error! But arguably the mistake is to insist on the categories in the first place.

The modern Western observers assumed that other cultures held modernist ideas of self and personhood and wrongly attributed such personhood to insensible natural objects. But as the anthropologist Nurit Bird-David points out, objective reality “does not necessarily consist dichotomously of a physical world and humans.” Animism Revisited  at S68. She argues that “animism constitutes a relational . . . epistemology” that is “about knowing the world by focusing primarily on relatedness.” Id. In such a worldview, the paradigmatic person is not a human being in an ‘environment’ of non-human animals and objects. Instead a person “objectifies relationships of . . . mutual sharing of space, things and actions.” Thus animists “maintain social relationships with other [non-human] beings not because . . . they a priori consider them persons.”  It is rather the reverse: “because they engage in and maintain relationships with other beings, they constitute them as kinds of person.” Id. at S73.

If I squint hard, I can see in the heirloom doctrine something like this relational view – and with it the potential to constitute a legal world in which individual humans are not entirely in charge of, separate from, or even entirely different than the things they own. In that world, property and personhood both arise from an interactive network of relationships among beings – human, animal, vegetable, mineral — that all have some capacity to affect one another and are expected to receive sympathetic treatment. Legal subjects are not individual bodies that gain and lose personhood as they meet or fail to meet various legal criteria. The primary concern is relationships among beings – human and non-human – out of which legal personhood arises. Sure, this doesn’t look much like the legal system as I generally understand it.  And of course I can’t be certain that it would be an improvement. But it was rather surprising, and in a way hopeful, to find in Blackstone’s canonical property text a fluidity that suggests that, even in its most classic forms, law need not always be committed to line drawing and categorization – a place for everything and everything in its place. And that it’s possible to see in these old odd doctrines the capacity not just to redraw categorical lines but to erase them.

 

Of Rights and Reasons

Book the Second, Chapter 27. Of Title by Prerogative and Forfeiture

This chapter is about hunting. Actually, it’s about not hunting, because the king outlawed it in order to disarm the populace so they could not resist his totalizing sovereign power. As is so often the case, I lack the historical knowledge necessary to assess the accuracy of this claim. But it hardly matters. True or not, here is Blackstone presenting gun regulation as deliberate political subjection, a tool of tyranny. Score one for the National Rifle Association. But wait. No sooner does Blackstone expose the noxious political motives for the English hunting bans, then he proceeds to declare their legitimacy. What is going on?

Blackstone observes that prohibiting hunting seems to violate the “law of nature” under which “every man, from the prince to the peasant, has an equal right of pursuing and taking to his own use” unowned natural resources, including wild animals. II, 411. What’s more, according to Blackstone, the laws against hunting have an illegitimate purpose: to keep the people “in as low a condition as possible, and especially to prohibit them the use of arms.” II, 413. This would appear to violate a second right, noted in the first volume of the Commentaries, namely, the English people’s constitutional right of “having arms for their defence,” which supports “the natural right of resistance and self-preservation.” I, 139.  So what justifies Parliament’s power to prevent English citizens from exercising their natural and constitutional rights? According to Blackstone, it’s just another example of the way rights “may be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community.” II, 411.

The right to arms was guaranteed by the 1689 English Bill of Rights, but it was not absolute.  It is “a public allowance, under due restrictions,” and only extends to arms “such as are allowed by law.” I, 139.  Can a pretextual hunting ban that functionally disarms most of the populace count as a “due restriction” of the right to have firearms? Blackstone rehearses a list of practical reasons for outlawing hunting – encouraging farming and development, protecting endangered species, preventing “idleness and dissipation” among the country folk. II, 412. But he leaves no doubt that he views the hunting bans as a pretext “for preventing of popular insurrections and resistance to the government, by disarming the bulk of the people,” remarking archly that preventing insurrection “is a reason oftener meant, than avowed, by the makers of forest or game laws.”  Id.  He admonishes us to remember that “however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must not withstanding acknowledge that, in their present shape, they owe their immediate original to slavery.” II, 412.  But the other legal-political shoe never drops. After providing both hypothetically reasonable policy justifications and actually terrible political motives for the hunting bans, Blackstone never ultimately endorses or condemns the laws’ constitutionality.

I was ruminating on Blackstone’s ambivalent approach to gun rights and regulation, when a synagogue near my house was attacked by an automatic-weapon wielding white supremacist, ranting about Jewish support for migrant hordes. He shot and killed eleven people. Guns kill about 40,000 Americans every year, but despite the annual death toll there are layers upon layers of legal protection for gun possession. Many of the laws insulating gun ownership go far beyond what any court would likely find constitutionally required, and local government attempts at regulation are often pitted against state and federal laws protecting gun owners and manufacturers. After the recent synagogue shooting here in Pittsburgh, the city council banned some assault style weapons. That regulation is being challenged in court not as a Second Amendment violation, but as conflicting with a Pennsylvania state statute. The state law prohibits local governments from regulating “ownership, possession, transfer or transportation of firearms” in ways allowed by state law. Twenty years ago, the city defended a similar ban on the theory that it was unconstitutional for the state to prohibit the city from performing the basic functions necessary to fulfill a fundamental purpose for which city government exists, namely, to protect its citizens from getting killed.  The state supreme court shot down (!) that claim as “frivolous,” noting that the Pennsylvania constitution gives the state legislature the power to limit the functions performed by municipal governments and ignoring the substance of the argument. Ortiz v. Commonwealth, 545 PA 279, 285 (1996).

It’s extraordinary how Blackstone’s double-edged assessment of the hunting bans mirrors, or prefigures, the themes of the gun rights debate in the U.S. today. Opponents of gun regulation frame the issue as a matter of constitutional rights endangered by state action. This is basically Blackstone’s story of the pretextual hunting bans that outlaw weapons possession and consolidate illegitimate state power. Even minus the bad political motives, limits on gun possession are suspect in this view, because they trench on constitutionally guaranteed rights and so inevitably increase government power. Proponents of regulation, however, can cite Blackstone’s observation that “it follows from the very end and constitution of society” that gun rights “may be restrained by positive laws enacted for reasons of state or for the supposed benefit of the community.” II, 411. This is more or less the argument advanced by the City of Pittsburgh. From this perspective, both intervention and a failure to intervene are constitutionally fraught policy judgments.

There’s this case that I read every year with my property law class, Miller v. Schoene, State Entomologist (1928). It’s a lawsuit brought by a Virginia woman, Julia Miller, whose ornamental red cedar trees were cut down by the state because they got some kind of blight. In a twist like something out of a YA novel, the blight doesn’t actually harm the ornamental cedars; they are just the hosts. The trees it’s dangerous for are apple trees. The state ordered Miller’s cedar trees destroyed because the blight they were carrying would have destroyed a nearby apple orchard. Miller sues the state, contending that the government can’t just take away her property to save someone else’s, or, if it can, then property rights are a sham. But the Court says, look, it was the cedars or the apples. “It would have been none the less a choice if . . . the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked.”

To me this is the most fascinating part of government: once you’re in it you aren’t just accountable for sending out the men with chainsaws, you’re also responsible for what happens if you decide not to send them. A lot of times there’s a whole lot less to go on than a state entomologist’s report.  It reminds me of my first morning as a law clerk for a judge, who must have been on motion duty that day and so handed me a filing for a woman who was trying to get an emergency injunction to prevent a foreclosure sale of her apartment. The judge said something like, “tell me what I should do about this.”  So I read these motion papers – and there was not a lot of detail there, I mean, the whole thing was maybe five pages long– and I had absolutely no idea what the right legal result would be. I went back to the judge and said, “well, I really don’t know what to tell you. I honestly don’t know how anyone could decide from this whether this woman should lose her home or not.”  And the judge looked at me and said, “What is it that you think we do around here?”

A few weeks ago, the Connecticut Supreme Court upheld a trial judge’s decision allowing a lawsuit to go forward against the manufacturer of the semi-automatic rifle used by a young man who walked into an elementary school in suburban Sandy Hook in spring 2012 and killed 20 first graders. The Connecticut ruling is notable, because a federal statute has long immunized gun manufacturers from responsibility for crimes committed when their guns fall into the wrong hands. The court explained that the killings at Sandy Hook appeared to have resulted from a gun getting into the right hands, that is, exactly the hands for which this semi-automatic assault rifle had been designed and marketed.

The Connecticut court focused on the company’s advertisements for the gun.  In one a guy in fatigues stands silhouetted against the sun, a helmet in one hand, the gun in the other over text that reads, “Your purpose is our purpose.”  Another describes the gun as an “adaptive combat rifle” for use in “an infinite number of extreme scenarios.” And then there’s the “Man Card” campaign, a series of ads featuring a fictional identity card that “declares and confirms” manhood. Stories of men whose cards have been revoked due to insufficiently masculine behavior – eating tofu, jumping at loud noises – appear next to photos of the rifle with the caption CONSIDER YOUR MAN CARD REISSUED. The ads tell a story of uncertain status alternately bestowed and withdrawn by an untrustworthy, emasculating collective authority whose indicia of dignity are no sooner issued than revoked, and the triumphant replacement of those ephemeral badges with authentic firepower that nobody can afford to disrespect. It’s a story we hear over and over these day of aggression as recovery, the necessarily violent recapturing of personhood. Lethal violence as identity formation.

In the months that I’ve been working on this this essay, we’ve had four terrorist attacks on religious congregations and two more on schools. The first shooting was literally around the corner from me. It was strange to be at the center of this storm of international news but entirely focused on local matters, walking up the street to deliver a chicken casserole to grieving friends. When the attacks on the mosques in New Zealand happened, my friends whose congregation was attacked were the first people I thought of. But I still hadn’t called them when the Easter attacks in Sri Lanka burned across the news cycle. Eventually, I wound up having beers with them on the day another gunman walked into another place of worship – this time a synagogue in San Diego. Sitting in the bar, one of my friends got on her cell phone and planned an impromptu vigil, and after dinner we all reconvened to stand in the rain outside the building where six months earlier to the day a guy with a legally purchased assault rifle killed eleven people.

In his book on suffering, Peter Trachtenberg observes that “repetitiveness and open endedness” are considered “hallmarks of traumatic flashbacks.” From a modern, rational-scientific point of view, there is something pathological about this reiteration of only slightly varied versions of the same story that never finally resolves, this endless repeating.  Repetition and lack of finality are also hallmarks of ritual. You could even say that ritual is all about the impossibility of final resolution – that’s why you have to keep repeating it! And as Trachtenberg points out, the people who work closely with trauma victims tend to refute the notion of a once and for all cure. For all the emphasis on telling the story of traumatic injury, the work of actually dealing with trauma seems less like linear narrative and more like ritual, not a finite project but a practice that is never finished, that, like the condition it addresses goes on and on, each iteration only provisionally complete, part of a still unfinished and infinitely expansive cycle, one more bead on an endless string.

Blackstone’s willingness to rationalize rights restrictions based on social policy frustrates idealists who see rights as definitionally more important and more fundamental than ordinary legal and political interests. In this view the whole point of identifying natural or constitutional rights is to create stop gaps, firewalls, bulwarks against oppression, a kind of personal sovereignty that should be every bit as uncompromising as a mad king. Rights are not reasonable – they are, well, righteous. The whole point is that if I have a right I don’t have to listen to your reasons. At the same time, Blackstone’s insistence that rights are somehow categorically different from contingent legal interests frustrates pragmatic legal instrumentalists. They see rights simply as useful constructs that are no more or less real than any legal interest, and that are, and should be, just as open to rational balancing and revision as any legislatively enacted policy. From either of these purist perspectives, it’s possible to envision a narrative that leads to a final resolution of the problem of gun regulation. But anyone who believes in both rights and reason is not likely to see a future in which moral and legal conflict is forever banished.

If, like Blackstone, we are unwilling to give up on either supra-governmental individual rights or rational government regulation, unresolvable contradictions are going to have to be rationalized. This scheme has two faces. Rationalizing rights and policy has often been a matter of explaining away injustice with legalistic nicety. Arguably that is what is going on in Blackstone’s equivocal defense of the pretextual English hunting bans. But the idea that rights and policy should be rationalized is, as Duncan Kennedy observes in his famous critique of the Commentaries, the basis of a utopian project “to discover the conditions of social justice.”  If legal rationalization is going to be anything but a disingenuous cover-up, it is going to have to be rather more like ritual than a story with a once and for all happy ending. It will have to temporarily reconcile conflicting values, rights and interests that exist at variable levels of particularity and generality. Again and again, decision makers are going to have to balance and choose between ideals and concrete eventualities that cannot be conclusively calibrated into a permanent hierarchy of justice: the right to armed self-defense and the freedom to worship and go to school without getting shot, autonomy and security, cedars and apples.

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.

 

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.