Law and hope

Introduction.  Section the Second.  Of the NATURE of LAWS in General.

          In this section, Blackstone gives his famous definition of law:  “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”  Like in the first section, it’s not clear here whether Blackstone thinks he is describing “positive law” — i.e., laws as some government’s commands, right or wrong, good or bad — or “natural law” — i.e., laws as timeless principles of morality.   Basically, if the rules being prescribed are just whatever that “supreme power in a state” happens to think is right or wrong, then we’re looking at positive law. But if the supreme power somehow knows how to command what is eternally, objectively right and wrong, or if somehow the very act of commanding makes government rules objectively right and wrong, that’s natural law.  

     The positive law v. natural law dichotomy is a conceptual staple of contemporary legal education.  Blackstone is usually lined up on the natural lawyers’ side,  as a defender of the timeless justice of the English (and, by implication, the American) legal system.  The most famous legal positivist of all time, Jeremy Bentham, a contemporary of  Blackstone, reviled the Commentaries on this ground.  On the other hand, some people stress Blackstone’s description of law as “prescribed by some superior” and see the natural law discussion is a knee-jerk genuflection to 18th century dogma.  Stanley Katz, who wrote the introduction to the edition of the Commentaries I am reading, says Blackstone’s legal theory gives natural law concepts “about the same importance that Newton accorded to God in the operation of the physical universe.”  

     To me Blackstone seems genuinely ambivalent. There’s too much talk about “immutable laws of good and evil”  to be discounted.  You can see why people cite him as an important influence on America’s founders. All three of the Declaration of Independence’s ‘self-evident’ entitlements appear here as “natural rights” established by God and nature:  life, liberty and the “paternal precept ‘that man should pursue his own happiness.'”  But there are also times when he completely undercuts the the notion that law has any necessary connection to morality.   At one point Blackstone approves the notion that “human laws are binding upon men’s consciences.”  But then he proceeds to argue that principle right out of existence.  He explains that laws that instantiate timeless moral rules don’t actually bind our conscience — it’s the timeless moral rules themselves that do that.  But, he says, we’re not conscience-bound to follow laws that don’t instantiate timeless moral duties, either, because, well, they’re only laws, not timeless moral duties.  After which, it is less than clear how any laws bind anyone’s conscience.  In fact, in an aside, Blackstone actually anticipates Oliver Wendell Holmes’s ultra-positivist view of legal prohibition as a choice:  “either abstain from this, or submit to such a penalty.”  

     Reading Blackstone on the heels of the recent mind-blowing American presidential election makes me think that the perennial tension between natural and positive law reflects or shadows another persistent ambivalence in American culture and politics: the role of religious faith in general.  The incredible course and outcome of Barack Obama’s presidential campaign sure set that one up front and center. There was the story of Obama’s turn from his secular, relativist mother’s outlook to Christianity, and the drama of his identification with, and ultimate disavowal of, his religious mentor.  And there’s the speaking style inflected with Christian oratory, and the appointment of a team of advisors whose diverse religious beliefs and backgrounds are just that — backgrounds — for their shared dedication to  professionalism and their glowing educational achievements in the secular church of the Ivy Leagues.  

     As I was flying home the day after the election — was that really just three weeks ago? —  I was looking at one of those beautiful red and blue pictures of Obama’s face emblazoned with the campaign’s simple slogan:  HOPE.   And it occurred to me that “hope” was an oddly secular, ephemeral concept for a candidate who wanted to emphasize his belief in enduring American values and Christian faith.  Why not, after all, FAITH?  Beside that solid and enduring concept, “hope” seems almost flimsy.  But then, doesn’t hope’s suggestion of a changeable, dynamic, and more risky future finally draw upon the values that Obama and many others have wanted to identify as foundationally American?  People who hope are less content, less satisfied, more restless than the faithful.   Faith is for the serene, for folks who mostly accept things as they are — even if it is a faith that change will come, growing out of what already is.  

     Hope is for the ones who are dissatisfied with the world as they find it.  Hope may unite people, but fundamentally it involves alienation.  To really hope for something entails a loss of security and the comfort of belonging where we find ourselves.  If you have faith that things will change, in some way you have faith in the way things are — because you believe they can change.  Hope in some way, however benign, repudiates the present world and dares to demand something altogether different, based not on belief but on desire.  And isn’t that, after all, what Blackstone’s mixed up natural law/positive law argument is wrestling with — a struggle between belief and desire?

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Law, art and order

I’ve had this blog in mind for some time.  Probably because I am characterologically one of the least orderly, least disciplined and most contrary people alive I have a kind of reverence for recipes, lists, directions and all kinds of formulae.  When I was a performance artist I was always fascinated by the sort of minimal, high concept pieces that were based on simply executing a predetermined series of steps again and again.  Building a house, say, out of the five sticks of Juicyfruit you chewed every day.  Or, setting out to photograph every single manhole cover in New York City.  I never actually did anything like this — anymore than I was ever able as a child to actually finish any of the innumerable paint-by-number pictures I started — but this kind of regular, build it up bit by bit activity has fascinated me for a long time.  It’s about time I tried it. 

Then again, maybe it’s all about needing a vacation.   When I went to law school I expected to work hard.  And of course I did.  But in another way, deep down, secretly — I was on vacation.  After years of having to choose what kind of performance piece to make, and why, and why not some other one, and how, and how to fund it, all of a sudden I didn’t have to do any of that anymore.  All I had to do was THE ASSIGNMENT.  For the first and only time in my life I just followed the directions.  I took a three- year vacation from making choices.  It was bliss.  But once I graduated, it was back to choices  — where to work, what to write, who to sue . . . .  After more than ten years of practicing and teaching law, I need a break and I need a project.  

Or maybe it’s just that I am still in awe of that gal in Queens who made every single recipe in Julia Child’s Art of French Cooking and blogged about how how each one tasted.    

In any case, and whatever the reason, here is the deal:  Starting today, I am going to read my way — little by little, one section at a time — through that famously recipelike, order-emphasizing, formulaic, foundational and mostly unread legal text, Sir William Blackstone’s Commentaries on the Laws of England, and I am going to post my responses. My commentary on the commentaries. 

The posts will be regular — weekly, in fact.  But I won’t promise order in their content.  After all, what’s the good of all that regular structure if it’s not that it creates space for some kind of freedom inside the structure.  Come to think of it, isn’t that supposed to be Blackstone’s point about . . .?

So here we go.

Introduction. Section the First:  On the STUDY of the LAW.  

In this section, Blackstone advocates making legal studies part of an English gentleman’s education.  First he offers a historical sketch to explain why civil law — i.e., the European legal codes descending from ancient Roman law — had long been studied in English universities, while the judge-made common law that actually governs most legal disputes in England had not. According to Blackstone it’s because universities were initially run by a “popish clergy” for whom Roman law was holy and common law heretical. Of course, English common law is the subject Blackstone had just been hired to expound in the series of university lectures that would become the Commentaries.  So it’s not surprising that he thinks making law an academic subject will improve both English lawyers and English universities.

What is surprising is his tone.  I wouldn’t exactly call it chatty, but it is a whole lot closer to chatty than I would ever have imagined I would get from this canonical legal academic work. Personal.  That’s it.  There’s a voice there, an individual author talking directly to his audience.  It is very different from the standard tone of legal academics and many lawyers today.  Recently I was advised to take the word “I” out of a law review article I was publishing.   Blackstone says “I” all the time.  He says “I think” and “I hope” and “Far be it from me.”  That might not seem like a big deal, but it is distinctly contrary to exactly the kind of universalized, perspectiveless, grand, depersonalized view of the law that Blackstone is generally portrayed as representing.

That depersonalized tone is standard in legal practice.  Editing students’ briefs, I regularly slashed any first-person references (“don’t say ‘we believe’ say, ‘it is the case that . . .’.”)  Back when I was clerking for a judge I once had a fight with another clerk who insisted on referring to the trial judge who had written the decision being appealed as “the court” — as in “the court below found that the defendant had been properly served.”  To me it was annoying for a judge writing about another judge’s decision to talk about “the court below.”  It seemed like trying to attach some kind of extra value to the trial judge’s opinion by changing him from a man into an institution.  It’s one thing for lawyers to deploy that depersonalized tone as a matter of polite convention or to gain an advantage for their clients.  It’s another for a judge to rely on it to assume some extra authority. The other clerk just thought I was being disrespectful. 

It’s interesting to me how little Blackstone — so far at least — deploys this kind of impersonal tone.  

The other thing that surprises me is how concrete this part of the Commentaries is.  In this section Blackstone is making a case for learning about law in a university instead of — or in addition to — in practice.  To be sure, he’s setting up the whole categorical theoretical enterprise he’s about to embark on as he lays out the law in four volumes.  And he’s already sounding the theme for which he’s usually cited — the common law as a “venerable edifice[] of antiquity,”  that has “subsisted immemorially” and developed over the years with “majestic simplicity” except where interfering legislators have messed it up with misguided acts of parliament.  But most of this section is devoted to an argument about why that venerable judge-made common law should be treated as an academic, theoretical “science” on par with other subjects studied by young gentlemen at Oxford and Cambridge.  And that argument is anything but theoretical.         

Among other practical considerations, Blackstone is worried about the “allurements to pleasure” those young men are exposed to when they head off to law offices in the big city instead of going to college.  It seems that legal apprentices in the city are known to sometimes give up their legal studies and instead  “addict themselves wholly to amusements, or other less innocent pursuits.”  

Of course, Blackstone won this argument in the sense that law is now a mainstay of university education.  But it’s interesting how persistently law nevertheless remains tied to the city — even after most other institutions, public and private, have dispersed out with the general sprawl away from urban centers.  The other day, Election Day, in fact,  I was walking through downtown Denver, on my way from a hotel to the place where I would spend the day monitoring legal problems at the polls.  Like most contemporary post-“urban renewal” American downtowns, Denver is sort of scooped out.  No longer entirely moribund, it is now just oddly vacant — hollowed out at the core.  Impassive glass office towers are interspersed with parking garages and a few bars, restaurants and low key service establishments.  Some smaller, older buildings I noticed, though, housed art galleries and law offices.  Walking through the Denver dawn, it occurred to me that when everybody else fled the cities lawyers and artists stayed.  Why?  Maybe because for all that both art and law are about creating some kind of order, both depend on the kind of disorder and disruption that thrives in the city.  Like art, law needs the very hazards and allurements and addictions Blackstone warned about in order to survive.