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.