Merry Christmas

Book the first.  Of the RIGHTS of PERSONS.  Chapter the first.  Of the absolute RIGHTS of INDIVIDUALS.

Black Stone Weekly is taking this week off to celebrate the holidays.  Just one quick note first.  In this section Blackstone lays out his tripartite structure of individual rights:  security, liberty and property.  I doubt that it’s accidental that there are three.  Three is a magic number, not just in Chritistianity, but in all sorts of contexts.   There’s the old saying, “the third time’s the charm,” and the superstition that unlucky things come in threes, and the good fairy’s traditional grant of three wishes.  (And yes, I wanted to provide exactly three examples.)  There seems to be some kind of almost rhythmic attunement in Western culture, anyway, to three-part schemes.  When there are three of something, we tend to feel that we’ve got it covered, we’ve come to the end of a beat, the picture is complete.  Vaudevillians construct skits according to the rule “three times, and it’s funny.”   But I digress.  Actually I wanted to point out what seems like an oddly anomolous claim in Blackstone’s exposition of individual rights.  According to Blackstone, through the right of “security” English law provides its subjects with “every thing necessary for their support.”    Under “several statutes enacted for the relief of the poor,”  the “indigent or wretched,” may “demand a supply sufficient for all the necessities of life, from the more oppulent part of the community.”  Without knowing the specific 18th century laws referenced here, it’s pretty clear that this must be an overstatement.  Otherwise, the redistribution of property that Blackstone seems to be describing would hardly support the third and most famous of his holy trinity of liberal personal rights:  private property.   On the other hand, a little bit of redistribution goes a long way toward legitimating laws that lock in the original distribution.  One of my great pleasures around Christmas is singing carols with my daughter — now eight.  A favorite is Good King Wenceslas — the story of the pious monarch who ventures out into the snow, bearing provisions for a peasant — and whose saintly charity magically melts the snow where he walks.   Singing this song, you can still  feel okay about all those presents under the tree, as long as you’ve remembered to put something into the Operation Santa box in the school’s lobby.   As the final verse instructs, “ye who now will bless the poor shall yourselves find blessing.” So, in Blackstone’s common law, the absolute prerogative of ownership is blessed with a pinch of security for those who own nothing.

Mapping the law

INTRODUCTION.  Section the Fourth.  Of the COUNTRIES subject to the LAWS of ENGLAND.

In this section, Blackstone traces the jurisdiction of English law.  A complicated map emerges on which the application of common law and legislation diverges and depends on the relationship between the state of England and the territory or state in question.  So, for instance, Blackstone observes that Scotland is part of one United Kingdom with England but maintains a different system of common law, while Ireland, a separate, though “dependent,” country is governed by English common law.  Meanwhile, acts of English parliament automatically apply to Scotland, but only to Ireland if the legislation specifically says so.  

As for England’s “American Plantations,” like Ireland, they are subject to the will of parliament  but not governed by English common law.  Blackstone explains that if the American territories had been uninhabited and “discovered and planted by English subjects” English common law would automatically apply.  But the colonies were established either by treaties or, as Blackstone darkly remarks, by “right of conquest and driving out the natives (with what natural justice I shall not at present enquire).”   So, instead,”the antient laws of the country remain,” unless and until the king decides specifically to change those laws.  It is striking that Blackstone places the American lands on the side of the conquered/uninhabited line that grants humanity — and even a legal system — to Native Americans, and more surprising still that he does not apply the exception for laws of conquered countries that “are against the law of God, as in the case of an infidel country” to smuggle in English common law.  I actually had to read this page several times to be sure I was getting the bottom line right; it was so contrary to my expectations — the old, dumb assumption of ‘old-fashioned’ racism that reflects an equally false myth of progress.  

Apart from this glimpse into Blackstone’s critical view of the American conquest, this whole section at first seemed oddly, and rather boringly, disconnected from the main theoretical project of the Commentaries — sort of like the ‘begats’ in the bible.  Who cares that in the 18th century the islands of Jersey and Guernsey were governed by the ducal customs of Normandy?  How is that going to help me think interesting thoughts about law today?  But then I took another look and I decided I was wrong:  this section is where Blackstone’s jurisprudential rubber really hits the road.

Because you cannot really think about the nature of law without thinking about the at once irrational and apparently necessary connection between law and space.  As Paul Kahn says, it’s all about borders: “Morality may be without borders, but law’s rule always begins only with the imagination of jurisdiction.”  The Cultural Study of Law (U. Chicago Press, 1999) at 55.  At least the kind of state based, and state defining, law Blackstone talks about here.  So much for the dream of a single, unbounded rule of law, based on humankind’s ‘sovereign’ reason.  With every national/legal boundary Blackstone draws, he draws himself away from the whole natural law concept that he ostensibly (though ambivalently) championed in the second section.

As it turns out, this section is the first one to trouble my usual view of the law.  Most of the time, after all, we assume — or act as though we assume — a kind of natural one-way connection between law and geography.  I think, “I’m in New York, so New York law applies.”  I don’t think, “New York is where the  law of New York applies” — and of course, that isn’t always or entirely true, because sometimes in New York other law — most often federal U.S. law — applies and sometime New York law applies outside New York, just like English law reached across the ocean in Blackstone.  But Blackstone’s intricate map of the 18th century reach of English common law brings out the sheer oddity of those boundaries.  You see the way the map gives the law its meaning and, in a certain way, makes it nonsense — even as the legal boundaries make the map.  

Most important, staring at Blackstone’s scheme, you can’t see  jurisdictional boundaries as natural or absolute.  They are a matter of power and imagination.  So much imagination is involved that the same space may be divided legally more than one way:  “The territory of England is liable to two divisions; the one ecclesiastical, the other civil.”  Jurisdictional  lines might sometimes follow natural features, but fundamentally they trace the limits of control of the creatures who inhabit and govern those spaces.  Just as “A parish is that circuit of ground in which the fowls under the care of  one parson or vicar do inhabit,” so New York is where the people who get stopped by New York state troopers for speeding do drive.  

Jurisdictional lines constitute and reflect history, too.  The tangled jurisdiction of federal, state, and Native law on American Indian reservations both creates and obscures the fate of the original subjects of those “antient laws” that, according to Blackstone, withstood the English conquest and its lack of “natural justice.”  Just this week I got an email asking for donations of toys to “help Santa find” the children on the Rosebud Sioux Reservation.  As Blackstone could have predicted, those children inhabit a legally troubled space that is often passed over when gifts are being distributed.

Memento Mori

INTRODUCTION.  Section the Third.  Of the LAWS of ENGLAND.  

In this section, Blackstone defines common law as a “collection of maxims and customs . . . of higher antiquity than memory or history can reach.”  Lawyers these days often call common law ‘judge made law’, but Blackstone insists that judges’ decisions merely announce  the common law; they do not make it.  Still, his explanation of judicial precedent —  the way judges adhere to previous judicial decisions — seems to describe a law making process.  When a case is decided, law on that point has been “solemnly declared and determined,” he says,  “what before was uncertain, and perhaps indifferent, is now become a permanent rule.”  According to Blackstone, though, these judicial precedents are merely “evidence” of  customary rules whose legal force comes not from the judges’ say-so, but from their “long and immemorial” usage.    

On the day I was reading this section of the Commentaries, my husband showed me  an obituary in the New York Times, that made me reconsider the role of memory in Blackstone’s description of common law. The obit was for H.M. — the nom de research of a famous psychological subject, a man (who we now learn was named Henry Gustav Molaison) who had  brain surgery at age 27 and forever lost the ability to form lasting memories.   Though his intellect and personality were otherwise undamaged, from the time of his operation in 1953 until he died this past Tuesday evening at the age of 82,  every time H.M.  saw a friend, ate an apple, or heard about his mother’s death it was as though it were happening for the first time.  

In other words, he couldn’t follow precedent.  Or, more to the point, he couldn’t create precedent.   Faced with the same problem day after day, he had to keep figuring it out from scratch each time because he couldn’t add to his long-term memory.  At least not consciously.  Apparently, he could still develop what cognitive psychologists call procedural memory.  This is the sort of largely unconscious learning that comes from practice over time.  It’s how we learn to ride a bike or play a musical instrument — and how we sometimes discover we can do things that we didn’t know we knew how to do.  (I had a demonstration of the durability of this kind of memory when I decided to sew a Halloween costume for my daughter.  One night, with the adorable lion pattern and fuzzy material in hand, I pulled out the old sewing machine that I had not used since my early teens — some 30 years ago.  Oops.  No instruction booklet.  I dimly recalled that there was a tricky threading procedure required to fill the bobbin, but I had absolutely no idea how to do it.  I sat there staring in consternation at the machine.  And then I just did it.  Without any conscious recall, I reached for the thread and pulled it through all the right hooks and nooks and wires, opened the right little drawer, pushed down right button, whirred the machine into action with the foot pedal, and voila.)  And it turns out that one of the most interesting things about H.M.’s condition was that even with no conscious memory of how he was doing it he could still learn to do new things, when he practiced them over and over again.  The sorts of things people learn this way all seem to have something to do with physical actions. They are by no means limited to physical acts — after all, drawing and singing, even sewing machine threading, seem to involve fairly complex thought.  But it seems as though this kind of learning and memory storage and recall are in some way led by physical action, especially repeated physical action.  Hence, I suppose, the term “procedural” memory — and hence, the connection, I want to argue, to common law.

Blackstone’s picture of common law is torn between two relations with memory. In one sense, law depends completely on the kind of conscious, long term recall that H.M. lost.  That’s what the doctrine of precedent seems to be all about.  You have to recognize that the situation you are facing in that case today is in some way the same as the situation you faced in that case last year, and proceed to apply last year’s decision to today’s case.  As Blackstone explains, the number one source of common law is the “praeteritorum memoria eventorum” — i.e., the record of past events.  But at the same time, according to Blackstone, what gives common law its legitimacy and status as law is not that it is remembered or memorable but that it is “immemorial” — beyond memory.   Now, you could say, as many skeptics have said, that this contradiction just proves that the whole system of judicial lawmaking is basically a sham.  Certainly, anglo-american common law is not, and cannot be, “immemorial” in the sense that it predates human memory, because it is obviously a human creation, and a relatively recent one at that, if we are considering the entire history of humanity.      

But reading about H.M. made me think that there’s another way to see this contradiction.  I’ve always found it curious how deeply dependent judicial procedure is on physical actions — formal, repeated physical actions.  Which is, after all, I suppose, just another way of saying that common law is quintessentially procedural.  And if that’s true, why shouldn’t we assume that the kind of procedural memory that applies to bike riding and dancing and sewing machine threading plays a big role in judicial proceedings?  I’m not prepared to say how, exactly, but it seems to me that the fact that judges are there in court, repeatedly, deliberately ritually, going through the same procedures day after day, year after year, has to affect the way they make decisions.  A lot of times we assume that courtroom ritual is superflous — a kind of quaint survival of a more formal era.  But what if all those ritual moves are connecting judges to a source of knowledge from “time immemorial” — i.e., knowedge from the past that is inaccesible to conscious memory?  Maybe all the repetitious words and motions judges (and lawyers) go through connect them to their own previous experiences in court and the thinking and decisionmaking processes they went through in other cases that are too numerous, too detailed, too various and too long ago to be recalled consciously.  

What I like about this idea is that it suggests a plausible way in which judicial process — and the resulting legal decisions — really might partake of some source of knowledge that escapes and transcends the bounds of conscious memory.  What is troubling, of course, is the notion that much of what determines legal outcomes is unconscious and not transparent.  It suggests that perhaps we ought to be both more respectful and more worried about the ways formal judicial process shapes the legal landscape.