Rights of Passage

Book the First. Chapter the Second.  Of the Parliament

BlackStoneWeekly was in the midst of analyzing this chapter when, watching Barack Obama’s inauguration, my attention was drawn to a theme that runs through all four volumes of the Commentaries — the role of ritual in legal power.  The ritual formality of the legal system Blackstone describes is surely  part of its lasting fascination.  To this day, legal process uses that formality — both formal logic and formal procedures — to transform social circumstances and redress wrongs.  (I have written about this at greater length,  here  and here.)

In law, we enact formal performances — the most complex of which are trials — in which some messy real world conflict is transformed into the violation of a legal rule or right that can be vindicated.  As Chief Justice John Marshall put it — quoting Blackstone —  “where there is a legal right there is also a legal remedy.”  Marbury v. Madison, 5 U.S. 137, 163 (1803).   This kind of mirrored, black and white, tit for tat correspondence that is absolutely absent in life is the absolute heart of retrospective ritual healing and the doctrinal approach to law that Blackstone both reflects and helped to found — and it remains central to legal process today. 

Of course, the claim that legal formulas can retrospectively reverse  the world’s ills is exactly what many progressive legal theorists think is wrong with the Blackstonian concept of law.  Following Blackstone, conservative legal analysts maintain that law’s formal logic and procedures dictate objectively correct legal results.  Critics of that view, sometimes called legal “realists,” see law’s formal aspects as either beside the point or  an attempt to hide politically motivated substance behind an illusion of formal rectitude.   

This formalist-realist debate was mirrored in the television commentary, when Chief Justice Roberts flubbed the presidential oath at the inauguration.  MSNBC’s liberal talking heads immediately declared that the mistake was meaningless.   It would be ridiculous if the failure to utter some particular words in the right order could stop the presidential succession, they all cried.  Besides, the constitution says Obama became president at noon! It’s after noon, so he is already president. Anyway, the oath is just a “formality.”  Meanwhile, on FOX News, at least one conservative  host was saying that the mixed up oath might mean Obama wasn’t really president. 

Ironically, the MSNBC commentators’ certainty that because it was afternoon the oath didn’t matter was based on a rather formalistic reading of the Constitution, and an unpersuasive one at that.  Article II of the original United States Constitution — which lays out both what the president does and how someone gets to be president — provides: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation” and then spells out the words Roberts garbled.   An amendment (the 20th) passed in 1933, provides “The terms of the President and Vice President shall end at noon on the 20th day of January.”  But notice that the amendment talks about when a president’s term ends, while the section on the oath prescribes how it starts. But even if both were triggers for the start of a presidential term, why assume that time trumps oath taking?  Why not rather conclude that both are necessary — to become president, I have to take the oath after noon.  

Do I agree with FOX News, then — and more generally with the formalist conservative approach to legal words — no oath equals no president?  No way.  I think if somebody gets nominated and elected in constitutional fashion and shows up at the appointed date and time to assume the office of the presidency, she’s the president.  Whether what matters is the pragmatic functioning of the nation, or the will of the people, or what the guys who put the oath in the constitution in the first place would have wanted under the circumstances, it’s pretty clear the country doesn’t get left without a president just because of some reversed word order — or for that matter if they forget to do the oath altogether and it turns out the clocks were wrong and it all took place at 11 a.m.   

But unlike the liberal pundits, I do think getting the oath right matters. And, apparently, so did one or both of the two principals involved, because Chief Justice Roberts showed up at the White House the day after the inauguration and the two men did the oath again — slowly, and word for word correct.  

If getting the oath right doesn’t change Obama’s claim on the presidency, why do it over?  Maybe because by doing it over he could get it right.  Most of the mess our new president faces will take a huge effort by a huge number of people to improve, let alone fix, and realistically there will never be a point when he can sit back and say, well, that’s done — perfectly complete and completely perfect, for all time.  In life there are no do-overs. There is only the dogged, uncertain work of mending and moving on.  

In ritual, though, wrongs are reversible.  One of the hallmarks of ritual action, in fact, is this capacity for undoing what we’ve done wrong or badly.  Not only is there a right way to do a ritual, but getting a ritual right is one way we sometimes go about addressing real world wrongs. 

In our legal system where the hurlyburly of real life is reconceived as discrete legal injuries that can be redressed, and in the recapitulation of a presidential oath misspoken, we perform the hope — and strengthen the possibility — that our institutions have the power to meet and transform the dangers we face and the mistakes we make as a society, so that, as that late, great theorist of ritual, Mary Douglas, explained, “what has passed is restated, so that what ought to have been triumphs over what was, permanent good intention prevails over temporary aberration.”  Purity and Danger 68 (Routledge, 1996) [1966].

Private Property and the Romance of Holiday Gift Giving

Book the First.  Chapter the First.  Of the Absolute Rights of Individuals.  

 As I noted in my  Christmas post last week, this chapter is where Blackstone identifies “private property” as one of the fundamental values of English common law.  The chapter maintains the shifty now-you-see-it, now-you-don’t  view of law as a flexible social instrument and law as an immutable gift of god.  Thus private property is an “absolute right, inherent in every Englishman,” whose origin “is probably founded in nature.”  But the practices that actually constitute the legal right of property  — “the method of conserving it in the present owner, and of translating it from man to man” —  are part of the web of social constraints, “in exchange for which every individual has resigned a part of his natural liberty ” in order to gain the “civil advantages” of society.

Reading Blackstone around the holidays couldn’t help but make me wonder about how gift giving reflects and helps create our concept of private property.   A piece in the New York Times on “re-gifting” caught my eye.  The article describes the frowned-upon, but apparently widespread, practice of passing on presents one has received and passing them off as newly purchased items.  In a series of anecdotes a few brave souls confess to the sin of re-gifting with a guilty shrug, a knowing wink or a pragmatic recitation of economic necessity.   But the stories told by re-gifting victims have a darker emotional cast.  These are the people who tore off the glittering wrapping only to discover an obviously recycled gift or somehow found out that an object they previously bestowed was being packed off to another recipient.  Even incidents from long ago are recounted with outrage, sadness, longing and a pervasive sense of betrayal.  It’s not that these people are completely around the bend.  They seem to recognize that getting a used Christmas gift is a small, even trivial, complaint.  Nevertheless big feelings are in play.

Maybe because I recently re-read Lewis Hyde’s wonderful book, The Gift, it occurred to me that — but for those feelings — the shadowy world of re-gifting the Times describes is not unlike the gift economies in traditional societies — most famously the Kula Ring in the South Pacific.  In those systems, a limited inventory of ceremonial objects circulate continuously from person to person in a set pattern of trade relationships.   Kula objects — shell necklaces and bracelets — travel in two simultaneous circuits, in opposite directions.   As Bronislaw Malinowski explains, participants in the Kula “receive the goods, hold them for a short time, and then pass them on.”  Argonauts of the Western Pacific 81(Dutton 1961).  Likewise, according to the Times, holiday gifts in our own culture continue to circulate:  “nobody keeps anything these days. . . . Put a trace tag on a bottle of Champagne you give someone, in the manner of scientists that study the migration patterns of birds, and you’re likely to see it make a half -dozen stops.”  The difference is the feelings that result — that sense of betrayal.  What is that about?

A functionalist account would say each society gets the gift system that supports its mercantile economy.  And sure enough, the continuously circulating Kula gifts create a trade network in which the barter and exchange of all kinds of necessities flourish alongside the exchange of ceremonial objects.  In contrast, our “re-gifting”  taboo against Kula-like circulation requires that a new item be purchased for each gift partner on every ceremonial occasion, and thus maximizes the consumer spending that keeps our retail economy healthy.    

But I think our holiday gift practices support “private” property in another way that comes closer to explaining the emotional heat stirred by re-gifters.  Our gift culture seems to replicate in a thousand small exchanges the “one true love” model of romantic attachment that is the most desirable of all “private” relationships and activities in our culture.  Like a monogamous romance, the bond of gift exchange entails an exclusion of others — “This is for you — and only for you — I found it, chose it from among all the rest — the one, true present meant for you, from me, now and forever.”    Giving it to someone else is like refusing to accept a proposal — and like falsely proposing to the someone else, who deserves better.  She is entitled to her own true romance —  the one chosen just for her —  this color, not that, this particular softness, flavor, shape, texture that will be hers always.  No wonder then, that the person whose gift is repackaged and sent elsewhere feels the ghost of simultaneous shame, loss and betrayal she might experience if her romantic partner was fooling around, and no wonder the person who receives the “re-gift” finds it in some way deeply insulting, even if he laughs about it.  

I have to think that all this romantic intrique projected onto the consumer objects we exchange over the holidays affects our sense of the meaning of such personal property.  How exactly, I’m not prepared to say — but surely it participates in the often observed connection between shopping and desire.  And just as surely it infuses these bits of private property with the eroticized privacy of the idealized romantic relationship that remains our greatest object of cultural desire.