The King Is Dead; Long Live the Law

Book the First.  Of the RIGHTS of PERSONS.  Chapter the Third.  Of the King, and his Title.

In this chapter you really see how Blackstone both inspired and pissed off the American founders.  It’s a hymn to the hereditary right of kings whose main theme is that the representative legislature gets to decide everything — including who gets to be king.  Of course, in Blackstone’s world that legislature included not only the unelected lords but the king, who had veto power, but still . . . . It’s a long way from the kind of divine right of  royalty that often gets opposed to the idea of elected democracy.  Is there anything that isn’t more complicated than we think it is?

Blackstone’s England is all about compromise. The British ship of state steers between the extremes of an elected sovereign, which “may sound like the perfection of liberty, and look well enough when delineated on paper, but in practice will be ever productive of tumult, contention, and anarchy” and a monarch with a “divine indefeasible hereditary right,” which “is surely of all constitutions the most thoroughly slavish and dreadful” (p. 211).  In the government the Commentaries celebrates (and to some extent instantiates), the sovereign’s hereditary right is limited by the absolute individual rights that every Englishman inherits. Id. 

This stuff must have driven Jefferson insane.  On the one hand, here’s the blueprint for representative government, based on “the natural liberty of mankind” (p. 121), in which legislators — and legislation — reign supreme.  That’s good.  On the other hand here is an equally well-articulated condemnation of elected sovereignty.  That’s bad.  Plus, Blackstone’s got some serious rhetorical skill.   Making the British monarchy look like the modest middle ground between two wacko polarities is a strategy known to every good negotiator:  The more persuasively you can situate that bailout plan, brand of panty hose, political ideology you’re trying to sell as a compromise between risky extremes, the more likely you are to make that sale. And then there’s the part where Blackstone claims elections are a primitive survival of our less civilized past:  “in the infancy and first rudiments of almost every state, the leader, chief magistrate, or prince, hath usually been elective” (p. 186).  Finally there’s the argument from experience:  as “history and observation will inform us” only hereditary monarchy  prevents “periodic bloodshed and misery.”  Id.  

The funny thing is, though, after all those canny rhetorical moves, the chapter’s argument that hereditary succession is necessary to stabilize society fails.  At least for this reader.  And I have to think it probably misfired for a number of 18th century readers, too, which may be part of how Blackstone wound up more revered in the new world he reviled than in the old one he celebrated. What’s more, the defense of sovereignty by birthright falls apart so slowly and obviously that I actually wonder if it wasn’t part of Blackstone’s plan all along to sacrifice this point in order to shore up another idea that was way more important to him:  that it’s laws that ultimately secure successful societies.

The whole long middle portion of the chapter is devoted to a blow by blow chronology of the passage of the English crown down from King Egbert in 800 to “our present gracious sovereign, king George the third,” and it is just really hard to see how anyone confronting this twisted saga of intrigue, accident, insurrection and compromise could come away with the idea that hereditary succession is a good way to decide who gets to govern.  It’s just one royal mishap after another.  Queens die “without issue,” princes get deposed by interloping uncles who “usurp[] the royal dignity,” and every time you turn around there’s another exception being made to an already incredibly complex (but still apparently hopelessly indeterminate) set of rules for sorting out where the crown lands when the music stops. The one constant, really, is the legitimating authority of parliament — which is always having to step in and declare that the current reigning monarch is actually the right one.  Which is what makes me just a little bit suspicious that Blackstone, who I must say I am really starting to think of as someone with a rather subtle sense of humor, may have wanted his readers to have this reaction.          

If there is an institution here that looks solid and dependable it is — surprise, surprise — the law.  In the monarchy Blackstone describes, laws don’t come from the king — the king comes from the laws. Hereditary succession to the English crown is a choice that “laws have created and vested in the royal stock” (p. 211).  And these aren’t natural — or divine — laws, either.  Blackstone mocks the idea that “the finger of providence was visible” in the king’s title, insisting that “it was clearly a human institution” and “no natural, but a positive right” (p. 202).  What makes this all the more remarkable is the fact that, to the contrary, Blackstone contends that the basic rights of human beings do come from God. (See, e.g., pp. 119-123).   So we wind up with a complete flip of the regal appeal to divine intervention with god on the side of the monarch’s subjects who are ultimately in charge — through the laws their representatives enact — of who gets to be king.  In the end, it seems a very short distance, if any, from Blackstone’s vision of the government that “it is is the duty of every good Englishman to understand, to revere, to defend” (p. 211) and Thomas Paine’s avowal, in the tract that urged rebellion against that very government, that “so far as we approve of monarchy, . . . in America the law is king.”   





Equality and Ooze

Book the First. The RIGHTS of PERSONS.  Chapter the Second.  Of the Parliament

In this chapter, Blackstone explains (p. 142) that for the rest of Book I he intends to discuss “the rights and duties of persons, as they . . . stand in various relations to each other. ” Why start that discussion with an analysis of the British Parliament?  Well, because, “The most universal public relation, by which men are connected together, is that of government, namely, as governor and governed, as magistrates and people.”   Wow.   This is one of those times when I realize that the author of the Commentaries looks at the same picture I’m staring at and sees something completely different.  Blackstone surveys social relations and the “most universal” one he sees is governor/governed.  In case the reader missed the hierarchical crux of the matter, he ellaborates: “Of magistrates also some are supreme, in whom the sovereign power of the state resides; others are subordinate.”  This chapter will start erecting the gorgeous legal edifice of variable privilege and duty out of the crude — and equal — rights that belong to everyone “merely in a state of nature.”    

Child of the American sixties that I am, I tend to think of “equal rights” as an ideal to be aspired to, not as the baseline muck from which we all struggle upward. And aspirational talk about equality is very much in the air these days.  In his inaugural address, President Obama urged us “to carry forward that precious gift, that noble idea, passed on from generation to generation, the God given promise that all are equal . . . .”  Of course, in one sense Blackstone is a precursor to this modern view, exactly because of that first chapter on absolute individual rights.  It’s that part of the Commentaries you hear echoed when our new President declares that our rights, “come not from our laws, but from our maker.”  

But reading Blackstone’s description of the sovereign legislature in this chapter, you  feel his antagonism to any view of equal rights as ennobling. Rights may come from God, but then so do bugs.  For Blackstone equal rights are basic to mankind as a kind of common, primitive origin. This is the equality of molecules, of micro-organisms, of mud — the primordial human ooze out of which law develops higher forms of social existence — like mammals from amoebae.  

In Blackstone’s worldview, law promises not rights, but order —  and not just order as a matter of keeping the peace.  This is not your crude, gunslinging, tough-talking Nixonian, primetime “law and order.” For Blackstone, law’s order is articulation — crystalizing civilization out of the muck of human rights. Blackstone even rejects Locke’s view that citizens in a democracy retain the power to unseat a legislature, calling any such exercise of popular sovereignty a “devolution” that “reduces all the members to their original state of equality.”  In Blackstone’s legal cosmology, and in Book I of his Commentaries, equality is where we start, not where we finish, and our legal system is meant not to keep us all equal but to allow us to differentiate.

Of course the view of equality as something we might fall back to, rather than struggle to attain, is not confined to an 18th century defense of constitutional monarchy.  It remains very much alive, for instance,  in today’s critiques of  affirmative action.  For that matter, the two senses of equality, high and low, are mirrored in the two normative slants we give the same term, “discrimination” as (1) a prejudicial judgment that fails to recognize individuality and (2) the discernment that registers and rewards individual differences.    

Our understanding(s) of the meaning and role of equality will of course affect governmental structures (and be affected by those structures). Consider voting rights.  Blackstone notes approvingly (p. 166) that in the parliamentary democracy he is describing, “comparative wealth, or property” is reflected in the electoral scheme — “for though the richest man has only one vote at one place, yet if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives.”  In contrast to the contemporary American mantra of “one person, one vote,” for Blackstone it’s natural that your voting rights expand with your property holdings.  He wants voting laws to reflect and amplify individual differences; we want voting laws to level them. In Blackstone’s England voting in two jurisdictions is a way of reflecting a highly developed social order, in the U.S. today it’s voter fraud.  

And consider Blackstone’s explanation (p. 165) for why people with no property can’t vote: these individuals are “in so mean a situation that they are esteemed to have no will of their own.”  If poor men had votes “they would be tempted to dispose of them under some undue influence or other.”  From our equality perspective today, this looks obviously trumped up.  Why are poor people any more likely to sell their votes than middle class, or even rich landowners?  Doesn’t everyone want something?  Doesn’t every man have his price?  And even if it were true that someone with very little is more vulnerable to influence, the solution is not to disenfranchise anyone who doesn’t own real estate but rather to use that fine governmental and legal structure to protect their voting independence, e.g., with rules that create secret ballots and criminal penalties for trying to buy votes.  

But here is where I begin to get that queasy feeling that maybe I don’t see things so differently from Blackstone after all.  Just the other day my 8-year-old daughter was trying to enlist me in her campaign for children’s voting rights.  Of course I was being all parentally supportive and proud of her initiative, but I was also offering counterarguments.   I pointed out that since kids don’t live independently, they could be influenced by their parents or might even agree to vote the way their parents want them to in exchange for, say, a new video game.  Uh-oh . . . now I sound like Blackstone and the poor folks!   And the answer is the same, isn’t it?  Just because kids aren’t financially (or emotionally) independent doesn’t necessarily mean they can’t be politically independent.  It just means you’ve got to create the legal structures that will generate and support that independence.  Of course my immediate thought here is to protest that no, no, there’s a real difference — because we’d never want to build such structures for kids — think how disruptive they would be to family life as we know it.  But, curses!  That would probably be just how Blackstone would feel about the idea of creating a voting structure that messed with the dependent social relations built around the English class system.   So much for my smug 21st century moral superiority and my highfalutin conception of equal rights.  Somewhere in the back of my highly differentiated but totally equal 21st century brain, I think I  hear Blackstone laughing.