Theater of the Invisible

Book the Second.  Chapter the Third.  Of Incorporeal Hereditaments.

Blackstone isn’t famous for making something out of nothing, but for giving a new twist to something as old as the hills. In this chapter, he casts the arcane privileges associated with inherited land in Britain as imaginary objects passed down through the generations.  Each invisible right-object produces a distinctive form of wealth or power catalogued here: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies, annuities and rents. Of course Blackstone did not invent these customary forms. He is the Josiah Wedgewood of property theory; the Commentaries are a prose factory producing traditional rights in a distinctive pattern. All of this seems so quintessentially a matter of old-fashioned English property law that I was surprised when it helped me figure out what I found so troubling about the killing of Osama Bin Laden.

One imagines that in the Eighteenth Century, like today, people rarely sat around asking, “what is a right, anyway”?  But Blackstone apparently did.  And he came up with an answer that captured some of the felt, phenomenological difference between taking or doing something because you can and taking or doing it because you ‘have a right’ to take or do it.  For Blackstone, it was crucial to separate rights from the material things and physical acts they protect and the government force that protects  them.  In a situation in which, say, the police come and drag one person out of a building in handcuffs while another gets to stay, you might tend to focus on the building or the cops, but Blackstone has something else in mind – the right to call the cops and stay in the building.  Admittedly, such a right is elusive, because it “is the object of neither sight nor the touch,” but for Blackstone it is as real as it is immaterial,  and “perpetually exists in the mind’s eye, and in contemplation of the law.” II., p. 21.

Many very smart people have a problem with this vision.  In fact, the idea of rights as imaginary objects has been excoriated from the day Blackstone put pen to paper, first by his great contemporary critic, Jeremy Bentham, then by the Legal Realists of the early twentieth century who called it “thingification” and “transcendental nonsense.” Felix Cohen, Transcendental Nonsense, 35 Colum. L. Rev. 809 (1935).  Envisioning legal rights as discrete, though invisible, objects suggests they have a kind of natural existence apart from the political and economic hierarchies they were designed to protect.  But where do rights come from if not from those hierarchical structures of power? Rather than saying that a landowner could have the police drag away trespassers because he had a property right, the Realists said the landowner had a property right because he could get the police to drag away trespassers.  From this critical perspective, instead of a moral justification, Blackstone’s formal approach to rights provides a “mystical foundation” for property holders’ authority.  Jacques Derrida, “Force of Law,” 11 Cardozo L. Rev. 919, 938 (1990) (quoting Blaise Pascal, Pensees, Section V, No. 294,“le fondement mystique de leur auctorite”).  Indeed, Blackstone stresses the mystical nature of the invisible rights he describes: “Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses.”  II., p. 20.

The visibility and legitimacy of government force and the bodies it affects were on my mind recently with the news that a United States military team had been sent to kill Osama Bin Laden.  What a weekend that was for formality and force. On Friday, a powerless state figurehead was wed in a spectacular ceremony joined in real time by hundreds of invited participants, public throngs on the street and millions around the world who got up in the middle of the night to tune in live. Two days later, a powerful state enemy was put to death in a secret operation watched by no-one and announced after the fact as a pragmatic act of power with very little formal justification.  It was an extraordinary illustration of the degree to which formal legal justification seems increasingly relegated to a ceremonial role and disconnected from the serious business of state government.

But isn’t that all to the good?  Isn’t it just proof that our democratic government is more candid, more rational, and less concerned with masking the truth about government force than the monarchy Blackstone defended, and thus when it authorizes force has no need to fall back on legalistic illusions of invisible rights and spectacular rites?  Wouldn’t putting Bin Laden on trial have been at best an empty ritual, at worst an elaborate and dangerous charade whose outcome was preordained?  After all, as my 10-year-old daughter commented, if Bin Laden had been put on trial he probably would have received the death penalty. There is at least a  reasonable argument that going through the formal motions of a trial whose “guilty” verdict and capital sentence seem preordained would obscure rather than answer questions about our government’s prerogative to take Bin Laden’s life.

Here is the problem.   In place of the formal ritual, it isn’t like we got much of an argument about morality and policy.  Like Bentham and the Realists, the cool-headed policymakers of the Obama Administration apparently believe that invisible legal rights and spectacular formalities cannot legitimate sovereign force. But what they gave us instead was not really a reasoned justification for Bin Laden’s execution (which they seemed to view as self-justifying).  Instead we got a kind of personal dramatization of the decisionmaking process.  The Administration seems sincerely to have wanted to present an account of sovereign force unobscured by a fantasy of invisible rights and ritual legal formality.  But there was nevertheless a great deal of stagecraft in their plainspoken statecraft.

Instead of a live public courtroom spectacle leading up to an execution, the Administration released a remarkable series of photographs and video after the killing.  In the photos, the President and his advisors stare at a screen outside the frame where (we are told) another government official is providing a running verbal report of the mission as it unfolds: “They’ve crossed into Pakistan . . . .”   The photos look like stills from an episode of Law & Order or, yes, The West Wing, with its band of attractive, conscientious public-servants.  Forget black robes and formal choreography, this looks recognizably real.  And rather than evoking feelings of awe for the power they wield, the pictures invite us to identify with characters going about the  business of ordinary day to day existence even as they bring about momentous world events (“A staffer went to Costco and came back with a mix of provisions — turkey pita wraps, cold shrimp, potato chips, soda.”  F3, NYT 5-3-11).  The irony is that, exactly because it appears so unstudied, this kind of naturalistic drama is much more heavily masked than a formal legal ritual, whose artifice is readily  apparent.

To judge from the public response,  most Americans did not miss the visible rites or invisible rights of a more formal, public authorization of state force.  Cloaked in a story of conscientious executive decisionmaking, we were given, and apparently accepted, a direct assertion of the most basic of all government prerogatives – the sovereign’s power to en-force its authority by authorizing force.  This kind of blatant and effectively unlimited executive power was the focus for much liberal criticism of the Bush administration.  It was also the principal aspect of the British monarchy that Blackstone sought to limit and legitimate with his marvelous structure of invisible legal rights.

So this is a very old story.  Indeed, despite its modern situation-drama format, the story of Bin Laden’s killing had a biblical quality, as a kind of triumph of verbal purity, of the eternal sovereign word, over the mortal human body.  As Elaine Scarry showed in her brilliant, still wholly relevant, book, The Body in Pain, the god of the Old Testament enacts his disembodied power by wounding and destroying human bodies.  Likewise, it seems the risky mission to capture and/or kill Bin Laden was chosen over an air strike precisely to produce a wounded body.  Then that body was obliterated, leaving only verbal traces of its destruction. “You won’t see Osama Bin Laden walking on this earth again,” President Obama assured us, as he announced that his administration would not release the “gruesome” photos of Bin Laden’s corpse. As much as a mission to rid the world of Osama Bin Laden, this was a mission to show the world that the United States could make him disappear. No graven images remain to challenge the authority of the one true sovereign’s word.

Next to this masterful use of dramatic disappearance to make sovereign power appear, Blackstone’s imaginary invisible rights look rather quaint and homespun.  Yet it is striking how both schemes depend upon the play of visibility, invisibility and power. Which is the greater hedge against tyranny – envisioning rights as intangible objects and demanding their ritual appearance as a basis for state violence, or candidly and pragmatically justifying violence after the fact? Going through a public formal procedure that purports to impersonally trigger state force or chronicling conscientious personal decisions to authorize that force?  This seems like a particularly compelling question given the current struggles to replace dictatorships with democratic governments throughout the Middle East. Whether democracies born in the twenty-first century will eschew formal rights and spectacle in favor of more personal narratives of government power remains to be seen.  As for Bin Laden, now you see him, now you don’t.

8 thoughts on “Theater of the Invisible

  1. Jessie,
    I always enjoy reading your blog, but this one tops them all. I love the way you bring Blackstone into the 21st century, and here I think you’ve put your finger on exactly what is disturbing about killing bin Laden. As for Lincoln’s point, maybe by the time he got his trial, the death penalty would have been abolished?
    From rainy New York,

  2. Thanks, Ursula. Your point about the chance that the death penalty might be abolished points out that even in the most tightly choreographed legal rituals an element of chance exists — if only because those rituals must take place in real time, during which, sometimes stuff happens. As Penda Hair taught me, a crucial part of litigation is just finding a way to keep the ball in play so that opportunity has a chance to materialize.

  3. Jessie,
    I agree the execution was troubling – but only if Bib Laden was an alleged criminal. Suppose he is a soldier engaged in battle? Then, no trial needed or desirable. The war on terror(ists) is real – they are surely at war with the U.S. among others. Of course, even in war an unarmed soldier offering to surrender cannot be lawfully executed. But no indication that Bin Laden was surrendering and some indication (apparently) that he was preparing to fight. Under that view his attackers had the right, pace Blackstone, to kill or capture him

  4. Hi, Oscar,
    I think it goes beyond whether OBL fits the category of “soldier” or “criminal.” What I find most interesting is that the Obama Administration seems to be avoiding this kind of formal categorization, just like they have avoided articulating a formal rights-based justification for the killing. In this way, too, they are Realists. I have not seen any direct assertions that the killing was justified as a battlefield death. What I have seen are suggestions that the situation was ambiguous — and that the decision to kill or capture was left up to the discretion of the people carrying out the mission. Again, a Realist approach. From outside the Administration I’ve seen categorical justifications of the killing that suggest that OBL was neither a soldier nor a criminal but something much more dangerous — a sort of walking weapon. The most interesting came from Sen. Lindsey Graham (R-S.C.) who suggested a “hands up” surrender could have been fake, because OBL might have had explosives strapped to his body. “Graham said it was appropriate for U.S. forces to consider bin Laden a “walking IED” (Improvised Explosive Device).” Wow.

  5. Jess, really salient. I absolutely agree with the Biblical reading, though it seems to me that legalistically, this was an enactment of an eye for an eye… What troubles me is that rather than having or needing a legal justification it feels to me very much an enactment of revenge and the transparency with which it was done is troubling. We certainly know that our government (through the CIA) has over the years been responsible for assassinations and support of various coups, but they were alway back-channel affairs and there revelation often brought about questions and criticism, but this was revealed immediately and mostly brought celebration.

  6. Hi, Marc, Yeah, isn’t it interesting the way transparency works — when you don’t have it you want it (I remember when I was in S. Africa right after the elections there in 1994 and “transparency” was the most often articulated aspiration of the new democratic government). On the other hand, as you say, transparency can be troubling. Of course, you could say that these are obviously different meanings of the term — the good one is not hiding things and the bad one is not justifying them — but the thing is that once you start looking at the formal aspects of legality (like Blackstone’s imaginary right-objects), the two meanings seem to overlap.

  7. Hi Jessie:

    Another great post; we have all come to expect nothing less. However, I’m not persuaded that the absence of a formal rights-based justification for the killing is surprising. After all, to whom is such a justification owed? My read is that as soon as the first “Wanted Dead or Alive” poster was hung, UBL has been viewed within the community of US rights holders as the ultimate outlaw. The discourse around him thus transpired and transpires outside the Rule of Law.

    Neither do I think that this is inherently bad. After 9/11, UBL became sui generis, the individual exception that actually proves the Rule of Law. This story demanded poetic justice, not formal justice. And again, I’m not sure who in the relevant community of rights holders would really argue that this story ended badly.

    Of course, the worry is precedent. As you rightly point out, this concern amplifies during the current struggles to replace dictatorships with democratic governments throughout the Middle East. Yet somehow my intuition is that the exceptional nature of the act and actors will strongly constrain any future reliance on Principles Established. The lack of a formal process/justification could actually be a boon in this regard. To borrow from Justice Jackson, we need not worry about a pretense of lawfulness lying around like a loaded weapon to be picked up by future hands.

  8. Hi, Colin. Thanks for the thoughtful comment. I am not fully persuaded that formal justification and procedures would be an improvement. The questions at the end of the post are real. I’m not sure whether formality, as a rule, is more about limiting or legitimating government force and personal power, and whether pragmatic justification after the fact is necessarily less democratic than ritual authorization in advance. So I am not at all sure that formal justifications and procedures would fix the problem, but I am pretty sure that there was a problem. I am less sanguine than you about the “sui generis” issue. As you point out, this kind of assassination is hardly unique. What does seem unprecedented is the public announcement of the killing. I’m not as confident as you that this is a one time only thing. After all it comes on the heels of the torture memos and while Guantanamo and who knows what “black” sites remain in operation. And according to the NYT the SEALS team that executed Bin Laden is “a unit so secretive that the White House and Defense Department do not publicly acknowledge its existence,” yet it is a storied, elite unit that has existed for years and holds infamous “zero or hero” tryouts, kind of like one of those Harvard dinner clubs. It kind of seems like they anticipate that this kind of work might come up more than once. That still doesn’t mean that formal process necessarily would be better, or even as good. As you and Justice Jackson point out, every legal procedure that limits — or apparently limits — force legitimates it. The hope would be that going through the motions would better acknowledge and deal with the moral ambiguities. But I agree it remains a hope, and a question, not a certain answer to a problem.

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