Book the Second. Chapter the twenty second. Of ALIENATION by SPECIAL CUSTOM.
This chapter is about how legal rituals can put some flexibility into social boundaries. Blackstone describes an obscure customary procedure called “surrender,” through which peasant farmers acquire ownership rights to the land they work for the lord of the manor. As usual, Blackstone presents this liberalizing effect as only to be expected, because for him, law is a one-way ratchet that, over time at least, always “favours liberty.” II, 366. Ordinarily, my critical response would be to point out that if law’s rights-conferring rituals restrict a sovereign’s exercise of absolute power, they also legitimize it, and thus tend to consolidate social hierarchy and government’s monopoly on force. But this is no ordinary time. Next month the President of the United States will be a man who shows little interest in law’s legitimating capacity. So, instead of a critique of legal process, the chapter led me to consider what alternative sources of governmental legitimacy Donald Trump might claim, and how such a lawless leader came to govern in the first place.
The surrender custom Blackstone details involves farmers granted plots of land to work by the local land baron in exchange for agricultural services. By going through a prescribed ceremony in manorial court, a farmer could give, sell, or will that land (along with its service duties) to another person. The tenant farmer brings “a rod, a glove, or other symbol” and, “as the custom directs, resigns into the hands of the lord or his steward . . . all his interest and title to the estate; in trust to be again granted out by the lord.” II, 366. If the ritual is properly observed, the lord has to go along with the peasant’s choice of who gets to farm the land next.
Except, not really. Because, the lord only has to honor the deal if he still wants the property farmed by a peasant. He can always take the lands back for himself, or decide to grant them to someone else as a permanent, hereditary estate. It is only “if he will still continue to dispose of them as copyhold, “ a decidedly second-class type of ownership, that “he is bound to observe the antient custom” and accept the original farmer’s transfer to a new copyholder. II, 366. Not to mention, of course, that presumably lords of manors sometimes just ignored the customary rules and did whatever the heck they wanted.
Still it is remarkable that, partly through this customary role play, tenant farmers gained a limited power to sell or bequeath their right to farm particular pieces of land. That might not seem like a big deal, but you have to remember that in feudal property systems all land grants were purely personal. Originally, even knights could not sell their land, or leave it to their children. In that context, creating a way for peasants to transfer their farming privileges without getting the lord’s consent is a pretty significant power.
But nothing comes for free. Legal rituals that intervene in hierarchy –not just odd medieval customs, but modern criminal trials and civil rights cases –- also legitimize and perpetuate existing power relations. Making the powerful answerable to the powerless within a public legal ceremony winds up legitimating and entrenching political and socioeconomic inequality. This, of course, was Marx’s problem with law, and why he tended to discount the legal system as a lever of significant social change. Even if, like Blackstone and today’s human rights advocates, one believes that law can effect real structural change, it seems clear that any social justice achieved through legal process exacts the price of increased legitimacy for the surrounding social order.
If only that were our problem now.
There has never been a time when I wished more fervently for the reciprocal restraining and legitimating power of law. And there has never been a time when the President (elect) of the United States showed so little interest in law’s capacity to shift or to consolidate power. Donald Trump is the least legalistic president I have ever seen – and the most unabashedly delighted at the prospect of exercising sovereign force: “Lock her up! Lock her up!”
Trump publicly asserts that he will use his executive power in ways that obviously violate constitutional and legal limits: He has declared that his administration will authorize torture (violating the Fifth Amendment, the International Convention against Torture, and federal statutes), require Muslims to register (violating the First and Fifth Amendments), and deport three-million undocumented immigrants (necessarily entailing a level of surveillance and arrest and detainment proceedings that violate the Fourth and Fifth Amendments). It’s as if the lord of the manor suddenly announced that henceforward he would pay no attention at all to the customary rules. To Hell with this silly “surrender” business. What’s in it for me? The answer of course, is legitimacy, or the appearance of legitimacy, something that must concern any popular leader. Trump needs some popular legitimacy in order to govern, but he is obviously banking on a different source.
I would call that alternative source something like the cult of authenticity. Remember that long before Trump began his own presidential campaign, he was obsessed with the authenticity of Obama’s claim on the presidency. While others attacked Obama’s policies or rhetoric, Trump focused single-mindedly on the idea that the President was not who he claimed to be, not a real American with a real American birth certificate. Against that background, Trump (the reality TV producer), positioned himself as more transparently self-revelatory, more risk-takingly candid, more “what you see is what you get,” than Obama or that other moralizing pretender, Hillary Clinton. In this story, Trump’s character flaws become proof of his sincerity, and of his bond with the people who support him. Voila, the improbable rise of a leader who reflects and promises to redeem his followers’ fatal flaws.
Is it just me, or have we seen this movie before? Since his election Trump has been compared to various historical figures, including Mussolini, Hitler and Julius Caesar. But the more I think about it, the more Trump’s startling ascent recalls the trajectory of another famous world leader: Jesus of Nazareth. Although Trump’s hate-filled rhetoric is obviously at odds with Christ’s message of hope and love, to my eyes the structure of Trump’s rise and his relationship with his followers eerily recapitulates The Greatest Story Ever Told: the turn away from established procedures and roles toward a charismatic individual who defies formal limits, the rejection of accepted knowledge in favor of faith in “the evidence of things not seen,” and most of all the repudiation of authorities who claim the right to govern by virtue of superior wisdom and character to identify with a leader who flaunts his intellectual and moral failings as badges of shared humanity: “For we have not a high priest which cannot be touched with the feeling of our infirmities, but was in all points tempted like as we are yet without sin.” Hebrews 4:15.
But hold on, what about that “without sin,” part? Trump is an infamous sinner – greed, cruelty, lust, and adultery being just a few of his more obvious failings. Doesn’t his sinfulness derail any structural parallel with Christ’s leadership? It certainly would, if Trump were ever held to account for his sins. But, in fact, if I had to pick the one aspect of Trump’s persona that most clearly marks him as sacred, it would be his unaccountability. Acceptance of apparently criminal, profoundly immoral conduct is the ultimate acknowledgement of divinity, as in, for example, Abraham’s submission to God’s command to kill his child Isaac. As Trump himself observed, he could “stand in the middle of Fifth Avenue and shoot somebody,” and not lose any followers. Just so, a king legitimated not by law but by divine selection is, as Alexander Hamilton put it, “unaccountable for his administration and his person sacred.” Federalist 70. It might seem obvious that it is the King’s sacred nature that makes him unaccountable, not vice versa. But Nietzsche (and the Legal Realists) taught us to turn the causal arrow and see what we could see. If divinely appointed kings are unaccountable because they are sacred, Trump is sacred because he is unaccountable.
All of this is quite far from the customary proceedings Blackstone describes, but not without connection. Medieval surrender is a ritual not just because it is a ceremony that incorporates symbolic objects, but in the wider, conceptual sense that it “creates and re-creates a world of social convention and authority beyond the inner will of any individual.” Adam Seligman et al., Ritual and Its Consequences, 11. Surrender participants are aware of the gap between the ideal ritual order and the flawed real world: the lord and the peasant are not confused about who retains the real power. But if the lord also wants to maintain the peasants’ peaceful acceptance of the existing farming order, he needs to engage in and accept the outcome of the surrender ritual, which like most rituals, subordinates individual identity. As Blackstone puts it, “in this respect the law accounts him custom’s instrument.” II, 370. The surrender procedure neither aimed at nor achieved an ideal social order. It did not reverse or equalize the hierarchy of power. But it played with that structure, and generated momentary openings for individual rights, and, over time, a contingent shift toward greater social mobility.
For a long time, our government has failed to provide any procedures that reliably do the kind of boundary-crossing work of the surrender ritual Blackstone describes. Trump, of course, offers no such process, either, but he was ready to take advantage of lost faith in the permeability of social boundaries. Indeed, you could say that Trump’s presidential campaign was all about boundaries: open borders across which flood imagined hordes of terrorists, rapists, and job stealers threatening Americans trapped on the wrong side of intangible, but very real, socioeconomic barriers that wall them off from the benefits of our “global” economy.
What is to be done? Our newly elected sovereign has no interest in restoring legal structures that, like the surrender ceremony, could put some play back into social boundaries. But note that surrender was never available in the King’s courts. It was a local phenomenon that sprang up in “some manors by special custom.” II, 365. Perhaps, then, taking a cue from this provincial ritual, we might focus on how local government can do the hard, creative work of building ways around, under, and through the social barriers that, without such penetrating procedures, become more impassable every day.