Jessie Allen, School of Law, University of Pittsburgh

Book the First.  Chapter the sixth.  Of the KING’s DUTIES.  

Blackstone Weekly is growing weary of these little bitty chapters.  This one is only about three pages long. Still, there’s always something to chew on.  Here, in the very first sentence, Blackstone explains that “in consideration of” the king’s constitutional duties, “his dignity and prerogative are established by the laws of the land: it being a maxim of the law, that protection and subjection are reciprocal.”  (p. 226).  Now, in legal arguments, “maxim” is one of those words that’s often code for “I don’t have any support for this proposition.”  It’s like when my Aunt Mary used to tell me that if I didn’t know how to pronounce some word, I should be sure to say it extra loud.  So naturally I was suspicious.

At first, it did seem pretty obvious that protection and subjection are reciprocal, that is, that by giving one, you get the other.  In fact, once I started looking for it, it seemed like  reciprocal protection/subjection was everywhere.  There were economists explaining that the global financial meltdown happened because of relaxed government regulation (i.e., not enough subjection equals not enough protection; tsk, tsk).  There were headlines like the NY Post’s “Obama fires GM boss” (i.e., if I’m going to protect you, I’m damn well going to subject you).  There was the flaw in Congress’s plan to retroactively tax AIG bonuses at 90% (the same constitution that protects Congress’s legislative power subjects that power to certain limits, including a ban on legislation that aims to punish individuals by stripping them of their property without any legal process).  And there was the news that Alaska and South Carolina will forgo millions of stimulus dollars because the money comes with federal strings attached (as in, “we don’t need your stinkin’ ‘protection’, thank you very much”!).

So far, so good, but then I looked back at Blackstone’s statement that started me off on this quest — that law establishes the king’s prerogative in consideration for his duties, because protection and subjection are reciprocal — and I realized that I didn’t really understand what he was talking about.

He may have meant “because the king subjects  himself to the law, the law protects the king.”  That would make sense as part of his ongoing argument about the virtues of legally limited monarchy.  But the discussion that follows seems to suggest a different meaning.  Blackstone keeps talking about a “contract” between the king and the people.  Along with his assertion that the king’s prerogative is established “in consideration” for his duties, that sounds more like “I protect you [English people], and in exchange I get to subject you,” with the King as the protector and the people as the subjects. This familiar Lockean social contract theory also seems like a perfectly plausible point for Blackstone to be making in this context.   So it does seem like there’s a point to be made here that entails a reciprocal relation between protection and subjection.  But it’s hard to see that point as the straightforward application of a maxim, when it could mean two completely different things. Even the parties it supposedly applies to are different:  in the first it’s the law and the king and in the second it’s the king and the people.

Also notice that there’s nothing other than the jargon (Blackstone’s “in consideration” or my “in exchange” that makes the relation between the government’s protection and the citizens’ subjection look agreeable, or even consensual.  Lose the contract language, and we might be talking about coercion or even logical necessity.   Does government get to subject people in exchange for protecting them?  Or is it that government protects people by subjecting them?  In a darker view, is government subjection the price extracted for government protection, or is protection just subjection in disguise?  If it’s the latter, the whole contractual aspect of Blackstone’s point disappears.  We’re no longer talking about a trade-off to which parties agree (okay, I’ll let you subject me, just as long as you protect me).  We’re not even really talking about a coerced quid pro quo.  Protection always entails subjection.  It follows as the day follows night.   In fact, in this view, protection may actually be subjection; reciprocity has collapsed into identity.

That’s the view from Alaska, I guess, and South Carolina.  And of course it’s true — at least somewhat true.  In life as well as law, once you’ve got protection, you’ve got some amount of subjection, because protection implies superior power.  How protect if you’re not in charge?  But that can’t be the whole story.  Because lots of times the less powerful member of the pair or group is called upon to protect the more powerful ones.  Just take a look at who’s in our armed forces.  Sometimes the subjected one is the one doing the protecting.

On the flip side,  isn’t it  true that sometimes a more powerful protector winds up subjected by the protection she extends to her subjects? So long as she remains a protector, the protector is subjected, too — by her very role or duty of providing protection.   Think of parents and children.  Or, to go back to the geopolitical, how about the U.S. and Iraq?

Ugh.  Now everywhere I look I see protection and subjection, but they never seem to go together in the same way.  So far, just in the discussion above, here are the different protection/subjection relationships we’ve got:

1.   Because I subject myself to you, you protect me.

2.  In exchange for protecting you, I  get to subject you to my will.

3.  I subject you to my will, and, therefore, you (must) protect me (if I say so).

4.  I protect you, and, as a result, am necessarily subjected to your will (at least to the extent that I am bound to keep on protecting you).

In every one of these you give protection and get subjection or give subjection and get protection.  But there the similarity ends.   Wait a minute, is the reciprocal relationship of protection and subjection a “meme”?  Just the other day I was railing against the nonexistence of any actual referrents for this trendy term — can it be that I’ve finally stumbled across one?  Maybe.  In any case, I’m left feeling that my instinctive distrust of the “maxim” of reciprocity between protection and subjection has been vindicated.  True, staring hard at the protection/subjection pair didn’t uncouple them, or make the relationship seem false or meaningless.  Instead it multiplied its meanings.  In fact, there seem to be nearly endless different ways to give protection and get subjection or vice versa.  I guess the point is that if you can imagine all these different (reciprocal) relationships between these terms in all these different contexts, then it’s not at all obvious that there is anything necessary about their connection in any particular set of circumstances.  Because you can always scramble the players and the terms and set them up another way.  So the maxim holds — but it doesn’t really tell you anything about what follows — or should follow — from protection on the one hand, or subjection on the other. Now what?