Law Makes the World

Jessie Allen, School of Law, University of Pittsburgh

BOOK I.  Chapter the Eleventh.  Of the CLERGY.

Just when I was thinking that there wasn’t a single point of interest in this chapter’s dry taxonomy of English clergymen, I realized that it provides an excellent example of an idea that I’m always pushing but often at a loss to explain concretely.  We tend to think of the legal protections and exemptions accorded the clergy as a response to their unusual social situation.  That is the story Blackstone sets out to tell:  “This venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of almighty God, have thereupon large privileges allowed them by our municipal laws.”  p. 364.  Instead, though, he winds up showing us that the situation is just the reverse — or, just as much the reverse anyway.  Law isn’t just shaped to fit the clergyman’s role.  The clerical identity is shaped, even created, by law.

First there are the rules Blackstone recites:  “A clergyman cannot be compelled to serve on a jury, . . . . During his attendance on divine service he is privileged from arrests in civil suits. . . .Clergymen . .. are not allowed to take any lands or tenements to farm . . . nor shall engage in any manner of trade, nor sell any merchandize.”  p. 365.   Even these sorts of regulatory afterthoughts surely have an effect on the reality they regulate.  In the developing mercantile society of late 18th-century England, a total prohibition on selling matters.  And notice that the prohibition is going to have an effect even if it is not treated with reverent obedience.  For all I know the parsons in Blackstone’s day came up with all kinds of ways to get around the letter of the law, like those little cardboard tickets that one always has to buy at PTA events and then exchange for hotdogs and cokes, apparently because there is some rule against selling refreshments at school.   I’ve been buying those tickets for so long now that  just the sight of one conjures up a certain kind of community event — rummage sales, block parties, spring flings — with an atmosphere that is distinctly different from ordinary commercial shopping and entertainment.  Of course I realize that there are other differences, too, but I actually think that little ticket ritual is the sort of thing that sets this aspect of experience apart.  Rules of this kind — that sort things and people into categories and prescribe behavior according to those roles — are the kind of line drawing that we usually associate with traditional religious practices.  So it is interesting here to see the law of the political state carving out the social space for the religion that will, in turn, set out its own internal behavioral restrictions.

Now, here is something else.  By a quirk of syntax I discovered that the very concept of a “cleric” derives from a legal disability!  Blackstone uses the word “clerk” quite a bit in this chapter.  I assumed he was using it  as a catchall category for his carefully delineated parsons and vicars — but I couldn’t be sure.  So I went to my trusty copy of Webster’s Collegiate, which confirmed that “clerk” is a synonym for “cleric” and then explained  that both words derive from the Greek word kleros meaning “‘inheritance’ in allusion to Deut. 18:2.”   Being almost totally ignorant of the contents of the Bible, I was puzzled  about what being a clergyman could have to do with a Greek word for inheritance.  When I  looked up the biblical text, I found this:  “They shall have no inheritance among their countrymen; the LORD is their inheritance, as He promised them.”

Are you with me?  The modern English word for a churchman comes from a biblical law that excludes them from the ordinary rules of inheritance.  Don’t forget that rules about who gets to inherit what from whom and how are the alpha and omega of the English legal system.  If a “cleric” is someone biblical law disinherits, that is not a question of regulation at the margins, that is an act of social creation.  But it’s tricky, because English law doesn’t actually disinherit parsons and vicars.  As far as I know they can inherit land and other property like everyone else.  Always could.  So this isn’t a functional legal prohibition creating a separate identity.  It’s still interesting, because it puts a legal structure right there at the source of a social category, but it is purely conceptual.  Or is it?  I’m speculating here, but it occurs to me that there is a famous English legal inheritance structure — primogenitor — that might have something to do with the creation of a professional clergy as diagrammed in Blackstone’s chapter.  Because what are all those second sons going to do?  How are they going to make a living, and find some social space for themselves, without either inheriting the family property or descending to the ranks of tradesmen?  Well, how about entering a vocational sphere bounded by legal rules and exemptions that both separate it from ordinary trade and insure a steady income through the mandated system of tithes?

It’s one thing to see how legal rules two hundred years ago constructed a social status that we have long conceived as special and apart from ordinary life.  But what of the rest of us now?  I don’t think there’s any difference.   If law makes the 18th-century English clergyman it just as surely constructs the identity of a civil rights litigator/law teacher/ mom in twenty-first century New York City.  This is one of the most rewarding things about reading Blackstone — the chance to see at some distance the ways law and culture shape either other.  And once I’ve seen these things in Blackstone, I know that they’re here too, like ghosts whose presence I can sense, even if I can’t see them when I look in the legal mirror.