Jessie Allen, School of Law, University of Pittsburgh
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.