Jessie Allen, School of Law, University of Pittsburgh
Book the Second. Chapter the Fifth. Of the Antient ENGLISH TENURES.
This self-consciously historical chapter describes a kind of land ownership that was, as the chapter’s title indicates, obsolete by the time Blackstone wrote about it. Some say this was effectively true of the whole common law system Blackstone explicated and celebrated. Certainly many of its intricacies – the elaborate procedural writs, the separate courts of law and “equity” – have long since disappeared. And it wasn’t just technicalities that time undid. Within a decade after the Commentaries’ first publication, the new United States set up a republican government in the teeth of Blackstone’s insistence that a monarchy of limited powers was the best, maybe the only, way to protect civil liberties. So why are the Commentaries still a go-to source not only for the law of Eighteenth-Century England, but for a sort of timeless original set of structures and principles thought to explain, if not to describe, current United States law?
One answer is that the Commentaries are just beautifully written. Blackstone’s literary achievement was obvious even to his critics, including his contemporary, Jeremy Bentham, who put it this way: “Correct, elegant, unembarrassed, ornamented, the style is such, as could scarce fail to recommend a work still more vicious.” Fragment on Government (Preface). But besides the elegant prose, an accident of history probably accounts for some of the Commentaries’ staying power. Ten years after they were published, the United States was founded.
Blackstone’s description of English common law is not exactly objective. Though critical in many particulars, overall it has a distinctly valorizing cast. This was a work with an agenda, and that agenda was to demonstrate that traditional common law practices could and did embody the best Enlightenment political theory. It was a tall order. As Duncan Kennedy explains, Blackstone needed “to show that it was possible to turn the liberal political slogan ‘rights’ into a plausible account of several thousand common law rules.” The Structure of Blackstone’s Commentaries, 28 Buffalo L. Rev., 205 261 (1979). The Commentaries present a vision of a body of legal rules and structures built up case by individual case over centuries that still somehow manages to actualize the set of governing principles and civil rights prescribed by the liberal political philosophy of Blackstone’s day. Not every reader was convinced. In Bentham’s view, the Commentaries found coherence and liberal principles in a retrogressive legal system and in the process stifled reforms that might actually bring law into line with liberal politics.
But across the Atlantic Blackstone’s rose colored view of common law could be used as a kind of utopian blueprint for a legal system that married revolution to tradition. The Commentaries were not unambivalently embraced by the American founders. Jefferson reviled them as antidemocratic (even as he, too, praised Blackstone’s writing style). Still, in the new republic, Blackstone’s vision wound up being treated both as an authoritative source for the substance of British common law and as a model for how to blend traditional common law rules with liberal rights. Today, it’s practically impossible to figure out to what extent Blackstone held back the growth of rights in the United States and to what extent the Commentaries helped actualize the utopian project of carrying liberal rights and democratic structures all the way down through everyday legal process. But one thing’s for sure – the coincidence of Blackstone’s rationalization of 18th century common law with the start of the U.S. legal system tends to make the Commentaries even more of a legal Genesis here. It isn’t like anyone today thinks the Commentaries describe current U.S. legal rules and doctrines. Still they are not treated entirely as an artifact of another era. Blackstone is seen as describing something that was not just antecedent but foundational – even despite its subsequent wholesale transformation.
This, of course, is Blackstone’s own view about the relationship of the legal past to the present. In this chapter’s account of legal history, feudal rules that make virtually all land beholden to the king are replaced by a more flexible system of private property. This is not a story in which all laws are necessarily good. In fact, in these historical chapters about property law, Blackstone seems committed to a view of law as a secondary social institution reflecting more basic economic and political power structures. There’s an odd whiff here of Marxist superstructure. And like both Marxist and Whig history, in Blackstone’s account everything happens for a reason. Though the rules for land ownership by knight service originally promote a sensible form of military defense, they quickly degenerate. The pyramid of personal service and loyalty up from vassals to lords and lords to king breaks down. Instead of service, the people at the top get money: “the tyranny of the lords by degrees exacted more and more; as, aids to pay the lord’s debts . . . and aids to enable him to pay aids or reliefs to his superior lord” and so on up the hierarchical chain of ownership. II., p. 64. Thus, “all the advantages (either promised or real) of the feudal constitution were destroyed.” II., p. 75. Instead of producing an army of nobleman “bound by their interest [and] their honour. . . to defend their king and the country” the old laws were “a wretched means of raising money to pay an army of occasional mercenaries” by imposing intolerable financial burdens on landholders and renters alike. II., pp. 75-76. The legal evolution recounted here isn’t smooth. In fact it’s hard to characterize it as evolutionary at all. After some back and forth, the loathsome military tenures were “destroyed at one blow” by statute. II. p. 77. The key, of course, is that it all comes out right in the end – and the end is now (that is, now for Blackstone).
Apart from its political implications, I sometimes wonder whether the project of Whig history, that is, the view that over time society is inexorably improving, isn’t a reaction to our own individual aging. Faced with my own mortality, it is unbearable to think that nothing else is making any headway either. In support of this view, consider that so many different people with apparently different views about what constitutes social progress all seem to be equally certain that, overall, things keep getting better. In any case, I’ve been thinking a lot lately about aging, and about how the subjective feeling of individual aging is particularly weird these days in the context of the eternity culture of the internet. What does it mean to grow old and disappear bodily in a world where now the virtual traces of one’s youth exist indefinitely? We used to say “nothing lasts forever,” but now everything does – as pixels — everything but us. I think this might be part of what I find so peculiarly draining and immobilizing about spending so much of my limited embodied time online – i.e., reading and writing text that comes to me and issues from me via electronic means and so is never actually embodied at all – but exists in no time and all time, transiently and eternally as light patterns that can be instantly dispersed and recreated without the slightest degeneration. I experience a kind of intense alienation when I am the only body in the room – when the objects of my cultural contemplation, interpretation and creation are never embodied at all, have no boundaries or location or mass – and are not subject, as I am, to time’s destruction.
It sent me back to Walter Benjamin, this train of thought, that is, to Benjamin’s famous essay on cultural meaning and (dis)embodiment, The Work of Art in the Age of Mechanical Reproduction. This is somewhat ironic, given that Benjamin was the preeminent “it girl” philosopher of my youth, and is thus embedded for me in a specific historical time and place – downtown New York City in the 1980s – and a particular moment in my personal chronology – that point when one is momentarily actually and objectively the full blown vigorous young adult self that one imagines ones self to be all along from early childhood through middle age, and (I imagine) old age. Benjamin’s essay about the cultural and political significance of photography in the early 20th century was uncannily on point re the internet age, with its observation of new form of cultural “reception in a state of distraction” and an audience viewing works of artistic expression from a position that is at once critical and “requires no attention.” Illuminations (trans. Harry Zohn), 240-241.
If Benjamin is the cultural prophet of internet alienation, Gertrude Stein was the herald of the psychological insight that the internet’s unalterable images of our youthful selves may mirror, namely that we “are always all our lives, to ourselves grown young men and women,” and “we never know ourselves as other than young grown men and women,” even when we are very old indeed. The Making of Americans at 5 (Something Else Press, 1966). Stein said, in a wonderful simile, that to feel ourselves as children would be “like the state between when we are asleep and when we are just waking, it is never really there to us as present to our feeling.” Id. Likewise, though we of course know it when we grow old and feel tired, or unable to think and do what we once could, or maybe even act more wisely than we once did, and even though our age is visible “just by looking,” still “no one can be old like that to himself in his feeling,” or if we do feel ourselves as really old, or as children, “it must be a horrid losing self sense to be having.” Id.
Does the internet culture of virtual imperishability, correspond to the unexamined image of ourselves in eternal young adulthood? Or is that internet timelessness exactly the opposite of our unconscious eternal youth? The latter, I think. In its very dependence on images, this phenomenon is totally different from the kind of inner stability of feeling that Stein describes – that abiding self recognition despite all external information to the contrary, that unshakeable, visceral feeling of constant youthful maturity in the teeth of everyone else’s responses to our outward selves as children, middle aged or senescent. Eternal internet youth, in contrast, is constructed of images — a compilation of our outward selves split into thousands of moments that now all coexist and outlive us in perpetuity.
It is striking how different this kind of internet biography is from both the evolutionary tale Blackstone deploys in this chapter and the transcendent ahistorical view of common law that the Commentaries presents overall. An internet subject’s susceptibility to constant addition gives it a kind of imperviousness to point of view. As a result, internet history has a resistance to being permanently pared down that is at once uncontrolled and in another sense supremely manipulable.
Then again, the whole notion of spinning the facts of one’s personal history into a coherent biographical narrative may be passé. It seems that now the causal chain between life and life story may run in the other direction. The worst news I’ve had lately came in a small article below the fold in the New York Times last week. The piece (by Jenny Anderson, 8-5-11 at A1) describes a practice among socially elite teenagers of employing paid consultants to design summer “experiences” (for instance, an internship in China) that will make them more compelling subjects for college entrance essays. Why struggle with the kind of self-reflection that could produce engaging biographical narrative when you can pay someone to design your life so that those essays “write themselves”? Id. at A3. Leaving aside what this story says to kids who can’t afford these kinds of “adventures,” its most depressing aspect may be the grim realization that even if you manage to get into Harvard or Yale with a genuinely insightful piece of writing, you’ll be surrounded there by a bunch of people who think picking the right prepackaged tour is a sign of intellectual curiosity.
I could easily spiral down here into a screed about the damage this silly practice threatens to inflict on both a generation of young people and the culture of higher education. But I’m not going to go there. I’m going to assume, instead, that somehow, as Gertrude Stein observed of her millennial generation, and in common with the experience of every middle aged person I know, these young people are somehow, in their hearts, resolutely and delusionally already fully themselves. That somehow inside they are bursting, blooming, and authentically in possession of an abiding, albeit illusory, identity that no moronic college entrance culture can shake. That in the teeth of this ridiculous attempt to live life as an instrument for the thinnest possible retelling, the roiling, misguided relationship of history and reality lives on, like Blackstone’s version of the common law, in all its factually questionable and politically compromised glory.