Blackstone Plants a Tree

Jessie Allen, School of Law, University of Pittsburgh

Book the Second.  Chapter the Eighth.  Of FREEHOLDS, NOT of INHERITANCE.

There’s a saying that the rich plan for three generations while the poor plan for Saturday night.  Never poor (though often broke), I’ve always been pretty much a Saturday night kind of gal.  Blackstone, of course, is off the chart on the other end of the scale. In this chapter, you can almost hear him sniff when he announces that his subject is estates “not of inheritance, but for life only.” II. P. 120.  Only a lifetime?  In Blackstone’s scheme, a lifetime is like, maybe, cocktail hour: when it’s over the night has just begun.  But of course it’s not that simple. In fact this chapter on “life estates” exemplifies a central ambiguity in the Commentaries.  Historically and philosophically, Blackstone stands on the uneasy cusp between the view that individuals live to develop transcendent social structures like the common law, and the idea that such social structures exist to allow individual lives to transcend social structures.  This ambivalence interests me especially because lately I’ve been thinking that we seem to be undergoing some kind of cultural shift in our views on individual and collective development.

Blackstone’s interest in collective social structures matches his time horizon.  Throughout the Commentaries, he’s scanning an arc from time immemorial to the indefinite future.  That kind of time frame tends to put individual strivings into puny perspective.  Blackstone’s individuals are worker bees — it’s the hive and the honey that count.  If a life tenant dies before the harvest, his executors “shall have the emblements, to compensate for the labour and expense of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a pubic benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it.” II. 122. There’s a Breughelish quality here, a feeling that Blackstone only refers to individuals in order to flesh out the landscape of rights that is his main subject, that they are not quite as real as the “real” property they hold.

But that is not to say that Blackstone is uninterested in what individuals  do and produce.  To the contrary, Blackstone’s joy is projects.  The Commentaries catalogue the projects enabled by the common law— agricultural projects, military projects, commercial projects.  At the next level the books present the common law as a great collective project.  And then there are the Commentaries themselves.  There is something literally projectile about Blackstone’s reshaping the fusty conglomeration of history, customs, decisions, and doctrines into  four solid volumes of categorically organized prose in order to launch them out into the future. Just when it seemed like common law would need to be jettisoned to get liberal democracy off the ground, Blackstone came along and managed to rocket it into modern times.  Three-hundred years later, I’m not really sure, but I think maybe I just lived through the end of modernity.  And part of what makes me think so is that this kind of ambitious project-oriented approach suddenly feels so old-fashioned.

Of course there are some big collective projects going on – tracing the human genome, for example, or the Obama Administration’s passing the health care bill (and for that matter the organized effort to take down that bill and privatize social services).  But don’t big instrumental projects like these seem rare these days?  Now, as I write this it occurs to me how Western-centric it is.  By all appearances projectile modernity is still going on in China, where whole cities continue to be built and rebuilt.  So let’s just talk about the 21st century United States, where the newly common projects seem to be more about sharing than building, connecting rather than creating.   I’m thinking of social networks, naturally, which seem to be the iconic group projects of our time.  At least in my world, social networks are more about promoting the individual trajectory of every member than developing any kind of collective path.

It’s now possible to instantly document the thoughts, actions and events of every moment and communicate them immediately across virtually limitless spaces.  And yet this seems to lead less to actual networks than to an iteration of individual narratives that are curiously lacking in interactivity.  On Facebook, for example, there’s a quality of relentless linearity as one scrolls down through the list of unrelated posts, each stamped with its little postage- or passport-like photo.  Yes, the comments sometimes develop a dialogue of sorts but it usually runs out pretty quickly.  And more often it seems like everyone just weighs in with a single terse remark and moves on down the line.

Apparently Twitter and other online networking tools have been great for getting folks to turn out for political demonstrations and publishing crucial bulletins about government violence and resistance to it.   That is obviously not to be sneezed at.  But in my world these things get used mostly to provide the thinnest possible chronicle of individual movements and judgments: “Janet just checked in at Red Room,”  “Paul likes this.”  Sometimes the story gets thicker and weirder and more poetic, and here the real power of the internet to connect individuals’ interior lives and reveal and revel in their idiosyncratic creations far and wide kicks in.  What phenomenally beautiful and strange things are available!   But spreading this amazing stuff rarely seems to feed back – it’s available for consumption and private enjoyment but there is very little collective participation. For that matter, Wikipedia notwithstanding, the internet is still conceived by most people I know as a vast open store of information for individual consumption rather than as a site for collective knowledge building.

This bias for sharing over building seems especially odd given the recent turn toward collaboration in learning theory and practice.  Classrooms at elementary schools never have individual desks in rows anymore, it’s all groups of kids around tables, working together to solve problems, reading to one another, commenting on one another’s work, designing projects together. Just when electronic communication decreases the need for physical gathering, there’s new esteem for embodied interaction in real time and space.  In law school (where I teach) students still sit in rows, but the advice to professors from learning theory and from professors to students is all about collaboration.  Five years ago I would probably have said that the best way for you to make sure you understood a complicated legal analysis would be to restate it in your own words.   Now I’d tell you to talk about it with three other people.   But is the goal any different?  We’re still aiming to produce a collection of learned individual intellects, after all, not a true hive or cathedral or cloud of learning.

Which brings me back to Blackstone, and his vision of the common law as really transcendently common, or collective. His picture of a legal system as almost a kind of collective unconscious –fulfilling our individual needs and desires without deliberate individual choices — is at once bizarre and culturally ingrained in the U.S. today.  And the funny thing is that in Blackstone’s scheme law is a project that develops in a very Facebook kind of a way — with everybody kind of looking out of the corners of their eyes at what others are doing while doing what seems right to them.  For all the references to god and natural rights, the common law of the Commentaries is basically an almost accidental creation – an amazingly complex and resilient bulwark of human liberty that developed through the contingencies of history, not because of some divine, or human, plan.  The common law he describes is a system of great complexity, flexibility and responsiveness that, despite its lack of top down order, is capable of promoting certain virtues and values instead of breaking down into a cacophony of competing individual interests.  If, for all its annoying atomization, the internet is or can become such a system today, I daresay Blackstone will be partly responsible for it.  After all, he did as much as anyone to popularize the dream of a system that develops coherently without the control of a single sovereign intelligence, a system that is both a mirror and a driver of civil society, rather than simply a tool for individual striving.

There’s no question that to some extent this vision is a fantasy.  The cumulative results of so many unconnected individual judgments must be either far less organized than the picture Blackstone presents or driven by powerful shared interests toward one end or another.  Critics from Jeremy Bentham to Duncan Kennedy make both charges:  Common law is rife with irrational tendencies, and it is disproportionately shaped by economically and politically powerful individuals in their own interests.  Doubtless both are true.  There are plenty of contradictions in the legal doctrines Blackstone describes, and part of why he’s so dismissive of life estates is that the really rich folks all have inheritable property. Yet there remains a kind of organization in the common law that seems to escape both the noise of randomness and the deliberate control of powerful individuals, and Blackstone recognizes and celebrates this quintessentially social organization.

Indeed, Blackstone celebrates the promotion of humanity’s collective future in the content as well as the structures of the common law.  He explains approvingly, for instance, that if a tenancy ends abruptly, the tenant gets to reap some of what he sowed, even though he’s no longer on the land.  But not everything.  A tenant has no right to the harvest of grass or fruit trees. “For even when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to future successions of tenants.”  II. p. 123.

The final irony is surely Blackstone’s lasting individual stature in the modern United States.  How does someone who devoted his life’s work to adumbrating the details of a collectively generated social structure wind up one of the most enduringly influential authors in a time and place that prizes individual narrative? In fact, you might say that Blackstone’s popularity suggests that American culture is not as relentlessly individual-focused as I’ve suggested, and I guess you’d have a point.  But I have a different explanation.

Like most great modern authors, Blackstone is in love with his central character.  What makes the Commentaries so compelling is the heat and depth of that attraction. Of course it’s also an argument that the common law is well suited to a modern liberal society.  But the power is less in the argument than in the incredible, obsessive lengths to which Blackstone is willing and able to go to make you too fall in love with this unwieldy, randomly generated, thousand-year-old, crazy-assed structure.  The Commentaries are a love story.  No doubt Blackstone wants to convince you that the common law will help you live a more successful, more fulfilling individual life. But ultimately, he’s just not that into you.

Originally Published on April 16, 2012.