Actions Speak Louder
Jessie Allen, Professor of Law, University of Pittsburgh
BOOK THE SECOND, Chapter the twentieth, Of ALIENATION by DEED.
This chapter is about words and deeds. Is this really the first time I have noticed that this quintessentially wordy legal document — “Witnesseth, that the said grantor for good and valuable consideration . . . .” — is called a “deed” ? It’s like naming a chihuahua “Killer.” Or not. Blackstone explains that “it is called a deed . . . because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property.” II, 295. A deed doesn’t just say something, it does something. So even though it’s only words, a deed isn’t only words, and so a deed is a kind of legal trick. To many people (including Blackstone’s great contemporary critic, Jeremy Bentham) this looks like fraud. I see it more as a kind of legal magic show, made to do what most magic does: deal with death.
Legal deeds’ ability to create property and transfer it from one person to another is an example of language’s “performative” capacity, an idea developed by the philosopher J.L. Austin in How to Do Things with Words. Austin’s book was ground breaking when it came out in 1960, but now I’m thinking that if Blackstone could have spun forward in time and read it his reaction would have been, “no duh!” Somehow in the two centuries since the Commentaries we lost sight of this characteristic active power of legal language so completely that it came as a surprise when Austin pointed it out.
Nowadays we think of legal documents primarily as recording actions already performed or to be performed in the future. If you want to hold someone to his bargain or to prove you have fulfilled yours, you make sure to ‘get it in writing’.
Doubtless legal documents do have an expressive, memorializing function. Blackstone goes on at some length here about the requirement that a deed be on paper or parchment precisely because these materials best preserve the written text. II, 297 Wood and stone are more durable, he notes, and linen less erasable, but “writing on paper or parchment unites in itself, more perfectly than any other way, both these desirable qualities.” Id. Nothing else is “so secure from alteration, that is at the same time so durable.” Id.
But here is where it starts to get tricky. The very existence of a durable written document pulls meaning into the future, where it cannot escape change. Words necessarily call to our minds meanings that come from the context in which we read them. Even when we have other reasons to think we know what someone meant when he put quill to parchment, we may still be able to, or even forced to, read off different meanings from the words preserved there. So here is another of law’s riddling paradoxes – the very thing meant to make meaning more stable – putting it in writing – introduces instability.
Take Section 9 of Article I of the U.S. Constitution. The clause provides, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” So, no ending the slave trade before 1808. For the white abolitionist William Lloyd Garrison, that passage, among others, made the Constitution a “covenant with death,” a durable document meant to preserve the deadly institution of slavery. But, as Shoshana Felman says, “Speaking bodies . . . commit literary speech acts that exceed all . . . intentions.” The Scandal of the Speaking Body ix The ex-slave Frederick Douglass thought the Constitution’s slave clauses committed a different act than the one Garrison envisioned. In an 1860 speech, Douglass declared that the question “is not whether slaveholders took part in the framing of the Constitution,” and “it is not whether those slaveholders, in their hearts, intended to secure certain advantages in that instrument for slavery.” Instead, what matters for Douglass is the words of the document protecting the slave trade only until 1808, which he reads as an expiration date that “makes the Constitution anti-slavery rather than for slavery.”
I had a fight with a historian about this. The historian reckons that Douglass was a great man, a great orator, and a great advocate, but he can’t see how Douglass could justify his anti-slavery reading of the Constitution “intellectually.” When I endorsed Douglas’s reading, he was incredulous. How could I honestly maintain that the Constitution was not intended to protect slavery? I started to say something about performative language but thought better of it. The historian is probably familiar with the concept, and even if he isn’t I doubt that it would change his mind. Historians are after truth and accuracy, and performative language has nothing to do with either. As far as the historian is concerned, performing some legal act with the words of the Constitution betrays the text’s real meaning. What looks to me like classic legal interpretation looks like fakery to the historian, like a cheap lawyer’s trick.
There was a time when I would have denied that Douglas’s reading was tricky and sought to defend it as honest and above board. But now I rather think that tricks are a part of law because they are necessarily part of all performance. Performative legal words are always somehow at odds with the truth, at least in the sense that they do not simply reflect the truth of the everyday, linear, historical world from which they unfold. Indeed, the escape from that truth is part of what identifies performance as performance.
It might seem that we have drifted very far from Blackstone’s property deeds, but there is a link. The property deeds convey, after all, is produced with performative words, and only words – you don’t even need to add water. Before legal word acts, what you have is land, and after the words, magically, the land becomes property – something to own and, crucially, to inherit and pass down after death. By legal word magic, property survives us, and gives us a way of affecting a future in which we no longer inhabit our own bodies, but still appear in that notoriously spooky “dead hand” side show of estate planning. And so deeds perform a trick, a trick that does not exactly conquer death, but at least leaves us feeling a bit ahead of the game.
There has been quite a lot of death in my world of late. In the midst of what felt like a storm of mortality, I got Cicero’s On a Good Death out of the library. Then I lost the book and had to pay for it – twenty bucks for a ratty paperback. I was annoyed with myself until it occurred to me that my carelessness might be seen as a bit of luck, a little accidental sacrifice on death’s alter, a sleight of hand that might make death look elsewhere for awhile.
Embodied vulnerability is the site where legal language separates from all other texts. I said before that words alone produce legal property, but of course the real meaning of property in the world depends on the promise, or the threat, that owners’ rights will be enforced if necessary with state controlled violence that can only be effective because of our mortality. As the geographer James Tyner puts it, “the principal expression of state sovereignty resides, to a large degree, in the power and the capacity to dictate who may live and who must die.” Genocide and the Geographical Imagination 22 (In this respect, at least, Garrison was right that the Constitution is a covenant with death, as is any legally enforceable document, including property deeds.) So law doesn’t really outstrip mortality at all – law depends on mortality for its power.
And yet, in some sense all recognized legal subjects defy their own mortality. In some sense that is what it means to be a legal subject, not to be confined and defined forever by the chaos and vulnerability of our temporary embodied trajectories. And legal language is the switch, the mechanism of transport, the crossroads where chaos and violence come in and depart as order and meaning. For some. I recently re-read Patricia Williams’s great essay Alchemical Notes, in which she observes that for African Americans in the Ante-Bellum South, there was no “slave law.” A slave is either owned or un-owned, never an owner, that is, either outside law or subject to it, but never a legal subject.
So, while legal words’ performative power turns some folks into owners, subjects able to escape their corporeal limits through inheritable property, it turns others into outlaws – with bodies that are themselves never fully their own. Frederick Douglass was not a lawyer, but as an escaped slave turned lecture-circuit star he knew a thing or two about both performance and the interaction of property law and bodies: “I appear this evening as a thief and a robber,” he told his audience, “I stole this head, these limbs, this body from my master and ran off with them.” And so, today, in the legal battles taking place in North Carolina, transgender people find themselves alternately subjected to and made subjects by the play of words and bodies. Indeed, with legally performative text written not just on paper but on bathroom doors, it is hard to imagine a clearer demonstration of the trick of legal subjecthood, and how that trick both depends on and exceeds the boundaries of our embodied mortality.