What Could That Be For?

Jessie Allen, School of Law, University of Pittsburgh

Book the Second.  Chapter the Twenty-Third: Of Alienation by Devise

The push for coherence is irresistible, necessary for understanding, and doomed to produce illusory meanings.  Here’s a quote from the visionary doctor-anthropologist Paul Farmer that kind of sums it up: “We’re asked to have tidy biographies that are coherent. . . . But the fact is, a perfectly discrepant version has the same ending.”  Nowhere is this more true than in law.  Whatever reasons judges may give for deciding a case one way, the outcome is the same. Yet in our common law culture, the legal skill non pareil is an ability to take a tangle of judicial decisions and disparate legal theories and string them into a coherent story that ends in the outcome your client desires.

The Commentaries is a kind of legal super-narrative, one that Blackstone’s genius contemporary, Jeremy Bentham, attacked as a legal fairy tale.  Bentham charged that Blackstone obscured everything corrupt and irrational about the English legal system in order to find “in the whole and every part of it, the very quintessence of perfection.” Fragment on Government. The narrative technique that set Bentham off is on display in this chapter, where Blackstone recounts the history leading to the English adoption of wills for real estate. There is a pervasive feeling here of everything coming right at the end. For all the problems caused by allowing people to choose who gets their land after they die, it just so happens that, “this power, if prudently managed, has with us a peculiar propriety.” II, 374. Like the last piece in a carefully crafted plot puzzle, the power to divide up real estate in a will turns out to cure “the too great accumulation of property” that can result from another central feature of English property law, the “doctrine of succession by primogeniture.” Id. Thus, after many twists and turns and a few blind alleys, our hero – English common law – comes to maturity as a socially beneficial and morally justified set of rules and institutions.

Blackstone doesn’t hide his tendency to straighten and smooth the law he is describing.  In fact, he is surprisingly candid about his approach. At the end of this chapter, completing his survey of real property law, Blackstone straight up declares his narrative intervention. The Commentaries’ orderly scheme is not a transparent view, or even a representative selection, of the mass of judicial decisions that “have been heaped one upon another for a course of seven centuries without an order or method” and further complicated by a “multiplicity” of statutes. II, 382-83. Instead, Blackstone has chosen the parts of the law “where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed.” II, 383. He is giving us a greatly simplified and idealized account.

One thing Blackstone doesn’t try to do, however, is justify every aspect of his narrative in moral terms. He doesn’t make the mistake of insisting that his story’s actors all produce effects that line up perfectly with their roles as heroes or villains. Nor does he pretend to have a neutral, non-judgmental view of his characters and their actions.

Blackstone has absolutely no problem with the idea that sometimes very bad motives produce very good results. His account of how English law came to allow people to pass on land in their wills both reveals his own mean streak of anti-Catholic bigotry and gives credit to the “popish clergy” who sat on the chancery bench. II, 375.  It was in those judges’ self-interest, Blackstone speculates, to expand landowners’ ability to give away their property after death, because “men are most liberal when they can enjoy their possessions no longer,” and many would likely choose to give their property to “those who, according to the superstition of the times, could intercede for their happiness in another world.” Id.  So, in Blackstone’s legal history, the corrupt motives of a group he despises contribute to a result he regards as generally excellent.

We are not always so ready to accept stories that defy the moral alignment of character and action. There’s a New Yorker piece about Paul Farmer’s great project, Partners in Health, which brings medical care to people in impoverished regions. In the article, Farmer suggests that his co-founder, Ophelia Dahl, is so determined to help the people they serve because of her extraordinary empathic suffering – she is “physically anguished” by their pain – and that drives her to do whatever is necessary to make effective change.  I doubt it.  In fact, it has been my experience that acute empathic suffering generally drives people away from the things that cause that pain. And I don’t actually think visceral sensitivity to other people’s pain is all that rare, I think it’s part of what makes most of us avoid and deny others’ suffering. So my guess is that Dahl’s persistent focus and intervention comes from some other quality.  Some fortitude.

This isn’t really about Farmer or Dahl, or the work they do, which saves and greatly improves the lives of many, many individuals upon whose complex and unique personhood they admirably and morally insist. It’s about the tendency to push things into familiar patterns, whose familiarity we may not even recognize. It just struck me as remarkable that someone like Farmer, who pushes back against the desire for “easy biographies,” still seems to be following a timeworn pattern when he identifies Dahl’s ability to suffer as her most salient personality trait. And he picks that characteristic out in a person whose life and work reflects remarkable efficacy. I doubt I would have noticed, and it certainly wouldn’t have mattered, if I hadn’t been seeing this particular pattern unfold again and again in a different context.

There has been a focus lately on women’s suffering amidst strength in the outpouring of reports of sexual harassment. As Jennifer Egan points out, suffering has long been regarded as a sign of female virtue, and a way to make female power acceptable. In times gone by, women sometimes gained social efficacy as religious visionaries who mortified their own bodies or were martyred. Today our culture ostensibly seeks to eliminate women’s suffering, but “in subtle ways it endorses the equation of suffering with female power.” I observe this not so much in women’s original accounts of harassment and assault, but in the retelling. The recurring image is of a woman – usually a young woman — shocked, traumatized, violated – always distraught and often permanently damaged. It’s as if we cannot look at the perpetrator’s behavior and just judge it for what it appears to be, as if the woman reporting the conduct has no right or reason to complain if she has not been in some way undone by it. Even women who stand up to the harassment at the time it happens are rendered as fragile and broken. A front-page New York Times story describes an encounter between a young woman lobbyist and a state legislator. When he tells her she can have his vote in exchange for sex and kisses her on the lips, she pushes him away. But now watch how the reporters can’t resist ending this twenty-first century confrontation with this oddly Victorian image: “Only after he was gone did she let the tears flow.” Yuck.

Pretty obviously, sexual harassment law has not been a slamming success at stopping this crap from happening, even in the workplaces it ostensibly covers. But here is one thing the legal doctrine of sexual harassment gets right: you don’t need to be devastated to make a valid claim. To sue someone for sexual harassment you don’t have to claim that their treatment has broken you, sent you into therapy, triggered an eating disorder, given you nightmares, or even particularly surprised you. You just need to show that any reasonable person would have found it hostile and abusive and you did too. The standard for liability focuses on the behavior of the accused harasser, and so avoids a display of female vulnerability and violation.

This refusal to demand a sacrificial victim is explicit.  When sexual harassment was first developed as a legal concept, courts split on how to approach proof that a defendant’s behavior was sufficiently bad to be illegal.  Some judges held that plaintiffs had to prove that they had been seriously harmed psychologically. But then the Supreme Court said no. To bring a successful sexual harassment claim, a woman need not show that she was a doll dashed on the rocks of her abuser’s treatment.  As Justice Sandra Day O’Connor put it, the law of sexual harassment “comes into play before the harassing conduct leads to a nervous breakdown.” Harris v. Forklift 370. If the conduct makes your work place hostile and abusive, it’s illegal: “there is no need for it also to be psychologically injurious.” Id. In fact, the law requires a certain emotional toughness – because a plaintiff’s reaction to the harassment, her sense of its hostility and abusiveness, has to be shared at least hypothetically by other “reasonable” people, not a product of the plaintiff’s extraordinary vulnerability. This bracingly feminist approach is no accident. The legal theory of sexual harassment was conceived, and briefed repeatedly for the Court, by Catherine MacKinnon, one of the most rigorous, radical and generally badass feminist legal thinkers of our time.

Imagine how actualizing this view of sexual harassment might reconstruct the world. We would shift our attention from watching how individual women react to the way men “treat” them (and am I the last person on earth to notice just how bizarre that word is in this context?) to considering whether men’s behavior individually and collectively produces an environment that a reasonable person would experience as pervasively hostile, whether women are derailed by it or able to shake it off and move on.  It could fundamentally change how we understand men and women’s social interactions.

I had a great acting teacher who used to shout “what could that be for?” at the moment in the scene when you did something that seemed obviously wrong: clumsy or incongruous or suffused with some apparently inappropriate emotion. Her point was that what felt wrong might just be different than what you expected to find, not a mistake but a portal to a more illuminating performance. So rather than trying to ignore or cover up these embarrassing incongruities, you should investigate them, adopting an attitude of optimistic curiosity, and trying to see what they might reveal. In the New Yorker article Ophelia Dahl remarks on her own unfailing optimism, observing that “to not be optimistic is just about the most privileged thing you can be,” because then “you are basically deciding that there’s no hope for a whole group of people who can’t afford to think that way.” One of the things I love about Blackstone is his optimistic tendency to see potential social good in every dark, compromised legal corner. It is certainly possible to read the Commentaries as a falsely prettified account of an irrational and oppressive legal system that perpetuates inequality and subordination. In fact, that is definitely what the Commentaries is. It’s just that it might also be an optimistic rendering of a legal system whose rehabilitative potential we can’t do without. There are some awfully dark places in U.S. law and politics today, and I’m not fool enough to think it can’t get worse. But these dark places might also produce some liberating changes in patterns that we never expected to see.

Originally published January 21, 2018.