{"id":2936,"date":"2019-12-06T15:38:32","date_gmt":"2019-12-06T20:38:32","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=2936"},"modified":"2020-09-23T20:35:25","modified_gmt":"2020-09-24T00:35:25","slug":"the-royal-fish-or-blackstone-is-boring","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2019\/12\/06\/the-royal-fish-or-blackstone-is-boring\/","title":{"rendered":"The Royal Fish, or, Blackstone is Boring"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book 1. Chapter the Eighth. Of the KING’S REVENUE.<\/em><\/a><\/p>\n

Well, I promise I will never again complain about short chapters. \u00a0This one,\u00a0<\/a>enumerating the various sources of government funding for merry old \u00a0England circa 1760, seemed to go on forever. \u00a0 I was put in mind of the observation that a life without any bad habits might not actually\u00a0be<\/em>\u00a0longer but it will certainly\u00a0seem<\/em>\u00a0longer. \u00a0This is pretty bland stuff. \u00a0Though there are occasional amusements \u2013mostly in the form of historical ephemera that reveal the source of some modern term or custom. \u00a0 For instance, I now know that the term \u201ctreasure-trove\u201d derives from the French\u00a0trover,<\/em>\u00a0to find, and originally meant \u201cwhere any money or coin, gold, silver, plate, or bullion, is found hidden in the earth or other private place,\u201d p. 285, which, back in the day, were apparently considered the property of the king. \u00a0In the end, though, I concluded that what was most interesting about this chapter was how boring it was.<\/p>\n

Why is this part so boring? \u00a0I think it\u2019s the lack of a certain linear drive \u2014 at least at first glance, there\u2019s no plot here, just a really long list of all the different kinds of the king\u2019s \u201cordinary\u201d and \u201cextraordinary\u201d revenues. \u00a0 The \u201cordinary\u201d parts of the king\u2019s revenues are the customary ones, which, along with the basics like rents on the king\u2019s lands and profits from the king\u2019s courts, include quite a range of oddball assignments like the aforementioned treasure trove. \u00a0It is typical of Blackstone that he spends only 8 lines on what must have been one of the greatest original sources of royal wealth, \u201cescheats of land,\u201d i.e., the rule that any land that had no heirs to claim it reverted to the crown, and pages and pages on things like the rules for shipwrecks and the right to the \u201croyal fish,\u201d namely, whale and sturgeon, which \u201con account of their superior excellence\u201d \u00a0were considered the property of the king when they either beached or were caught offshore. (p. 280) \u00a0Not surprisingly perhaps, these sources are insufficient to support the executive government of eighteenth century England, where the people \u201care now obliged to have recourse to new methods of raising money, unknown to our early ancestors.\u201d (p. \u00a0296) \u00a0The \u201cnew methods\u201d that produce the king\u2019s \u201cextraordinary revenues\u201d are not bake sales and raffles, they are taxes raised by parliament, and the whole last half of the chapter is devoted to an exhaustive explanation of the various types of taxation in force in Blackstone\u2019s time, the imposts and excise duties on \u201cprinted silks and linens, at the printers; starch and hair power, at the maker\u2019s; gold and sliver wire, at the wiredrawer\u2019s; all plate whatsoever, first in the hands of the vendor, who pays yearly for a licence to sell it, and afterwards in the hands of the occupier, who also pays an annual duty for \u00a0having it in his custody; and coaches and other wheel carriages, for which the occupier is excised; though not with the same circumstances of arbitrary strictness with regard to plate and coaches, . . . . coffee and tea, chocolate, and cocoa paste . . . all artificial wines, . . . paper and pasteboard . . . malt . . . vinegars; and the manufacture of glass . . . .\u201d (p. 310) \u00a0It is a list, Blackstone remarks darkly, \u201cwhich no friend to his country would wish to see farther encreased.\u201d (p. 310)<\/p>\n

Of course one can find, or invent, a story or an argument in this itemization. \u00a0I could say that this whole chapter is really Blackstone\u2019s defense of the relatively modern idea of taxation imposed by an elected legislature, and his critique of the mess the current government has made of that idea. \u00a0First he details all the odd traditional revenues and points out that these no longer can support the government. He insists that the thing \u201cto be wished and aimed at in a land of liberty, is by no means the total abolition of taxes,\u201d but \u201cwisdom and moderation\u201d in a tax scheme. (pp. 296-97) \u00a0Then he comes down hard on the unwieldly and irrational system of national debt, excise taxes and customs duties and the associated retinue of tax collectors and administrators that have \u201cextended the influence of government to every corner of the nation\u201d and \u00a0\u201cthrown such a weight of power into the executive scale of government as we cannot think was intended by our patriot ancestors.\u201d \u00a0(p. 324) \u00a0The end of the chapter is wistfully utopian. \u00a0Blackstone envisions a future in which \u201cour taxes shall be gradually reduced\u201d and the \u201cadventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose.\u201d (p. 326)<\/p>\n

Okay, so there\u2019s a story there after all. \u00a0But I really had to dig for it. \u00a0And as always, I\u2019m both eager for narrative and impatient with it. \u00a0In a way, boring as it was, the initially exhausting, \u00a0just-one-damn-thing-after-another, messy list-like quality of this chapter is ultimately more intriguing to me than the political argument I found to structure it. \u00a0 At one time I would have said that was because the messy list is more like life. \u00a0But now I\u2019m not so sure. \u00a0Now I wonder if it\u2019s more about a struggle between two different kinds of structure and the value different cultures place on those structures.<\/p>\n

The linear narrative\/argument structure is so much the quintessential modern way of framing the world and, for all our talk of \u201cpost\u201d modernity, still so ascendent in my world that I can do it in my sleep. \u00a0 (As a matter of fact I practically am doing it in my sleep right now at my kitchen table in Brooklyn at 5 a.m., having been driven from my bed hours ago by anxiety about all the things I have to somehow accomplish and fear I never can accomplish in the next few weeks.) \u00a0I both crave and resist the trajectory of narrative and analytic argument. \u00a0Things seem incoherent without them, vague and, as I said at the beginning of this essay, hopelessly dull. \u00a0But with them they seem forced, driven and single minded, and ultimately false. \u00a0I am aware, by the way, that in this discussion (digression?) I am mixing up two forms that many readers, perhaps especially lawyer readers, will regard as distinct or even opposite, i.e., narrative and analytic argument.<\/p>\n

There is a fascinating critique of traditional legal analysis that maintains that while legal opinions are generally structured as analytic arguments, they can be better understood as stories, with stock plots, characters and morals. \u00a0(See, e.g., Minding the Law, by Anthony B. Amsterdam and Jerome Brunner (2002))<\/a>. While the narrative analysis of law has illuminated the extent to which judicial outcomes rely on drama rather than logic, in a sense I have always found that analysis frustratingly limited because it has always seemed to me that drama and logic are a lot alike. \u00a0Both stories and arguments have this kind of projectile drive that sets them apart from the kind of structure that seems at once much simpler and more impenetrable to me, namely the kind of repetitious, static categorizing itemization that made me yawn my way through\u00a0this chapter<\/a>.<\/p>\n

It seems to me that, in a way, Blackstone\u2019s leaden recitation of the idiosyncratic rules and customs for financing the king of England may be more threatening and more illuminating to a modern legal-analytic way of thinking than traditional narrative can ever be. \u00a0That\u2019s because it lacks the forward motion, the striving, the getting-from-point-A-to-point-B quality of both conventional legal argument and a conventional story line. \u00a0Like a good story, a good \u00a0argument has a sense of direction, of having set a course from the outset that determines the journey and the destination. \u00a0Not only does this mostly list-like chapter lack this kind of teleological drive, if there is any equally complex structure at work in Blackstone\u2019s survey of revenue sources and the rules and practices that govern and surround them, I can\u2019t see it. \u00a0But that may just be because this kind of itemized categorization is not as familiar to me as narrative and analysis. \u00a0I may be missing the articulation \u2014 and the artifice \u2014 in Blackstone\u2019s tax catalogue just because this structure is unfamiliar to me.<\/p>\n

The irony here is that the careful ticking off and description of every single thing that belongs in some category is a recognizable legal genre. \u00a0In fact, isn\u2019t this still what contracts seem to be all about, and all those other quintessential legal documents \u2014 wills, deeds, codicils, amendments, plea bargains, marriage settlements, insurance policies, prenups, etcetera etcetera etcetera? \u00a0 \u00a0Then why does it seem so foreign to me \u2014 a trained lawyer and, for that matter, a law teacher? \u00a0No doubt it is partly because my legal experience is as a litigator, not a transactional attorney, but I think it is more than that, more about legal culture and 21st century American culture than just about my own idiosyncratic experience. \u00a0 Blackstone\u2019s revenue taxonomy is recognizably legal but also recognizably old fashioned. \u00a0Compared with a legal argument from premises through facts to conclusions it looks dodgy and unsophisticated, and (I keep coming back to this) tedious.<\/p>\n

In the United States in 2009, I\u2019ll bet most people would see it the same way. \u00a0But there might be another way to see it \u2014 a perspective from which this kind of listing provides a long, deep look into life and into legal structures \u2014 a kind of picture of the intricate and disordered, or partially ordered, mixed up customary and codified systems that refuses to smooth out the complexities, to shave off the bits that don\u2019t fit neatly, and above all that doesn\u2019t move \u2014 that doesn\u2019t seem to drive toward some conclusion and so provides a marvelously rich view. \u00a0When I think about it this way, \u00a0\u00a0I think of my friend Aileen, an artist and art education teacher who grew up in a little Scottish town where her grandma used to call to the neighbors, \u201ccome and look at Aileen\u2019s drawings \u2014 she\u2019s so smart\u201d! \u00a0What strikes me now is that this chapter may be boring not because it\u2019s dull but because I\u2019m not smart, at least not smart enough in the almost visual way that it is organized. \u00a0I don\u2019t have the kind of brain that can take something like this in. \u00a0Lord knows I haven\u2019t had much practice. \u00a0Legal-institutional culture in the U.S. today \u2014 certainly legal education \u2014 \u00a0and \u00a0popular culture, too, so privileges both the driven analytic intelligence of conceptual argument and the ability to recognize and decode an unfolding narrative that this other more descriptive, for lack of a better word, way of thinking is rarely required. \u00a0When it is, we tend to see it as a stodgy, highly conventional form of legal practice, one that may be financially rewarded but that has little potential to generate \u00a0interesting legal theory or to shed any light on the role of law in society. What would happen if we really studied and consciously practiced this profoundly anti-narrative, anti-analytic way of thinking that is still so present in so much legal writing? \u00a0I have an inkling that we might be surprised at what it would show us about our own legal culture. \u00a0Okay, now I\u2019m going back to bed.<\/p>\n\n

Tweet<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh Book 1. Chapter the Eighth. Of the KING’S REVENUE. Well, I promise I will never again complain about short chapters. \u00a0This one,\u00a0enumerating the various sources of...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-2936","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/pasVL2-Lm","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2936","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=2936"}],"version-history":[{"count":2,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2936\/revisions"}],"predecessor-version":[{"id":3018,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2936\/revisions\/3018"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=2936"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=2936"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=2936"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}