{"id":3002,"date":"2019-12-17T11:48:29","date_gmt":"2019-12-17T16:48:29","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3002"},"modified":"2020-09-23T20:35:25","modified_gmt":"2020-09-24T00:35:25","slug":"law-makes-the-world","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2019\/12\/17\/law-makes-the-world\/","title":{"rendered":"Law Makes the World"},"content":{"rendered":"

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

BOOK I. \u00a0Chapter the Eleventh. \u00a0Of the CLERGY.<\/em><\/a><\/p>\n

Just when I was thinking that there wasn\u2019t a single point of interest in\u00a0this chapter\u2019<\/a>s dry taxonomy of English clergymen, I realized that it provides an excellent example of an idea that I\u2019m always pushing but often at a loss to explain concretely. \u00a0We tend to think of the\u00a0legal protections and exemptions accorded the clergy as a\u00a0response<\/em>\u00a0to their unusual social situation. \u00a0That is the story Blackstone sets out to tell: \u00a0\u201cThis venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of almighty God, have thereupon large privileges allowed them by our municipal laws.\u201d \u00a0p. 364. \u00a0Instead, though, he winds up showing us that the situation is just the reverse \u2014 or, just as much the reverse anyway. \u00a0Law isn\u2019t just shaped to fit the clergyman\u2019s role. \u00a0The clerical identity is shaped, even created, by law.<\/p>\n

First there are the rules Blackstone recites: \u00a0\u201cA clergyman cannot be compelled to serve on a jury, . . . . During his attendance on divine service he is privileged from arrests in civil suits. . . .Clergymen . .. are not allowed to take any lands or tenements to farm . . . nor shall engage in any manner of trade, nor sell any merchandize.\u201d \u00a0p. 365. \u00a0 Even these sorts of regulatory afterthoughts surely have an effect on the reality they regulate. \u00a0In the developing mercantile society of late 18th-century England, a total prohibition on selling matters. \u00a0And notice that the prohibition is going to have an effect even if it is not treated with reverent obedience. \u00a0For all I know the parsons in Blackstone\u2019s day came up with all kinds of ways to get around the letter of the law, like those little cardboard tickets that one always has to buy at PTA events and then exchange for hotdogs and cokes, apparently because there is some rule against selling refreshments at school. \u00a0 I\u2019ve been buying those tickets for so long now that \u00a0just the sight of one conjures up a certain kind of community event \u2014 rummage sales, block parties, spring flings \u2014 with an atmosphere that is distinctly different from ordinary commercial shopping and entertainment. \u00a0Of course I realize that there are other differences, too, but I actually think that little ticket ritual is the sort of thing that sets this aspect of experience apart. \u00a0Rules of this kind \u2014 that sort things and people into categories and prescribe behavior according to those roles \u2014 are the kind of line drawing that we usually associate with traditional religious practices. \u00a0So it is interesting here to see the law of the political state carving out the social space for the religion that will, in turn, set out its own internal behavioral restrictions.<\/p>\n

Now, here is something else. \u00a0By a quirk of syntax I discovered that the very concept of a \u201ccleric\u201d derives from a legal disability! \u00a0Blackstone uses the word \u201cclerk\u201d quite a bit in this chapter. \u00a0I assumed he was using it \u00a0as a catchall category for his carefully delineated parsons and vicars \u2014 but I couldn\u2019t be sure. \u00a0So I went to my trusty copy of Webster\u2019s Collegiate, which confirmed that \u201cclerk\u201d is a synonym for \u201ccleric\u201d and then explained \u00a0that both words derive from the Greek word\u00a0kleros<\/em>\u00a0meaning \u201c\u2018inheritance\u2019 in allusion to Deut. 18:2.\u201d \u00a0 Being almost totally ignorant of the contents of the Bible, I was puzzled \u00a0about what being a clergyman could have to do with a Greek word for inheritance. \u00a0When I \u00a0looked up the\u00a0biblical text,<\/a>\u00a0I found this: \u00a0\u201cThey shall have no inheritance among their countrymen; the LORD is their inheritance, as He promised them.\u201d<\/p>\n

Are you with me? \u00a0The modern English word for a churchman comes from a biblical law that excludes them from the ordinary rules of inheritance. \u00a0Don\u2019t forget that rules about who gets to inherit what from whom and how are the alpha and omega of the English legal system. \u00a0If a\u00a0\u201ccleric\u201d is someone biblical law disinherits, that is not a question of regulation at the margins, that is an act of social creation. \u00a0But it\u2019s tricky, because English law doesn\u2019t actually disinherit parsons and vicars. \u00a0As far as I know they can inherit land and other property like everyone else. \u00a0Always could. \u00a0So this isn\u2019t a functional legal prohibition creating a separate identity. \u00a0It\u2019s still interesting, because it puts a legal structure right there at the source of a social category, but it is purely conceptual. \u00a0Or is it? \u00a0I\u2019m speculating here, but it occurs to me that there is a famous English legal inheritance structure \u2014 primogenitor \u2014 that might have something to do with the creation of a professional clergy as diagrammed in Blackstone\u2019s\u00a0chapter.<\/a>\u00a0\u00a0Because what are all those second sons going to do? \u00a0How are they going to make a living, and find some social space for themselves, without either inheriting the family property or descending to the ranks of tradesmen? \u00a0Well, how about entering a vocational sphere bounded by legal rules and exemptions that both separate it from ordinary trade and insure a steady income through the mandated system of tithes?<\/p>\n

It\u2019s one thing to see how legal rules two hundred years ago constructed a social status that we have long conceived as special and apart from ordinary life. \u00a0But what of the rest of us now? \u00a0I don\u2019t think there\u2019s any difference. \u00a0 If law makes the 18th-century English clergyman it just as surely constructs the identity of a civil rights litigator\/law teacher\/ mom in twenty-first century New York City. \u00a0This is one of the most rewarding things about reading Blackstone \u2014 the chance to see at some distance the ways law and culture shape either other. \u00a0And once I\u2019ve seen these things in Blackstone, I know that they\u2019re here too, like ghosts whose presence I can sense, even if I can\u2019t see them when I look in the legal mirror.<\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh BOOK I. \u00a0Chapter the Eleventh. \u00a0Of the CLERGY. Just when I was thinking that there wasn\u2019t a single point of interest in\u00a0this chapter\u2019s dry taxonomy 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-3002","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-Mq","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3002","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=3002"}],"version-history":[{"count":4,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3002\/revisions"}],"predecessor-version":[{"id":3007,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3002\/revisions\/3007"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3002"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3002"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3002"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}