{"id":3275,"date":"2020-04-25T18:15:16","date_gmt":"2020-04-25T22:15:16","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3275"},"modified":"2020-09-24T01:27:11","modified_gmt":"2020-09-24T05:27:11","slug":"i-dont-want-to-talk-about-it","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/04\/25\/i-dont-want-to-talk-about-it\/","title":{"rendered":"I don’t want to talk about it"},"content":{"rendered":"

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

Book the First. Chapter the Fourteenth. Of MASTER and SERVANT.<\/a><\/p>\n

This chapter is about the legal concepts and rules that create and regulate the roles of servant and master, a coupling Blackstone deems the first of \u201cthree great relations in private life.\u201d p. 410. (The others are husband-wife and parent-child.) It is striking that Blackstone chose to base his discussion of social relationships on one that makes me uncomfortable even to say, let alone participate in. I don\u2019t know a single person who would think it was cool to announce today that she had \u2014 or was \u2014 a servant or a master. Do we even have servants in the Blackstonian sense in Brooklyn, New York, Anno Domine 2010? Yes and no, I think, and I think the ambiguities of that situation and my discomfort with it reveal something about the divergences and convergences of our world and Blackstone\u2019s.<\/p>\n

Without a doubt, my reaction is partly to do with slavery. When I see the \u201cmaster-servant\u201d dyad, that\u2019s my first association. On some level, the term \u201cservant\u201d is just a place holder \u2014 a variant or a euphemism. I still remember the time I went on a tour of an old plantation in Louisiana, and the docent was walking us through the rooms and out buildings \u2014 here the day parlor, there the woodworking shop \u2014 and we came to the remains of some old rough shacks, which she didn\u2019t name, and someone asked \u201cwhat\u2019s that\u201d and she said \u201cThis is where the servants slept.\u201d Not that everyone felt the need for such circumlocution. Up the road a mile or so was a restaurant serving catfish and gumbo in a ramshackle building that was being maintained in something resembling its original rough hewn state. As we sat down to order, my cousin cheerfully announced that we were in the slave quarters. Jesus, I thought, would you turn the barracks at Auschwitz into a biergarten? But I still ate my gumbo.<\/p>\n

Obviously not every American is going to think of slaves when she hears about servants. Still I think I\u2019m not the only one to feel an uneasy continuum there, a slippery slope that leads at one end to overwhelming violence, pain, guilt, shame and denial. It\u2019s like there\u2019s a fourth term missing from Blackstone\u2019s trio of founding social relations. if we\u2019re playing this game in the United States today, it\u2019s going to have to be: Slave, Servant, Spouse, Child. Actually, there are signs that Blackstone consciously chopped off that continuum. One of the most interesting parts of the Commentaries is the repeated condemnation of slavery. More than once, Blackstone squarely asserts that \u201cthe law of England abhors, and will not tolerate, the existence of slavery within this nation.\u201d p. 412. (see also p. 123) Slavery not only wasn\u2019t the paradigmatic other half of the servant-master pair, it was the negative, the opposite example against which that relation was constituted \u2014 the antithesis of legal servitude.<\/p>\n

Robert Cover points out that when Blackstone made his confident assertion about the common law\u2019s rejection of slavery, there wasn\u2019t a lot of authority to back him up. Justice Accused at 16. It was some ten years before Somerset\u2019s Case created precedent to that effect. But Blackstone didn\u2019t admit to any ambiguity. In a sense he couldn\u2019t. For Blackstone, the cornerstone value of individual liberty is constituted as the negative image of a totalizing sovereign prerogative \u2014 exactly the prerogative of a master over a slave. Beyond the structure of the master-servant relationship, Blackstone\u2019s common law itself was defined in opposition to slavery, which exemplified a lawless arbitrary power over those subjected to it.<\/p>\n

You might even say that the raison d\u2019etre of Blackstone\u2019s common law is the institutionalization of a kind of autonomous personhood that can best be understood as a rejection of the rational possibility of slavery. In such a regime, slavery is not merely forbidden; it is incandescent \u2014 like some toxic gas that dissipates when it hits the fresh common law air: so that \u201ca slave or a negro, the instant he lands in England, becomes a free man.\u201d p. 412 If it\u2019s true that Lincoln first studied law by reading and re-reading Blackstone, that may be one reason he was so righteously ready to defy the U.S. Supreme Court\u2019s contrary view (in the infamous Dred Scott decision) of what happens when a slave enters a free jurisdiction. For Lincoln, Blackstone adherent, the Supreme Court\u2019s view that slavery would persist in a state where no positive law constructed it may have been not merely wrong but incoherent, a violation of reality as much as morality \u2014 for his (legal) bible told him so.<\/p>\n

On the other side of the Atlantic, by making slavery the lawless antagonist against which civil liberty is defined, Blackstone managed to construct (non-slave) servitude as lawful and dignified. It is no accident, I think, that this chapter begins with an examination \u2014 and legal rejection \u2014 of slavery before proceeding to discuss the first lawful \u201crelation of private life.\u201d If slavery is the barbaric nightmare of arbitrary subjection, legally organized \u201cservice\u201d is presented here as the very model of civilized personal relationships. It is at once freely chosen and socially given \u2014 a connection that \u201carises\u201d from deliberate contract and is maintained by \u201ca principle of natural equity.\u201d p. 413<\/p>\n

In this scheme, the master-servant bond is the perfect hybrid of common law and natural law principles \u2014 god given morality crossed with manmade rules and rooted in natural order: \u201cIf the hiring be general without any particular time limited, the law construes it to be a hiring for a year; upon a a principle of natural equity, that the servant shall serve and the master maintain him, throughout all the revolutions of the respective seasons.\u201d p. 413. Here is a relationship that connects the infinite variety of conscious individual choices with the timeless cycles of the natural world. That\u2019s a legal structure that\u2019s doing a lot normative work. What\u2019s more, apparently in 18th-century Britain, marriage and servitude were legally linked by more than Blackstone\u2019s trifecta of service, marriage, and family. If you weren\u2019t married, you could basically be drafted as a servant. Unmarried people with no \u201cvisible livelihood\u201d\u2013 including boys and girls as young as 12 \u2014 were \u201ccompellable by two justices to go out to service for the promotion of honest industry.\u201d p. 413. So much for the glorious common law\u2019s protection of personal autonomy.<\/p>\n

Here is where my enthusiasm for the American project comes thundering back. Whatever its failures, it is different to live in a world where twelve-year-olds are legally compelled to go to school rather than to empty chamber pots. And manifestly it is a whole different kettle of fish to be a servant \u2014 and to have one \u2014 in a world where servitude is a kind of latent identity made manifest upon the order of government officials. There is no personal \u201cservice\u201d in this Blackstonian sense in my world today \u2014 and yet, and yet . . . . Take a walk to the playground by my daughter\u2019s school and see who\u2019s minding the children too young for kindergarten. In this mostly white New York neighborhood, white baby sitters are rare, and so are baby sitters of any color who were born in this country. Pushing strollers and handing out bagels and juice boxes are dark skinned women whose multilingual conversations reflect their own childhoods on southern islands and eastern continents. In a nation that ended slavery by war, not law, that\u2019s a picture that can call a kind of reeling chaos of loss into a sunny day in the sprinkler.<\/p>\n

So, in a sense, like Blackstone, we are anxious to construct our most basic personal relations against the model of slavery. But while Blackstone was privileged to do that constructing at a literary arm\u2019s length we are doing it daily in a messy and bodybound way. It\u2019s a kind of mess that seems to contain both more horror and more hope than Blackstone\u2019s confident taxonomy of Upstairs\/Downstairs domestics, apprentices, laborers and stewards. It\u2019s a daily struggle, really, to make something good out of a mess like this. And now I wonder again if that isn\u2019t something like what Blackstone felt, after all \u2014 not only the need to rationalize existing class relations but a plodding, insistent drive to dig for the shapes that could make sense of it all, that could enable change as well as stability.<\/p>\n

First published February 10, 2010.<\/p>\n\n

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