{"id":3383,"date":"2020-05-06T10:43:34","date_gmt":"2020-05-06T14:43:34","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3383"},"modified":"2020-09-23T21:07:38","modified_gmt":"2020-09-24T01:07:38","slug":"law-in-the-ruins","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/05\/06\/law-in-the-ruins\/","title":{"rendered":"Law in the Ruins"},"content":{"rendered":"
\n

 <\/p>\n

\n
\n

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

Book the Second. \u00a0Chapter the Fourth. \u00a0Of the FEODAL SYSTEM.<\/em><\/strong><\/a><\/p>\n

For Blackstone it is an article of faith that the way things are can be explained by the way they were.\u00a0\u00a0This chapter<\/a>\u00a0is entirely devoted to excavating the feudal origins that, according to Blackstone, still shape contemporary British property law. I don\u2019t have the background to critique his view of history. What I can say is that Blackstone\u2019s historical narrative, however accurate, does a marvelous job of advancing one of the\u00a0Commentaries\u2019<\/em>\u00a0main \u00a0(if implicit) themes, namely, the preeminent power of legal institutions to shape society.<\/p>\n

At the same time, Blackstone\u2019s historical approach creates some real problems for his more commonly observed project of legitimating the current system of legal rights.\u00a0 After all, if we have to look to the ancient past to see law\u2019s order, that suggests a certain degeneration. \u00a0Things fall apart, or at least get more complicated than their original structures. \u00a0 The remaining forms may be less clear, less rigorous than the law of the past.\u00a0 More particular to the specific historical tale Blackstone is telling, there\u2019s a definite problem of what nowadays might be called \u201ctransitional justice.<\/a>\u201d \u00a0Remember that Blackstone is all about tracing English common law to \u201ctime out of mind.\u201d What the common law system lacks in rationality it needs to make up in cultural authenticity and sheer antiquity.\u00a0 But there\u2019s the little matter of the\u00a0Norman Conques<\/a>t blowing a huge gaping French militaristic hole right through the story of English legal rights reaching back to ancient times.\u00a0 Whence the legitimacy of a property system that begins with a conquering king confiscating his subjects\u2019 land and redistributing it at the point of a sword?<\/p>\n

Watching Blackstone finesse his way through these thickets was quite a lawyerly treat. \u00a0On the first point, Blackstone seems utterly untroubled, even delighted, by the prospect of contemporary law as the tumbled remains of an earlier scheme. \u00a0 In fact, he fairly revels in the idea.\u00a0 He compares the study of property law to \u201cviewing the majestic ruins of Rome or Athens, of Balbec or Palmyra,\u201d and suggests that both activities furnish \u201crational entertainment as well as use.\u201d II., p. 44. \u00a0As an aside, it seems that in matters of aesthetics, as well as politics, Blackstone\u2019s sensibility is utterly contrary to that of his great contemporary critic Jeremy Bentham. \u00a0The\u00a0panopticon\u2019<\/a>s designer surely would prefer a planned legal system that functioned according to plan. \u00a0For Bentham, unplanned deviations from the original would be obviously a corruption.\u00a0\u00a0 But Blackstone shows no nostalgia for the \u201cpristine proportion and splendor\u201d of the original. As between an edifice of \u201cpristine proportion\u201d and the \u201cmajestic ruins\u201d of some ancient structure, there\u2019s no real question which Blackstone finds more compelling. \u00a0Id.<\/em>\u00a0 The ruins, the ruins any day.<\/p>\n

As for the second issue, I admit that I did not even think about the problem the Norman Conquest posed for Blackstone until I saw his solution.\u00a0 If, as Blackstone says at the beginning of\u00a0the chapter<\/a>, modern English property law is built on feudal foundations, and if European feudalism was imposed on a defeated English people by William the Conqueror, that hardly seems to validate the overarching story here of the ancient and uniquely British origins of common law rights. It seems instead that the whole caboodle can be traced to 1066, and the triumph of military force. \u00a0Worse yet, how can a legal system whose sine qua non is\u00a0private<\/em>\u00a0property rights possibly be squared with the \u201cgrand and fundamental maxim of all feudal tenure\u201d that \u201call lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown\u201d? II., p. 53. \u00a0Not to worry, Blackstone will show that the received view of feudalism in England is all a \u201cstrange historical mistake.\u201d \u00a0II., p. 48.<\/p>\n

According to Blackstone the introduction of feudal property structures into England by William the Conqueror \u201cdoes not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror; but to have been consented to by the great council of the nation.\u201d \u00a0II., p. 48. \u00a0He weaves a tale of a Danish invasion some years after the Conquest, before which, \u201cthe military constitution of the Saxons being then laid aside, and no other introduced in it\u2019s stead, the kingdom was wholly defenceless.\u201d\u00a0\u00a0Id.<\/em>\u00a0 No one was happy about the foreign army of Normans and Bretons the king brought over to repel the Danes, and thus the advantages of a feudal system for raising a domestic army became apparent.\u00a0 As a result, \u201call the principal landholders submitted their lands to the yoke of military tenure, became the king\u2019s vasals, and did homage and fealty to his person,\u201d after which feudal land tenures were formally introduced into British law. \u00a0II., p. 49.<\/p>\n

Okay, now Blackstone can trace property law back through the Norman conquest into the misty British legal past undisturbed by the rupture of any foreign force.\u00a0 So far, so good; but how will he maintain that continuity through the shift from feudalism\u2019s basic principle that the sovereign owns everything to a legal system that protects private property rights?<\/p>\n

According to Blackstone, when the English landowners agreed to the feudal maxim \u201cthat the king is the universal lord and original proprietor of all the lands in his kingdom\u201d that wasn\u2019t exactly what they meant. II., p. 51. That is, they did not really intend to give up their independent property rights.\u00a0 Theirs was a formal agreement that at the time \u201cprobably meant no more than to put the kingdom in a state of defence\u201d by obliging themselves to defend the king\u2019s territory \u201cas if\u00a0<\/em>they had received their lands from his bounty upon these express conditions.\u201d \u00a0Id.\u00a0<\/em>\u00a0The whole deal was fictional.\u00a0 Remember that in Blackstone\u2019s version, the oaths of fealty in exchange for a gift from the king came years\u00a0after\u00a0<\/em>the land actually had been distributed.\u00a0 Because the nobles already owned the land the king was ostensibly granting to them, they were \u201cby no means beneficiaries\u201d and so could not be expected to\u00a0really\u00a0<\/em>provide everything they promised in exchange.\u00a0Id.<\/em><\/p>\n

This looks like a nice point for an English contract lawyer, but is it any surprise that the Normans didn\u2019t agree?\u00a0 Indeed, isn\u2019t the whole point of a feudal system that when the king makes you a gift of land \u2013 however fictional \u2013 he is making you an offer you can\u2019t refuse?\u00a0 Apparently that is how the Normans saw it, in particular the Norman \u201cinterpreters,\u201d i.e., \u00a0lawyers.\u00a0 But note that now we are back in familiar\u00a0legal\u00a0<\/em>territory \u2013 and once again legal property rights are being determined (at least immediately) through interpretations and arguments, not bloodshed.<\/p>\n

To be sure force is in the background.\u00a0 If the English landholders had lawyers, one doubts they could have prevailed, however skillful.\u00a0 Nevertheless, force has been deferred.\u00a0\u00a0 In what is really the money shot of Blackstone\u2019s historical revision, he explains that Norman lawyers \u201cskilled in all the niceties of the feudal constitutions\u201d willfully misinterpreted \u201cthis fiction of tenure from the crown\u201d and used it \u201cto impose \u201cfruits and dependencies . . . hardships and services,\u201d which the British landowners \u201cwith reason looked upon\u00a0 . . . as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth.\u201d \u00a0II., p. 51. \u00a0 Of course, you know how this is going to end. Eventually force comes back into the picture. The oppressed English landholders \u201crise up in arms\u201d against the \u201crigors of the feudal doctrines.\u201d \u00a0II., p. 52. \u00a0But when they do, they have the legitimacy of law on their side.\u00a0 They don\u2019t fight for \u201cmere infringements of the king\u2019s prerogative\u201d but to restore the rights of Englishmen under the ancient Saxon law that predated the conquest and under the \u2018true\u2019 interpretation of the gentlemen\u2019s agreement that the Normans misconstrued. \u00a0Id.\u00a0\u00a0<\/em>They fight, as it were, inside the law.<\/p>\n

Now look where we\u2019ve arrived:\u00a0 (1) The shift to a feudal property system in England came about not \u201cby the force of Norman arms,\u201d but by the English landholders\u2019 agreement to feudal structures \u201cas ordained by the general council,\u201d and (2) the subsequent shift away from feudal structures to private property rights came about \u201cas a restoration of that antient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers.\u201d \u00a0II., p. 52. \u00a0The law giveth, and the law taketh away.<\/p>\n

In Blackstone\u2019s history, not only is the modern system of private property descended from legal norms that have existed from time immemorial, any twists and turns in that descent take place\u00a0within\u00a0<\/em>the legal system.\u00a0 Legal rituals, not force, or politics, accomplish the evolution from ancient Saxon law through feudalism up to contemporary property structures. Private property rights are \u201cnot (as some arbitrary writers would represent them) . . .\u00a0 extorted from our princes by taking advantage of their weakness,\u201d but fundamental cultural values that have been around from the dawn of recorded history. II., p. 52.\u00a0 And even when property rights were corrupted, during the bad old feudal days, it was not so much the fault of a megalomaniac king or bloodthirsty soldiers, but of those crafty\u00a0lawyers\u00a0<\/em>who can make and remake rights and obligations in the forms they choose.\u00a0 For better or worse, in Blackstone\u2019s world a nice legal argument is always mightier than the sword.<\/p>\n

First published June 30, 2011.<\/a><\/div>\n<\/div>\n<\/article>\n

 <\/p>\n<\/div>\n\n

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

  Jessie Allen, School of Law, University of Pittsburgh Book the Second. \u00a0Chapter the Fourth. \u00a0Of the FEODAL SYSTEM. For Blackstone it is an article of faith that the way things are can be...<\/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-3383","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-Sz","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3383","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=3383"}],"version-history":[{"count":4,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3383\/revisions"}],"predecessor-version":[{"id":4001,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3383\/revisions\/4001"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3383"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3383"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3383"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}