{"id":3421,"date":"2020-05-07T14:28:45","date_gmt":"2020-05-07T18:28:45","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3421"},"modified":"2020-09-24T01:26:07","modified_gmt":"2020-09-24T05:26:07","slug":"sing-in-me-oh-muse","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/05\/07\/sing-in-me-oh-muse\/","title":{"rendered":"Sing in me, oh Muse!"},"content":{"rendered":"
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Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the Second. \u00a0Chapter the Fifth. \u00a0Of the Antient ENGLISH TENURES.<\/em><\/strong><\/a><\/p>\n

This self-consciously historical chapter<\/a>\u00a0describes a kind of land ownership that was, as the chapter\u2019s title indicates, obsolete by the time Blackstone wrote about it. \u00a0Some say this was effectively true of the whole common law system Blackstone explicated and celebrated. Certainly many of its intricacies \u2013 the elaborate procedural writs, the separate courts of law and \u201cequity\u201d \u2013 have long since disappeared.\u00a0 And it wasn\u2019t just technicalities that time undid.\u00a0 Within a decade after the\u00a0Commentaries\u2019\u00a0<\/em>\u00a0first publication, the new United States set up a republican government in the teeth of Blackstone\u2019s insistence that a monarchy of limited powers was the best, maybe the only, way to protect civil liberties.\u00a0 So why are the\u00a0Commentaries<\/em>\u00a0still a go-to source not only for the law of Eighteenth-Century England, but for a sort of timeless original set of structures and principles thought to explain, if not to describe, current United States law?<\/p>\n

One answer is that the\u00a0Commentaries<\/em>\u00a0are just beautifully written. Blackstone\u2019s literary achievement was obvious even to his critics, including his contemporary, Jeremy Bentham, who put it this way: \u201cCorrect, elegant, unembarrassed, ornamented, the style is such, as could scarce fail to recommend a work still more vicious.\u201d\u00a0Fragment on Government<\/a>\u00a0(Preface)<\/em>. But besides\u00a0 the elegant prose, an accident of history probably accounts for some of the Commentaries\u2019 staying power. Ten years after they were published, the United States was founded.<\/p>\n

Blackstone\u2019s description of English common law is not exactly objective.\u00a0 Though critical in many particulars, overall it has a distinctly valorizing cast.\u00a0 This was a work with an agenda, and that agenda was to demonstrate that traditional common law practices could and did embody the best Enlightenment political theory.\u00a0 It was a tall order.\u00a0 As Duncan Kennedy explains, Blackstone needed \u201cto show that it was possible to turn the liberal political slogan \u2018rights\u2019 into a plausible account of several thousand common law rules.\u201d \u00a0The Structure of Blackstone\u2019s Commentaries, 28 Buffalo L. Rev., 205 261 (1979). The\u00a0Commentaries<\/em>\u00a0present a vision of a body of legal rules and structures built up case by individual case over centuries that still somehow manages to\u00a0 actualize the set of governing principles and civil rights prescribed by the liberal political philosophy of Blackstone\u2019s day.\u00a0 Not every reader was convinced.\u00a0 In Bentham\u2019s view, the\u00a0Commentaries<\/em>\u00a0found coherence and liberal principles in a retrogressive legal system and in the process stifled reforms that might actually bring law into line with liberal politics.<\/p>\n

But across the Atlantic Blackstone\u2019s rose colored view of common law could be used as a kind of utopian blueprint for a legal system that married revolution to tradition. The\u00a0Commentaries<\/em>\u00a0were\u00a0 not unambivalently embraced by the American founders.\u00a0 Jefferson reviled them as antidemocratic (even as he, too, praised Blackstone\u2019s writing style).\u00a0 Still, in the new republic, Blackstone\u2019s vision wound up being treated\u00a0both<\/em>\u00a0as an authoritative source for the substance of British common law\u00a0and\u00a0<\/em>as a model for how to blend traditional common law rules with liberal rights. Today, it\u2019s practically impossible to figure out to what extent Blackstone held back the growth of rights in the United States and to what extent the\u00a0Commentaries<\/em>\u00a0helped actualize the utopian project of carrying liberal rights and democratic structures all the way down through everyday legal process. But one thing\u2019s for sure \u2013 the coincidence of Blackstone\u2019s rationalization of 18th<\/sup>\u00a0century common law with the start of the U.S. legal system tends to make the\u00a0Commentaries<\/em>\u00a0even more of a legal Genesis here.\u00a0 It isn\u2019t like anyone today thinks the\u00a0Commentaries<\/em>\u00a0describe current U.S. legal rules and doctrines. Still they\u00a0are not treated entirely as an artifact of another era.\u00a0 Blackstone is seen as describing something that was not just antecedent but foundational \u2013 even despite its subsequent wholesale transformation.<\/p>\n

This, of course, is Blackstone\u2019s own view about the relationship of the legal past to the present.\u00a0 In\u00a0this chapter\u2019s<\/a>\u00a0account of legal history, feudal rules that make virtually all land beholden to the king are replaced by a more flexible system of private property.\u00a0 This is not a story in which all laws are necessarily good. In fact, in these historical chapters about property law, Blackstone seems committed to a view of law as a secondary social institution reflecting more basic economic and political power structures. There\u2019s an odd whiff here of Marxist superstructure. \u00a0And like both Marxist and Whig history, in Blackstone\u2019s account everything happens for a reason. Though the rules for\u00a0 land ownership by knight service originally promote a sensible form of military defense, they quickly degenerate. \u00a0The pyramid of personal service and loyalty up from vassals to lords and lords to king breaks down.\u00a0 Instead of service, the people at the top get money: \u201cthe tyranny of the lords by degrees exacted more and more; as, aids to pay the lord\u2019s debts . . . and aids to enable him to pay aids or reliefs to his superior lord\u201d and so on up the hierarchical chain of ownership. II., p. 64. \u00a0Thus, \u201call the advantages (either promised or real) of the feudal constitution were destroyed.\u201d \u00a0II., p. 75. \u00a0Instead of producing an army of nobleman \u201cbound by their interest [and] their honour. . . to defend their king and the country\u201d the old laws were \u201ca wretched means of raising money to pay an army of occasional mercenaries\u201d by imposing intolerable financial burdens on landholders and renters alike. II., pp. \u00a075-76.\u00a0 The legal evolution recounted here isn\u2019t smooth.\u00a0 In fact it\u2019s hard to characterize it as evolutionary at all.\u00a0 After some back and forth, the loathsome military tenures were \u201cdestroyed at one blow\u201d by statute. II. p. 77. The key, of course, is that it all comes out right in the end \u2013 and the end is now (that is, now for Blackstone).<\/p>\n

Apart from its political implications, I sometimes wonder whether the project of Whig history, that is, the view that over time society is inexorably improving, isn\u2019t a reaction to our own individual aging. Faced with my own mortality, it is unbearable to think that nothing else is making any headway either. \u00a0 In support of this view, consider that so many different people with apparently different views about what constitutes social progress all seem to be equally certain that, overall, things keep getting better.\u00a0 In any case, I\u2019ve been thinking a lot lately about aging, and about how the subjective feeling of individual aging is particularly weird these days in the context of the eternity culture of the internet.\u00a0 What does it mean to grow old and disappear bodily in a world where now the virtual traces of one\u2019s youth exist indefinitely? We used to say \u201cnothing lasts forever,\u201d but now everything does \u2013 as pixels \u2014 everything but us. I think this might be part of what I find so peculiarly draining and immobilizing about spending so much of my limited embodied time online \u2013 i.e., reading and writing text that comes to me and issues from me via electronic means and so is never actually embodied at all \u2013 but exists in no time and all time, transiently and eternally as light patterns that can be instantly dispersed and recreated without the slightest degeneration.\u00a0 I experience a kind of intense alienation when I am the only body in the room \u2013 when the objects of my cultural contemplation, interpretation and creation are never embodied at all, have no boundaries or location or mass \u2013 and are not subject, as I am, to time\u2019s destruction.<\/p>\n

It sent me back to Walter Benjamin, this train of thought, that is, to Benjamin\u2019s famous essay on cultural meaning and (dis)embodiment,\u00a0The Work of Art in the Age of Mechanical Reproduction<\/a>.\u00a0 This is somewhat ironic, given that Benjamin was the preeminent \u201cit girl\u201d philosopher of my youth, and is thus embedded for me in a specific historical time and place \u2013 downtown New York City in the 1980s \u2013 and a particular moment in my personal chronology \u2013 that point when one is momentarily actually and objectively the full blown vigorous young adult self that one imagines ones self to be all along from early childhood through middle age, and (I imagine) old age. Benjamin\u2019s essay about the cultural and political significance of photography in the early 20th<\/sup>\u00a0century was uncannily on point re the internet age, with its observation of new form of cultural \u201creception in a state of distraction\u201d and an audience viewing works of artistic expression from a position that is at once critical and \u201crequires no attention.\u201d\u00a0 Illuminations (trans. Harry Zohn), 240-241.<\/p>\n

If Benjamin is the cultural prophet of internet alienation, Gertrude Stein was the herald of the psychological insight that the internet\u2019s unalterable images of our youthful selves may mirror, namely that we \u201care always all our lives, to ourselves grown young men and women,\u201d and \u201cwe never know ourselves as other than young grown men and women,\u201d even when we are very old indeed. \u00a0The Making of Americans<\/a>\u00a0at 5 (Something Else Press, 1966). \u00a0Stein said, in a wonderful simile, that to feel ourselves as children would be \u201clike the state between when we are asleep and when we are just waking, it is never really there to us as present to our feeling.\u201d\u00a0\u00a0Id.<\/em>\u00a0 Likewise, though we of course know it when we grow old and feel tired, or unable to think and do what we once could, or maybe even act more wisely than we once did, and even though our age is visible \u201cjust by looking,\u201d still \u201cno one can be old like that to himself in his feeling,\u201d or if we do feel ourselves as really old, or as children, \u201cit must be a horrid losing self sense to be having.\u201d\u00a0\u00a0Id.<\/em><\/p>\n

Does the internet culture of virtual imperishability, correspond to the unexamined image of ourselves in eternal young adulthood?\u00a0 Or is that internet timelessness exactly the opposite of our unconscious eternal youth?\u00a0 The latter, I think. In its very dependence on images, this phenomenon is totally different from the kind of inner stability of feeling that Stein describes \u2013 that abiding self recognition\u00a0despite<\/em>\u00a0all external information to the contrary, that unshakeable, visceral feeling of constant youthful maturity in the teeth of everyone else\u2019s responses to our outward selves as children, middle aged or senescent.\u00a0 Eternal internet youth, in contrast, is constructed of images \u2014 a compilation of our outward selves split into thousands of moments that now all coexist and outlive us in perpetuity.<\/p>\n

It is striking how different this kind of internet biography is from both the evolutionary tale Blackstone deploys in\u00a0this chapter<\/a>\u00a0and the transcendent ahistorical view of common law that the\u00a0Commentaries\u00a0<\/em>presents overall.\u00a0 An internet subject\u2019s susceptibility to constant addition gives it a kind of imperviousness to point of view.\u00a0 As a result, internet history has a resistance to being permanently pared down that is at once uncontrolled and in another sense supremely manipulable.<\/p>\n

Then again, the whole notion of spinning the facts of one\u2019s personal history into a coherent biographical narrative may be pass\u00e9.\u00a0 It seems that now the causal chain between life and life story may run in the other direction.\u00a0 The worst news I\u2019ve had lately came in a small article below the fold in the New York Times last week.\u00a0\u00a0The piece<\/a>\u00a0(by Jenny Anderson, 8-5-11 at A1)\u00a0 describes a practice among socially elite teenagers of employing paid consultants to design summer \u201cexperiences\u201d (for instance, an internship in China) that will make them more compelling subjects for college entrance essays.\u00a0 Why struggle with the kind of self-reflection that could produce engaging biographical narrative when you can pay someone to design your life so that those essays \u201cwrite themselves\u201d?\u00a0Id.<\/em>\u00a0at A3.\u00a0Leaving aside what this story says to kids who can\u2019t afford these kinds of \u201cadventures,\u201d\u00a0 its most depressing aspect may be the grim realization that even if you manage to get into Harvard or Yale with a genuinely insightful piece of writing, you\u2019ll be surrounded there by a bunch of people who think picking the right prepackaged tour is a sign of intellectual curiosity.<\/p>\n

I\u00a0 could easily spiral down here into a screed about the damage this silly practice threatens to inflict on both a generation of young people and the culture of higher education.\u00a0 But I\u2019m not going to go there.\u00a0 I\u2019m going to assume, instead, that somehow, as Gertrude Stein observed of her millennial generation, and in common with the experience of every middle aged person I know, these young people are somehow, in their hearts, resolutely and delusionally already fully themselves. \u00a0That somehow inside they are bursting, blooming, and authentically in possession of an abiding, albeit illusory, identity that no moronic college entrance culture can shake.\u00a0\u00a0 That in the teeth of this ridiculous attempt to live life as an instrument for the thinnest possible retelling, the roiling, misguided relationship of history and reality lives on, like Blackstone\u2019s version of the common law, in all its factually questionable and politically compromised glory.<\/p>\n

First published August 13, 2011. <\/a><\/p>\n<\/div>\n<\/article>\n

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  Jessie Allen, School of Law, University of Pittsburgh Book the Second. \u00a0Chapter the Fifth. \u00a0Of the Antient ENGLISH TENURES. This self-consciously historical chapter\u00a0describes a kind of land ownership that was, as the chapter\u2019s...<\/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],"class_list":["post-3421","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-Tb","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3421","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=3421"}],"version-history":[{"count":3,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3421\/revisions"}],"predecessor-version":[{"id":4038,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3421\/revisions\/4038"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3421"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3421"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3421"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}