{"id":3579,"date":"2020-05-27T14:16:43","date_gmt":"2020-05-27T18:16:43","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3579"},"modified":"2020-09-23T21:11:46","modified_gmt":"2020-09-24T01:11:46","slug":"blackstone-plants-a-tree","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/05\/27\/blackstone-plants-a-tree\/","title":{"rendered":"Blackstone Plants a Tree"},"content":{"rendered":"

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

Book the Second.\u00a0 Chapter the Eighth.\u00a0 Of FREEHOLDS, NOT of INHERITANCE.<\/strong><\/em><\/a><\/p>\n

There\u2019s a saying that the rich plan for three generations while the poor plan for Saturday night.\u00a0 Never poor (though often broke), I\u2019ve always been pretty much a Saturday night kind of gal.\u00a0 Blackstone, of course, is off the chart on the other end of the scale. In\u00a0this chapter<\/a>, you can almost hear him sniff when he announces that his subject is estates \u201cnot of inheritance, but for life only.\u201d II. P. 120. \u00a0Only a lifetime?\u00a0 In Blackstone\u2019s scheme, a lifetime is like, maybe, cocktail hour: when it\u2019s over the night has just begun.\u00a0 But of course it\u2019s not that simple. In fact this chapter on \u201clife estates\u201d exemplifies a central ambiguity in the\u00a0Commentaries<\/em>.\u00a0 Historically and philosophically, Blackstone stands on the uneasy cusp between the view that individuals live to develop transcendent social structures like the common law, and the idea that such social structures exist to allow individual lives to transcend social structures.\u00a0 This ambivalence interests me especially because lately I\u2019ve been thinking that we seem to be undergoing some kind of cultural shift in our views on individual and collective development.<\/p>\n

Blackstone\u2019s interest in collective social structures matches his time horizon.\u00a0 Throughout the\u00a0Commentaries<\/em>, he\u2019s scanning an arc from time immemorial to the indefinite future.\u00a0 That kind of time frame tends to put individual strivings into puny perspective.\u00a0 Blackstone\u2019s individuals are worker bees \u2014 it\u2019s the hive and the honey that count.\u00a0 If a life tenant dies before the harvest, his executors \u201cshall have the emblements, to compensate for the labour and expense of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a pubic benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it.\u201d II. 122. There\u2019s a Breughelish quality here, a feeling that Blackstone only refers to individuals in order to flesh out the landscape of rights that is his main subject, that they are not quite as real as the \u201creal\u201d property they hold.<\/p>\n

But that is not to say that Blackstone is uninterested in what individuals\u00a0 do and produce.\u00a0 To the contrary, Blackstone\u2019s joy is projects.\u00a0 The\u00a0Commentaries<\/em>\u00a0catalogue the projects enabled by the common law\u2014 agricultural projects, military projects, commercial projects.\u00a0 At the next level the books present the common law as a great collective project.\u00a0 And then there are the\u00a0Commentaries<\/em>\u00a0themselves. \u00a0There is something literally projectile about Blackstone\u2019s reshaping the fusty conglomeration of history, customs, decisions, and doctrines into\u00a0 four solid volumes of categorically organized prose in order to launch them out into the future. Just when it seemed like common law would need to be jettisoned to get liberal democracy off the ground, Blackstone came along and managed to rocket it into modern times.\u00a0 Three-hundred years later, I\u2019m not really sure, but I think maybe I just lived through the end of modernity.\u00a0 And part of what makes me think so is that this kind of ambitious project-oriented approach suddenly feels so old-fashioned.<\/p>\n

Of course there are some big collective projects going on \u2013 tracing the human genome, for example, or the Obama Administration\u2019s passing the health care bill (and for that matter the organized effort to take down that bill and privatize social services).\u00a0 But don\u2019t big instrumental projects like these seem rare these days?\u00a0 Now, as I write this it occurs to me how Western-centric it is.\u00a0 By all appearances projectile modernity is still going on in China, where whole cities continue to be built and rebuilt.\u00a0 So let\u2019s just talk about the 21st<\/sup>\u00a0century United States, where the newly common projects seem to be more about sharing than building, connecting rather than creating.\u00a0\u00a0 I\u2019m thinking of social networks, naturally, which seem to be the iconic group projects of our time.\u00a0 At least in my world, social networks are more about promoting the individual trajectory of every member than developing any kind of collective path.<\/p>\n

It\u2019s now possible to instantly document the thoughts, actions and events of every moment and communicate them immediately across virtually limitless spaces.\u00a0 And yet this seems to lead less to actual\u00a0networks<\/em>\u00a0than to an iteration of individual narratives that are curiously lacking in interactivity.\u00a0 On Facebook, for example, there\u2019s a quality of relentless linearity as one scrolls down through the list of unrelated posts, each stamped with its little postage- or passport-like photo.\u00a0 Yes, the comments sometimes develop a dialogue of sorts but it usually runs out pretty quickly.\u00a0 And more often it seems like everyone just weighs in with a single terse remark and moves on down the line.<\/p>\n

Apparently Twitter and other online networking tools have been great for getting folks to turn out for political demonstrations and publishing crucial bulletins about government violence and resistance to it.\u00a0\u00a0 That is obviously not to be sneezed at.\u00a0 But in my world these things get used mostly to provide the thinnest possible chronicle of individual movements and judgments: \u201cJanet just checked in at Red Room,\u201d\u00a0 \u201cPaul likes this.\u201d\u00a0 Sometimes the story gets thicker and weirder and more poetic, and here the real power of the internet to connect individuals\u2019 interior lives and reveal and revel in their idiosyncratic creations far and wide kicks in.\u00a0 What phenomenally\u00a0beautiful and strange things<\/a>\u00a0are available!\u00a0\u00a0 But spreading this amazing stuff rarely seems to feed back \u2013 it\u2019s available for consumption and private enjoyment but there is very little collective participation. For that matter, Wikipedia notwithstanding, the internet is still conceived by most people I know as a vast open store of information for individual consumption rather than as a site for collective knowledge building.<\/p>\n

This bias for sharing over building seems especially odd given the recent turn toward collaboration in learning theory and practice.\u00a0 Classrooms at elementary schools never have individual desks in rows anymore, it\u2019s all groups of kids around tables, working together to solve problems, reading to one another, commenting on one another\u2019s work, designing projects together.\u00a0Just when electronic communication decreases the need for physical gathering, there\u2019s new esteem for embodied interaction in real time and space.\u00a0 In law school (where I teach) students still sit in rows, but the advice to professors from learning theory and from professors to students is all about collaboration.\u00a0 Five years ago I would probably have said that the best way for you to make sure you understood a complicated legal analysis would be to restate it in your own words.\u00a0\u00a0 Now I\u2019d tell you to talk about it with three other people.\u00a0\u00a0 But is the goal any different?\u00a0 We\u2019re still aiming to produce a collection of learned individual intellects, after all, not a true hive or cathedral or cloud of learning.<\/p>\n

Which brings me back to Blackstone, and his vision of the common law as really transcendently common, or collective. His picture of a legal system as almost a kind of collective unconscious \u2013fulfilling our individual needs and desires without deliberate individual choices \u2014 is at once bizarre and culturally ingrained in the U.S. today.\u00a0 And the funny thing is that in Blackstone\u2019s scheme law is a project that develops in a very Facebook kind of a way \u2014 with everybody kind of looking out of the corners of their eyes at what others are doing while doing what seems right to them.\u00a0 For all the references to god and natural rights, the common law of the Commentaries is basically an almost accidental creation \u2013 an amazingly complex and resilient bulwark of human liberty that developed through the contingencies of history, not because of some divine, or human, plan.\u00a0 The common law he describes is a system of great complexity, flexibility and responsiveness that, despite its lack of top down order, is capable of promoting certain virtues and values instead of breaking down into a cacophony of competing individual interests.\u00a0 If, for all its annoying atomization, the internet is or can become such a system today, I daresay Blackstone will be partly responsible for it.\u00a0 After all, he did as much as anyone to popularize the dream of a system that develops coherently without the control of a single sovereign intelligence, a system that is both a mirror and a driver of civil society, rather than simply a tool for individual striving.<\/p>\n

There\u2019s no question that to some extent this vision is a fantasy.\u00a0 The cumulative results of so many unconnected individual judgments must be either far less organized than the picture Blackstone presents or driven by powerful shared interests toward one end or another.\u00a0 Critics from Jeremy Bentham to Duncan Kennedy make both charges:\u00a0 Common law is rife with irrational tendencies, and it is disproportionately shaped by economically and politically powerful individuals in their own interests.\u00a0 Doubtless both are true.\u00a0 There are plenty of contradictions in the legal doctrines Blackstone describes, and part of why he\u2019s so dismissive of life estates is that the really rich folks all have inheritable property. Yet there remains a kind of organization in the common law that seems to escape both the noise of randomness and the deliberate control of powerful individuals, and Blackstone recognizes and celebrates this quintessentially social organization.<\/p>\n

Indeed, Blackstone celebrates the promotion of humanity\u2019s collective future in the content as well as the structures of the common law.\u00a0 He explains approvingly, for instance, that if a tenancy ends abruptly, the tenant gets to reap some of what he sowed, even though he\u2019s no longer on the land. \u00a0But not everything.\u00a0 A tenant has no right to the harvest of grass or fruit trees. \u201cFor even when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to future successions of tenants.\u201d\u00a0 II. p. 123.<\/p>\n

The final irony is surely Blackstone\u2019s lasting individual stature in the modern United States.\u00a0 How does someone who devoted his life\u2019s work to adumbrating the details of a collectively generated social structure wind up one of the most enduringly influential authors in a time and place that prizes individual narrative? In fact, you might say that Blackstone\u2019s popularity suggests that American culture is not as relentlessly individual-focused as I\u2019ve suggested, and I guess you\u2019d have a point.\u00a0 But I have a different explanation.<\/p>\n

Like most great modern authors, Blackstone is in love with his central character.\u00a0 What makes the\u00a0Commentaries\u00a0<\/em>so compelling is the heat and depth of that attraction. Of course it\u2019s also an argument that the common law is well suited to a modern liberal society.\u00a0 But the power is less in the argument than in the incredible, obsessive lengths to which Blackstone is willing and able to go to make you too fall in love with this unwieldy, randomly generated, thousand-year-old, crazy-assed structure.\u00a0 The\u00a0Commentaries<\/em>\u00a0are a love story.\u00a0 No doubt Blackstone wants to convince you that the common law will help you live a more successful, more fulfilling individual life. But ultimately, he\u2019s just not that into you.<\/p>\n

Originally Published on April 16, 2012.\u00a0<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second.\u00a0 Chapter the Eighth.\u00a0 Of FREEHOLDS, NOT of INHERITANCE. There\u2019s a saying that the rich plan for three generations while the poor plan for...<\/p>\n","protected":false},"author":10,"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-3579","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-VJ","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3579","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\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=3579"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3579\/revisions"}],"predecessor-version":[{"id":3580,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3579\/revisions\/3580"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3579"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3579"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3579"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}