{"id":3791,"date":"2020-07-15T15:18:33","date_gmt":"2020-07-15T19:18:33","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3791"},"modified":"2020-09-23T20:33:48","modified_gmt":"2020-09-24T00:33:48","slug":"on-the-bus","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/07\/15\/on-the-bus\/","title":{"rendered":"On the Bus"},"content":{"rendered":"

Jessie Allen, School of Law, University\u00a0 of Pittsburgh<\/a><\/p>\n

Book the Second, Chapter the Fourteenth. Of TITLE by DESCENT.<\/em><\/strong><\/a><\/p>\n

This chapter<\/a>\u00a0is not about nature. You would think that family inheritance would be an ideal place to root the law of private property in biological and moral necessity. But Blackstone insists that inheritance is not a \u201cnatural right.\u201d Instead, if a property owner dies, \u201cthe land, by the law of nature would again become common,\u201d available for anyone to occupy and claim. II, 211 This separation of inheritance from ownership makes strange the ordinary American meaning of \u2018owning your own home\u2019. And I haven\u2019t even gotten to the strangest part. The chapter goes on to explain that the legal requirements for inheritance can be satisfied with a made-up story that contradicts the real history of the property in question. This bald-faced preference for make-believe made me think again about law\u2019s relationship to fact and fiction.<\/p>\n

Over and over Blackstone declares that there is nothing natural about a system that keeps private property in the family after its original owner dies. The default status of property is not continuous private ownership but common access. When a land owner dies, any natural familial connection to the land dies with him. To the extent that Blackstone justifies the law of inheritance, then, he doesn\u2019t claim it follows a morally necessary or natural order. Instead, his point seems to be that because no one has any natural right to inherit anything, the politically expedient laws of inheritance can\u2019t be criticized for passing anyone over: \u201cThere is certainly . . . no injustice done to individuals, whatever be the path of descent marked out by the municipal law.\u201d II, 211<\/p>\n

When it comes to the blood relations that man-made \u201cpath of descent\u201d ostensibly tracks, Blackstone presents a landscape of overwhelming natural proliferation. Two charts of lineal \u201cconsanguinity,\u201d demonstrate the \u201castonishing . . . number of lineal ancestors which every man has, within no very great number of degrees.\u201d Counting back three generations, everyone already has eight ancestors: \u201cthe parents of his two grandfathers and two grandmothers, \u201c and \u201cby the same rule of progression he hath an hundred and twenty-eight in the seventh; a thousand and twenty-four in the tenth; and [here comes the break with accountable kinship] at the twentieth degree, or the distance of twenty generations, every man hath above a million ancestors.\u201d II, 203 But even this heady multiplication presents an unrealistically organized natural model. Blackstone notes that \u201cso many different bloods is a man said to contain in his veins, as he hath lineal ancestors.\u201d\u00a0Id.\u00a0<\/em>It isn\u2019t a matter of traceable blood lines so much as a swirling, surging mix. There\u2019s no basis here for black letter rules about who gets to keep the house.<\/p>\n

Nevertheless, for Blackstone, ownership is still very much a matter of bodies. It\u2019s just that the key corporeal relationship is not between generations but between the owner\u2019s body and the land or house he \u201cpossesses\u201d or \u201coccupies.\u201d \u201cThe right of property, which is gained by occupancy, extends naturally no farther than the life of the present possessor.\u201d II, 211. By chance, when I came to this chapter, I happened to be reading another book that made a similar point from a different perspective. In\u00a0Becoming Animal<\/em><\/a>, David Abram proposes that \u201cone\u2019s relation to one\u2019s house . . . is hardly a relation between a pure subject and a pure object \u2013 between an active intelligence, or mind, and a purely passive chunk of matter.\u201d [32] One night Abram realizes that the singular old beams of his house \u201chad been quietly conversing with my creaturely body over the course of the year, coaxing my eyes and my wandering fingers in countless moments of distraction.\u201d Those beams, whose \u201csubtly different dispositions had lent a communal warmth,\u201d helped to instill an \u201cuncanny kinship\u201d he felt with his home. [34] Abram attributes this palpable interaction to the awakening of his \u201canimal senses.\u201d But, reading\u00a0this chapter<\/a>\u00a0of the\u00a0Commentaries<\/em>, it strikes me that he may be missing what his \u201ckinship\u201d with the house owes to our longstanding legal-cultural connection between property and family. Abram\u2019s experience basically flips the cause and effect structure of legal inheritance: instead of acquiring his house through a kinship relation, he develops a kinship connection by living in his house. As Blackstone puts it, \u201cwe often mistake for nature what we find established by long and inveterate custom.\u201d II, 11.<\/p>\n

Whichever way the causal arrow runs, there\u2019s no doubt that some people develop an attachment that almost seems to animate their homes. If there are houses that are haunted, there are also people haunted by the houses they once occupied. Geographically speaking, my elderly mother now lives near me in Pittsburgh in an assisted living facility. But as far as she is concerned, her home is still the house her father built in New Orleans at 8630 Oak Street, a block from the levee, where she was born and lived till she was in her twenties. It\u2019s a lovely house, compact and all on one floor, built of local cypress wood with high, high ceilings for the heat and a wide front porch. My mother is mostly lost in time and space, and when she does orient herself it is to that house in New Orleans. Still, when I remind her that we all moved from Brooklyn to Pittsburgh when I got the job at the University, it doesn\u2019t seem to come as a shock. She generally accepts the geographical facts with good enough grace. Sometimes, though, she is more confused. \u201cDid anyone tell my father that I won\u2019t be home for dinner\u201d? she\u2019ll ask. She\u2019ll phone me sometimes, asking to be picked up. \u201cI\u2019m here at the church,\u201d she\u2019ll say, \u201cand I just need someone to come get me and give me ride home.\u201d Home is 8630. Usually I\u2019m able to talk her out of it. I remind her that we sold the house in New Orleans 20 years ago, and that her father was long gone before that. \u201cMama,\u201d I say, \u201cyou are 97 years old \u2013 how old would your father have to be\u201d? \u201cToo old,\u201d she concedes.<\/p>\n

Recently I heard a\u00a0radio program<\/a>\u00a0about a German elder care facility that was having a problem with residents who, like my mother, became convinced that they needed to return home. The woman on the show described these elderly people\u2019s intense agitation\u2014\u201cmy parents wait for me,\u201d \u201cmy children wait for me.\u201d Like my mother, they were sometimes inconsolable, and occasionally the more able bodied among them would wander away from the group home and get lost. The Germans came up with a remarkable solution: They built a pretend bus stop outside the home \u2013 complete with a sign and a bench and a shelter that matched the regular municipal bus stops.\u00a0\u00a0 Now, when someone becomes agitated and desperate to go home, a staff member will lead her to the bus stop and they will just sit on the bench and wait. They don\u2019t have to do a lot of talking. It\u2019s a recognizable activity, waiting at a bus stop. And the surroundings are apparently nice \u2013 the woman on the radio mentioned that you can hear birds. They sit on the bench and wait, and at some point the old people stop waiting for the bus to get home and continue just sitting on the bench in the sun, and eventually they get up and go back inside, perhaps to have some tea. They are led through the pretend bus stop back into reality \u2013 or at least into some relatively comfortable sense of themselves in the moment.<\/p>\n

When my mother calls me and wants to go home, though, I can never play along. I am resolute that she is who she is and where she is and that has to be okay. It isn\u2019t possible for me to join her by pretending she is a young girl who has to get home to dinner so her father won\u2019t be worried. Playing along feels like a cheat that would make life easier for me and rob her of what little autonomy she has left. But I wonder. Because, actually, you know, it may very well be that my mother really has no idea where she is\u2014and knows that she has no idea. In fact, on reflection, it seems very likely, that the story about being a girl in New Orleans who is at a church supper and needs a ride home is just that \u2013 a plausible story that she has invented \u2013 perhaps not quite deliberately but not exactly unknowingly either \u2013 a story that she uses to comfort herself and to make sense of an otherwise unfathomable reality.<\/p>\n

For Blackstone there\u2019s no shame in fiction and invention. Explaining how early lawyers got around the notion that only direct descendants of the original purchaser of property could inherit, he puts the legal artifice right out there: \u201ca method was invented to let in the collateral relations of the grantee to the inheritance.\u201d II, 221 That method was the \u201cfeudum novum\u00a0<\/em>to hold\u00a0ut feudum antiquum<\/em>.\u201d The way this legal fiction works is that we all pretend that the house you bought last week is an ancestral estate that has been in your family for centuries, so that it makes sense that if you die childless, some distant cousins can inherit the house \u201cbecause they might have been of the blood of, that is descended from, the first imaginary purchasor.\u201d\u00a0Id.<\/em><\/p>\n

Okay, stop. Let\u2019s be clear about what Blackstone is saying here. The whole structure of family inheritance\u2014the system of private property preservation he calls \u201cthe principal object of the laws of real property in England\u201d\u2014is being justified based on an admittedly\u00a0imaginary<\/em>\u00a0history.\u00a0\u00a0 Rather than relying on data-driven social policy objectives or falling back on natural connections (blood is thicker than water), Blackstone\u2019s legal players just invented a story.<\/p>\n

This is exactly the kind of sleight of hand that Blackstone\u2019s great rationalist critic Jeremy Bentham despised. For Bentham, justifying property rights with imaginary history was either a scurrilous legal trick or just plain crazy. He wanted law to consist of straightforward rules in black and white, transparently designed to facilitate objectively determined policy goals. Legal fictions ruined that kind of rational law-policy connection: \u201cthe pestilential breath of Fiction poisons the sense of every instrument it comes near,\u201d Bentham said in his\u00a0Comment on the Commentaries.<\/em>\u00a0[411] Fictions are dark and twisted, opaque. Transparency was the great good.<\/p>\n

But clear legal rules avowedly designed to carry out deliberately chosen policies have a tendency to obscure another aspect of law, namely, the way law helps to construct the world it ostensibly regulates. Pretending, on the other hand, steers away from fact and shows us another kind of truth about ourselves. So long as we know we are pretending, pretend justifications show us that the law we follow is not necessarily grounded in either moral right or objective empirical observation, but is rather the product of human invention. Blackstone cheerfully acknowledges law\u2019s power to fabricate as well as regulate the society whose policies are at stake. So at the same time that Blackstone lionizes the private property status quo, his approach presents property law as something that came about through human choice and that can, and perhaps should\u2014by choice\u2014be changed. And if law based on pretend history changes, the new law can be every bit as legitimately authoritative as what now looks so authoritatively, naturally right.<\/p>\n

But, you say, someone has to be in charge. Someone has to keep her wits about her and say \u201cokay, it\u2019s time to go home now,\u201d and actually know where home is and how to get there in real time and space. And isn\u2019t law supposed to be that practical adult in full possession of her faculties, who knows what time it is, who can tell north from south and right from wrong, and brings us back to face reality, rather than letting us stray farther and farther into make believe, like imaginative children or a delusional old woman making up stories to comfort herself? Maybe. But then you get back to those millions of ancestors, those talking beams and all those swirling, surging bloods, and who is ever going to take charge of that?<\/p>\n

Originally published on July 8, 2014.\u00a0<\/a><\/p>\n\n

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