{"id":3927,"date":"2020-09-09T17:10:42","date_gmt":"2020-09-09T21:10:42","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3927"},"modified":"2020-09-23T21:08:21","modified_gmt":"2020-09-24T01:08:21","slug":"actions-speak-louder","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/09\/09\/actions-speak-louder\/","title":{"rendered":"Actions Speak Louder"},"content":{"rendered":"

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

BOOK THE SECOND, Chapter the twentieth, Of ALIENATION by DEED.<\/em><\/strong><\/a><\/p>\n

This chapter<\/a>\u00a0is about words and deeds. Is this really the first time I have noticed that this quintessentially\u00a0wordy<\/em>\u00a0legal document \u2014 \u201cWitnesseth, that the said grantor for good and valuable consideration . . . .\u201d \u2014 is called a \u201cdeed<\/em>\u201d ? It\u2019s like naming a chihuahua \u201cKiller.\u201d Or not. Blackstone explains that \u201cit is called a deed . . . because it is the most solemn and authentic\u00a0act<\/em>\u00a0that a man can possibly perform, with relation to the disposal of his property.\u201d II, 295. A deed doesn\u2019t just say something, it does something. So even though it\u2019s only words, a deed isn\u2019t\u00a0only<\/em>\u00a0words, and so a deed is a kind of legal trick. To many people (including Blackstone\u2019s great contemporary critic, Jeremy Bentham) this looks like fraud. I see it more as a kind of legal magic show, made to do what most magic does: deal with death.<\/p>\n

Legal deeds\u2019 ability to create property and transfer it from one person to another is an example of language\u2019s \u201cperformative\u201d capacity, an idea developed by the philosopher J.L. Austin in\u00a0How to Do Things with Words<\/em><\/a>. Austin\u2019s book was ground breaking when it came out in 1960, but now I\u2019m thinking that if Blackstone could have spun forward in time and read it his reaction would have been, \u201cno duh!\u201d Somehow in the two centuries since the\u00a0Commentaries<\/em>\u00a0we lost sight of this characteristic active power of legal language so completely that it came as a surprise when Austin pointed it out.<\/p>\n

Nowadays we think of legal documents primarily as recording actions already performed or to be performed in the future. If you want to hold someone to his bargain or to prove you have fulfilled yours, you make sure to \u2018get it in writing\u2019.<\/p>\n

Doubtless legal documents do have an expressive, memorializing function. Blackstone goes on at some length here about the requirement that a deed be on paper or parchment precisely because these materials best preserve the written text. II, 297 Wood and stone are more durable, he notes, and linen less erasable, but \u201cwriting on paper or parchment unites in itself, more perfectly than any other way, both these desirable qualities.\u201d\u00a0Id.<\/em>\u00a0Nothing else is \u201cso secure from alteration, that is at the same time so durable.\u201d\u00a0Id.<\/em><\/p>\n

But here is where it starts to get tricky. The very existence of a durable written document pulls meaning into the future, where it cannot escape change. Words necessarily call to our minds meanings that come from the context in which we read them. Even when we have other reasons to think we know what someone meant when he put quill to parchment, we may still be able to, or even forced to, read off different meanings from the words preserved there. So here is another of law\u2019s riddling paradoxes \u2013 the very thing meant to make meaning more stable \u2013 putting it in writing \u2013 introduces instability.<\/p>\n

Take Section 9 of Article I of the\u00a0U.S. Constitution<\/a>. The clause provides, \u201cThe Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.\u201d So, no ending the slave trade before 1808. For the white abolitionist William Lloyd Garrison, that passage, among others, made the Constitution a \u201ccovenant with death,\u201d a durable document meant to preserve the deadly institution of slavery. But, as Shoshana Felman says, \u201cSpeaking bodies . . . commit literary speech acts that exceed all . . . intentions.\u201d\u00a0The Scandal of the Speaking Body<\/a>\u00a0<\/em>ix The ex-slave Frederick Douglass thought the Constitution\u2019s slave clauses committed a different act than the one Garrison envisioned. \u00a0In an\u00a01860 speech<\/a>, Douglass declared that the question \u201cis not whether slaveholders took part in the framing of the Constitution,\u201d and \u201cit is not whether those slaveholders, in their hearts, intended to secure certain advantages in that instrument for slavery.\u201d Instead, what matters for Douglass is the words of the document protecting the slave trade only until 1808, which he reads as an expiration date that \u201cmakes the Constitution anti-slavery rather than for slavery.\u201d<\/p>\n

I had a fight with a historian about this. The historian reckons that Douglass was a great man, a great orator, and a great advocate, but he can\u2019t see how Douglass could justify his anti-slavery reading of the Constitution \u201cintellectually.\u201d When I endorsed Douglas\u2019s reading, he was incredulous. How could I honestly maintain that the Constitution was not intended to protect slavery? I started to say something about performative language but thought better of it. The historian is probably familiar with the concept, and even if he isn\u2019t I doubt that it would change his mind. Historians are after truth and accuracy, and performative language has nothing to do with either. As far as the historian is concerned, performing some legal\u00a0act<\/em>\u00a0with the words of the Constitution betrays the text\u2019s real meaning. What looks to me like classic legal interpretation looks like fakery to the historian, like a cheap lawyer\u2019s trick.<\/p>\n

There was a time when I would have denied that Douglas\u2019s reading was tricky and sought to defend it as honest and above board. But now I rather think that tricks are a part of law because they are necessarily part of all performance. Performative legal words are always somehow at odds with the truth, at least in the sense that they do not simply reflect the truth of the everyday, linear, historical world from which they unfold. Indeed, the escape from that truth is part of what identifies performance as performance.<\/p>\n

It might seem that we have drifted very far from Blackstone\u2019s property deeds, but there is a link. The property deeds convey, after all, is produced with performative words, and only words \u2013 you don\u2019t even need to add water. Before legal word acts, what you have is land, and after the words, magically, the land becomes property \u2013 something to own and, crucially, to inherit and pass down after death. By legal word magic, property survives us, and gives us a way of affecting a future in which we no longer inhabit our own bodies, but still appear in that notoriously spooky \u201cdead hand\u201d side show of estate planning. And so deeds perform a trick, a trick that does not exactly conquer death, but at least leaves us feeling a bit ahead of the game.<\/p>\n

There has been quite a lot of death in my world of late. In the midst of what felt like a storm of mortality, I got Cicero\u2019s\u00a0On a Good Death<\/em>\u00a0out of the library. Then I lost the book and had to pay for it \u2013 twenty bucks for a ratty paperback. I was annoyed with myself until it occurred to me that my carelessness might be seen as a bit of luck, a little accidental sacrifice on death\u2019s alter, a sleight of hand that might make death look elsewhere for awhile.<\/p>\n

Embodied vulnerability is the site where legal language separates from all other texts. I said before that words alone produce legal property, but of course the real meaning of property in the world depends on the promise, or the threat, that owners\u2019 rights will be enforced if necessary with state controlled violence that can only be effective because of our mortality. As the geographer James Tyner puts it, \u201cthe principal expression of state sovereignty resides, to a large degree, in the power and the capacity to dictate who may live and who must die.\u201d\u00a0Genocide and the Geographical Imagination<\/a>\u00a0<\/em>22 (In this respect, at least, Garrison was right that the Constitution is a covenant with death, as is any legally enforceable document, including property deeds.) So law doesn\u2019t really outstrip mortality at all \u2013 law depends on mortality for its power.<\/p>\n

And yet, in some sense all recognized legal subjects defy their own mortality. In some sense that is what it means to be a legal subject, not to be confined and defined forever by the chaos and vulnerability of our temporary embodied trajectories. And legal language is the switch, the mechanism of transport, the crossroads where chaos and violence come in and depart as order and meaning. For some. I recently re-read Patricia Williams\u2019s great essay\u00a0Alchemical Notes<\/em><\/a>, in which she observes that for African Americans in the Ante-Bellum South, there was no \u201cslave law.\u201d A slave is either owned or un-owned, never an owner, that is, either outside law or subject to it, but never a legal subject.<\/p>\n

So, while legal words\u2019 performative power turns some folks into owners, subjects able to escape their corporeal limits through inheritable property, it turns others into outlaws \u2013 with bodies that are themselves never fully their own. Frederick Douglass was not a lawyer, but as an escaped slave turned lecture-circuit star he knew a thing or two about both performance and the interaction of property law and bodies: \u201cI appear this evening as a thief and a robber,\u201d\u00a0he told his audience<\/a>, \u201cI stole this head, these limbs, this body from my master and ran off with them.\u201d And so, today, in the\u00a0legal battles taking place in North Carolina<\/a>, transgender people find themselves alternately subjected to and made subjects by the play of words and bodies. Indeed, with legally performative text written not just on paper but on bathroom doors, it is hard to imagine a clearer demonstration of the trick of legal subjecthood, and how that trick both depends on and exceeds the boundaries of our embodied mortality.<\/p>\n

Originally Published June 10, 2016.\u00a0<\/a><\/p>\n\n

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

Jessie Allen, Professor of Law, University of Pittsburgh\u00a0 BOOK THE SECOND, Chapter the twentieth, Of ALIENATION by DEED. This chapter\u00a0is about words and deeds. Is this really the first time I have noticed that...<\/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":[268,255,79,492],"tags":[132,200],"class_list":["post-3927","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-news","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-11l","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3927","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=3927"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3927\/revisions"}],"predecessor-version":[{"id":3928,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3927\/revisions\/3928"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3927"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3927"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3927"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}