Loving Justice

Legal Emotions in William Blackstone's England

Kathryn D. Temple

• Publisher: NYU Press
• Year: 2019
• ISBN:
  9781479884452
• Topic: Droit
• Subtopic: Théorie et pratique du droit

A history of legal emotions in William Blackstone’s England and their relationship to justice

William Blackstone’s masterpiece, Commentaries on the Laws of England (1765–1769), famously took the “ungodly jumble” of English law and transformed it into an elegant and easily transportable four-volume summary. Soon after publication, the work became an international monument not only to English law, but to universal English concepts of justice and what Blackstone called “the immutable laws of good and evil.”

Most legal historians regard the Commentaries as a brilliant application of Enlightenment reasoning to English legal history. Loving Justice contends that Blackstone’s work extends beyond making sense of English law to invoke emotions such as desire, disgust, sadness, embarrassment, terror, tenderness, and happiness. By enlisting an affective aesthetics to represent English law as just, Blackstone created an evocative poetics of justice whose influence persists across the Western world. In doing so, he encouraged readers to feel as much as reason their way to justice.

Ultimately, Temple argues that the Commentaries offers a complex map of our affective relationship to juridical culture, one that illuminates both individual and communal understandings of our search for justice, and is crucial for understanding both justice and injustice today.

1

What’s Love Got to Do with It?

Desire, Disgust, and the Ends of Marriage Law

One might think that no genre could be further from law than romance.

—Susan Sage Heinzelman, Riding the Black Ram: Law, Literature, and Gender, xi

In Wilkie Collins’s sensation novel Armadale, published almost one hundred years after the Commentaries became available in print, we find Blackstone, or at least his book, playing a cameo role. In a novel full of evil doers, Collins’s two most innocent and likeable characters meet in a garden, zone of desire, to peruse the Commentaries, the one book that seems “likely to repay [them] . . . for the trouble of looking into it.”1 Perhaps having read too many sensationalist novels, Collins’s sweet character, Neelie, has suddenly begun to wonder whether her “contemplated elopement was an offense punishable by the Law” and whether this punishment might result in her lover, Allan, being imprisoned or, even worse, having his hair cut off. “Hang the law! . . . Let’s risk it!” her lover says, but Neelie, resolute, demands that they “find out the law for ourselves.”2 Into this rich and hilarious scene (“It’s no laughing matter,” proclaims Neelie), Collins has Allan deliver volume I of Blackstone’s Commentaries in lieu of the “wheelbarrow” full of law books Neelie demands. “It can’t be any harder than music,” Neelie says, as the two meet in the park for their legal study session.3

Neelie approaches the problem with all the comic rationality that Collins can muster, pulling out a “smart little pocketbook and pencil” and creating two columns: “Good” and “Bad.” “‘Good’ means where the law is on our side,” she says, “and ‘Bad’ means where the law is against us.” (The “Bad” column is what Collins later refers to as “the depressing side.”)4 But she has trouble keeping Allan on task; his desire for her is greater than his desire for the law. “Don’t look at me—look at Blackstone and begin,” she admonishes him.5 The Commentaries itself becomes eroticized as the young lovers reach above and around the book towards each other. Still, between stealing kisses, Allan falls “headlong” not into love, but “into the bottomless abyss of the English Law,” becoming hopelessly confused by Blackstone’s first premise: “Our law considers marriage in no other light than as a civil contract.” “Is there nothing about Love?” asks Neelie. “Look a little lower down.” But Allan finds “not a word. He sticks to his confounded ‘Contract’ all the way through.” When Allan does discover some relevant passages, they offer no help. Instead they refer to obstacles to marriage, to what Blackstone calls “disabilities” and “incapacities.”6 Finally, Allan comes to a dead stop at the requirement that minors must have the “consent of the father” in order to marry, leading Neelie to jot in her “pocketbook,” “Our marriage is impossible, unless Allan commits perjury.”7 At this moment, the two lovers face each other, “across the insuperable obstacle of Blackstone, in speechless dismay,” as Collins presses the Commentaries into service as a sign of law’s repression, its reductive qualities, and its allegiance to a cold, inhuman rationality rather than to human emotion.8

In the scene, Allan and Neelie pivot: their desire for the law turns to disgust even when “looking a little lower down” (a not-very-veiled reference to the body) reveals nothing about love. But Collins’s chapter title, “Love and Law” (one might have expected the binary, “Love OR Law”), suggests a more complex interaction. Collins juggles multiple registers here, shifting from the sexual to the institutional as he examines the contrast between human desire with its passion and frailty and institutionalized legal systems.9 In Collins’s garden scene, the Commentaries, personified as “Blackstone,” seems at first a blunt obstacle to desire, youth, speech, love, and harmonious relations among people. In conventional romances, authors use floods, fires, pirates, and parents to keep lovers apart, create suspense, and delay closure; here Collins assigns the Commentaries this role. As such, the Commentaries seems to operate as a final, closed “Chinese box,” an unassailable text, standing against human relations, against interaction, against understanding, rather than yielding cooperatively to interpretation. But Collins’s chapter title—with its expressive “and”—as well as the novel’s larger plot, suggest that we try to pry open that box a bit, for it is only through the operations of law that the events of the novel are finally resolved, that evil is sorted out from good (the “bad” and the “good” turn out to apply to more than Blackstone’s text), and that the novel’s marriage plot eventually comes to its “natural” conclusion. Thus, if we read Collins’s depiction of “Blackstone” as merely an obstacle to love, or even as the obstacle that keeps love alive, we miss much of the point. Blackstone here operates as an emotional touchstone: the book (as a signifier for the law) creates a zone of desire, then becomes an object of disgust, but finally functions as a sort of holding environment, a capacious container where unruly emotions can be managed, or as Blackstone might have said, harmonized. How are Allan and Neelie seduced into thinking that Blackstone can solve their problems? As I discuss later in this chapter, Blackstone carefully cultivated the belief that the Commentaries could satisfy the human desire for closure, harmony, and happiness. This belief, seductive and beguiling, keeps Collins’s characters reading, seeking, and desiring right up to the moment of their pivot—at which point, even the ever-optimistic Allan exclaims disgustedly, “There must be other ways of marrying, besides this roundabout way, that ends in a Publication and a Void. Infernal gibberish!”10 In noting the “Void” at the center of desire, Collins could hardly have chosen words more indicative of the problems not just Neelie and Allan, but all desiring humans experience: desire ends at the void; it operates as a fantasy of completion and wholeness that exceeds human possibility. In an effort to fulfill their mutual desire, Neelie and Allan have fallen for the promise Blackstone’s Commentaries seems to offer, only to be disappointed and finally disgusted with his account of the law. Their disgust creates aversion, a need for distance. Thus, Allan’s next step is not to read further in Blackstone, but to accommodate that aversion: he distances himself from direct exposure to the law by going to London to consult with his lawyers. The entire scene is highly ironized; Collins provides a bit of omniscient narration that undermines any promises Blackstone might seem to have offered, instead emphasizing the role of disgust in the encounter with law: “Here again, in this, as in all other human instances, the widely discordant elements of the grotesque and the terrible were forced together by that subtle law of contrast which is one of the laws of mortal life. . . . The study of the law of marriage . . . was nothing less than a burlesque in itself!”11 The “human” with its intimations of the human body, the “discordant” with its reference to music, the “laws of mortal life”: all conflict with the lovers’ naïve idealistic desire that Blackstone provide something “good,” something no harder than music (but apparently, something like music), something to advance their felt connection to each other. What Collins tags as burlesque is “the study of the law of marriage,” and with it not so much Blackstone or his characters’ naïve belief in the Commentaries, but the contrast between the idealization of English law as an aid to communal human relations and the actual reading of the law as “grotesque and terrible,” in short, disgusting.

Throughout, Collins relies on the “formal conventions” of both desire and disgust to motivate his characters. Lauren Berlant lays out the conventional attributes of desire: the recognition of a void, the making of promises that nurture the desire to fill that void, the breaking of such promises, all with the aim of creating the next desire, which again can never be satisfied.12 Berlant, of course, has taken as her subject “desire and love,” not disgust. But a full understanding of desire’s conventions involves desire’s corollary, that equally embodied and primitive emotion of disgust. Generally described as a physicalized aversion to substances that might make us ill, like parasites, decaying food, and decaying bodies, disgust has in its modern form become a moral emotion, here exercised as aversion against the “discordant,” the “grotesque and terrible” words of the law. Desire and disgust are “counterparts,” as Winfried Menninghaus, author of Disgust: The Theory and History of a Strong Sensation, argues, in that desire involves “a nearness that is wanted” while disgust “is the experience of a nearness that is not wanted.”13 Erotic desires must suspend disgust; when erotic desire ends, disgust can take over. But the relationship between desire and disgust may be closer than Menninghaus suggests. Disgust often arises unexpectedly to stand between us and what we desire: we desire excellent food, we are disgusted if maggots infest it; we desire the body of the beloved, we are disgusted by the physicality of the beloved; we desire the living body of deceased, we are disgusted by bodily decomposition. We are even, at times, disgusted by a surfeit of desire, when getting what we want turns out to be more than we ever wanted. Collins’s characters temporarily suspend their disgust for the law in order to pursue their desires, but disgust returns in full at the moment of their disappointment. The recalcitrant text, “Blackstone,” thus becomes the locus of both desire and disgust as it entices these readers, but then fails to satisfy them. In failing as an object of desire, it serves recursively as the cause of desire itself as the lovers’ disgusted disappointment only creates new and shifting desires that link these desiring subjects to new objects.

Armadale here spotlights a moment when desire appears embattled, blocked by “Blackstone,” and by the hyper-rationality of the law. It reveals as well a common way of reading Blackstone, not as a pedagogical summary of English law or as an effort to map English law onto universal conceptions of justice, but as the authoritative last word, as offering a direct entry into the actuality of law itself instead of an intervention or shaping of diverse materials. But what if Neelie and Allan had continued looking “a little lower down,” not down in the sexual sense though these passages are full of sexual innuendos, but down in the sense of into the past, and down also generically, from the respected legal tome that Blackstone’s Commentaries became almost the moment it was published, down to “The Lawyer’s Farewel,” the short poem I discussed in the introduction to this book, written more than a decade before the Commentaries? By looking “a little lower down,” they might have found not only the “something about love” that they sought, but an entire emotive-aesthetic zone constructed around desire and disgust, one that evokes the body and sexuality similarly, if less cleverly than Collins does in their fictional world.

My earlier discussion of this poem revealed Blackstone’s deep allegiance to eighteenth-century poetic preoccupations with harmony, musicality, the couplet—with its focus on balance and steady rhythms—and Concordia discors, demonstrating how these concerns played out in an idealization of first, literature, and then, the justice-law continuum represented as “harmonic justice.” As I briefly mentioned, Blackstone juggles desire and disgust, justice and law, suggesting that powerful desires—marked explicitly but not solely by sexual metaphors as in Collins’s text—animate the most abstract of legal conceptions, while the law itself evokes disgust and thus undoes the workings of desire. The present chapter focuses on this representation of the contrast between the desire for harmonic justice and disgust for the law as experienced in the world, then takes this dynamic into the Commentaries, predictably enough to marriage law, but less predictably to issues involving the importance of the adversarial trial to the English common law system. In both of these arenas, Blackstone relies on desire and disgust to manage the central tension in any system of justice: that between certitude and contingency.

The Power of Desire

In season six of the television series Charmed, the Demon Gith (who seems to have been reading Deleuze and Guattari) reveals a central truth about the workings of desire: “Do you know how much energy is contained in an unfulfilled desire?!” he exclaims, while exploiting the charmed sisters’ not-so-secret desires. Eventually Gith dies, consumed by an explosion of that twenty-first-century icon of capitalist desire, the SUV, but not before teaching the sisters to respect, but also to curb, their desires. The episode, like the series, stages the tensions displayed in Collins’s novel, those between personal desires and “the law,” figured as marriage law in Collins’s novel and as “duties” in the show. Blackstone’s poem “The Lawyer’s Farewel” stages a similar tension, but suggests that simply curbing desires cannot offer resolution: in the poem, personal desires are figured through the young poet-lawyer protagonist’s longing for literature, a longing that must be given up if the protagonist is to take up the more publicly acceptable desire for law. Thus, the poet-lawyer is forced to abandon literature, that “gay queen of fancy and of art,”14 by a disciplinary tyranny that seems to pit literature and law against each other. But desires never simply abate: the structural logic and formal conventions of desire, the drivers of its energy and power, step in when the poet-lawyer looks “a little lower” to find a new, compensatory object of desire in “justice.”15 Blackstone’s Justice (all caps in some versions) is “from vulgar sight retir’d, / like eastern queens” held in “winding close retreat,” hidden in an apparently overgrown garden by a “thorny maze.” Because she is veiled, she is “more admir’d.”16 This image is both familiar and odd: familiar in that justice is seen as unobtainable, hidden in the oft-used metaphoric “thorny maze” of the law,17 and odd because while Justice had often been sexualized for satiric purposes,18 here sexual imagery delineates an idealized and perfect justice. The eastern queen is approached through sexualized metaphors worthy of an adolescent poet: “Oh let me pierce the secret shade,” the young poet-lawyer cries, to describe his desire for “the bottom view . . . deep and regularly true.”19 (As I noted in the introduction, this language would surely have made Blackstone’s contemporaries—at least those who tended to look “a little lower”—laugh.) The poem draws on the erotic gaze, but also on internal bracketing to suggest what Berlant calls “an intensified zone of attachment,”20 through the sequestration of Justice and the further sequestration of a secret writing on a “sacred page.” Blackstone creates multiple obstacles—the thorny maze, a secret shade, and brackets both figurative and literal—between the desiring subject represented by the poet-lawyer and his love object. The imagery slips from one desired object to another, as Justice seems not only to be “the guardian of Britannia’s law,” but also to be absorbed into or merged with Britannia’s law when the poet-lawyer imagines himself able to observe her as she “unfold[s] with joy her sacred page” (Pamela’s readers would have picked up on the erotic charge such a reading represented) where “mix’d, yet uniform, appears / The wisdom of a thousand years.”21 This seemingly illegible “wisdom of a thousand years” is doubly bracketed, enclosed in actual brackets while its stanza is itself both bracketed and interrupted by the poet-lawyer’s desire to “pierce” in the first line, and Alfred’s “piercing soul” in the last couplet. Throughout the poem, Blackstone emphasizes the expansive operations, the sheer inventive energy of desire, represented through rapid substitutions: “sacred page” for “eastern queen,” “countless wheels” for “sacred page,” and finally “various laws to one great end” still tantalizingly illegible on that “sacred page.” That ultimate object of desire, those “other doctrines” that form a “clear, deep, and regularly true” melding of law and justice, is never truly revealed, but only represented as the poet-lawyer’s object of desire, as the perspective shifts from his view to Alfred’s, one that “pervades, and regulates the whole.” Readers (and the poet-lawyer) see this desired merging of justice with law only conditionally, only through desire, as “one harmonious rule of right” in which “countless wheels distinctly tend / by various laws to one great end.”22

Those versed in twentieth- and twenty-first-century theories of desire will find multiple conventions familiar. Desire, as we might expect, is figured as lack, as directed towards a void that “exceeds representation,” that “is only ever represented as a reflection on a veil.”23 It wanders uneasily from image to image, first sexual, then oriented around the need to know, first capacious, then rebelling against its boundaries, at one moment uncertain, watching from afar with “awe,” at another “piercing,” destructive and masterful. Shoshana Felman’s famous discussion of desire, promising, and broken promises in her reading of Don Juan suggests that this is how desire works: we are promised much, but little is delivered.24 Blackstone, like Don Juan in Felman’s reading, ever leads us on, only to replace each disappointment with a new and more tantalizing image. The poet-lawyer yearns...