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Few aspects of post-structuralist literary criticism have garnered as much attention and provoked as much controversy as the move to challenge the idea of a fixed literary canon of great texts. The implications of deconstructing the canon extend well beyond the study of fiction. All fields of scholarship have a canon of established texts, methodologies, and questions. Critiques of the literary canon resemble the challenge to conventional history posed by the new social history and its efforts to write a history from the bottom up that would supplant traditional historical scholarship. A similar revisionist effort is now only just beginning to emerge in constitutional historiography. Proponents of “a new constitutional history” are seeking to challenge the canon of traditional constitutional history. While this revisionist project has not been cast in post-structuralist terms, the perspective provided by recent critical theory can refine the practice of the new constitutional history.
“There is nothing,” wrote William Blackstone, “which so generally strikes the imagination and engages the affections of mankind, as the right of property.” Property continues to occupy a place of enormous importance in American legal thought. More than just a staple of the first-year law school curriculum, the concept of property guides the application of constitutional doctrines of due process and eminent domain. A grand division between “property rules” and “liability rules” classifies our common law entitlements. Property is a concept of such longstanding importance in our law, of such great inertial momentum, that it has expanded to include nonphysical property in goodwill, inventions, designs, artistic expression, symbols, secrets, privacy, and celebrity, as well as “new” property in social security benefits, government contracts, job security, and occupational licenses. Recent scholars have identified property with autonomy, personality, political participation, and reliance interests. Thus expanded, the concept of property threatens to disintegrate. If it includes everything, does it mean anything?
Symposium: English Legal History in the Age of Mansfield
The recent publication of James Oldham's monumental The Mansfield Manuscripts and the Growth English Law in the Eighteenth Century prompted Georgetown University Law Center to stage a symposium on legal history in early modern England. Oldham, Susan Staves, and James Cockburn presented papers at the March 1993 conference. Their subtle and innovative essays have been revised and reprinted in this issue of the Review to make them available to a larger audience.
Mirjan Damaška, in his 1973 comparative study of criminal procedure in the Anglo-American and continental traditions, asserts that “the continental non-adversary system of procedure is more committed to the search for truth than is the Anglo-American adversary system.” He reasons that the stronger procedural obstacles to truth-finding in the adversary system derive from a collective horror of convicting innocent people.
To think of property as “things” owned by “persons” may be to miss a more interesting relation in which personhood itself can be constructed out of ownership rights, especially out of what a particular person is privileged or forbidden to own. Moreover, what is sometimes thought of as “private property” might more accurately be understood as the product of a joint venture engaged in by both individuals and the state. Now, instead of personhood and property existing outside of and independent of the state, both are significantly creatures of the modern state. In early modern England we can see the extent to which “England” and “Englishness” were themselves invented through rules of ownership and through the state's use of rules of ownership to project and to enforce certain ideas of desirable Englishness. A wide variety of statutory changes in the rules of property ownership conferred ownership rights on some persons previously lacking them and took away ownership rights from other persons previously possessing them; these rule changes were intended to promote certain kinds of personhood judged desirable by the legislature and to stigmatize and limit other kinds. Since early modern politicians and social theorists were quite self-conscious about the relations between property law and social structure, it is often possible to discern in the rule changes and in the debates about them what contemporaries supposed the ideological implications of the legal changes they advocated or resisted were.
“As punishments become more cruel, men become more ferocious.” That contention, voiced in this instance by a contributor to The Gentleman's Magazine in 1786, had been a respected tenet of Enlightenment penal theory since its articulation by Cesare Beccaria twenty years earlier. In the interim, commentators on both sides of the Channel had continued to theorize about the impact of public physical punishments on the temper of society. Repeated public executions, thought one contributor to The Times, led only to “a shameless apathy”; another cautioned that, “When the wantonness of oppression is made familiar to the eye, the sensibility of the people…degenerates into despondency, degeneracy and stupidity,…” and he repeated Montesquieu's sinister simile likening the tranquility of such a state to the mournful silence of a city that the enemy is about to storm. In the aftermath of the French Revolution, however, such speculation took on the chilling force of prophecy fulfilled, and for the next fifty years a chorus of increasingly alarmed English voices warned of the potential for insurrection inherent in physical punishments. Continued recourse to public executions, a “festival of blood, [was] calculated to shock or brutalize the feelings of man, [to] encourage ferocious habits in the people.” “Revolutions,” trumpeted the Morning Herald in 1835, “are always most bloody in countries whose laws have most familiarized the people with spectacles of vengeance.”