Saturday, September 02, 2006

I'm reading "Political Theories of the Middle Age" by Otto Gierke, introduction by Frederic William Maitland, published in 1900, and it ain't easy.

If a person were to know the name of one legal historian, likely that would be Frederic William Maitland. That's me. I had heard of him, which is one reason I picked up the book. He's a fun read, sort of, but he spend a lot of time being sarcastic, which is confusing.

Being sarcastic when talking to someone with limited knowledge of the topic is deeply unhelpful. Sarcasm aleays assumes a bunch of knowledge.

So I've read Maitland's 38 page introduction to the 100 pages of text and the 96 pages of footnotes.


The law sometimes assumes that certain groups of people can be treated partly as if they are individuals.

Examples would be corporations and the State itself.

How, Maitland wonders, did human beings and law people arrive at the common assumption. To think that a group of people are for some purposes much like one person: is that in some sense true, or is it one of the things that humans chronically feign?

English and therefore US law arrived at its assumption about this in a different way than Germany did.

Otto Gierke's book is about how German law got to what it thinks about groups as people as people, what German law does (in the late nineteenth century) think about groups of people as people, and what German law should think about groups of people as people.

Maitland's introduction is a try at putting what Gierke is writing about in context by comparing to British, and a little bit US, approaches to the group-as-person issue.

Gierke is big on sweeping generalizations. Maitland is bit on knowing many many details and assuming the reader knows a lot of details too.

It is hard but it's likeable because so much of how we humans dealing with each other is dealing with group sort of as if they are individuals with one will. It's not just the law that does it. It is a deep-seated human condition.

When I am on jury duty, which means for me so far jury selection, I'm always one of the last ones into the courtroom after breaks because I hate the crowding around the door to get in thing. Here are these wildly different folks called for jury duty with usually different thoughts and around the door everyone is filled with one big thought--"I want to get in." Crowd psychology. Loss of perspective. A certain samey simple mindedness.

We are there to represent the people, and once we're passed the crowded door we're more different individuals again, not so samey.

Then if it's a criminal trial, the prosecutor is also the people, representing the people and often referred to as the people. "Do the People have further questions?"

Maitland wonders who this People is in US courtrooms, since the underlying reality is constantly changing. I never thought of that. I thought it was kind of cute. All these prosecutors being the People and if one of the people is crossing the state line to move out, then they aren't one of the represented people of the State of California, but if they are just leaving to go on vacation they are. Maitland is trying to point out that like many legal assumptions, it doesn't bear much thinking about.

I didn't mind Maitland being sarcastic about that because I understood what he was saying, and it wasn't any particular disrespect. He is sarcastic about many things about legal presumption. I just dislike it when I can't understand what he is saying or implying.

I read a book once about how the idea of the sovereignty of the people developed: "Inventing the People: The Rise of Popular Sovereignty in England and America" by Edmund S. Morgan. It's a good read. He's a historian that wants people in general to know their history and he helps out by writing readably.

The idea of the sovereignty of the people was developed to replace the idea of the sovreignty og the monarch in the era of the divine right of kings. The monarch had all power by getting it from God.

During the English Civil War of the 1600's which including beheading the king, another idea came up.

It never was presented by the people who developed it like this: "The sovereignty, the power of the state, resides in the people." No, never in that brief and lonely and politicianless manner.

Rather, the Parliament stated the idea thusly and very fast, without any pause between the first and second part:

"The sovereignty of the State resides in the people and we represent the people so we have the power." A politician never wants to take a breath while saying that.

The point of this book was that usually that is how it works. The idea of the sovereignty of the people is much talked of, and people let politicians fight out what to to.

But every once in a while, this book shows, the people, as a group, awake and notice they have sovereignty and want in vast majority what they want.

The politicians are then, for a while, in different world, one where the people are sovereign and very attentive to what politicians are up to. Then it passes, and politicians have their usual privacy of inattentiveness, and the individuals who make up the people pay more attention to their own lives than their collective life.

Maitland doesn't bug me sort of making fun of the legal idea of the people. I'm be sotted with the idea of the People, a good group, a wise group, a group to work for, the worst group to give power to except for all other possibilities of who you might give power to. (To take an idea from Winston Churchill.)

It's such of relief to have some parts of the propaganda that I've grown up with that I can really get into. "The People, Yes" as Walt Whitman said, and I'm there with him.


The idea of the people is indeed theoretical, as Maitland points out. Which makes it he more charming that Whitman was so concrete. He liked to walk in crowds. He liked to praise crowds. He liked to meet guys in crowds and take them back to his place and talk to them in detail about their lives, and, all willing, make love with them.

I read a gay guy's book about Whitman. He argued with straight Whitman biographers' idea that Whitman met all these many guys on the street and broought them back to his place and only talked to them On ongoing survey of the male part of the people.

The gay author thought the no-sex idea was ludicrous. I have a tough time some days remembering to notice individuals on the street around me. Gay guys are good at not just noticing but going from "hi" to ecstatic touching in very short order. Whitman thought this was a great way to express democrary. The people--wow!

Many of Whitman's early poems are in love and lust praise of particular guys. They go well with his poems of rah-rah about the glory of the crowd because they are softer, more specific feeling, more believable.

The people is individual people who feel good to touch, who like being touched. Whitman brings the people down from the level of legal abstraction to good times in his New York apartment.

When the US was getting into nasty regional arguments that ultimately let to civil war, Whitman had an idea--"Affection shall solve the every one of the problems of freedom." He described men from every region meeting and clasping hands and kissing as they meet and part. The poem, "Calamus 5" begins--"States! Were you lookin g to be held together by the lawyers? by an agreement on paper? By arms?"

He goes on, addressing the powerful abstraction of the states, to say they will be brought together by arms but not be weapons, but by the arms of men in friendship clasping each other, men from north and south, east and west.

That'll never happen.

In a way that, much later, has happened. Gay guys from all over migrating to the cities to meet and touch. And eventually, to meet and touch and work, with gay women, at expanding the notion of the people. Many of the good parts of US history are about expanding who the people includes.

The people is an odd abstraction, as Maitland implies, but an attractive thing to join, to have some power, to have some power as your whole self and not have to hide to be part of the group that runs things.

As Whitman aged, he was less into talking about his love of men, much less making it the possible answer to war. But his younger poems were so very not ambiguous. They didn't signal; they said. And one of his last poems, to be published by his instructions after his death said,

"Full of wickedness, I--of many a smutch'd deed
reminiscent--of worse deeds capable,
Yet I look composedly upon nature, drink day and night
the joys of life, and await death with perfect
Because of my tender and boundless love for him I love
and because of his boundless love for me."

--Walt Whitman, "Of Many a Smutch'd Deed Reminiscent" from "The Neglected Whitman: Vital Texts" Edited by Sam Abrams