Legal fictions abound with contradictions that we all too often overlook. As law is engaged in a project of narrative-making. Fictions fill gaps between otherwise irreconcilable doctrine and reality. The best of those fictions will operate subconsciously, as if the law gives effect to the falsehood and animates its life. But when the fiction is vulnerable to reality — when the law fails to prop up the fictional undertone — then the law becomes vulnerable to attack. Justice Stevens wrote in a 2014 Law Review that historical myths play a greater role in Supreme Court adjudication than we sometimes recognize, and that sometimes, the court itself is responsible for those myths. (See his excellent essay Glittering Generalities and Historical Myths in the Louisville Law Review).
In Retelling English Sovereignty, I venture to consider how the fiction of Sovereign Immunity came to the United States — its underlying narratives that animate its life. From bad kings to incompetent kings, Retelling English Soveregnty traces the doctrine through the concept of the KIng’s two bodies, a mystical understanding of the monarchy’s dualism. This legal fiction was propped up by other fictions, such as the Corporation Sole, where a collective enterprise was represented by one person as representative of other persons across ages. See e.g., The Monarchy, Parsons, and the Chamberlain of London. The article traces legal, political and theological thought across early british writers, including Lord Coke, William Shakespeare, F.W. Maitland, John Locke, Blackstone, Sir Robert Filmer, Thomas Hobbes, Adrian Fortescue, and many more. It also contextualizes the theology of kingship and the political harmony of revolt, particularly in the narratives of the seventeenth century that gave rise to the regicide of Charles I and the Glorious Revolution.
In this space, I would point to some of the literary moments of the article. Two I think are of relevance — the contrast of how Shakespeare sees the myth of king-making in good kings, such as Henry V and the irony of the double king, with that of bad kinds, such as Richard II. Shakespeare’s work on Henry the V provides not only the prose recognition of the duality of the kingship, but the literal physical duality as the king walks about his men in disguise. During dialogue with his men about whether the king will ransom himself or not, while in disguise, the king suggests that he would challenge the men to a duel to show that the king will be faithful to his word to not be ransomed should he be captured. In this scene, we see that the king has the luxury of living outside of time that his men don’t have. While his men may certainly die, and never know the outcome of whether the king indeed ransomed himself, the king himself has the luxury of being twin burned to greatness — subject to the vulnerabilities of an imbecile, while subject to it across time.
Likewise, Shakespeares discussion of Richard II poses a monarch that is not only subject to the imbecility, but who finds himself at odds with the character of a king. Yet, as Shakespeare’s prose suggests, the blemish’d crown may be redeemed from pawn. Its time that serves the redemption for the monarchy. And time that distinguishes the monarchy from other men — its ability to live on without consequence of the actions of one man who holds the crown, while preserving the dignity of the ages.