(This essay was a final exam paper for a Legislative Practice class with Prof. Paul Campos – “the philosopher” referred to in the essay- at the University of Colorado Law School, written in December, 2008)
“The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.”
-Edward Gibbon, “Decline and Fall of The Roman Empire”
One need not be a solipsist to recognize that he cannot refute the unreality of a law by kicking either it, or its unambiguous and definitive meaning, but neither need one be a Bishop Berkeley to recognize that the reality of law is precisely the fact that we imagine it to have one. We have focused this semester on the elusiveness of the meaning of any given law, and on the various fictions employed to disguise that elusiveness. This, of course, is not a phenomenon particular to law, but rather a basic linguistic (and epistemological) fact: The ambiguity of language (and, more generally, the individuality of perception and cognition) produces a multiplicity of possible interpretations. Any text (or communicative act), especially one that is authored by multiple people through some collective process (such as illustrated by the convoluted politics by which the Civil Rights Act of 1964 was passed), has no single intent or original meaning, nor does it remain tethered to the context of that process when later readers (or audiences) implement it. Even the meaning of a single text by a single individual is not a fixed entity: Is it what the author intended, or what each interpreter understood? Should it be interpreted literally when experience and context suggest that the purpose of the text is better served by filling in the blanks and adapting it to changes in circumstances?
Given the fact that the interpreted law is a chameleon molded by the various attributes of various minds employing various techniques serving various biases and predispositions, it is, arguably, merely a sham, an “opiate of the masses,” which the magistrate finds useful because it legitimates his power and enables him to better herd the beguiled sheep. To serve this function, the people must be duped by the sham, must accept the law –arrived at by all the various modes of legal interpretation employed by its practitioners (“the various modes of worship”)– as an objective reality, so that they will submit to its authority. And the philosopher deconstructs this system of fictions upon fictions, vacillating between an existential crisis and a concern that he may be abrogating his responsibility by destroying the illusion he is paid to maintain and to train others to maintain.
My thesis is that the philosopher need suffer neither affliction. The comedian George Carlin, somewhat paralleling the Gibbon quote above, said, “Some people see a glass that’s half empty, others see a glass that’s half full, but I see a glass that’s twice as big as it needs to be.” In other words, it is what it is. We can measure our social institutional framework, knowing that it is all smoke-and-mirrors, against some unattainable ideal of the just and transparent society, and despair that it has fallen so short (the utopian approach). Or we can measure it against it’s absence, and rejoice that we are, to some limited extent, spared the “short, nasty, and brutish lives” of all other creatures (the Hobbesian approach). Or we can, like the philosopher, strive to understand precisely what it is, to reveal the little man behind the curtain, to peel the onion away and find insight in the void thus revealed, but, while doing so, avoid the philosopher’s crisis by mitigating our angst with a combination of pragmatic utilitarianism and benevolent egalitarianism.
The Great and Powerful Oz, Toto, and the Little Man Behind the Curtain
Our legal system is a dialectic of mythos and logos, a functioning mythology operating according to its own internal logic, but also implicitly challenged by the logic of critical analysis. The mythos is employed to legitimate power, and in doing so, to co-opt logos, to convert (using Max Weber’s terms) “traditional authority” into “rational authority,” and to claim that “charismatic authority” (personal authority subject to personal caprice) has been vanquished from the realm of law. To articulate the Gibbon quote, the Wizard of Oz metaphor, and the dialectic of mythos and logos: The people are awed by the mythos (“The Great and Powerful Oz”), while the philosopher (Toto) tugs at the curtain hiding the magistrate employing his machinations (the little man pulling the levers). The magistrate, wittingly or unwittingly, uses mythos (the mechanisms of which are hidden behind a curtain of logos) to beguile the people, while the philosopher uses logos to pull at that curtain and reveal what’s behind it, creating a dialectic between critical examination and uncritical legitimation.
The mythos is that we are “ruled by laws rather than by men.” The curtain of logos that hides the magistrate’s subjectivity is comprised of various theories and techniques of legal interpretation (briefly summarized below). The people uncritically accept these theories and techniques as true and legitimate, the esoteric tools of legal wizardry. The philosopher rejects them all as the sophistry of actors who either accept the play they are in as reality, or pretend that they do. And the magistrate is untroubled by the question as long as order is maintained, and the status quo unthreatened.
The Dead Hand of the Past, the Capricious Hand of the Present, or the Mindless Alternative?
The pleats of the curtain of co-opted logos hiding the little man and his levers are intricate indeed, involving choices along the two primary dimensions of past (when legislated) to present (when interpreted), and narrow (literal) to broad (interpolative). The large folds are defined by three theoretical approaches: 1) intentionalism, which purports to discern and apply the original intent of a statute’s authors; 2) purposivism, which purports to discern and apply the statute’s purpose; and 3) textualism, which purports to discern and apply the statute’s “plain meaning.” Lodged within and draped across these broad theoretical approaches are both specific applications, such as legal process theory and cost-benefit calculations, and the canons of statutory interpretation, falling into three categories: 1) textual canons, 2) substantive canons, and 3) reference canons. There are folds within these folds, of course, linguistic rules, guidelines as to which statutes to interpret how broadly or narrowly, when and how to go beyond the text to “discover” its meaning. But the essence of the matter is that laws are, by the nature of texts rather than by choice, intersubjectively produced, that the interpretive techniques which contribute to their production do not discover something objectively in existence, but rather mold it through the act of delivery, each midwife attempting to finalize the product, but its finalization, to the extent that such exists, being achieved by the subjectivity of an institutionally powerful individual channeled through the artifice of these interpretive techniques.
The inevitability of interpretation is illustrated by Rex v. Liggets-Findley Drug Stores, Ltd., (1919), in which a municipal ordinance required that drug stores “be closed…at 10 p.m.” every day. A narrow literal reading of the ordinance would imply that the drug stores could close from 10:00 p.m to 10:01 p.m., and then reopen without violating the ordinance. The Canadian judge who wrote the decision held that “we should take the words to mean what they would quite clearly mean to the ordinary person,” that the stores should remain closed for the rest of the day (but could they then reopen at midnight?).
In Rector, Holy Trinity Church v. United States (1892), Justice Brewer employs a “funnel of abstractions” to argue that an “accurate” interpretation of a protectionist statute barring employers from paying for the passage of imported employees should not be read to bar the church from paying for the passage of an English minister: From the least abstract (the “common meaning” of the word “toiler”), up through the specific intent of the statute as applied to this case, through the general purpose of the statute, through the social policy it serves, and, at the highest level of abstraction, to the greater social good intended. Even had the argument been strained at some or most of these levels, the others could have been used to come to any preferred conclusion.
Steven Smith, in “Law Without Mind” (88 Mich. L. Rev. 1989), frames the conundrum this way: According to current legal theory, we have essentially three choices: 1) “originalism,” whose primary defect (setting aside the epistemological problems of determining original meaning) is to bind us to “the dead hand of the past,” thus limiting our ability to inform our implementation of the law with the values and challenges of the present; 2) “pragmatism,” whose primary defect is the replacement of “the rule of law” with the caprice of judges; and 3) “present-oriented interpretation,” which “seeks to appropriate the virtues of each,” but, by freeing itself both from “the dead hand of the past” and the living caprice of the present, relegates itself to the realm of the arbitrary. The defect of the present-oriented interpretation, according to Smith, is that it neither binds judges by the political will of the legislators who enacted the statute, nor empowers judges to pragmatically “promote present values and objectives.” Rather, it surrenders human rationality to an inanimate text detached from its authors but binding on its interpreters.
Zen and the Art of Legislative Interpretation
The theories and canons summarized above purport to address the fundamental ontological and epistemological questions of legal interpretation: 1) what is the law? and 2) how do we know what the law is? The normative as well as descriptive versions of these questions are implicit within them: 1) what should the law be? and 2) how best should we determine what the law is? As disciples of the philosopher, we know that it is ultimately impossible to determine what the law “is,” that it does not have a fixed objective reality independent of our act of interpretation. What it is is inherently elusive; what it should be is a debate framed by various fictions. How, then, should we conceptualize the enterprise?
“What is law?” and “What is the best way to determine what law is?” are both similar to the question Robert Pirsig asked in his novel Zen and the Art of Motorcycle Maintenance: “What is quality?” Is “quality” (in reference, say, to art or music) what a few self-anointed experts say it is, or what is most popular? Neither solution seems quite satisfactory: The consensus of experts (embracing, for instance, dots on blank canvases and atonal compositions) often appears more pretentious than insightful, but popular preferences (for, say, paintings of Elvis on velvet or songs by Brittany Spears) often appear more anesthetizing than aesthetically redeeming. Similarly, in academe, post-modernists and positivists ridicule one another for being either oblivious to reality or oblivious to the lack thereof, and no authority stands over these feuding camps to declare which paradigm is of higher “quality.”
But this elusiveness does not mean that “quality” does not exist. We know it does, can come to general agreement on some isolated examples (such as that a requiem by Mozart is of “higher quality” than the latest pop hit), and can wink among ourselves at some more contested examples (such as whether Sarah Palin or Joe Biden was a “higher quality” candidate for Vice President).
“What is the law?” and “what is the best way to determine what the law is?” are similarly elusive questions, similarly contested by the highest authorities, but referring to something as real, and a process as inevitable, as the recognition that “quality” exists. To arrive at the best (i.e., most functional and most fair) answers we need to embrace this reality rather than rage against it. The fundamental “defects” in legal interpretation we’ve discussed this semester are inherent ontological and epistemological limitations; they cannot be remedied, and therefore should not be cause for despair. They are parameters rather than variables, givens within which we operate rather than malleable factors upon which we can work our will. The self-help organization “Alcoholics Annonymous” has enshrined the appropriate attitude to take toward such parameters in The Serenity Prayer (“Give me the strength to change what I can change, the patience to accept what I cannot, and the wisdom to know the difference”). As obnoxious as it may be, it is none the less a pearl of wisdom: What sane alternative is there to this sage advice?
Therefore, the facts of diffuse authorship, unrecoverable original intent, and the inevitable injection of the interpreter’s subjectivity in the act of interpretation are not, per se, legitimate causes of concern, because they themselves (as opposed to how they inform strategies in response to them) are fixed constellations that can neither be wished nor legislated away. It is reasonable and useful to recognize and be informed by these facts, but not to lament them. To what extent these parameters should be openly acknowledged, and to what extent they should be discretely downplayed, is a question inevitably addressed by the process discussed in the next section.
The Political Epidemiology of Reifications (and other memes)
Within the parameters we are obliged to accept, we are confronted with sets of interrelated choices: To what extent should we prefer the “dead hand of the past” to the caprice of the present, and to what extent should we bind judges by increasingly elaborate algorithms of interpretation, perhaps, at the extreme, programmed to evolve by meta-algorithms as they encounter unforeseen circumstances, rather than delegating discretion to judges, incurring both the benefit of the latter’s more supple minds and the detriment of their prejudices and predispositions? How much caprice can be permitted without undermining legitimacy, and how much rigidity can be imposed without undermining substantive reason and justice? Steven Smith presents us with three alternatives, each of which reifies something clearly dysfunctional: either the increasingly anachronistic supposed intentions of the legislators who enacted the laws, or the prejudices and predispositions of judges largely untethered from those texts, or the decontextualized constraints that bear a disconcerting resemblance to medieval trials by ordeal. But to proffer no acceptable alternative is to beg the question: In this imperfect world, what is the best we can do?
In a sense, we are doing it right now. The people, the philosopher, and the magistrate are all just muddling along, individually and collectively pursuing desired goals, and, through some combination of trial-and-error and proactive innovation, carve our social institutions in the lathe of time and numbers. “Memes,” like genes, are packets of information that reproduce (are communicated), mutate (are altered through interpretation and innovation), compete for reproductive success (e.g., guns or spears? pantheons or Yahweh? socialism or capitalism?), and thus evolve (Richard Dawkins, The Selfish Gene, 1976). The myth of “the rule of law” is a somewhat successful meme, and in many ways beneficial to our collective existence: The magistrate is not wrong that the techniques by which it is maintained are all equally useful. But neither is the philosopher wrong to question the validity of those techniques, to analyze them, and to seek to refine them. Order without justice is oppressive; justice without order cannot exist. The reification of “the rule of law” provides more order than justice, but its absence provides neither. The challenge, then, is to accept its reification, and to maximize the justice produced by refining the particular form of that reification.
This is not a benign process, nor one actually pursued as a global collective enterprise. My use of the first person plural (“we”) has been a simplification that must now be unpackaged: The selection of genes according to their relative reproductive success produces organisms that are carved by the requirements of such success. This biological algorithm produces complex arrangements of both cooperation and competition, and a variety of strategies. Humans embody what may well be the epitome of the flexible strategy, one which in fact produces an echo of the evolutionary process in the form described above. We can conceptualize and communicate in order each to pursue his or her own fundamentally selfish agenda, which generates ever more sophisticated forms of cooperation along the way (just as biological evolution does, in the formation of ecosystems). Cooperation is so advantageous to those who can overcome the obstacles to it that our social institutions -our hierarchies, our markets, our norms, and our ideologies- are laden with mechanisms to align our individual and collective interests, through structures of legitimate authority, means of exchange, informal social approval and disapproval, and values and beliefs which create cognitive dissonance when we fail to police ourselves.
But the politics of the processes which produce these arrangements is an ever-present element. Cooperation is a means to compete more effectively: People, historically, band together to gain advantage over others. Human history is, in a sense, the story of conquerors and the conquered. Conquerors become rulers and nobles; the conquered become peasants and laborers. The competition between conquerors and their respective states, however, forces refinements to more effectively raise and finance armies, which forces some decentralization of power in order to better exploit the state’s human and natural resources in service to this competition. The decentralization of power fosters and facilitates resistance to power, while concessions by the powerful become increasingly expedient. By these and other mechanisms, the modern world saw the rise of “liberal” societies, and the ideologies that accompany them. But our social institutions still bear the imprint of violent power struggles which produced somewhat hereditary winners and losers, and our social institutions are still the arena within which such power struggles continue to ensue.
So, while order is useful, complacency about the existing order is always unjust. The reification of “the rule of law” facilitates our aggregate prosperity, but it disproportionately benefits the rich and powerful, because the rich and powerful were (and are) its authors. Justice requires resistance and criticism; justice requires Toto tugging at the curtain. It is a happy coincidence that evolutionarily successful memes have facilitated processes of decentralization of power and diffusion of wealth, and probably will continue to do so, gradually infecting even those societies less blessed by egalitarian social institutions. The egalitarian values that have gradually and incompletely matured in conjunction with this decentralization of power and diffusion of wealth reinforce the process, and motivate actions in service to it. But the underlying dynamic by which all this has happened, and will continue to happen, is essentially political, involving strategic behaviors in pursuit of personal and local advantage.
By sublimating primal conflict and channeling it through peaceful social institutions, humans prosper. Belief in “the rule of law” has proven to be a powerful meme contributing to the effective sublimation of that primal conflict. But the struggle for an increasingly just society that can and should take place within that social institutional context necessitates vigilant attention to the reality behind the myth, to the political exercise of power inevitably embedded in the depersonalized reification. There is an inherent tension that cannot be escaped: The sublimation and pacification of human conflicts and passions accomplished by the reification of “the rule of law” is simultaneously oppressive and liberating. It liberates us from the “war of all against all,” but it institutionalizes the brutality of huge disparities of wealth and power. And as such it challenges us to strike the delicate balance between maintaining the myth and resisting its ossification.
In light of this analysis, the goal of legal interpretation, then, is not to be true to the political will of those who enacted the statutes, nor to avoid the “mindlessness” of “present-oriented interpretation,” nor to eliminate the caprice of judicial pragmatism; it is, simply, to maximize the justness of the imposition of authority on those who have been pacified by that authority. Clearly, the respective defects of these three modes of legal interpretation each reduces, in one way or another, the justness of the authority thus imposed. But just as “the perfect should not be the enemy of the good,” neither should it be the enemy of the merely possible. Identifying the most just, or perhaps the least unjust, option among all known alternatives (while simultaneously attempting to contemplate alternatives not yet known), and engaging in the political struggle to implement it, or to implement a compromise that approaches it, is the best we can do.
The fact that these competing flawed paradigms are discussed and debated, each having its own authoritative supporters and detractors, with the ever-present possibility of new additions entering the fray, is precisely the robust competition of memes required to prevent the ossification of a suboptimal status quo. Nor is it merely an ivory tower academic exercise: Judges themselves, by the choices they make, subject these paradigms to the crucible of human experience. It is a messy and often unjust process, but, at present, I can think of no way to improve upon it, and if and when I do, I will merely be participating in it. As John Maynard Keynes subtly put it (before Winston Churchill appropriated the quote in particular reference to Americans), “Men (sic) will do the rational thing, but only after exploring all other alternatives.”
The Emperor’s New Clothes
The law, like all social fictions, is a naked emperor whose clothes we are taught to admire. Law school is the in-depth analysis of the fine raiments the naked emperor wears. To the curmudgeonly philosopher who feels obliged to point out that the whole process is the reification of an unreality, that the real fates of real human beings are decided by a confused little man behind a curtain, that the Great and Powerful Oz is all smoke and mirrors, this vast fiction is malignant rather than benign, half empty rather than half full. But it is neither particularly malignant nor particularly benign; it is what it is.
Not all social fictions, not all social institutional contexts, are equal; not all are of equal “quality.” A quick survey of systems of justice and checks on power that the world has yet produced suggests that the myth of “the rule of law” is worth retaining for the time being.
That the fiction evolves, driven by some combination of psychological needs and material desires, through political struggles large and small, is, at the very least, one of nature’s fascinating wonders. Rather than apes foraging in the African savanna, naked and vulnerable to all of nature’s limitless injustices and indignities, humans now live clothed in the products of the mind, which inflict limitless injustices and indignities of their own. And yet, these fictions, these products of the mind, these technologies and social institutions, afford me the luxury of contemplating them, while sitting in this comfortable chair, sipping my favorite beverage. Through such contemplations, and a prospective career dedicated to helping sew and select the naked emperor’s imaginary wardrobe, I hope to marginally influence the evolution of legal memes in such a way as to ever-so-slightly increase human welfare. The American judicial system is still laden with injustices and indignities, with intolerable frustrations and galling deficiencies. There is no cause for complacency. But this horribly imperfect system fares well in comparison to known alternatives. And it certainly beats running from lions on the African savanna.
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(Continued from “Wonderful Life,” Part III; see “It’s a Wonderful Life,” American Political Edition (Parts I-V) for all five parts combined and revised)
“Third,” the angel said, “let’s look at what your country and world would look like if you had not had an ‘activist’ judiciary interpreting the Constitution in ways relevant to, and adapting to, changing circumstances.” (See http://www.law.emory.edu/fileadmin/journals/elj/58/58.5/Green.pdf for a comprehensive exploration of the concept, including a discussion of why it, appropriately applied, has nothing to do with boosting individual liberty or governmental power, but rather refers to whether the judiciary adheres to the norms of judicial conduct which are its only real restraint.)
“In the conventional, ideologically charged use of the term, all Supreme Court decisions involve “judicial activism,” because those cases that the Supreme Court chooses to hear are precisely those cases that involve unresolved ambiguities, and require judicial interpretation. Therefore, a complete history of the evolution of Constitutional law, as defined by Supreme Court decisions, is, in a sense, one important slice of the history of ‘judicial activism,’ as the term is commonly used. And without that fully institutionalized form of ‘judicial activism,’ which is coextensive with the doctrine of ‘judicial review’ established by Justice Marshall described below, there would be no effective Constitution, and no established and coherent rule of law to the extent that there is today in the United States. But rather than write a Constitutional Law synopsis, I’ll just mention a few of the most important cases, that involved perhaps the greatest liberty of Constitutional interpretation on the Court’s part, but without which we would be a nation with far weaker protections of individual liberties and rights than we have today.
“Chief Justice John Marshall established the principle of ‘judicial review’ in Marbury v. Madison in 1803, the first and greatest act of judicial activism in U.S. History, without which there would have been no final authority on what was and was not Constitutional, which would have inevitably undermined the rule of law that, more than anything else, has distinguished the United States. Without the judicially determined Constitutional last word that Marshall successfully instituted, questions of Constitutionality, and thus ultimate legality, would be mere political footballs, overwhelmed by the bickering whims of conflicting ideologies and interests that characterize the rest of political discourse and decision-making. In other words, without this bold initial act of judicial activism, the Constitution would have been an empty promise, and would be referenced today for strictly rhetorical rather than legal support, a non-binding tool for political argumentation. Uninformed lay opinions about what does and does not constitute Constitutionality would be raised to a par with legal analyses and Supreme Court holdings, reducing the Constitution to a meaningless blank slate on which each interest group and ideological camp could impress its own preferred interpretation.
“In Yick Wo v. Hopkins (1886), the Supreme Court held that a facially neutral law that has the effect of discriminating (a selectively enforced San Francisco code restricting licensing for laundries to brick or stone buildings in order to target Chinese laundries which were built of wood) violates the equal protection clause of the 14th Amendment. This decision was not a foregone conclusion: The letter of the law itself didn’t violate the Equal Protection clause, and so the decision can be said to be one of ‘an activist judiciary.’ But had it been more literal in its Constitutional interpretation, the Court would have set the precedent that discrimination is Constitutionally permissible as long as it is done implicitly rather than explicitly.
“In Pennsylvania Coal Co. v. Mahon (1922), the Supreme Court held that a government regulation that essentially deprives a property owner of the value of its property is an unconstitutional “taking” (violating the Fifth Amendment protection of property), and the government must compensate the owner for that loss of value. Again, this is not an automatic “strict constructionist” interpretation of the Constitution, since there is no language in the Constitution which addresses loss of value due to government regulation. However, those most adamant about the ills of ‘judicial activism’ are generally also those most likely to concur with this holding. In the absence of the judicial activism of the Court in this case, private property rights would have been more, rather than less, vulnerable to government intrusion.
“Brown v. Board of Education (1954) would certainly rate as an act of judicial activism by the ideological definition of that term popular today. It overturned the Stare Decisis of Plessy v. Ferguson (1896), which held that segregation was Constitutional (instituting the ‘separate but equal’ doctrine), holding that ‘separate educational facilities are inherently unequal.’ Brown essentially launched the Civil Rights Movement as we know it today (it gave it its first major victory), a movement whose progress would have been at least slower, and possibly undermined altogether, in the absence of this Court decision.
“The Court also declined to limit Congress’ power to pass The Civil Rights Act of 1964, which used the Commerce Clause to prohibit private owners of commercial establishments from discriminating against potential customers, employees, renters, and buyers on the basis of race. This could easily be considered ‘judicial activism by omission,’ without which we would not have Civil Rights laws protecting minorities against the entire range of private discrimination, such as employment discrimination and housing discrimination.
“In Gideon v. Wainwright (1963), the Court established that the state’s failure to provide counsel to an indigent defendant essentially deprived that defendant of his Sixth Amendment right to counsel. The literal Constitutional right to counsel is not necessarily a right to be provided with counsel, but without interpreting it as such, this fundamental right would be accorded only to those who could afford it, and denied to those who cannot, reducing an essential protection of individual liberty to a commodity for sale rather than a guarantee to all citizens. In a world without this protection, the poor would receive even less justice than they do today.
“It’s worth noting here, again, that a series of Supreme Court decisions over the last century and a half have incorporated the Bill of Rights into the 14th Amendment Equal Protection clause, allowing those core protections to be applied to state and local governments as well as to the federal government, an act of ‘judicial activism’ without which states and counties and municipalities and school districts would be largely free to violate the Bill of Rights to whatever extent and in whatever ways they see fit. Hardly a boon to the protection individual liberty.
“Many other decisions could be included in this list, many other basic liberties that depended on an ‘activist judiciary.’ But the sampling above illustrates some of the ways in which our nation would be a very different, and in many ways far poorer place were it not for the role that the so-called ‘activist judiciary’ has played in our march toward increased equality of opportunity and rights, and increased protection of individual liberties.”
(Continued in “Wonderful Life,” Part V)
Buy my e-book A Conspiracy of Wizards
Inspired by Libertarian’s frequently repeated and broadly representative complete lack of understanding of the true nature of property rights, and the true demands on government, I’ve cobbled together this post from some distilled and explained passages from a Property Law final exam I wrote a few years ago, with a few additions. Aside from illustrating some of the inevitable complexity of property rights, it also illustrates the inevitable and valuable role that courts play, and must play, in the precise definition of the law, because legislatures and regulatory agencies simply can’t anticipate all fact patterns. The complexities of the real world impose demands that can’t be met by exclusive reliance of a few general rules for general purposes.
The system by which bundles of property rights are distributed, defining social relations regarding access to and use of tangible and intangible “things,” is, arguably, the cornerstone of any political-economic system. Words like “capitalism,” “communism,” and “feudalism” refer, clumsily and imprecisely, to general property right regimes, within which infinitely finer gradations of multi-dimensional variation can be discerned. While ideologues often contemplate the broad political-economic “systems” listed above, and social scientists and policy analysts focus on somewhat finer gradations. it is the holdings of courts, by virtue of their embeddedness in the details of particular cases, that seep into the crevices unanticipated by political theorists and legislative and executive policy makers. While this legalistic obsession with minutia can sometimes lose the forest for the trees, it is particularly well adapted to exploring those fine gradations which the blunter (but more encompassing) instruments of conventional policy analysis often fail to discern. The scalpel of legal reasoning dissects, among other things, property parcels along various spatial, and potentially temporal, lines; “ownership” into a plethora of temporal, spatial, and conceptual estates; and a finder’s property rights according to the precise location of the item when it is found.
First and foremost, there is the issue of inevitable public property, such as the air we breathe, which involves the concepts of “public goods,” and the inevitability of having to regulate the ways in which our behaviors affect that public property. Some property that could be privately held isn’t, such as public parks. All of these must have their use governed by our public agencies, in order to ensure everyone’s equal right to enjoyment of them.
There is the related issue of how one’s disposal of or behavior regarding their own property can affect others’ enjoyment of theirs. Can I play my own stereo, in my own house, as loud as I want any time I want? No. Can I dump my own toxic waste in my own backyard? No. The myth that there is some simple world in which we each have absolute rights to use and dispose of property that we absolutely own does not and cannot reflect the complexity of interdependent rights and mutual responsibilities in the real world.
Cases involving “conceptual severance” illustrate that decisions regarding property rights depend on how you define the property. The Constitution guarantees that the government can’t take property without due process or compensation. “Takings law” often rests on the question of whether a property owner is deprived of the full value of their property by an act of government, or only part of the value. But whether the lose of value of some portion of an owner’s property is the loss of the full value or not can depend on whether the property is “conceptually severed” into separate parcels, so that the portion that lost value is either 100% of that conceptually severed portion, or only some lesser percentage of the value of the property considered as a whole.
In Pennsylvania Coal, for instance, one party owned the mineral rights and the subjacent support rights, while the other owned the surface rights. The Supreme Court held that a state law that coal companies can’t cause subsidence was a taking, since it deprived the coal company of 100% of the value of the subjacent support (conceptually severed into a complete property parcel). But, in another case, when Penn Central was denied the value of its air rights, since New York City’s designated landmark law prohibited the owners from building a high-rise over the old edifice, (in the form of building a high-rise over the old edifice, the Court inconsistently held that “’taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated”. The inconsistency of the Court’s decisions in these two cases is not atypical, but rather reflects the fact that the same law, the same right, the same Constitutional protection, can be interpreted in two different ways, depending on whether you consider a partial property right to be 100% of that right, or less than 100% of the physical property.
Despite the conventional belief that all property is owned in “fee simple absolute” (outright ownership of the complete bundle of rights of a given parcel of property), property is in fact often divided into separate “estates,” with various people having various rights over the same property. Again, the law recognizes finer gradations than most of us ever knew existed, carving a single dwelling into a myriad of present and future interests. If someone has a future interest in a parcel (let’s say as eventual heirs) in which someone else has a present interest (e.g., the widow who gets to live in the house until the children inherit it), the person with the present interest can sell only their interest, not the parcel for all time (i.e., can only sell the right to live in the house while she is alive, but not thereafter).
What happens when land deeded to a school on the condition that it be used only for school purposes is converted into a storage facility after the reversionary interest has uncertainly passed through two more hands, or was possibly inherited from the original owners and subsequently disclaimed? The court sorts it out (Mahrenholz v. County Board of School Trustees). These are not the kinds of issues that legislators and regulatory agencies typically grapple with. These are the kinds of issues that fall through the nets other policy makers weave, and are caught in the more finely woven nets of legal analysis. Indeed, legal analysis is the art of sewing threads into the policy gaps through which particular situations have fallen.
Even when property is owned in fee simple absolute, there are various complexities and limitations, such as the infamous “rule against perpetuities,” and rules against restrictions on alienability. The latter means that the owner of a parcel can’t bequeeth it to someone else on the condition that they not sell it. One can debate whether some restrictions that exist on property rights are necessary, but a choice must be made between a current owner’s right to dispose of his or her property as he or she pleases (bequeething it with a condition attached) and a future owner’s right to do so. One must be restricted in the exercise of their right over their property to allow the other not to be. A choice regarding how to divide the bundle of rights over a particular piece of property has to be made.
The cases involving finders’ rights offer perhaps the best examples of the hair-splitting policy analyses engaged in by the courts. As a general guideline, the “first in time” principle holds. Ownership is considered relative, with a finder having a valid claim against any subsequent finder, but not against any previous finder or the “true owner.” But, of course, this begs the question of who qualifies as a “true owner” or a previous finder. If a brooch, lost or placed there by a previous owner, is found lodged in the wall of a manor house by a soldier billeted there, does it belong to the soldier or to the current owner of the house who never occupied the house nor knew of the brooch’s existence (Hannah v. Peel)? Is the owner of the house the “true owner” by virtue of having bought the house and everything in it, or a prior finder for having “constructively” found anything previously lost and left in the house he had bought, or does he have no claim whatsoever since the lost brooch was not actually found until it was found by the billeted soldier? And which of these solutions best serves the social policy purposes of property rights, such as giving the “true owner” the greatest chance of recovering his property? (The court, in this case, cited precedents going in all directions, distinguishing between property embedded in the ground and embedded in a wall, for instance, and then decided in favor of the soldier, almost arbitrarily).
Such fine legal distinctions carved, in part, by the lathe of policy considerations are evident in McAvoy v. Medina, in which the court had to determine whether a customer who found a wallet on a barbershop table, or the owner of the barbershop in which it was found, had the superior claim. The court made a distinction as to whether the object was mislaid or lost, as evidenced, for example, by whether it was found on a table or on the floor. If found on the floor, and therefore lost, it belonged to the finder, but if found on a table, and therefore mislaid, it belonged to the shop owner. The court held that since “[t]his property was voluntarily placed upon a table in the defendant’s shop by a customer…who accidentally left [it] there…, it was…the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe keeping of [the wallet] until the owner should call for it.” In other words, since the property was mislaid rather than lost, it could not be “found” in the legal sense, and since the true owner might well remember where he had mislaid it, leaving it with the shop owner rather than the customer best facilitated recovery. If the wallet had truly been lost (i.e., found on the floor), however, the rule granting the finder a valid claim would have prevailed. (It is possible, of course, that the rule established in this holding could have the adverse effect of encouraging finders of mislaid objects simply not to announce their finding, since by doing so they would relinquish any hope of keeping the object).
Legislators and regulatory agencies (let alone drafters of 223 year old Constitutions) can’t foresee all contingencies, and rarely craft laws so prescient as to include such fine distinctions as “embedded in the ground” versus “embedded in a wall,” or “found on a table” versus “found on the floor.” The courts are left to weave such fine filaments in the interstices of the coarser net of legislation and regulation, and even in the interstices of the Common Law, i.e., the fine (but never fine enough) filaments already woven by precedent. That they do so not merely with legalistic attention to detail, but also with broad notions of fairness and utility, with personal inclinations and prejudices, and even with occasional caprice, cobbling together (hopefully) plausible solutions to concrete problems in an ad hoc fashion, only serves to accentuate the continuity of legal analysis with other forms of policy analysis. It is a similar process carried out by human beings in a variety of venues, repeating itself in slightly altered form from the general to the specific, from the crafting of overarching guidelines to the cobbling together of particular applications, forever repeating itself on smaller and smaller scales, filling in the interstices wherever a case finds its way through the mesh of the policy net.
If there is an unanswered legal question, fine threads of policy are being woven in the process of answering it. If the case is never appealed, then the policy is ephemeral, a few strands of gossamer that dissolve the moment the case is disposed of. This is the level on which the finest filaments of temporally and situationally local policy are being woven.
The lesson of these examples is that those who state some broad brush-stroke ideological platitude, less precise even than the Constitution itself (see “Constitutional Idolatry”), are not stating anything that applies to all, or even many, of the questions that arise to challenge such all-encompassing notions. Not even those who state the rules with great precision and caution, trying to anticipate all contingencies, succeed in actually anticipating them. What we most require is a procedure for filling in the gaps, for making judgments in particular circumstances. The strength of our system is that we govern ourselves by the rule of law, but the rule of law is not, and cannot be, the rigid adherence to rigid laws that require no interpretation nor application, but rather a set of procedures by which to adapt imperfectly precise and inevitably ambiguous rules to precise circumstances.
Those who rely on any form of “Political Fundamentalism” are trying to reduce a world characterized by such complexities to some caricature or other, and to impose that caricature on our processes for governing ourselves, to our profound collective detriment. Governing ourselves, and forging our public policies, is an information intensive activity, in which we need to mobilize a variety of expertise in service to doing so effectively and intelligently. The particular form of Political Fundamentalism represented by people like Libertarian, characterized by “the unholy trinity” of “Constitutional Idolatry”, Liberty Idolatry, and Small Government Idolatry, simply disregards complexities such as those discussed in this post, which exist in far more abundance than most people realize, permeating every aspect of our lives.
Our Constitution provides the broadest of guidelines, the most loosely knit weaves of the net. Legislators weave strands into the gaps that are left, and regulatory agencies in the gaps that are left by legislators. Courts weave strands into the gaps left by all three. Those whe pretend that our laws are all, or should all be, cut-and-dry, and that there is no need for a complex network of various kinds of governmental agencies (from all three branches of government) constantly weaving the net of law by which we govern ourselves, simply do not understand either law or history, or the real nature of the challenges we face.
