Allen Porter Mendenhall

Archive for the ‘Jurisprudence’ Category

Thomas Jefferson, George Wythe, and the Case of Howell v. Netherland

In America, American History, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Slavery, Southern History, Thomas Jefferson on April 23, 2014 at 8:45 am

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Howell v. Netherland was a Virginia case about the child of an interracial sexual union. Decided in April 1770, Howell opens with the account of the plaintiff’s grandmother, “a mulatto, begotten on a white woman by a negro man, after the year 1705, and bound by the churchwardens, under the law of that date, to serve to the age of thirty-one.”[1] The plaintiff, Howell, sued Netherland for his freedom. Netherland had purchased Howell from a previous owner, who had also owned Howell’s mother and grandfather.

A twenty-seven-year-old Thomas Jefferson served as Howell’s attorney. He argued inter alia that Howell’s grandmother was white, but more importantly that “under the law of nature, all men are born free.”[2] This position makes Howell a precursor to the landmark Somerset case in 1772.[3] “This is what is called personal liberty,” Jefferson says of freedom under the law of nature, “and is given him by the author of nature, because necessary for his own sustenance.”[4] Jefferson adds that “every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will.”[5] Such language, coming six years before the Declaration of Independence and eleven years before the first edition of Notes on the State of Virginia, is striking for its seeming emphasis on equality under the natural law.

Jefferson’s opposing counsel in this case was George Wythe, the man who had trained Jefferson in legal practice and who arguably did more during his lifetime than Jefferson to oppose the institution of slavery. In this case, however, Wythe remains the steadfast defender of a slave owner. This fact should remind us of the contingencies of lawyering and the conditions and qualifications that attach to any line of reasoning or rhetoric appearing in court documents about slavery.

When we review archives from the era of slavery in America, we must remember that a lawyer’s words cannot be taken as representative of his thoughts or worldview: he is a participant in a legal contest and advocating for the interests of his client. What Jefferson or Wythe thought about slavery cannot be deduced from this case, so attempts at such deduction should not be made.

[1] Howell v. Netherland, Jefferson 90, April 1770, available in Helen Tunnicliff Catterall, ed., Judicial Cases Concerning American Slavery and the Negro, Vol. 1 (New York: Octagon Books, Inc., 1968) at 90-91.

[2] Ibid., my italics.

[3] William G. Merkel, “Jefferson’s Failed Anti-Slavery Proviso of 1784 and the Nascence of Free Soil Constitutionalism,” 38 Seton Hall L. Rev. 555 (2008) at 559.

[4] Ibid.

[5] Ibid.

The American Founders and Natural Law Jurisprudence

In America, American History, American Literature, Arts & Letters, Books, Britain, Christianity, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Liberalism, Literature, Philosophy, Slavery, Southern History, Thomas Jefferson, Western Civilization, Western Philosophy on April 9, 2014 at 8:45 am

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The American founders, many of them, validated their political cause and secession from Britain by resorting to natural law theories and paradigms.[i] Thomas Jefferson memorialized these theories and paradigms in the Declaration of Independence.[ii] While studying nature and the physical world, Jefferson extended natural law jurisprudence while revising it to fit the needs and settings of the New World.[iii] Rather than looking to divine or moral prescription to ground his natural law theories, Jefferson looked to nature. He borrowed from Newtonian ideas about the laws of the universe and applied them to the laws of man.[iv] A human law was, by this logic, akin to the law of gravity.

The American insistence on natural law was a reaction to the analytical positivism gaining credence in Britain.[v] This school of jurisprudence found its fullest expression in the utilitarianism of Jeremy Bentham and John Austin. These men treated laws as linguistic constructs: commands that attained the status of law because people followed them, not because they reflected a priori or transcendent rules of the cosmos. American founders such as Jefferson saw natural law as a way to distinguish themselves from their British counterparts and to define what it meant to be American. William Blackstone, one of the few British jurists still clinging to natural law principles,[vi] enjoyed vast success from American purchases of Commentaries on the Laws of England.[vii] The popularity of this treatise in America had to do with Blackstone’s support for ideals that, from the colonials’ perspective, affirmed Revolutionary rhetoric and philosophical principles.[viii] Blackstone died in 1780. His death ushered in the age of positive law jurisprudence in England.[ix]

In America, however, natural law picked up momentum in the wake of the Revolution and American independence.[x] That ideas of natural law flourished during the Enlightenment, especially in America where institutions were supposed to reflect—indeed embody—Enlightenment principles, is curious because the Enlightenment glorified reason and humanism: progressive concepts seemingly incongruous with a moral theory derived from ancient church teachings and philosophical orthodoxies. This disjuncture reveals the extent to which colonials sought to divorce their culture and communities from the British. Á la Blackstone, colonials would go great lengths to “prove” their natural law theories through application of the scientific method and appeals to reason.[xi] Natural law jurisprudence did, in fact, fit within a scientific and rational framework in many important respects. For instance, natural law, like laws of the natural world putatively discoverable by reason, logic, and experiment, were by definition universal. Just as truths about the external world allegedly were deduced through sustained study of specimens and species, so truths about the human condition were, natural theorists argued, deduced through sustained study of human behavior and the history of the races.[xii] In this sense, colonial jurists viewed natural law not as retrograde, superstitious, or religious, but as cutting-edge and scientific. Americans were not alone in their attention to the scientific elements of law. In Western and Central Europe during the mid-to-late eighteenth century, rulers and leaders “sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights.”[xiii] Save for Blackstone’s efforts, however, this scientific trend did not gain much traction in England.[xiv]

Early Americans, particularly northerners[xv] but also Virginians such as Jefferson and George Mason, celebrated the ideals of natural law and natural rights appearing in the Declaration, but they found those ideals difficult to implement in everyday practice. Although staunchly committed to the principles of natural law, the colonials, at least those with representation or voice in the political sphere, discovered that abstract philosophy did not readily translate into workaday rules and regulations.[xvi] “It was one thing,” submits David Brion Davis, “to state abstract propositions, and quite another to decide how the law applied to a particular case.”[xvii] Above all, the “peculiar institution” of American slavery called into question the Enlightenment values upon which American natural law jurisprudence depended. Cries of freedom and liberty rang hollow once Americans were no longer up against an oppressive British Empire. These cries began to sound hypocritical—if they did not seem so already—as the institution of slavery became a mainstay of the economy of the fledgling nation.[xviii] How could colonists extol freedom, liberty, and equality yet enslave masses of people? This American philosophical “inconsistency pinched harder when slaves began to speak the language of natural rights.”[xix] As Samuel Johnson, the eminent British Tory and man of letters, quipped, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”[xx]

 

NOTES

[i] “The American Revolution, as it ran its course from 1764 to 1776—from the first beginnings of resistance down to the Declaration of Independence and the creation of new colonial constitutions—was inspired by the doctrines of Natural Law.” Ernest Baker, in Natural Law and the Theory of Society: 1500-1800, ed. Otto Gierke (Cambridge, England: Cambridge University Press, 1934) at I, xlvi. See generally Clarence Manion, “The Natural Law Philosophy of the Founding Fathers,” University of Notre Dame Natural Law Institute Proceedings (Notre Dame, Indiana: University of Notre Dame Press, 1949). See also Raymond Whiting, “The American Interpretation of Natural Law,” A Natural Right to Die: Twenty-Three Centuries of Debate (Westport, CT: Greenwood Press, 2002) 109-118.

[ii] “[T]he argument of the Declaration is a subtle, if ambiguous, blending of empirical historical analysis and the metaphysics of Natural Law. To prove its central contention—that the revolution was made necessary by British policies—the document enumerates twenty-seven specific events in recent history which reveal precisely how Britain acted to establish despotism. […] But the revolutionaries meant to transcend arguments of expediency, for such arguments were always subject to the vicissitudes of opinion and opinion might lead one to conclude that a revolution was in fact unnecessary and therefore unjustifiable. To remove their claims from the arena of opinion and to ground them with certainty, the revolutionaries felt constrained to found the argument for justification on the principle of Natural Rights which was rooted in the theory of Natural Law as applied to politics and society. Thus the grievances enumerated in the Declaration, weighty in themselves for some readers, were for others concrete examples of how one nation attempted to subordinate another to an ‘absolute despotism.’ The grievances, taken together, demonstrated that British policies had violated the fundamental principles of Natural Law itself.” Lester H. Cohen, “The American Revolution and Natural Law Theory,” Journal of the History of Ideas, Vol. 39, No. 3 (1978) at 491-92.

[iii] See generally Allen Mendenhall, “Jefferson’s ‘Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science,” Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2 (2010).

[iv] See generally Mendenhall, “Jefferson’s Laws of Nature.”

[v] See generally David Lieberman, “Mapping criminal law: Blackstone and the categories of English jurisprudence,” in Law, Crime and English Society, 1660-1830, ed. Norma Landau(Cambridge, England: Cambridge University Press, 2002 ) at 159-162. See also David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca and London: Cornell University Press, 1975) at 343-385. Davis explains this English phenomenon as follows: “In England there was no ‘fundamental shift in values’ that mobilized the society into revolution. There was no counterpart to the American need for self-justification. No new hopes or obligations arose from an attempt to build a virtuous republic. Such phrases as ‘created equal,’ ‘inalienable rights,’ and ‘the pursuit of happiness’—all of which appeared in classic liberal texts—were qualified by a reverent constitutionalism that looked to Saxon precedent to legitimize ideals of freedom. The notion of man’s inherent rights, when assimilated to the historical concept of British ‘liberty,’ implied little challenge to traditional laws and authorities. And by the 1790s the very idea of inherent rights was giving way to radical and conservative forms Utilitarianism.” Davis, The Problem of Slavery in the Age of Revolution at 343.

[vi] In short, Blackstone believed that the common law reflected natural law principles and that any law contradicting natural law was invalid. Consider, e.g., the following quotation: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. […] Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Sir William Blackstone, Commentaries on the Laws of England, Book I at 41-42.

[vii] See Russell Kirk, America’s British Culture (New Brunswick, New Jersey: Transaction Publishers, 1993) 36-40.

[viii] See Albert W. Alschuler, “Rediscovering Blackstone,” 145 University of Pennsylvania L. Rev. (1996) at 4-19. See also David Schultz, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” 37 American Journal of Legal History (1993) at 483-486.

[ix] The jurisprudential split between Blackstone and Bentham, while stark, was not as hostile as some first considered: “Until recently Bentham’s claim to have made a sharp break with Blackstone has won wide acceptance, and that fact, combined with Bentham’s ascendancy, was chiefly responsible for consigning Blackstone to obscurity. […] No doubt this outcome resulted in part from Bentham’s mastery of invective, and in part from the fact that the elderly Blackstone did not deign to notice the attacks of an upstart critic, much less reply to them. Even the strongest partisans of Bentham have conceded that much of his criticism directed at Blackstone was misplaced[…]. In spite of Bentham’s efforts, most historians of the relationship have acknowledged that Bentham, despite his implacable hostility, combined relentless criticism with passages of praise that became as famous as some of his barbs.” Richard A. Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York University Press, 1996) at 52.

[x] See generally George W. Casey, “Natural Rights, Equality, and the Declaration of Independence,” 3 Ave Maria Law Review 45 (2005). See also Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” 102 Yale Law Journal 907 (1993). See also James Lanshe, “Morality and the Rule of Law in American Jurisprudence,” 11 Rutgers Journal of Law & Religion 1 (2009) at 11-15. See also Kevin F. Ryan, “We Hold These Truths,” 31-WTR Vermont Bar Journal 9 (2005-06) at 11-16.

[xi] “[Blackstone] presented law as a science, a ‘rational science,’ that included an extensive discussion of natural law. To Blackstone, the principles of natural law are universal and superior to positive law, including the common law. […] Natural law, according to Blackstone, is either revealed by God or discoverable through human reason. […] American jurisprudents readily accepted Blackstone’s natural law orientation. […] [N]atural law provided a convenient and useful justification for the adoption of English common law in the various states of the burgeoning nation. Especially in the decades following soon after the Revolutionary War, if the common law had been understood merely as an English institution distinctive to Britain itself, then an American reliance on the common law would have seemed impolitic or even treasonous. If, however, the common law arose from universal principles of the law of nature, which were revealed by God or discovered through human reason, then the common law would be legitimate everywhere, including in America.” Stephen M. Feldman, “From Premodern to Modern American Jurisprudence: The Onset of Positivism,” 50 Vanderbilt Law Review 1387 (1997) at 1396-97.

[xii] Thomas R. R. Cobb, a jurist from Georgia and an expert on slave laws, took pains to show how science validated the idea of slaves as naturally inferior and in need of white supervision. Consider this quote by Cobb: “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slaver, as it exists in the United States, is not contrary to the law of nature.” Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (Philadelphia: T. & J. W. Johnson & Co., 1858) at 51.

[xiii] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 403.

[xiv] Ibid. at 403-404.

[xv] “Southerners considered themselves law-abiding and considered northerners lawless. After all, southerners did not assert higher-law doctrines and broad interpretations of the Constitution. Rather, as Charles S. Sydnor has argued, they understood the law in a much different way and professed to see no contradiction between their code of honor, with its appeal to extralegal personal force, and a respect for the law itself.” Eugene Genovese, Roll, Jordan, Roll (New York: Pantheon Books, 1974) at 44.

[xvi] See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 405-408.

[xvii] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 470.

[xviii] See generally David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, New York: Cornell University Press, 1966) at 3-28. For a synthesis of the historical scholarship on this point, see Peter Kolchin, American Slavery, 1619-1877 (New York: Hill and Wang, 1993) at 63-92.

[xix] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 276.

[xx] See James Boswell, The Life of Samuel Johnson, LL.D. (New York: George Dearborn, 1833) at 132.

What Crisis? Law as the Marriage of Science and the Humanities

In Academia, Arts & Letters, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Oliver Wendell Holmes Jr., Philosophy, Scholarship, The Academy on March 12, 2014 at 8:45 am

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This week the Association for the Study of Law, Culture & the Humanities convened to consider this question: “How will law and humanities scholarship fare against the pressure of the science and technology paradigm that has now permeated the institutional frameworks of academia?”  The question implies an adversarial relationship between science and the humanities, or law-and-humanities.  The division between science and the humanities as academic disciplines, however, is not yet 150 years old; it is misguided to pit “law-and-humanities” (a signifier that did not exist a few decades ago) against the “science and technology paradigm that has now permeated the institutional frameworks of academia” (another quotation from the conference program).  We do not have to go back to Plato or Aristotle or Galileo or Descartes or Spinoza or Da Vinci or Locke or Hume or Rousseau or Kant or Newton or Adam Smith or Benjamin Franklin or Thomas Jefferson or Thoreau to see that what we call the humanities has not, traditionally, been divorced from the sciences—that, in fact, the humanities and the sciences are mutually illuminating, not mutually exclusive.

In America, more recently, the classical pragmatists—in particular C.S. Peirce and William James—sought to make philosophy more scientific, and in this endeavor they were mimicking the logical positivists in Britain.  Some of the most famous minds of the 20th century worked at the intersection of the humanities and science: Freud, Einstein, Michael Polanyi, Karl Popper, Jacques Lacan, F. A. Hayek, and Noam Chomsky, to name a few.  Lately we have seen scientific thinkers as wide-ranging as Steven Pinker, E. O. Wilson, Jared Diamond, and Leon Kass celebrate or draw from the humanities.

A review of the conference abstracts suggests that most presenters will be considering this question from the political left, but their concerns are shared by many on the right, such as Roger Scruton, who recently took to the pages of The New Atlantis to address this topic in his article “Scientism in the Arts and Humanities.”  Nevertheless, forcing the separation of science and the humanities does not strike me as prudent.

By encouraging the humanities to recognize its scientific heritage and to recover its scientific methodologies, the academy would be correcting decades of wandering.  Science is indispensable to the humanities, and vice versa; the two work in concert.  The findings in one influence the findings in the other.  Evidence of this reciprocity in the context of legal studies is especially striking in America during the late 19th and early 20th century, when the law often was associated with scientific disciplines rather than with the humanities.  At this time, the theories of Charles Darwin and his progeny helped to explain the common law tradition while influencing the way that law was taught in law schools and examined by judges and most notably by Oliver Wendell Holmes, Jr.

The scientific paradigms in vogue among legal thinkers at the turn of that century were neither uniform nor monolithic.  For instance, Christopher Columbus Langdell’s push to make legal education more scientific was different from Holmes’s use of Darwinism to describe the common law.  Rather than teasing out the distinctions between various scientific approaches to the law during the late 19th and early 20th century America, however, I would look at these scientific approaches as part of the same general project and as a reminder of how the humanities and the sciences can participate to bring about theoretical and practical insights.  It might be that, of all disciplines, law is the most revealing of the participatory nature of science and the humanities and, therefore, provides the best justification for instrumental and scientific approaches to humane studies.

There are groups within the humanities that resent the scientific disciplines for the funding and privilege those disciplines enjoy in the academic marketplace, but at least part of this resentment is misplaced.  The fault lies partially with the scientists who mistake merit for value: it is not that the sciences enjoy more funding and privilege because they have more merit—the academy is not a meritocracy—but it is that they have more value to consumers and the public writ large.  It may well be that the humanities have more merit, but unless consumers begin to value merit, the meritorious will not necessarily prevail in the market.  

Allen Mendenhall Interviews James Elkins about Law, Literature, Poetry, and Teaching

In Academia, Arts & Letters, Books, Creative Writing, Creativity, Humanities, John William Corrington, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Legal Research & Writing, Literary Theory & Criticism, Literature, Michael Blumenthal, Pedagogy, Philosophy, Scholarship, Teaching, The Academy, Western Philosophy, Writing on February 26, 2014 at 8:30 am
Jim Elkins

James Elkins

AM:  Jim, thank you for doing this interview.  You recently came out with a book, Lawyer Poets and That World We Call Law.  You’ve been researching and writing about lawyer poets for some time now.  What is it about lawyer poets that fascinates you, and what is it about this type of person that makes him or her unique?  In other words, what makes a lawyer poet different from a doctor poet like, say, William Carlos Williams, or a banker poet like T.S. Eliot?

JE:  I first got interested in lawyer poets about 12 years ago when I was introduced to the work of a southern writer, John William Corrington. I found Corrington’s life and work fascinating, and was puzzled by the fact that he was an accomplished poet—as well as a novelist—when he took up the study and practice of law. I had trouble getting my mind around the fact that Corrington was a poet and a lawyer. One reason was that I held some of the usual stereotypes of lawyer and poet. These endeavors—poetry and law—don’t look, at least according to the stereotypes, as if they have much in common. Lawyers and poets appear to us as different as day and night. I was intrigued by this idea of one person embracing such different—or seemingly different—endeavors. When I decided to write about Corrington, I knew I needed to think through this idea of being a lawyer and a poet, a poet and a lawyer.

My fascination with lawyer poets lies in how our iconic images of lawyer and of poet are put to the test when we think about one person writing poems and practicing law. There is, I think, something intriguing about the joining of such differing enterprises in the life of a single person. I don’t want to claim that there is anything unique about lawyer poets, or that the joining of law and poetry creates a unique kind of person. What is unique is how the idea of a lawyer poet changes our sense of who we are as lawyers (that is, those of us who are associated with the legal profession), and how, when our legal colleagues turn out to be poets, we have an open invitation to read their poetry, and for many of us, that means a pursuit of a genre of literature we thought we had no need to pursue.Lawyer Poets

AM: I want to come back to Corrington in a minute.  He’s someone I’ve grown to admire, and I have you to thank for introducing me to his work.  First, though, I’d like to discuss your book, Lawyer Poets and That World We Call Law.  You published several lawyer poets in it.  How did you decide which poets and poems to include? 

JE:  I discovered the work of all the lawyer poets whose poems appear in Lawyer Poets and That World We Call Law during the decade that I tried to identify all the lawyer poets in the U.S., from the first days of the republic. It got to be something a bit more than a research project. I simply wanted to know every lawyer I could identify throughout our history that had taken up with the muse. Along the way, I began to collect a rather substantial list of contemporary lawyers who write and publish poetry. I started reading the poetry and then began to publish the best of what I found in the Legal Studies Forum, a journal I’ve edited for over 15 years now. I might note that most lawyer poets do not write poems about the law and the practice of law and I did not seek out law-related poems. We have a long history of legal verse and most of it is rather bad. What I found in the work of the lawyer poets I was publishing was an occasional poet and an occasional poem about the practice of law that sounded right to me. After publishing the work of lawyer poets for a decade, I found, looking back on what we had published, that the lawyer-related poems held up quite well. And, I found that they looked still more interesting when they were collected and laid out poem to poem. It dawned on me that I had published the best lawyer-related poems in the past 50 years, and that the poems deserved their own anthology.

AM:  One of the poets in the anthology is Michael Blumenthal.  Is he still teaching at West Virginia University College of Law?  I don’t think I ever heard the story about how you two connected.

JE:  When I first got started on the lawyer poets work, I was corresponding with Marlyn Robinson, a reference librarian at the Tarleton Law Library at the University of Texas School of Law. Marlyn compiled a short list of lawyer poets for me, and she mentioned that a poet named Michael Blumenthal, who was then living in or around Austin, had once been a lawyer.

Blumenthal was one of those lawyers, like Archibald MacLeish and John William Corrington, who become lawyers and then realize that what they really want to do is to follow their literary pursuits. I began reading Blumenthal’s poetry and it became clear that he was by no one’s estimation an amateur. In fact, his poetry was so good and his abandonment of the legal profession so apparent, that I didn’t try to connect him for fear that as a major poet he would have little interest in being identified as having any association with the legal profession. And to complicate matters, whenever I did give thought to contacting Blumenthal, I found that he was a poet who seemed to have no permanent home.

I continued to read Blumenthal’s poetry, and then moved on to a collection of his essays, a novel, and a memoir. There is, I think, something rather daunting, at least for me, in trying to contact a major writer. Then, one day, I was working with a Canadian writer on an introduction to a memoir of Roma Goodwin Blackburn, a Canadian lawyer, when she happened to mention Michael Blumenthal. I asked her how she knew him, and she said she had recently corresponded with him to obtain permission to quote one of his poems in a book she was writing with her husband. I told her that I had been wanting to contact Blumenthal but could never quite track him down (not adding that I hadn’t really tried all that hard). She told me he responded to her request promptly and seemed a pleasant enough fellow.

If I have the time right, that was probably in 2005. I sent off a note to Blumenthal and found not only that he was pleasant but seemed interested in the fact that I had found my way to his poetry by way of the fact that he had once been a lawyer. We continued our correspondence, and I decided to devote an issue of the Legal Studies Forum to Michael’s work.

In 2007, we published Correcting the World, an issue of over 440 pages of Michael’s poetry, essays, and fiction. Michael had not, in 2007, when we published the LSF issue devoted to his work, fully addressed, in any of his writings, his decision to leave the legal profession and take up his life as a literary man. I asked if he’d be willing to do that in an essay for the LSF issue, and to my surprise he agreed to do the essay. I talked the powers that be at the law school into inviting Michael to the law school to present his essay, “The Road Not Taken-Twice.”

At this point I still had not met Michael, although we had been working on the LSF collection of his writings for over a year. Michael’s presentation was quite engaging, and it dawned on me that we needed a stronger literary presence at the law school than I was able to provide; what we needed was a poet-in-residence. And now, the delicate part: Would Michael have any interest in thinking about a visiting appointment at the law school? I knew that he was moving from university to university as something of an itinerant professor holding endowed visiting positions, and I thought we might interest him in a stop at the law school. To my surprise, he seemed intrigued by the idea, and the next thing I knew, Michael Blumenthal was a visiting professor at the college of law. He has now been a colleague for several years, and I’m now even more convinced that every law school needs a lawyer poet in residence.

AM:  Do you ever try your hand at poetry?  I’ve found that, for me, it’s hard to read a lot of poetry without trying to write it myself. 

JE:  I will have to admit that I am not a poet. And yes, there are times, when I’m reading poetry, that I imagine that in some reincarnation I will end up, somewhere down the line, as a poet. I’ve written a few poems, and I’ve written just enough to know that poetry requires experience and skill that I do not have. I admire the poets I read enough to know that I need to leave poetry to those who are driven or led, in some way, to be poets. My friend and colleague, James Clarke, a rather prolific poet and retired judge in Canada, has encouraged me to write poetry but I take his suggestion to be a gesture of friendship that discounts the steep learning curve that I’d face as a poet.

AM: I can relate.  I once hoped to gain the experience and skill to become a poet, but I gave up at some point.  Do you ever feel lonely working on poetry and the law?  What I mean is, do you ever feel as if you’re going against the grain, doing something different and even unappreciated by some in the legal community?

JE:  My work with lawyer poets has, from the beginning, been an exhilarating endeavor. And I must say, I have not experienced the work in a lonely way. Initially, when I began to identify the hundreds and hundreds of lawyers who had turned to poetry throughout history, I had the sense that I had descended into a vast underground cavern populated by the most exciting unknown persons you could imagine. John William Corrington (who died well over a decade before I discovered his work) was only the first of these exotic—and yes, I think, initially it felt like I was dealing with some exotic creature, something like a hilltribe elder from a remote village in Burma. I felt like I had stumbled onto a new world and a new way to think about “law and literature.” Law and literature had become, in my discovery of the lawyer poets, an introduction to lawyers who practiced literature, just like they practiced law. One doesn’t feel lonely living amidst these wonderful ghosts!

Then I began corresponding with contemporary lawyer poets. I didn’t have all that much success in inducing them to talk about their lives as lawyer poets (with a few notable exceptions, Michael Blumenthal being one of them), but I did find that lawyers were interested in talking with me about their poetry. If I had not started publishing the poetry of lawyers in the Legal Studies Forum, things might have taken a turn toward the lonely. I began to spend considerable time reading poetry and trying to figure out how to think about what I was reading and how to talk to poets about their work. Keep in mind, I did not grow up reading poetry, and with the exception of Wendell Berry and Robert Bly, had really not read poetry. So, novice that I was, I was entering a new world and that produced its own excitement. As the years rolled along, I found that I had been befriended by poetry, and that poets were becoming my friends. I mentioned my friendship with Judge Clarke, and this is a friendship that arose from my efforts in publishing his poetry. A similar thing happened with Michael Blumenthal, who is, as you know, now a colleague. There are countless other friendships of just this kind—built around our regard for poetry—that working with lawyer poets has made possible.

Do I think of my work as going against the grain? In all honesty, I don’t. I see my work with lawyer poets as being another expression of the rich history of lawyers engaged in literary enterprises. My work is not against the grain, it is the grain.

Am I concerned that this work is unappreciated by the legal academic community? I can’t say that I am. In an essay, “Why Write?” that appeared in the Journal of Legal Education last year, I noted that “Law teachers dance to the beat of different drummers. We are driven by different visions of legal education as we adopt, adapt, and advocate a law school’s regime of training.” I’ve never let what my colleagues do (or think they are doing) confine my vision of what a lawyer’s education might be, or what it should be. If I had sought appreciation for any of my work as a teacher, I would have given up writing many years ago. In fact, if it were appreciation that drove me, I would never have undertaken my work with lawyer poets.

AM:  You’re right: it is the grain.  I agree completely.  And I’m glad you mentioned your essay “Why Write.”  I read it recently and was planning to ask you about it.  In fact, it was that essay—and in particular the line about “a note of sadness”—that brought about my previous question.  What I wanted to ask you about, from the essay, was your colleague’s assumption—I think you refer to him as “Randy”—that everyone in the legal academy is writing for the same reason.  Your point, I think, is that all writing has a rhetorical purpose: sometimes it’s to persuade; sometimes it’s to explain; sometimes it’s just a tedious exercise to gain tenure; and sometimes it’s to delight and explore.  Some of us can’t help writing.  I sometimes find myself at the kitchen table, and instead of enjoying my meal I’m panicking because this is time I could spend reading and writing.  I was wondering if you could say a little more about this colleague’s assumption and whether it’s systemic or shared by many others.

JE:  In my Journal of Legal Education essay “Why Write?” I was puzzled by a colleague’s notion that he had somehow failed as a scholar because legal colleagues didn’t pay what he thought was enough attention to his writing. My colleague assumed that if you write about a legal doctrine in an informed way the world—that is judges, legislators, law professors—would take note of the work. I found my colleague’s assumption that when we write the world should pay attention to us a bit puzzling. I had always assumed that for the most part what we publish in law reviews gets little or no attention. Most of us don’t write law review articles that are celebrated for changing the law or offering new perspectives on the law.

In my case, much of my writing has been about legal education. I never had any notion that in writing about legal education my colleagues were going to change the way they think about legal education and legal training and begin to rely upon me for guidance. Consequently, I had the sense that in my writing—and I’ve written far more than most of my colleagues—I wasn’t trying to change the world, so my writing did not depend on an appreciative audience. Why, then, should I bother to write? I remember talking with one of my law school professors about writing—who was both prolific and recognized—when I first went into teaching. I knew when I decided to teach that I’d have to write and publish law review articles. I knew, following the scholarship of the professors that I had in law school, that some of them were scholars (and writers) and some of them were not. I was curious, when I talked with Robert Sedler, who had been my teacher in conflicts and in constitutional law, what prompted him to be so prolific as a writer. Bob Sedler told me something I’ll never forget: “Jim,” he said, “the reason I write is that I’ve been puzzling over something and I’ve been reading what has been written about it, and I realize that what I really want to have said about the subject, said in a way that responds to my concerns, has simply not been written. I write to compose something that I would have found valuable and interesting if someone other than I had written it.”

I think Bob Sedler’s notion has left an indelible imprint on my thinking: I write to say something in a way that I think it should be said. Now, does this mean that all of my writing is exquisite, and the answer is clearly no. When I revisit my older work, I have no doubt that what I wrote could have been said better. But that isn’t really the point. The point is that I said it as best I could; I made a down payment in the writing in living up to Bob Sedler’s notion that you write because you want to say something in a different way than what you find that has already been written.

I don’t think I said, and I didn’t mean to imply in my essay, “Why Write?” that my legal colleagues all write for the same reason. Quite the opposite. I assume that my colleagues write for many different reasons. There are undoubtedly some colleagues who write only because the job requires it (and, unfortunately, after they get tenure, some colleagues manage to get away with writing little or nothing at all). Other colleagues write because they want to think of themselves as scholars. This idea of being a scholar never quite caught on with me. For the first decade or so after I started teaching, I wrote to address a particular problem or concern, often something in or about my teaching. Then, somewhere along the way—and I think this came as I began to teach literature and narrative jurisprudence courses—I began to think about writing as writing, or as you put it, writing as a rhetorical endeavor. I wasn’t writing in the rhetorical sense of trying to persuade anyone to adopt my ideas (and yes, there is always something of that whenever we write), but writing as an experience of writing and writing in furtherance of the idea that if I paid particular attention to how I write, I might actually be a writer. I confess that I am far more drawn to the idea of trying to be a writer than to the fantasy of being a scholar.

AM:  There is no doubt in my mind that you are a writer, and I’ve always enjoyed the way you locate readers in particular settings, no matter what the topic of your essay is.  There’s one essay you wrote that begins by talking about how you’re sitting at home waiting for the mail to arrive, and then you head out to the mailbox once the mail arrives.  It’s that sort of thing—very subtle—that I’ve always admired in your work. 

One of the reasons I went to West Virginia for law school was because I had read your essays when I was an undergraduate trying to figure out what to do with my life.  I was an English major, so it didn’t take me long on Google—or whatever interface or browser we were using in those days—to find your work.  I remember thinking, “law school can’t be all bad with people like this in it.”  I even remember emailing you before I went to law school, and you and I talked about a number of things. 

As for scholarship, there are those who write about others, and those who write so that others will write about them one day.  You fall into that latter camp, I think.  One day, people will be writing about your essays and thinking about your approach to pedagogy. 

We should probably be wrapping up soon, so just a couple more questions.  Since we’re on the topic of pedagogy, I’m wondering about your thoughts on the future of legal education.  It seems that every week now there’s a major article lamenting the decline of law schools or highlighting some law school “scam” or scandal.  Many people are predicting that several law schools will cease to exist in the not-too-distant future, and there can be no doubt that there is an overabundance of lawyers, that law school and law school textbooks are too expensive for most young people, and that the legal job market is very tough today.  How does all this impact the future of the legal academy?   

JE:  Allen, I remember quite well our correspondence before you took up the study of law. That kind of personal interaction with a prospective student is unusual. In other disciplines, students often seek out particular teachers and attend schools because of a desire to study with a particular teacher. Law is unusual in that sense. Students go off to law school with the idea of studying law and becoming lawyers; they don’t think all that much about who their teachers will be and the differing conceptions that their teachers have about law and the practice of law. I know that you came to law school with the idea of studying both law and literature, and I know just how rare that situation is. Most students with a literary interest expect to put their literary work on hold while they are in law school. If they made me King of legal education for a day, I think I’d mandate that every law student be exposed to the idea that the law too is a literary enterprise and can be viewed from a literary perspective, and that a literary perspective might be a prism through which we can see our lives as lawyers with better clarity.

I’m afraid I can’t offer anything new, startling, or subversive on the future of legal education. My focus in the past fifteen years has been on my own teaching, writing, and the make-over of the Legal Studies Forum as a literary journal. Some semesters I have almost no students sign up for my courses, and other semesters they arrive in plentiful numbers. I have never quite been able to figure out how that works. I am still intrigued by how my own teaching works (and what to do when I admit to myself it sometimes does not work). I am still writing about what I teach and how I try to teach it. The more I focus on teaching, the less I think about the future of legal education. I sometimes think we’ve lost our bearings in legal education, but we have been so hell-bent on doing that for some 60 plus years now I no longer see it as a problem that awaits us in the future.

AM: This has been a fascinating conversation, and I hope we get a chance to have another one like it.  It’s been so long since I’ve been back to West Virginia that I’d like to ask about the changes to the law school and how the weather and a few friends have been, but I’m mindful that we’re doing this interview not for my personal benefit, but for the benefit of readers, so I’ll hold off.  We can have those other conversations another time. 

I’ll finish by asking if you could say a bit about what Legal Studies Forum has published lately, and what it has in store for upcoming issues.  Since you mentioned your role in transforming Legal Studies Forum into a literary journal, I’d also like to ask you about the history of the journal.  It strikes me that the journal itself probably hasn’t told its own story, and the journal is so interesting and has been around for so long that its story needs to be documented. 

JE:  Allen, I noted earlier in the interview that I had transformed the Legal Studies Forum into a literary journal, and I think that is also a fair description of where the journal is at today. We publish poetry and fiction by and about lawyers, and we have also published memoirs, autobiographical essays, and traditional literary essays (for example, a 2013 issue was devoted to Robert Pirsig’s Zen and the Art of Motorcycle Maintenance). This year we are publishing two collections of poetry (two issues of the journal, each issue devoted to a single poet), a novel, and an issue of miscellany that focuses on “Lawyers and Literature.”

You asked about the history of the Legal Studies Forum. I have been tempted for a good many years now to write what I know of the history of the journal, and having failed to do so, I have tried to encourage some of those who were involved in the founding of the journal to write the history and have been unsuccessful on that front as well. The history of the Legal Studies Forum is of interest to me because the journal has played a rather central part in my life as a writer and as a teacher. Maybe this interview will get me back in the notion to work on the history.

The Legal Studies Forum (LSF) got its start in the mid-1970s as a newsletter of a newly formed organization called the American Legal Studies Association (ALSA). ALSA has, unfortunately, been defunct for a good many years now, and the remaining remnant of that old organization is the journal.

LSF first appeared as an ALSA newsletter in 1976. In 1977, the newsletter became the ALSA Forum and was published under that title until 1984 when it was retitled the Legal Studies Forum, the title the journal still carries. I have given thought on several occasions to changing the title of the journal to reflect its present literary bearings, but I have a fondness for the old title and have never been able to bring myself to give the journal a new name.

The journal slowly evolved from an organizational newsletter into a “forum” that in its published form looked like it had been printed in someone’s basement. It most definitely had a homemade look and that sense of being marginal has followed the journal to this day (and I have done little to have it otherwise). So, the journal didn’t begin as a journal, it began with ALSA, an organization created by colleagues in the Department of Legal Studies at the University of Massachusetts-Amherst. The UMass department of legal studies was created by Ron Pipkin, John Bonsignore (now deceased), and Peter d’Errico, who were trying to escape the business school where they were teaching business law.

The early 1970s was a time when the antinomian streams flowing in the academic disciplines—sociology, anthropology, and psychology—were subjecting the disciplines to challenging changes. We had begun to hear talk of breaking down the barriers between disciplines, and we were beginning, in the mid and late 1960s, to see the appearance of new interdisciplinary programs: women’s studies; African American studies; environmental studies. Bonsignore, d’Errico, and Pipkin developed the idea for a stand-alone Department of Legal Studies that would make it possible for UMass students to major in law the way they would philosophy or sociology. Their approach to legal studies was interdisciplinary, critical, and humanistic. They wanted to establish a beachhead for legal studies that would stand apart from the kind of vocational training and empty philosophical posturing they associated with legal education. ALSA and the Legal Studies Forum represented legal studies as one of the liberal arts; the study of law was viewed as being a humanistic discipline. Bonsignore, d’Errico, and Pipkin, with uncanny foresight, viewed legal studies as an interdisciplinary crossroads with law being a central focus. What the founders of ALSA could not foresee is that legal scholarship (and to a far lesser extent, legal education) would undergo the same kind of sea-change with the arrival, in the late 1970s, of Critical Legal Studies, feminist jurisprudence, and law and literature (with variant strains of legal storytelling and narrative jurisprudence).

ALSA was founded as a home away from home for colleagues who were teaching law in the various social sciences (anthropology, sociology, psychology) and in the humanities (philosophy and history) who had some reason to identify their work with law as well as with the core discipline that defined their university existence. Some of these teachers were law-trained, and some were not. The folks at UMass begin to think that the legal studies program they were pioneering might be the basis for legal studies programs around the country. The late 1970s was also a time when paralegal programs were beginning to appear in undergraduate studies, and teachers in these programs were looking for an intellectual home base. Interestingly enough, in the early days of ALSA there was a concern that the legal studies movement—and yes, there was some notion that a “movement” was underway—might drift in the direction of paralegal programs, and you can be sure that Bonsignore, d’Errico, and Pipkin had no desire for that to happen. They didn’t discourage paralegal teachers from participation in ALSA, but the ALSA mantra for their own Department of Legal Studies—and for the journal—was always: interdisciplinary, critical, and humanistic. That was enough to keep the paralegal folks at bay.

I should note that while the UMass-Amherst folks were always thinking about teaching law outside law schools, indeed, they argued that it was the very fact that law was so often taught only in law schools that underscored the need for a legal studies movement, they were always more than welcoming to the few law teachers that became involved in the organization. I was one of the early “outsiders” to cast my lot with ALSA, but not the first. Wythe Holt, the Marxist legal historian, and a law professor at the University of Alabama, is the only known legal colleague who attended both the first ALSA conference in 1977 and the first Critical Legal Studies conference held at the University of Wisconsin, also in 1977. Wythe published several articles in LSF, with one article appearing in the second volume of the journal when it was then the ALSA Forum. I attended the second ALSA conference in 1978 at Rutgers, and gave my first paper at an ALSA conference in Pittsburgh the following year. J. Allen Smith, at Rutgers law school, one of the old “law and literature” men, was also involved in the early conferences and published several articles in LSF in the early years. (We were doing law and literature articles in LSF before “law and literature” picked up momentum in the early 80s.) David Papke, who obtained a Ph.D. in American Studies (University of Michigan, 1984), now on the law faculty at Marquette University, attended the early ALSA conferences, and served as editor of LSF (1990-1996) before I took over as editor. Judith Koffler, another widely-respected law and literature scholar, appeared at most of the early ALSA conferences.

ALSA failed to survive but it did succeed in one sense: The ALSA conferences were lively affairs, with a degree of informality and a sense of collegial extended family, that made it possible for me, and colleagues like Judith Koffler and Wythe Holt to find like-minded colleagues. (I should note that both Koffler and Holt ended up as visiting professors at West Virginia and both would have remained on the faculty if it had not been for the short-sighted decision-making of my colleagues.) ALSA, and now LSF, have been most successful in helping to create a community for colleagues who think of the study of law as a liberal art.

Is there a “legal studies movement” in existence today? I don’t think so. Have the ideas and ideals associated with the “legal studies movement” found their way into legal education? I think they have. This immigration of ideas has taken different forms: the humanistic legal education movement (1977-1985), the law and literature movement (now commonly attributed to James Boyd White’s The Legal Imagination published in 1973, a movement that gained more attention in the late 70s, early 80s, and has now gained the status as a “school” of contemporary jurisprudence); Critical Legal Studies (CLS arrived in legal education at the same time ALSA was founded, and is now, so far as most of us can see, given up its corporeal existence).

I don’t see anything these days to suggest that anyone is talking about a “legal studies movement.” The one person that persists in writing about “legal studies” is Austin Sarat at Amherst College. In the last 20 years, Sarat, writing about the teaching of law as a liberal art in undergraduate schools, has been a one-man legal studies movement!

Did the “legal studies movement” spearheaded by ALSA change law school training? I think the literal answer is no. What happened in legal education, as I have alluded to here, is that legal scholarship (law reviews/law journals) now routinely publishes interdisciplinary work. In the past four decades (that happen to span the years that I have been teaching), there has been, shall we say, a “greening” of legal scholarship that encompasses the interdisciplinary, critical, and humanistic approaches that my UMass-Amherst colleagues and LSF tried to focus on. Unfortunately, the UMass model for legal studies did not find widespread adoption, and the liberal arts perspective in legal education, notwithstanding the greening of legal scholarship, is still a marginal enterprise.

AM:  Jim, thanks so much for this very interesting, very informative interview.  I’ve really enjoyed this.

JE:  Allen, I greatly appreciate your continued interest in my work and this rare opportunity to present in more detail what I have been trying to do as a teacher, writer, and editor. Thanks for all the effort you have put into making this interview possible.

Premises Liability and Qualified Duties of Care

In America, Economics, Humanities, Jurisprudence, Law, Philosophy, Property on January 3, 2014 at 8:45 am

Allen 2

The field of premises liability has to do with the potential tort liability of a landholder or landowner for injuries or damages sustained on his property.  Such liability is determined not by the legal status of the landholder or landowner, but by the legal status of the injured party.  For example, if the injured party is a trespasser, then the landholder or landowner could not have owed the injured party a duty of reasonable care because the landholder or landowner did not know or have reason to know of the trespasser’s presence on his property.  A “trespasser” is someone who, without the permission or consent of the landholder or landowner, enters or remains on the landholder’s or landowner’s property.  We say that the landholder or landowner does not owe a duty to unforeseeable trespassers, even if the property possesses dangerous conditions, because we believe that people should not be held accountable for the behavior of others that cannot be known or reasonably discovered.  If a reasonable person with ordinary intelligence could not infer the existence of Person X on the property, then that reasonable person cannot be made to suffer simply for acting reasonably; after all, we want to encourage reasonable behavior among acting agents within our society.

As with all areas of the law, there are exceptions to the rule that a landholder or landowner owes no duty to trespassers.  One such exception is called the “attractive nuisance doctrine,” which maintains that a reasonable landholder or landowner ought to be aware that certain conditions on the property might draw trespassers onto the property.  The classic example is a swimming pool that would seem attractive to children and, therefore, would likely lure children onto the property.  Another exception involves the existence of paths or shortcuts on the property that might give rise to the reasonable expectation that trespassers will regularly use the paths or shortcuts and, hence, might also injure themselves because of the conditions of the property on or around the paths and shortcuts.  In such a situation, a court may deem the landholder or landowner to have owed a duty to the reasonably foreseeable trespassers.

A “licensee” is another legal category of persons on the property of a landholder or landowner.  Unlike trespassers, licensees enter or remain on the property of a landholder or landowner with the landholder’s or landowner’s express or implied consent.  What distinguishes a “licensee” from an “invitee” (another legal status that will be discussed below) is the fact that the licensee tends to be on the property for his own benefit rather than for the benefit of the landholder or landowner.  Examples of licensees include social guests who have entered on the property of another with the intent of visiting the landholder or landowner, who, let us say, is a neighbor.  A landholder or landowner generally owes a licensee a duty of reasonable care with regard to activities undertaken on the property, as well as a duty to warn or make safe any dangerous conditions known to the landholder or landowner but not to the licensee.  Because a licensee is on the landholder’s or landowner’s property by consent, but not by express invitation, we do not force landholders or landowners to use reasonable diligence to ascertain the existence of dangerous conditions on the property.  The costs of holding landholders or landowners to such a high standard (time, money, and energy spent searching the property for conditions that may not exist for the benefit of people who may never enter the property, even if they have the permission to do so) outweigh the potential benefits (reducing the probability that a potential visitor would be injured on the property).  Therefore, the duty of a landholder or landowner to a licensee is measured by a standard somewhere between those standards applicable to trespassers and invitees.

An “invitee” is a person having express permission to enter or remain on the property of the landholder or landowner for the benefit of the latter.  An example might be a plumber or handyman who has been asked onto the property to perform some service for the landholder or landowner.  Landholders and landowners owe a duty of reasonable care to invitees.  Because the landholder or landowner is not only aware of the presence of an invitee on the property, but also the very cause of that presence (but for the landholder’s or landowner’s invitation, the invitee would not be on the property), we require the landholder or landowner to inspect the property and to make reasonable efforts to discover dangerous conditions on the property.  We also require the landholder or landowner to make any dangerous conditions safe for the invitee.

These categories seem straightforward in theory but are often complicated in practice.  What they tell us is that, in the workaday world, “duty” is not sacrosanct; it is contextual and subject to many interpretations depending on the facts at hand and the perceived relationship of the parties.

Burglary at Common Law

In American History, History, Humanities, Jurisprudence, Law on December 12, 2013 at 8:45 am

Allen 2

At common law, burglary was defined as the “breaking and entering into the dwelling of another, at night, with the intent to commit a felony therein.” Nearly all jurisdictions in the United States today punish as burglary conduct that does not meet one or more of the elements of that definition; those elements, however, continue to be recognized, in some jurisdictions and under particular circumstances.

At common law, a person could become a “burglar” (i.e., one guilty of burglary) if he had but an intent to commit a different crime (i.e., not just breaking into the dwelling) and yet, having broken into the dwelling, had not committed that intended crime. The intent to break into the dwelling was not relevant to an evaluation of the elements of the crime of burglary; what was relevant was the reason (i.e., the person’s intent) for doing something criminal within the dwelling. Even before a person entered the house unlawfully, he could have been, according to the elements of the crime, guilty of attempted burglary. Burglary is inchoate to a theft or to other crimes that the person committing the burglary also intends to commit inside the dwelling.  In other words, the classification of “burglary” obtains if a person breaks into a house but does not actually commit the felony he intends to commit inside the house.

To be convicted of burglary at common law, one had to actually break into the house; the burglar had to create an opening through which to pass. It was not enough that the owner of the home left open a door or a window through which the burglar crawled.  If person X saw the door to person Y’s home left wide open, or if person Y invited person X into the home, and person X then entered through the door intending to steal silverware, then person X could not be guilty of burglary. And if the door were closed, but it was daytime, and person X busted through the door, he could not be guilty of burglary because it was not nighttime.  It was once apparently believed that the greatest danger to homeowners was during the night, and although statistics may suggest that is still the case, there is no longer a “nighttime” element to burglary.

In most states within the United States, if not all of them, the “breaking” element of burglary has been done away with; instead, if a person’s presence on the property of another is unlawful, and the person satisfies the other elements of burglary, with the exceptions mentioned above, then that person may be guilty of burglary.  Most states still retain the “entry” element of burglary, and this element is satisfied if any part of the body enters the structure, if only for a moment.

No states in the United States retain the “dwelling” requirement.  At common law, a “dwelling” was, more or less, a house; a place of business didn’t qualify.  Therefore, someone could break into your office, steal your equipment, and not be guilty of burglary.  Most states in the United States no longer require an “intent to commit a felony”; rather, the word “felony” has been dropped and replaced with “crime.”  Therefore, a person could be guilty of burglary for breaking into a home with the intent to commit any crime, even a misdemeanor.  This is not true in all jurisdictions, however, as some states still provide that, to be guilty of burglary, a person breaking into the home must do so with the intent to commit either a felony or some other theft crime.

A Reminder from Augustine: Sin and the Law

In Arts & Letters, Books, Christianity, Humanities, Jurisprudence, Justice, Law, Philosophy, Western Philosophy on November 29, 2013 at 8:45 am

Allen 2

We do well to remember the consequences visited upon Augustine when, as a teenager, he succumbed to sin and shook a person’s pear tree in order to steal the fallen pears—not because he was hungry or in need, but because he delighted in the sin.  “To shake and rob,” he said, “some of us wanton young fellows went, late one night (having, according to our disgraceful habit, prolonged our games in the streets until then), and carried away great loads, not to eat ourselves, but to fling to the very swine, having only eaten some of them; and to do this pleased us all the more because it was not permitted.”[1]

The mature Augustine, looking back on this event, acknowledged that theft violates and is punished by law—not just human law, he adds, pursuant to the teachings of Jesus, but the law written on men’s hearts.  He relates that he suffered (and suffers) from shame and regret as a result of this sin, and his shame or regret is punishment that humans cannot implement ourselves; it is punishment that we must rely on God to summon forth in our hearts and minds.  “It is foul,” Augustine says of his sin, adding, “I hate to reflect on it.  I hate to look on it.”[2]  One wonders whether human punishment based on human law can ever have the same long-lasting effect as divine punishment for violating the law written on human hearts.

Augustine does suggest that there is a law of man and a law of God and that he violated both; the consequences for violating man’s law would have been different from the consequences of violating God’s law, especially insofar as his punishment may not be of this world, although the Christian believer in the triune God must acknowledge that God’s sovereignty and sovereign law precede and have jurisdiction over all men’s actions, for God does not let anything come to pass that he does not know about or have control over.


[1] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 33.

[2] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 40.

Thoughts on ‘The Road to Serfdom’: Chapter 6, “Planning and the Rule of Law”

In Arts & Letters, Austrian Economics, Book Reviews, Books, Economics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, Philosophy, Politics, Western Civilization, Western Philosophy on September 25, 2013 at 7:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

The following is the seventh installment in a series of chapter-by-chapter analyses of Friedrich Hayek’s The Road to Serfdom. Previous entries are available here: Introduction, Chapter 1, 2, 3, 4, and 5.

Hayek’s sixth chapter, “Planning and the Rule of Law” sets out to establish two fundamentally different legal frameworks. The first, characteristic of a free society, is what Hayek refers to as a ‘Rule of Law’ approach. The term itself is inadequate, but not incidental; it arises from Hayek’s more fundamental philosophy, and this analysis will address why the lack of a better term is inevitable for Hayek based on his earlier premises. The second type of law described by Hayek is the sort of arbitrary system of decrees inherent to a planned economy.

In the course of contrasting the two and explaining the superiority of the former, Hayek hits many valid points and makes some worthwhile analyses—he even surprises us with the first mention of rights in the whole book! True: in the process, he again falls victim to the sorts of improper philosophical analyses, badly defined concepts, flawed defenses of freedom, and errant policy endorsements we have come to expect. Nonetheless, the essence and guiding message of Chapter VI introduces a valuable subject for thought and further discussion—even if that thought consists of dispelling Hayek’s arguments in favor of stronger, more objective ones.

Hayek’s characterization of each of the two systems—the ‘Rule of Law’ and what he calls ‘substantive rules’—is valid in a limited sense. He writes,

“The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation either directly aimed at particular people, or at enabling anybody to use the coercive power of the state for the purpose of such discrimination. It means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used” (62).

In this description, Hayek hits many necessary points well: it limits legislation, establishes formal and general rules, and limits the use of coercive power to purposes defined in advance by the law. Likewise, with respect to ‘substantive rules’, his description is accurate: “It cannot tie itself down in advance to general and formal rules which prevent arbitrariness. It must provide for the actual needs of people as they arise and then choose deliberately between them” (55).

With similar acuity, he describes such a system’s coercive restructuring of the plans and long-range thinking of individuals,

“[W]here the precise effects of government policy on particular people are known, where the government aims directly at such particular effects, it cannot help knowing these effects, and therefore it cannot be impartial. It must, of necessity, take sides, impose its valuations upon people and, instead of assisting them in the advancement of their own ends, choose the ends for them” (57).

And, finally, its privileging of some parties over others: “There can be no doubt that planning necessarily involves deliberate discrimination between particular needs of different people, and allowing one man to do what another must be prevented from doing” (58-59).

His characterizations of both systems—‘Rule of Law’ and ‘substantive rules’—are correct on the above points. Where these descriptions lack is not in their truth, but in their completeness. Hayek’s description of both the ‘Rule of Law’ and ‘substantive rule’ approaches neglect the fundamental difference between liberal and statist law: whether the state is vested with the privilege of initiating force against the individual. This point cannot be left obfuscated or marginalized; it is nothing less than the definitive difference between the two systems and must be highlighted as such. Generality, non-discrimination, and established pre-requisites for legal action are important features within this framework, but they are ultimately supporting or consequential features of this more fundamental point.

This definition by essentials—of liberal law as that which forbids the violation of individual rights by government force, and of statist law as that which has no such prohibitions—points to the fundamental crux of liberal law: objectivity.

As Harry Binswanger describes it,

“An objectively derived law is one stemming not from the whim of legislators or bureaucrats but from a rational application of the principle of individual rights. Rights tie law to reality, because they are a recognition of a basic, unalterable fact [--the requirements of man’s life]… As the law must be objective in its source, so it must be objective in its form: objective laws are clearly defined, consistent, unambiguous, stable, and as straightforward and simple as possible… The ideal is to make the laws of man like the laws of nature: firm, stable impersonal absolutes.”

Thus, what Hayek describes as the ‘Rule of Law’ is better conceptualized as objective law—law that is based on a clearly defined, rationally derived standard. Conversely, the ‘substantive rule’ approach can be thought of as simply non-objective law.* That Hayek has not properly defined the two is consistent with his argument thus far, which in previous analyses has been shown to be largely based on a subjectivist-skepticist epistemology. This does not make his endorsement of the ‘Rule of Law’ any less genuine, but it does explain his admitted discomfort with his own descriptions in this chapter and why he was unable to correct them.

(For a fuller description of objective law, see Binswanger’s full article on the subject here.)

Hayek impressively illustrates the dangers of ‘substantive rules’ (we shall continue to use his term for accuracy, despite its inadequacy) with a discussion of policies that use the force of government to achieve egalitarian ends. He decries the increasing frequency under socialism of legal discussions as to what is ‘fair’ or ‘reasonable’, with ultimate discretion in such matters left to the subjective whim of a judge or regulator.

“Formal equality before the law [Hayek writes] is in conflict, and in fact incompatible, with any activity of the government deliberately aiming at material or substantive equality of different people, and that any policy directly aiming at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law.” (59)

Tangential to this discussion of the displacement of justice in the law by distorted notions of ‘fairness’ and ‘reasonability’ is a short but powerful challenge to the concept of ‘privilege’ that Hayek observes to be animating such cases. ‘Privilege’, he writes, is a valid description of those instances in which “landed property [was] reserved to members of the nobility” and property was understood to be held not by right but at the discretion of the monarch and its state (60). It is likewise privilege where “the right to produce or sell particular things is reserved to particular people designated by authority.” It is an inaccurate and unjust characterization, however, that treats the possession of property by right as ‘privilege.’ To do so “depriv[es] the word privilege of its meaning” (60).

In a landmark moment, Hayek even mentions the concept of rights for the first time. “[R]ecognised limitations of the powers of legislation,” he writes, “imply the recognition of the inalienable right of the individual, inviolable rights of man.” He goes on to write “How a formal recognition of individual rights, or of the equal rights of minorities, loses all significance in a state [sic] which embarks on a complete control of economic life, has been amply demonstrated by the experience of the various Central European countries” (64). Both instances are valid discussions of the concept. Whether this signals the introduction of a more enduring concept throughout the remainder of the work, or whether it is simply a passing mention not to be invoked again, time and further chapters will reveal.

Amidst these positive points, however, the chapter is not without severely detrimental flaws, beginning with Hayek’s further elaborations upon the ‘Rule of Law.’ Hayek unduly and inexplicably concedes ground to capitalism’s detractors, writing, “It cannot be denied that the Rule of Law produces economic inequality—all that can be claimed for it is that this inequality is not designed to affect particular people in a particular way” (59). That such a grave error should be committed on the very topic—economics—in which he has thus far been relatively solid and which is, in fact, his stock-in-trade is exasperating.

The ‘Rule of Law’, even in Hayek’s loose and non-essential definition of it, does not produce inequality—neither in means nor in outcomes. He has devoted much of the chapter to explaining its superiority to ‘substantive rules’, largely on the grounds that it does not privilege one party over another. Thus, he cannot be thought to be saying it produces an inequality of means. He can only be understood as saying that it produces an inequality of outcomes. This, however, is patently false.

Inequality in a laissez-faire society is simply a reflection of the differing achievements of individual men. It arises from man’s nature—the fact that he is rational and capable of immeasurable creativity, but that his consciousness is volitional. In such a society, man is left free—restricted only by the limits of his own faculties.

A limited government honoring individual rights, refusing to intervene in an economy or in any way initiate force against its citizens, does not produce anything except a system of justice and a circumstance in which force is prohibited from human relationships. Where inequality of achievement results between different men—whether competing in the same field or pursuing unrelated economic ventures—it is neither produced by the law nor prevented by it. It is a fact of nature.

Hayek makes similarly baffling assertions as to what the ultimate aim of law should be, and it is here that we come to see the difference between Hayek’s ‘Rule of Law’ and objective law as we defined it above. Where objective law references a particular standard—the requirements of man’s life—as the ultimate value to be gained and kept, Hayek’s looser ‘Rule of Law’ seeks to preserve not a concrete value, but a state of randomness.

“[T]hat we do not know their concrete effect, that we do not know what particular ends these rules will further, or which particular people they will assist, that they are merely given the form most likely on the whole to benefit all the people affected by them, is the most important criterion of formal rules in the sense in which we here use the term” (56). [Emphasis mine.]

Thus, the unpredictability of outcomes is treated as an intrinsic value. True: Hayek is correct that an objective legal system in no way predicts or influences which parties in a society will be successful and which might fail. However, lest one remain adamant that Hayek is simply describing what will happen in such a system, rather than arguing why such a system should be instituted, a subsequent passage leaves no room for doubt:

“[I]t may appear paradoxical to claim as a virtue that under one system we shall know less about the particular effect of the measures the state takes than would be true under most other systems and that a method of social control should be deemed superior because of our ignorance of its precise results. Yet this consideration is in fact the rationale of the great liberal principle of the Rule of Law” (56). [Emphasis mine.]

Should this passage not suffice to bring back memories of Hayek’s abhorrent defense of liberty in Chapter IV, Hayek further abuses the concept and paves the road for anarchist libertarians to come by suggesting that law itself is a violation of liberty. He writes that, “While every law restricts individual freedom to some extent by altering the means [sic] which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action” (54).

To suggest that every law—even objectively derived and defined laws that prohibit the initiation of force between individuals—constitutes a restriction of individual freedom is to suggest, conversely, that there exists a freedom to initiate force—that is: a freedom to restrict freedoms. Implicit in it is the suggestion that freedoms clash, and that the pursuit of ever-greater freedoms requires a conflict of interest between men. For a succinct refutation of this idea, an entry from Ayn Rand’s column, “Textbook of Americanism” puts it best:

“Do not be misled . . . by an old collectivist trick which goes like this: there is no absolute freedom anyway, since you are not free to murder; society limits your freedom when it does not permit you to kill; therefore, society holds the right to limit your freedom in any manner it sees fit; therefore, drop the delusion of freedom—freedom is whatever society decides it is. It is not society, nor any social right, that forbids you to kill—but the inalienable individual right of another man to live. This is not a “compromise” between two rights—but a line of division that preserves both rights untouched. The division is not derived from an edict of society—but from your own inalienable individual right. The definition of this limit is not set arbitrarily by society—but is implicit in the definition of your own right. Within the sphere of your own rights, your freedom is absolute.”**

Other passing errors punctuate the chapter—a collectivist invocation of “society as a whole” as the good to be considered, an acceptance of there being no negligible difference between an explicit and codified Bill of Rights versus a tradition-based common law, and a parting endorsement of “factory laws” (the destructive effects of which have been thoroughly argued by historian Robert Hessen).

There are again passages that sound hauntingly familiar in today’s world. His description of the bureaucratization of government—“[b]y giving the government unlimited powers the most arbitrary rule can be made legal: and in this way a democracy may set up the most complete despotism imaginable”—sounds much like a description of today’s regulatory state. A description of The Economist as a half-hearted defender of capitalism with an inflated liberal reputation completes the picture and demonstrates that many things have not changed since Hayek’s time.

The subject of Chapter VI, the abuses perpetrated by socialism on the legal system and the ways in which law is transformed by it from a shield into a weapon, is an important one for capitalism’s defenders to understand. Certainly the ongoing antitrust abuses being carried out at the time of this writing make its continued relevance vividly clear. But the fact that the subject demands greater understanding does not mean that Hayek’s argument against it can or should be incorporated as part of that understanding—and certainly not as part of capitalism’s defense. It—and we—deserve better.

* I specifically use the term “non-objective” here, as opposed to the more conventional “subjective”, as in this context it includes law based both in subjectivism and intrinsicism.

** “Textbook of Americanism”, The Ayn Rand Column, pg. 85

Law and Locality

In Arts & Letters, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy, Politics on August 7, 2013 at 8:45 am

Allen Mendenhall - Copy

On one common definition, law is a practice or set of rules based in custom and habit.  Law is not diktat.  It arises spontaneously through the interaction of human agents operating within and among social groups and precedes State promulgation.

Legislative enactment can reflect the law as it is constituted in the mores and traditions of groups, but it can also be the result of governmental usurpation.  The legislator does not embody the peoples he represents, and as society grows ever more complex and populations ever denser, as technologies link us more and more to one another in cyberspace and other virtual fora with disembodied communicants, the notion that the legislator speaks on behalf of his constituents becomes increasingly dubious if not downright absurd.

Local groups such as schools, clubs, community organizations, and churches have complex rules of exchange derived from shared mores and traditions.  They are more likely to speak accurately about the wants and needs of their community.  Their rules are not necessarily articulated, but tacitly understood.

These local groups recognize regulations not as monolithic, governmental impositions but as integrated schemes of social principles.  Group-members who fail or refuse to follow rules and regulations are punished.  On this local level, punishment can be simple: ostracism or public disapproval. A businessperson who violates another businessperson’s trust will lose business, just as he will lose clients by losing consumers’ trust; a church-member living in sin will likewise suffer from the judgment of his peers or, more appropriately, from the canon law pertaining to his sin.

In these examples, it is clear that the State should not intervene in punishing the wrongdoer; local custom and habit suffice to regulate conduct without resort to State violence or compulsion; therefore, private associations suffice to generate rules and their corresponding punishments.  Distant government bodies are not likely to conform to the intricate constitutions of local peoples and therefore are likely to exercise their disciplinary powers using punitive, exploitative, or arbitrary means.

The Politics of Paternalism

In America, American History, Conservatism, Humanities, Jurisprudence, Law, News and Current Events, Politics, Southern History on July 3, 2013 at 8:45 am

Allen Mendenhall

This first appeared here at The American Spectator.

One of the Supreme Court opinions everyone is buzzing about — last Monday’s decision in Fisher v. University of Texas at Austin, a case involving that school’s affirmative action program — will not be monumental in our canons of jurisprudence.

The petitioner, Abigail Noel Fisher, a young white woman, applied to the university in 2008 and was denied admission. She challenged the decision, arguing that she would have been admitted under a colorblind system. The high court has now remanded the case back to the Fifth Circuit, holding that the lower court failed to properly ascertain whether the affirmative action program was the most narrowly tailored means to achieve the university’s diversity goal. In legal terms, the Fifth Circuit had failed to subject the program to “strict scrutiny.” Thus, additional litigation lies ahead; the case is not even over.

What will be remembered from Monday’s proceedings, though, is Justice Thomas’ concurrence, which treats affirmative action as paternalism — a word he implies but doesn’t use explicitly, at least not here.

The dichotomies “liberal” versus “conservative,” “left” versus “right,” complicate rather than clarify issues such as affirmative action. A better choice of words, if a dichotomy must be maintained, is “paternalism” versus “non-paternalism.” Viewing diversity in this light, as Justice Thomas does, enables us to understand and appreciate the forms that racism and discrimination take.

Those forms often are paternalistic: Person A assumes to understand the plight of person X and undertakes to care for and control him as a father would his children. Even if X were one day to achieve relative equality with A in real terms — opportunity, education, earning capacity — this dominance would persist so long as A views X as a needy inferior, and so long as X allows that presumption to persist.

Thomas’s concurrence places such toxic ideas under a microscope, and exposes the ironic double standards of those who resort to paternalism. For instance, the bulk of his concurrence describes how the university’s arguments in favor of affirmative action are the same or substantially similar to those once used to justify racial segregation and even slavery. “There is no principled distinction,” Thomas writes, “between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.”

Likewise, he adds, “Slaveholders argued that slavery was a ‘positive good’ that civilized Blacks and elevated them in every dimension of life.” Advocates of slavery and segregationists both argued, in other words, that their policies bettered the conditions of Blacks and minimized racial hostility on the whole. The form of these racist arguments is now being used to justify state discrimination through affirmative action programs.

The segregationists argued that integrated public schools would suffer from white flight; proponents of affirmative action argue that universities will suffer from a lack of diversity if discrimination is not allowed.

The segregationists argued that blacks would become the victims of desegregation once white children withdrew from public schools en masse and that separate but equal schools improved interracial relations; proponents of affirmative action likewise argue that minorities will be the victims if affirmative action programs are deemed unconstitutional and that diversity on campus improves interracial relations.

The segregationists argued that separate but equal schools allowed blacks to enjoy more leadership opportunities; proponents of affirmative action likewise argue that affirmative action programs empower minorities to become leaders in a diverse society.

The segregationists argued that although separate but equal schools were not a perfect remedy for racial animosity, such schools were nevertheless a practical step in the right direction; proponents of affirmative action likewise argue that it, although not ideal, nevertheless generates race consciousness among students.

In the face of these surprising parallels, Justice Thomas maintains that “just as the alleged educational benefits of segregation were insufficient to justify racial discrimination” during the Civil Rights Era, so “the alleged educational benefits of diversity cannot justify racial discrimination today.”

He should not be misunderstood as equating affirmative action with the discrimination unleashed upon blacks and other minorities throughout American history. Although he acknowledges that affirmative action does harm whites and Asians, he is chiefly concerned with how such discrimination harms its intended beneficiaries: above all, blacks and Hispanics. “Although cloaked in good intentions,” Thomas submits, “the University’s racial tinkering harms the very people it claims to be helping.” He adds that “the University would have us believe that its discrimination is…benign. I think the lesson of history is clear enough: Racial discrimination is never benign.”

Why aren’t affirmative action programs — which Justice Thomas at one point refers to as “racial engineering” — benign? He gives several reasons: They admit blacks and Hispanics who aren’t as prepared for college as white and Asian students; they do not ensure that blacks and Hispanics close the learning gap during their time in college; they do not increase the overall number of blacks and Hispanics who attend college; and they encourage unqualified applicants to graduate from great schools as mediocre students instead of good schools as exceptional students. Moreover, Justice Thomas cites studies showing that minorities interested in science and engineering are more likely to choose different paths when they are forced to compete with other students in those disciplines at elite universities. What Justice Thomas considers most damning of all, however, is the “badge of inferiority” stamped on racial minorities as a result of affirmative action.

Just one small personal example: When I was in law school, a few of the guys in my study group began comparing professors, as students do regularly, and they were quite open in their opinion that our black professor could not have been as intelligent, because she had benefited from affirmative action programs. Read the rest of this entry »

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