The discovery of law

Justice John Paul Stevens has riled up law professors everywhere by reiterating the traditional doctrine of the common law, namely that the case-by-case decisionmaking that has given rise to the common law, as well as other precedent-based law such as interpretation of the United States Constitution, is a process of discovering something that already, in a Platonic sense, exists:

[T]he source of a "new rule" is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule.

This contradicts the modern academic dogma of "positivism" in which the common law is made, not discovered, and therefore cannot be said to exist in any sense until the decision comes down. This is associated with another dogma, "realism", in which judicial decisions are largely just, as with legislation, exercises in political power.

Legal academics make far too much out of the "made" vs. "discovered" dichotomy. We can see that by looking at the supposed distinction between "discovering" a law of science and "inventing" a new piece of technology. If it's possible to make a strong and important distinction between "discovering" and "making", we should be able to do so here. Yet our patent system would not have been able to transition so smoothly to being able to patent new breeds of plant or new strands of DNA if this distinction were so clear. In patent law the distinction between a "discovered" law and a "made" invention can be as trivial as the distinction between a "discovery" that a high level of a certain hormone correlates with a high risk of a certain disease and the "invention" of a test that allows one to detect the high hormone level and algorithmically (or perhaps even mentally -- it's unresolved law) conclude that one is at serious risk of the disease. In other words, no serious difference at all -- the test apparatus and the mental or algorithmic step was how the discovery was made. To make the discovery is to make the invention, and vice versa, and the idea that there is an strong and important distinction between the two here is risible.

There are thus cases in which the distinction between making and discovering is trivial. But we can readily and fruitfully think of all invention as discovery. What was more important to inventing the first automobile: the physical making and combining of its parts, or the discoveries of ways make and combine them (in this case, discovering what are the better and worse ways to combine an internal combustion engine with a carriage)? One can discover better and worse ways of making things just as one can discover new continents or planets. That, and not whether the physical machine has actually been built, and thus can be said to now physically "exist", lies at the heart of invention. Furthermore, there is a Platonic sense in which these better or worse designs already exist, because the basic laws by which they operate already exist: the designs be deduced from the laws of physics and the history of the part of the universe in which it is desired that they operate. In practice, it this process of discovery requires its own empirical tests: build the machine, try it in the various desired environments, tweak the machine to make it work better. As with discovery those laws themselves, inventors hypothesize which designs are better or worse and test them against reality. They don't exercise their will and arbitrarily decide which machines will work better and which will not.

So too, common law is a painstaking way of discovering and making better law, case by case, dispute by dispute, piece of evidence by piece of evidence. For machines there is a Platonic "environment space", the set of environments we desire those machines to work in. As we explore new environments we discover new ways to make machines work better in them. In common law, there is a "facts space", a Platonic space of possible unique disputes, each with its own unique set of facts. It is not possible to explore more than a miniscule fraction of the facts space.

Instead of the hubristic exercise of waving one's hands calling for "Change" and then drafting broad legislation, the ultimate consequences of which are usually unknown, common law judges tweak the common law. In each case they are discovering a better way in which the law can be made. Just as there are empirically better and worse machines, so there are empirically better and worse laws. If the law applied to the facts of this case is unjust, it needs to be tweaked. Not repealed or overruled, as the absolutist minds of positivists would have -- but tweaked -- by a shade of meaning or an exception for a new situation. To repeal a rule of common law insults the combined wisdom of several previous courts and a variety of cases with their own large bodies of evidence not before the current court. It's like an octopus declaring that, based on his discovery that wheeled vehicles don't work on the ocean, that they won't work on land either, despite many landlubbers who've reported that wheeled vehicles work on land just fine. The principles of precedent or stare decisis allow the law to evolve towards worker better in an ever wider variety of disputes, even though only the facts of one case can be observed at a time.

So there is no dichotomy -- judges both make law and discover law. By not doing so in broad brushstrokes, they can avoid doing the broad unintended harms that legislation usually causes. Legislation purposefully disrupts previously existing legal rights and duties wholesale. Proper common law precedent -- any precedent that should be respected -- never should do this. Instead it should be clarifying the nature of previously unexplored territories of the facts space, the space of possible disputes, and tweak the law so that it works better in the newly explored part of the facts sapce. Incremental discovery of better law justifies the prohibition against ex post facto laws applying to legislation in a way that it does not apply to common law making.

N.B.: the fact that scientific discoveries are called "laws", by metaphor to human laws, should clue us in as to what people generally thought about the nature of law at the time of the scientific revolution, i.e. from the Renaissance through the Enlightenment, and including the drafting and ratification of the U.S. Constitution.

Unbundled jurisdictions and exit costs

Standard political "science", on which both academic and popular modern views of politics are now based, has beat into our heads a false dichotomy: "government" vs. "anarchy." The first, it is assumed, is sovereign government: it has a "monopoly of force." The second is often viewed as either an imaginary world of violent lawlessness or an imaginary world of purely voluntary relationships.

But this excludes what much of the politics and law of England and its colonial offshoots, among many other examples, were for most of their history: divided, non-sovereign governments. Law enforcement with no monopoly of force. There are a number of kinds of such division -- the most familar being federalism and the separation of powers. But the most interesting of all is the unbundling of political property rights.

I have explained why law generally cannot be enforced by purely voluntary relationships. Sure, most rules, formal and informal, of society can be and are followed in a largely voluntary fashion. Reputation and other factors can provide incentives to follow many kinds of rules. But when either the threat or the response become violent or overly fraudulent real law, i.e. law based on local initiations of force, is generally required. Murray Rothbard's fallacy was to try to extend a general principle that succinctly summarizes the substantitve common law -- non-initiation of force -- to the procedural law, which it does not properly summarize and where it mostly does not belong.

Defining "government" as any relationship that is not purely voluntary, what forms of such "government" maximize liberty by minimizing exit costs? Unbundled political property rights put the lie to the "monopoly of force" by unbundling the use of force into a wide variety of specialized forms -- each owned by a particular organization or individual. Here, for example, are some examples of political property rights from medieval and Renaissance England:

There were dozens of standard jurisdictional franchises. For example, "infangthief" enabled the franchise owner to hang any thief caught red-handed in the franchise territory, whereas "outfangthief" enabled the owner to chase the thief down outside the franchise territory, catch him red-handed, and then hang him. "Gallows" enabled the owner to try and punish any capital crime, and there were a variety of jurisdictions correponding to several classes of lesser offenses. "View of frankpledge" allowed the owner to control a local militia to enforce the law. "The sheriff's pleas" allowed the owner to hear any case that would normally be heard in a county court. There were also franchises that allowed the collection of various tolls and taxes.

Modern remnants of such jurisdictions include the shopkeeper's privilege to arrest and imprison shoplifters, "stand your ground" statutes which recapitulate the traditional political property right, liberty of house, citizen's arrest, and so on. Even such a behemoth as the United States has nothing resembling a "monopoly of force."

Political property rights are narrowly defined rights to initiate force -- in very specific ways and in response to specific events and no others. Their legal exercise generally requires the owner to scrupulously follow specific procedures. Unbundled political property rights can reduce exit costs far more than sovereign governments, because they don't come bundled with the power to exclude normally associated with sovereignty and real property (much let the power to prevent people from leaving exercised by the more tyrranous sovereigns). It is thus possible to have a wide variety of jurisdictions enforcing law without any restrictions on the freedom of travel of those acting within the law. But unbundled political property rights do radically violate the nonsensical poli-sci dichotomy of sovereign government vs. anarchy that is taught in schools. Unbundled political property rights are neither sovereign government nor purely voluntary. But they are a crucial part of a world that maximizes liberty.

(This post is expanded from comments I made at Unqualified Reservations).

Political arguments from extreme examples are extremely bad

In our recent years of paranoia, which we slowly seem to be recovering from, one has often heard arguments that political policies or laws should be changed based on the failure of current policies or laws to address extreme cases. Here's a recent example:

Suppose you knew for a fact that your family was in imminent danger of being murdered in a plot masterminded by bin Laden or some other homicidal psycho? Suppose, further, that you knew a confession from him would save the lives of your family. Would you be willing to have the authorities use torture to obtain it?

or, if that doesn't make you sufficiently afraid,

Picture this: There's a guy in police custody who knows the location of a bomb that's set to explode in an elementary school building that holds 500 children. Threats and intimidation have failed to make him reveal the address of the school and the location of the device. You suspect that torture would loosen his tongue and save all those innocent lives. What would you do?

There are several flaws in this argument, one being that we rarely "know for a fact" events that have not happened yet, another being the dubious missing link in the logic here, that the information extracted would be reliable and thus help law enforcement prevent the danger rather than provide them with misinformation that distracts them from the real target. But there is a more basic problem with these kinds of arguments when applied to any argument over what any law should be.

The use of extreme examples preys upon the widespread ignorance in modern societies of how our legal systems work. It assumes that our legal system executes laws as if it were a robot: law goes in, facts go in, defendant goes in, from the legal code and the facts the robot logically concludes that the defendant violated law, defendant goes to jail, period. But that's not how our legal system works. Rather it is set up to assume, properly, that no language can describe just outcomes in all cases. It is set up so that when legal rules cause obvious injustices, those injustices can be avoided. In the United States and Commonwealth countries, at least three different groups can exercise discretion to prevent obvious injustice to technical lawbreakers: prosecutors, grand juries, and trial juries.

In the case of the torturer of an obvious terrorist who in fact saves many lives, it's highly likely that prosecutors would exercise their discretion to not prosecute. They'd get overwhelming political support in doing so. Even if they prosecuted, they would be unlikely to get a grand jury to indict. And even if a grand jury indicted the life-saving torturer, it's extremely unlikely that a trial jury would convict. Thus, despite violating the words of the law, our life-saving torturer would be hailed as a hero, get millions of dollars worth of book contracts, and face no serious risk of jail time. Strong anti-torture laws, with no exceptions written in to the language of the law, would prevent the gross injustice and inhumanity of torture in the vast majority of cases where officials would be tempted to torture -- cases where the dangers posed by the torture victim or his pals are more pedestrian or less clear than the extreme scenarios put forth by proponents of legalizing torture. In such cases the importance of not stooping to the barbarity of torture, and the extremely horrific possibility that torture might become standard law enforcement and military practice, should trump uncertain or everyday security considerations. Strong and absolutely worded anti-torture laws would not punish a torturer who clearly saved many lives in the extremely rare circumstances so often portrayed by these proponents.

Borders in the franchise system

Under the franchise philosophy, jurisdictions and other organs of government large and small are property. In a monarchic franchise system ownership of jurisdictional properties tends to be by individuals, whereas in a republican franchise system ownership of such properties tends to be by corporations. There is no such thing as sovereignty or "the" government, but instead a wide variety of property rights to exercise specific political powers that may be bundled, or not, in a wide variety of ways. The rights, duties, powers, and so on of persons in franchise systems are defined in property deeds, often called charters.

In a franchise system, it follows that jurisdictional boundaries are a kind of property boundary. This does not, however, mean that these boundaries should be treated in the same was as the popularly understand generic property in land is treated today. For example, it does not automatically follow that one of their features should be a strict right of exclusion.

Popularly we treat property in land as if it all came in one generic variety, but in fact properties (called in law "estates") can come in a wide variety of forms. There can be estates, sub-estates, and so on. There's no contradiction between having boundaries of larger properties and also having boundaries of smaller properties contained within them. And these boundaries can mean different things depending on the kind of estate involved. A jurisdictional estate can encompass a number of economic estates, for example, and the borders of each have different legal consequences.

There is nothing more important to liberty than reducing exit costs. As Daniel Nagy points out in the debate at this link, this also argues towards reducing entrance costs -- although I do draw a distinction between the two. Restrictions on their residents or guests leaving the property should be highly discouraged, and indeed generally constitute kidnapping. This should apply at any scale. Thus all forms of serfdom and national citizenship with restrictions on emigration that tie people to a territory, whether economic or jurisdictional, are highly destructive of liberty.

The right of an owner to exclude people, on the other hand, should be very high for smaller properties and less so far larger (jurisdictional) properties. A jurisdictional property that restricts entrance also restricts the freedom of association of the jurisdiction's inhabitants. If a family desires to live and raise their children among "their own kind", whatever kind that is, the property policies or deeds that implement these associational preferences should be implement far more at a local level (for example with restrictive property deeds) than at a national level. Thus for example I favor the right to enforce discriminatory covenants on single lots and neighborhoods that the U.S. Supreme Court has struck down under the fraudulent theory that these constitute "government action" and thus violate the Equal Protection Clause. But on the scale of a large "nation" such as the United States, I am for open borders, unless the border restriction is due to a compelling reason of security that cannot be handled on a local scale.

(This text is based on a comment I made in a prior post).

Some Ron Paul bits

"Super Tuesday" here in the United States is coming up next week and the primaries are still undecided and exciting. My favorite candidate, Ron Paul, finished second in the Nevada caucus, has picked up at least 6 convention delegates so far, and is now one of four major candidates remaining in the Republican race, albeit trailing the other three in most states. He has outlasted Tom Tancredo, Duncan Hunter, Fred Thompson, and Rudy Guliani. He will likely continue his pattern of doing better in most caucus states than in primary states, reflecting the higher energy of his supporters. Here are some video highlights of Paul at the recent debate at the Ronald Reagan Library. Here is a chart comparing his major positions to the other candidates.

Dr. Paul has recently picked up a wide variety of endorsements: contrast Arlo Guthrie with American Conservative magazine, for example. His new book, The Revolution: A Manifesto, is now near the top of the Amazon best-seller list.

Paul has introduced many more people to the ideas of liberty than we could have hoped for even a few months ago. Go Ron Go!

[Update 2/2/08 -- here is video of a good speech Paul just gave in Colorado, and Paul is currently tied for second with John McCain in today's Maine caucus.]

[Update 2/7/08 -- On "Super Tuesday" Paul did much better in caucuses than in primaries, as I predicted. He did particularly well in northern state caucuses. In Montana he placed 2nd with 25% of the vote. In North Dakota he got 21%, in Alaska 17%, and Minnesota 16%. Paul won well over a dozen counties outright, including (ironically) Lincoln and Roosevelt counties and (fittingly) Madison county in Montana. His campaign reports that he now has at least 42 delegates to the Republican national convention. This corresponds to hundreds of delegates at the local level who will influence Republican party politics for years into the future. Even Mitt Romney has now dropped out of the race, but Ron Paul keeps plugging away. Here [1,2,3] is video of Ron Paul's excellent speech at CPAC, wonderfully introduced by Bob Barr.