Mobile redundancy

Orbital Express has demonstrated a number of interesting techniques of great long-term importance, such as the automated refueling of spacecraft. (Here is the biggest long-term reason why automated and on-orbit assembly and refueling are important). But the mission also demonstrated the feasibility of an idea that is probably also of great but nearer-term importance, which I call mobile redundancy. The idea is that if one has a constellation of standard satellites, redundancy can be provided with mobile spare parts rather than by building on-board redunancy into each satellite as is done now. This could result in a large overall savings in weight launched per year of useful satellite lifetime.

Hohfeld without "the state"

Words like "rights," "freedoms", "liberties", "duties", and so on describe crucial ideas but are often used ambiguously in politics and the law. Lawyer Wesley Hohfeld early in the twentieth century in the United States developed a classification and technical terminology for these ideas that goes far towards eliminating much of this ambiguity.

First Hohfeld defined these ideas as relationships between persons. Second, he organized them into binary opposites and correlatives. Here are the binary opposites -- you either have them or you don't:

right/no-right
freedom/duty

(I'm substituting "freedom" where Hohfield and his followers have used "privilege" , "liberty", or even worse "permission" -- for reasons that should become apparent below). With respect to a given subject matter and under a given set of laws governing that subject matter, you either have a right or no right, never both. And you either have a freedom from duty or a duty, never both.

The most crucial aspect of this terminology is that these ideas are also related as correlatives -- the existence of one implies the existence of the other. Thus

right of A => duty of (at least) B
freedom of A => no-right of any other

Hohfeld's terminology is often described (e.g. by the legal scholars Corbin and Singer) in terms of "the state" that whose enforcement actions create rights (and thus duties) and whose lack of enforcement action creates "privileges" or "permssions". Regular readers of the blog will see at least one problem with this approach, but does Hohfeld terminology make sense independently of "the state"?

Not only do these terms make sense without "the state", they make even more sense without "the state" and even make sense independently of the existence of anything like a state. Stateless scenarios help to illuminate the meanings of Hohfeld's terms, and getting rid of "the state" will shed light on analysis of the origins of rights. For example, by distinguishing a "right" from a "freedom", I will create a much clearer description of John Locke's theory of a "social compact" which highlights some of its strengths and weaknesses. This generalization of Hohfeld terminology also allows us to apply it to real world situations involving conflicting jurisdictions and laws rather than the mythological monolithic state.

Let's start with a Mr. Robinson Crusoe stranded alone on his tropical island. Crusoe is able to do anything he likes without legal or other coercive restriction, or indeed without a negative response by another person of any kind -- he has perfect freedom. But he can't sue or otherwise punish anybody, so he has, in Hohfeldian terms, no rights. Robinson Crusoe expemplfies the correlatives "freedom" and "no right".

Now let's strand a Mr. Geoffrey Dalrymple on the island with Mr. Crusoe. In a state of pure amorality and lawlessness (which is to be sure purely theoretical and in practice would not last for long), there are no rights of any kind. Crusoe has no duties and thus perfect freedom to do anything (kill Dalrymple, steal his food, and so on), and correlatively Dalrymple has no rights. Dalrymple for his part has no duties and thus perfect freedom, and and Crusoe has no rights.

Do we require a state to introduce rights into this situation? In fact we don't even need the introduction of a third party. To introduce rights and duties into this situation, Crusoe and Dalrymple merely need to enter into an agreement, a la Locke. This agreement could be as informal as a common cultural understanding or as formal as carving words on stone. Let's say Crusoe agrees not to commit a tort (battery, theft, etc.) against Dalrymple and Dalrymple agrees to not commit a tort against Crusoe. Crusoe now has rights (defined by tort law as he understands it, unless stated explicitly) against Dalrymple and Dalrymple now has tort rights (defind by tort law as he understands it, unless stated explicitly) against Crusoe. Crusoe correlatively has duties towards Dalrymple, and vice versa, and both correspondingly have their freedoms reduced. They have traded some freedoms for some rights. (This is a much clearer way of saying, in the older terminology in which "freedom", "rights", and so on were overlapping and often indistinct concepts, that people have traded away some rights in order to preserve other rights).

Of course the consequences of a right -- in particular the remedy available for the breach of a right -- is hardly the same as in a mature legal system with courts, police, etc. If one of Crusoe's rights is breached, for example by Dalrymple stealing his food, his only remedy is to take an action himself -- for example, steal back some food. Crusoe and Dalrymple would be wise to specify such remedies in their agreement. We can see how a third party, or even better courts and police, would help enforce such a remedy, but they, and much less "the state", are not necessary for the basic Hohfeldian ideas of right and duty to arise.

Corbin, in describing Hohfeldian terms, invoked "a giant" as a metaphor for "the state." It's easy to see that if a wise giant lived on the island it would be profitable for Crusoe and Dalrymple to agree to use that giant to hear their cases and enforce the remedy they had agreed upon. This corresponds to the "choice of forum" clause found in many modern contracts. But let's say there were two wise giants on the island, Giganticus and Gargantua. This multiplicity of giants would certainly confuse Corbin's (and Singer's) explanations of Hohfeld, but is in fact readily explicable in Hohfeldian and choice-of-forum terms. There are often great advantages to division of labor. Crusoe and Dalrymple could thus agree to divide up the subject matters of their agreement. They might, for example, choose Giganticus to adjudicate and enforce tort and property law, and Gargantua to adjudicate and enforce contract law (include this meta-contract).

Alternatively, if Giganticus is strong and Gargantua is wise, they might agree that Gargantua should decide the cases regarding any subject matter (i.e. act as a judiciary) and Giganticus should enforce them (i.e. act as an executive). As another alternative , the giants could agree on the division of subject matter jurisdiction betweem them, or divide between them adjudication and enforcement, and force their agreement on Crusoe and Dalrymple.

Each of these scenarios is a plausible one. None involve "the state", but each involve rights and correlative duties as well as freedoms and correlative lack of rights. The probability that the giants would enforce their own brand of law, rather than just enforcing whatever Crusoe and Dalrymple agree to, casts some doubt on Locke and other "social contract" theorists as providing an actual history rather than an ideal of the formation of legal systems or states. More likely is the model of Mancur Olson, in which "stationary bandits" out-competed "roving bandits" in the coercively competitive business of collecting taxes and thereby formed states (and, I'd add, formed other kinds of political property rights as well). All fodder for future posts.

Ref: Hohfeld, W. N. Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. by W.W. Cook (1919); reprint, New Haven, CT: Yale University Press, (1964).

UPDATE: I have clarified my recasting of Locke's analysis and corrected a typo pointed out by a commentor.

Quo Warranto and the Presumption of Nonauthority

The current debate over statutory restrictions on the uses of the writ of habeas corpus should lead us to re-examine the foundations and context of that prerogative writ. The only explicit mention of it in the U.S. Constitution is in Art. I Sec. 9, as one of the restrictions on the powers of Congress:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

From this language we may reasonable conclude two important principles:

1. Habeas corpus may only be suspended by an act of Congress (which raises the question of what is to be done if Congress and the courts cannot convene).
2. Habeas corpus is presumed to be a right that precedes the Constitution and is incorporated by it, by restriction on when it may be suspended.
   

But if the writ of habeas corpus precedes the Constitution and is incorporated into it, does that make it one of the unenumerated rights of the Ninth Amendment, and if so, what about the other prerogative writs that have a similar status in common law, such as quo warranto, mandamus, prohibito, procedendo, and certiorari? We don't hear much about these in current jurisprudence, except the last, in discretionary appeals.

I have argued in a paper in progress, "Presumption of Nonauthority and Unenumerated Rights", at http://www.constitution.org/9ll/schol/pnur.htm , that all of those writs, and more, are indeed among the unenumerated rights of the Ninth Amendment, and that, contrary to current doctrine, these are not creatures of statute but fundamental rights that may not be constitutionally burdened. For evidence of this we can find among the proposed amendments from the New York ratifying convention not just a declaration of the writs as rights, but of a right to petition for the rights "in the name of the people", that is, as private attorneys general. That we have the rights was taken for granted. Only the standing of any person to petition for them was thought necessary to be asserted in an amendment.

Habeas corpus can be considered a subset of quo warranto. The former demands an official prove his authority to detain a person, but the latter demands an official, including a private official, prove his authority to do anything he may be doing or threatening to do, including holding an office. The former requires the official to produce the detainee in court. The latter requires him to suspend his activity until proof is made.

Was there ever a time, following the Declaration of Independence, which made the people the sovereign, when any individual could go to court with a petition for a writ of quo warranto and get an official activity suspended until that official proved his authority? Yes, there was, in the early republic, but so seriously did officials take the threat of such a writ that they took great care not to exceed their authority, so that the remedy almost never had to be carried forward, or precedents established. It should come as no surprise that officials don't like the right and have done almost everything they can to deny or deprecate it or make people forget about it.

Perhaps it's time to change that.

Most law schools don't teach much about the prerogative writs, not even habeas corpus. It should come as no surprise that many lawyers and judges are unclear on the concept or how it is supposed to work, if we followed the original standard of due oprocess. Too many judges treat a petition as an ex parte motion to show cause, with the burden on the petitioner. It is not. The writ is not an order from the court to produce the prisoner and the proof. The petition itself is the order to do that, much like a citation in a civil case, to respond to the filed petition. the writ is the finding by the court of whether the official has the authority, ordering release of the prisoner if he does not.

The only statutory component of habeas corpus, or the other writs, was a prescription of how much time the official has to comply. Originally, that ranged from three to twenty days, depending on the distance of the official from the court.

The question may arise, what happens if the court fails or refuses to hold a hearing, or accepts the authority of the official without the proof? This question is critical to an understanding of the role of courts in the Anglo-American legal tradition. The answer, by original standards of due process, is that the writ issues by default if the respondant fails to respond, or even if the court fails to hold a hearing. If the judge accepts the official's claim of authority without proof, then by those ancient standards, the judge himself may be removed from his position by a writ of quo warranto. In 18th century England this became a serious matter, and "peasants with torches and pitchforks" burning down courthouses and hanging judges was something that actually happened. If courts were derelict the people, as militia, took the law into their own hands, enforcing writs that by common understanding issued by default. But that process was not always so "due", and the line between militia enforcing the law and an enraged mob was often crossed.

We now live in an era of increasing tension between the judiciary and the public. This is a matter that deserves our constructive attention, or history could repeat itself.

The origins of dialectics and the hubris of Hegel and Marx

Hegelianism was an exercise in intellectual hubris which easily misled its followers into political hubris. Hegel's antithesis-thesis-synthesis structure came straight out of medieval law schools. This dialectical method was (and with some variations and changes of terminology still is) used where, under the facts of a dispute, the law as it stands is arguably ambiguous. Legal scholars analyze the legal arguments of plaintiff (thesis) and defense (antithesis) and reconcile these arguments in order to reach a just verdict and a more comprehensive and clear rule of law (synthesis).

Later in the Middle Ages, but still long before Hegel, the dialectical method spread, with variations and changes of terminology, to some other branches of university study (e.g. theology and science), but its success was still quite dependent on the availability of a rich set of facts from which to use the method to induce laws. Thus, for example, phrases like "law of nature" and "scientific law" stem from this origin of the inductive scientifc method.

The real value of dialectics in interpersonal matters comes from taking a specific dispute between two specific people, with very specific and well investigated facts, and inductively reaching a new clarification or minor variation on a rule of law, custom, or manners (synthesis) that achieves a just outcome for this dispute.

This is how the law is supposed to evolve, inductively, slowly, case by case over many centuries. This is how good law is "made" by judges. But in the hands of a dogmatic philospher like Hegel or Marx, dialectics became an exercise in faux implied omniscience -- the idiotic but compelling hubris we can trace the broad path of history itself through the movements of major opposing ideas (Hegel) or economic factions (Marx), and through this cabalistic exercise learn the "laws of history" which culminate in the idealistic outcome already desired by the philosopher, whether the supremacy of the State (Hegel) or an egalitarian utopia (Marx). Divorced from the reality of details and the patience of evolution, the outcome in real socieities, though labelled "progressive" (in honor of the direction of history as "discovered", i.e. as desired and cabalistically justified, by these philosphers) -- though called "progressive", the actual outcome was more often than not quite in the opposite direction. The actual outcome was analogous to what a genetic engineer would get if (with our limited knowledge of the workings of genes and the proteins they code for) said bioengineer cut and hacked thousands of genes and then reassembled them in a more "rational" manner. All that bioengineer would get out of such a naive and radical procedure is monsters and death. Our genetic code is far too complex to change more than a few genes at a time. Our interpersopnal relationships, and thus our society and our politics, is far more complex still. That is why we got even more monsters and death from Hegel, Marx, and their many naive and radical followers.