Developing Law

I’ve become fascinated with something I call “development”, for lack of a better word, and because I think this word “develop” is fascinating in itself.

 The problem for lawyers and judges is interpretation of texts. The invention of the book has transformed society by making it possible to record knowledge, ideas and experiences and carry them into the future and around the world. Writing, however, requires reading, which has its own problems.

 

Before books there were decrees, such as the first wage and hour laws decreed by Hammurabi. For example, ox drivers got six “gur” of corn per year (one wonders what the value of a Babylonian “gur” in 2012 dollars might be).

Before books as such there was the text backed by force. Perusing the Code of Hammurabi is a worthwhile exercise for any lawyer because it gives you an idea of how ancient some legal principles are. For example, some contracts have to be in writing, and it’s not good enough to testify, even on a stack of Bibles, that the deal was thus and such. In the English-speaking legal world we call this rule “the Statute of Frauds”, referring to an Act of the English Parliament in 1677, even though in America the appropriate statute is one of our own, and even in England, the Statute of Frauds has no doubt long since been reformed many times. Hammurabi’s Code, however, specifies that if you give money (gold and silver) to someone for safekeeping, you better record it in writing and in front of a witness, or else the debt is unenforceable. You can’t look to the King to force the man to give you your money back without a duly witnessed contract. “Get it in writing” has been good advice since 1780 BCE! Some things never really change, and commercial law probably has the best examples.

Other things do change, however, and for such changes I am using the word “develop”. It comes from an Old French word meaning to “unwrap”. If you “envelop” something you cover it (perhaps with vellum?), and if you “develop” it, you uncover or reveal it.

This sense of “revealing” was used by early photographers to describe the process of shining light through their glass or celluloid “negatives” onto light-sensitive paper to produce a photograph: they called this chemical process “developing”. Now that photography is digital and electronic I suppose this meaning is rapidly becoming obsolete. The word lives on, though, in the description of certain jobs: real estate developer or software developer.

Now, in a broad overview of the real estate development process, you start with vacant land and end up with some buildings. But real estate development doesn’t involve much, if any, building. Rather, it gathers the things necessary for that building to take place: money, permits, contracts.

I am led to believe that in “software development” something similar takes place, though it has a back-and-forth aspect to it: someone expresses a need or an idea, you go forth with your team and code it, you go back and say “Is this what you want?” And apparently inevitably the answer is “No” or “not quite” or “can you do the background color of the interface in brown?”

That back-and-forth aspect would not be appropriate in real estate (you don’t want to be building and tearing down all the time, you need to get it right the first time). But for the purposes of my analogies to law, it’s perfect.

We call it “interpretation” and there are whole schools and theories of how to interpret laws, but frankly I think that’s pernicious bullshit. “Interpretation” assumes that the framers of the text had some sort of “intent”. This is a complete fiction. Judges and professors can expostulate all they want about the need to enforce laws according to the legislator’s intent (as opposed to their own ideas, or the needs or demands of the parties) but the fact is, that intent is not clear or there wouldn’t be a lawsuit in the first place. And the truth of the matter is that legislators either come up with a general scheme or skeleton of a law and expect the judiciary to fill in the gaps, or they make a hash of things which results from a political compromise, such that the law, as enacted, reflects diverse or even totally contradictory “intents”. If you can give effect to two completely contradictory “intents” in a single, real life case which requires a definite winners and losers, then you have what it takes to be a judge in this system.

In reality that task is not as hard as I made it sound in the last sentence, because no case is decided in a vacuum or some timeless eternal moment separate from history. Judges have resources, or at least, they do if lawyers have done their job of bringing the decision-making resources to them. And after some 25 years of doing this, let me tell you, speculation about “intent” is the least useful of all such resources. The most useful are these things we call “facts” or evidence. But let’s consider an example.

In the United States of America we have this idea we call the “First Amendment”. The actual text of the amendment, the first among some twenty-odd and first of a package immediately applied to the Constitution when it was ratified, has several components. Some deal with religion (the Establishment and Exercise clauses) some deal with speech, the press and assembly. In my opinion, the only clause they were really “serious” about, understood and intended to enforce, was the Establishment clause. Because they had an immediate problem in forming a Union out of the several States: different “established” religions in each one. There was the Anglican in Virginia and the southern States, the Quakers and Lutherans in Pennsylvania, the Congregational (Puritan) in Massachusetts, the Baptist in Rhode Island, the Presbyterian in New Jersey, the Dutch Reformed in New York. Which of these was to be the Established Church of the federal Union? How about “none”? They went with “none”.

Today, however, when people talk about “the First Amendment” they are referring to a grand idea in which free expression is a necessary part of the structure of a free society. History shows this is almost certainly not what the Framers meant. Why? Because no sooner was the ink dry on the Bill of Rights, they enacted the Alien and Sedition Acts. The Framers wrote “Congress shall pass no law…” but then Congress did pass such a law. And John Adams, for whom the law was passed, didn’t veto it. Moreover, he enforced it, against people who criticized him.

The longest sentence under the Sedition Act was given out to a man who set up a Liberty Pole with the words: “No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President; Long Live the Vice President”. (It helps to recall here that in those days the Vice President was the second runner-up, in this case Thomas Jefferson, Adam’s political opponent.) That guy got jail time and a big penalty (Justice Story didn’t like the fact that he would not implicate his co-conspirators: so much for the Fifth Amendment, eh?) but he was pardoned by Jefferson.

 

If the Framers had expected Congress to simply heed their words, they were disappointed. If they expected the President to veto such a blatantly unconstitutional Act, they were disappointed. If they expected the Judicial Branch to step in, they had no right to be disappointed, because they had not given the Judicial Branch any explicit power of judicial review. That had to be “interpreted” into the Constitution in 1803 by the Supreme Court in Marbury v. Madison.  If you want to know what the Bill of Rights means, the last people in the world to go to are the Framers. They clearly had no idea. 

Personally, I think calling judicial review an “interpretation” of the Constitution is ludicrous. It was a necessary power that had to be “developed”. Marbury was the first of many steps that led to the modern situation where “free expression” includes wearing black armbands to protest a war, nude dancing, and cartoon depictions of child sex, and courts can (and have) stepped in to protect these expressions on the grounds of “the First Amendment” (a text which says absolutely nothing about armbands, dancing, or hentai. )

Other developments include the Fourteenth Amendment and its use to “incorporate” the Bill of Rights for the purpose of judicial review of State law, the creation of an organization of lawyers willing and dedicated to bringing cases to the courts (the ACLU) and above all an intellectual discussion that had to occur among the justices before the First Amendment could actually be used to strike down laws. This is where we get famous points like Holmes’ “fire in a crowded theater” analogy. But note well: the Supreme Court did not start enforcing the First Amendment until well into the Twentieth Century. The text is hardly self-executing nor is its “intent” clear. “Congress shall pass no law…” seems pretty clear and definite, but what if it does? Then what? 

Freedom of speech is actually one of the easier ones. The rest of Roosevelt’s “Four Freedoms” (Freedom of speech, freedom of worship, freedom from want, freedom from fear) start getting harder, right after “worship”. We find nothing definite in the text about “want” or “fear” (except general statements of purpose, such as the Preamble to the United States Constitution: “to establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”).

Perhaps the thing to do is … write more text? Like the UN Declaration of Human Rights? I suppose that’s one way to develop these ideas. Frankly, though, the example of the First Amendment leads me to believe that more text isn’t as likely to “develop” these ideas as well as more enforcement institutions (like judicial review, like federal incorporation, like the ACLU) which take the necessary first step of presenting the cases for discussion. Because with cases come facts, and from facts we get decisions.

 

 

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About Hazen Hammel

Lawyer, husband, father, and explorer of ancient intellectual ruins.
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