Illustrious and distinguished, Oliver Wendall Holmes is widely heralded as being amongst the greatest legal scholars in American law. Among his most crucial contributions is his shaping of the legal realism movement and his 1897 Boston University Law School address, “The Path of the Law.” This piece endeavored to assist legal practitioners in understanding the law by directing them away from the law’s formation and toward its consequences. He first deals with the perceived relationship between law and morality, arguing that they are in fact utterly separate and unrelated. To illustrate this point, Holmes summons the infamous “bad man,” “who cares only for the material consequences which such knowledge enables him to predict,” and the unheeded good man, “who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” The bad man, as Holmes states, only obeys the law if he calculates that “if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money.” Conversely, the bad man will break the law if his external calculations inform him that he would do better to incur the legal sanctions resulting from breaking the law. It follows, according to Holmes, that morality has nothing to do with law, and amounts to little more than a state of mind. He holds that there are no objective standards for determining right and wrong and therefore no simply just answers to legal questions. For Holmes, legal adjudication has no natural basis; instead, it comes down to weighing questions of social advantage according to the exigencies of the age. Concepts such as “rights” are willed by the dominant forces of an age and community.

Upon dissociating law from morality, he then reckons with the relationship between law and logic. Though he does not deny that logic is present in legal reasoning, he rejects the notion that it is the definitive tool to reach truth. He stated his precise objection thusly: “The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct.” In other words, judges decide a case due to a certain bias, then use logic to justify their decision, and there can be no logical necessity or reasoning about law, apart from calculations dictated by answers to questions of socioeconomic advantage. The actual grounds of decision, according to Holmes, are based on the “felt necessities” of the time; judges decide questions first, and find reasons for them ex post facto.

But, by delimiting law as being only what a judge will do, by focusing on the legal consequences of the law and ignoring its moral underpinnings, Holmes’ definition of law begins at the end of the path, and a lingering preliminary question remains and begs: What do lawmakers draw from? Or in other words: How do judges or lawyers know what the law is before it is applied? While Holmes compels a separation of law and morality in the mind of the reader, the ensuing inevitability is that the reader is left reflecting upon the nature and essence of what the law is. Even as Justice Holmes wanted us to separate law and morality in order to better understand the law, it mustn’t follow that the legal practitioner cannot and does not additionally focus on the good man’s perspective, for if the law is the “external deposit of our moral life,” how can we focus on the bad man in a mutually exclusive sphere from that of the good man? Holmes’ separation mustn’t necessarily compel the conclusion that the bad man side of the equation constitutes the totality of what the law is. Indeed, the reader’s view of the law is incomplete if she ignores or diminishes the extent to which the good man’s morality informs the law. The good man is a blood-relative, and sine qua non of the law. The “vaguer sanctions” of the good man’s conscience is the root of the law, and becomes the law only after a sort of quantum leap – the moment at which society deposits the good man’s internal moral values into the positive bank of the law. Thus, recognizing that law can respond to what Holmes called "the felt necessities of the times” must not necessarily mean saying that there is no more to law than that.

In highlighting law’s adaptive nature, The Path of the Law did not bring something bold or new to law; it only maybe took something away: the idea that, even as law adapts to changing circumstances, it can, and does, adhere at its core to immutable principles of justice. A firm believer in social Darwinism, Holmes upheld forced sterilization in the notorious case of Buck v. Bell, writing that “it is better for all the world if, instead of waiting to execute offspring for crime or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” In words Holmes gleefully described in a private letter as “brutal,” he concluded, “Three generations of imbeciles are enough.” In the absence of morality, Holmes apparently could not conjure a basis for not forcibly sterilizing “imbeciles.” Although the ethical skepticism that accompanies the Path of the Law and legal realism broadly need not lead to positions like Holmes's on eugenics, perpetuating the belief and narrative that human beings devise their own values to serve their selfish interests makes monstrous moves like Holmes's easier. Dispassion is a viral, self-fulfilling prophecy. We are more than mechanized calculators of costs, benefits, and legal sanctions. The law and human actions are not stripped of metaphysical morality, and I think we all innately, even if timidly, know that.

Whose definition is th8i? It's unrecognizeable, owing primrily to the absence of "nature."

Those who unironically call themselves “legal realists” counter claim that values are variable, and that what is ruled to be fair true or moral turns only on the perspective of the relevant lawmaker.

No. It's correct to say that legal realism and natural law theories are at odds, but this doesn't locate the difference. Some analysis of other peoples' actual ideas (Holmes, for example, whose hostility to natural law is that it gets you killed.)

I posit, however, that even the most seemingly clearcut manifestations of legal realism (such as two judges ruling differently on the same set of facts), are never completely devoid of the fantasy of natural law. Accordingly, I propose that even though we know natural law does not palpably exist, we should, and in fact do, pretend it does.

How is it possible to write about more than 2,500 years of intellectual history (history of ideas to be precise) without naming a thinker, quoting a text, or referring to a scholar? Where are Aristotle, Cicero, Aquinas, or Thomas Jefferson? Adam Smith, Mary Ann Glendon, Oliver Wendell Holmes, Wendy Brown?

Draft One was about a case that was never quoted or analyzed, encountered emotionally. Draft Two was about one article by Garretrt Hardin, but it never quoted the text or squarely dealt with its primary idea, ignored its context and misrepresented the field of inquiry it was analkzing. This is draft Three, a declamation about one of the most complex ideas in the human canon that is unmoored from text altogether, substituting emotional resonance for close engagement.

Essay Two is a beautiful exercise in emotional resonance, taking everything entirely personally. There's a pattern. We should meet it squarely. To succeed in law school and in law practice, others of your powers need to be fully engaged. They are present, but here unused. You and we need them now.

Replacing new draft in this topic. Next version contains edits.

Should We Bother with “Natural Law?”: A Love Letter, from the Levant

Theories of natural law hold that the world and the law follow fundamental rules of justice that are eternally morally correct. Those who unironically call themselves “legal realists” counter claim that values are variable, and that what is ruled to be fair true or moral turns only on the perspective of the relevant lawmaker. I posit, however, that even the most seemingly clearcut manifestations of legal realism (such as two judges ruling differently on the same set of facts), are never completely devoid of the fantasy of natural law. Accordingly, I propose that even though we know natural law does not palpably exist, we should, and in fact do, pretend it does.

To claim that lawmaking is practically unconcerned with morality is erroneous and deceiving, as we all know, experience and sense. Woven into laws are compromises on efficiency and logic in the furtherance of liberty or equality. It is fine to concede that universal morality is a sham, but we do, in practice, ground much of our legal systems in this faith. Thus, it’s worth defining what it is or what it should be. For even if morality cannot be objective, I still think it a worthy venture to define justice; to put our finger on what we mean when we call something “just” or “unjust.”

Is justice liberty? I candidly confess that my personal belief is no. Regardless, it’s a common conception and thus worth exploring. If justice is indeed liberty, is that misleading? Is it sad? If liberty is the freedom to act as one desires, then it is inherently individual and thus inescapably incomplete. There is no way to, in the simultaneous name of both liberty and justice, uphold one’s freedom to discriminate and another’s freedom to not be discriminated against. Guaranteeing liberty requires making somebody else provide it. This problem is why T.H. Green held that the absence of compulsion isn’t enough to make a person free. How can you separate one’s liberty to enslave from one’s liberty to not be enslaved without seemingly compromising on pure liberty and admittedly incorporating other moral principles? We symbolize and embody justice with scales, and liberty is inherently imbalanced. Justice thus isn’t wholly manifested by unfettered liberty. So,

Is justice inequality? Is this unrealistic? Is it backwards? The first difficulty that arises in claiming that justice is equality is the question of whether inequality is engineered or natural. It’s hard to envision a society we would call “just” with pervasive inequality, and yet harder to envision any society with no inequality at all. Regardless, I think it witless to venture through history to determine whether inequality has always existed, because just as societies have conquered many of the challenges of the natural world — making childbirth safe for women or eliminating common illnesses that once were frequent killers — we can alter the course of inequality, too. Further, it is at least certain that a nation’s level of inequality is the result of its policies and institutions. So even if perfect utopian inequality has never existed and is unrealistic, the pursuit of justice can be delineated as the pursuit of moving away from dys topia. With that being said, if inequality is indeed natural and universal, when and how can we claim that it is unjust?

If liberty is incomplete and equality is natural, then perhaps my attempt to interpret natural law is useless and in vain. Yet I still defend principles and criticize laws in the name of equality. I conceded that it’s fallible. I’ve heard that it’s subjective. But I do think it resonates with people. It’s difficult to articulate why equality is worthwhile. In stubbornly resisting the urge to resort to efficiency arguments about mobility and growth, I am left with timid ambition that to cite compassion and to raise love is sufficient, convincing, and true. Legal realism and rejection of the natural law of equality are grounded in the assumption that society is nothing but the sum total of individuals; that nothing transcendental or metaphysical binds us together. We innately, even if timidly, know that’s not true. The lazy and glum narrative that we are inherently individualistic is overstated and disenchanting. There is no account for why we attempt to define, care about, write about, and talk about justice as we do if not because we are inherently concerned with being benevolent.

Despite my romanticism, I do concede that natural law does not objectively exist. But we should continue defining it and studying it; pretending that is does. Individualism is a viral, self-fulfilling prophecy. When we hold that society is but a struggle to contain an underlying selfish and evil human nature, it shapes the way we relate to each other. As a society, if we subscribe to the theory of inevitable individualism, we condemn and limit ourselves to trying to manage individualism. Managing individualism shouldn’t be out priority or structural basis, because our individualism is not the sum total of who we are, for we are actually, (maybe even naturally?), more cooperative than selfish. Perhaps we can ground the objectivity of the natural law of justice not in truth of the universe, but in truth of humans. I believe sincerely that metaphysical love and inborn communism exist deep in our nature. They are true and natural. They are the natural law.

Hardly. When I taught the course I never taught the case at all.

One party obtained title from an indigenous tribe then in possession of the land, the other party via Congress. Marshall selected the party with title from Congress, explaining that indigenous tribes lacked the power to convey title because of both their diminished sovereignty and the impossibility of owning property in the collective, thus placing individual ownership at the forefront of American legal thought. Long heralded as a panacea for poverty and inefficiency, privatization has been our maxim. As deeply as this obsession for privatization runs, persists the ingrained skepticism of collective ownership. This essay dares to question: Will shared resources always be misused and overused? Is privatization the only way to protect the environment and end poverty? Most economists will answer “yes” — and for proof they, like my professor, point to the most influential article ever written on those important questions.

I don't think I understand the treatment of Garrett Hardin, who seems to wind up representing pretty much the opposite of what I think he thought.

But in any event it seems to me that on the central issue identified by this draft, we can take the conversation much further along. Ellie Ostrom did win the Nobel Prize; my clients and comrades and I did make the free software commons the center of how the world produces software; Wikipedia did change the life of every literate person; several trillions of global commerce in free software products alone happens every year. Just the tiny sliver of materials I've happened to assign so far shows the extent to which commons understandings have become fundamental to contemporary political economy. The best route to this draft's improvement seems to me to be to put itself in touch with at least what we've done already, if not the dotCommunist Manifesto itself.

Paper Title

-- By AyaHashem - 16 Feb 2023

On the first day of Property this semester, my Professor traced American property law back to the first and most seminal case: Johnson v. M’Intosh wherein Justice Marshall considered who the rightful titleholder was between two parties. One party obtained title from an indigenous tribe then in possession of the land, the other party via Congress. Marshall selected the party with title from Congress, explaining that indigenous tribes lacked the power to convey title because of both their diminished sovereignty and the impossibility of owning property in the collective, thus placing individual ownership at the forefront of American legal thought. Long heralded as a panacea for poverty and inefficiency, privatization has been our maxim. As deeply as this obsession for privatization runs, persists the ingrained skepticism of collective ownership. This essay dares to question: Will shared resources always be misused and overused? Is privatization the only way to protect the environment and end poverty? Most economists will answer “yes” — and for proof they, like my professor, point to the most influential article ever written on those important questions.

Since its publication in 1968, “The Tragedy of the Commons” has been a dominant paradigm within which social scientists assess natural resource issues. Garrett Hardin illustrated his “tragedy” by describing a pasture open to a large group of cattle herders. Each herder, in deciding whether to add additional cattle to her herd, seeks to maximize her gain. But the open pasture presents a classic externality problem. While each cattle herder bears the full benefit of adding an additional cow to her herd, she bears only a small fraction of the cost. Accordingly, each herder continues adding cattle to her herd until they exceed the carrying capacity of the pasture. In this way, said Hardin, "freedom in a commons brings ruin to all.” It is a powerful parable, because this particular iteration of the externality problem can purport to form the root of virtually all environmental problems, from the overexploitation of fisheries and forests to the pollution of water and air.

However, Hardin’s single pasture is perhaps not the perfect metaphor to describe our world and ecosystems. Hardin assumed that each cattle herder would bear the full benefits and the full costs of her decisions, that all externalities would be internalized and the tragedy of the commons would be solved. Hardin’s argument started with the unproven assertion “it is to be expected that each herdsman will try to keep as many cattle as possible on the commons… each herdsman seeks to maximize his gain.” Evidence and common sense show that this is absurd: people are social beings, and society is much more than the arithmetic sum of its members. Even if the herdsman wanted to behave as Hardin described, she couldn’t do so unless certain conditions existed. There would have to be a market for the cattle, and she would have to be focused on producing for that market, not for local consumption. She would have to have enough capital to buy the additional cattle and the food they would need, be able to hire workers to care for the larger herd, build bigger barns, etc. And her desire for profit would have to outweigh her interest in the long-term survival of her community. In short, Hardin’s conclusion was predetermined by his assumptions. Hardin didn’t describe the behavior of herdsmen in pre-capitalist farming communities — he described the behavior of capitalists operating in an already capitalist economy. Contrary to Hardin’s claims, a community that shares forests and fields has a strong incentive to protect them, even if that means not maximizing current production, because those resources will be essential to the community’s survival for the long term. As Karl Marx articulated, nature requires long cycles of birth, development and regeneration, whereas capitalism requires short-term returns. Where land use affects an ecosystem, internalization of the relevant externality is likely to require consolidation of the entire ecosystem in a single owner. But, ecosystems are not easily defined or delineated. They consist of vast networks of connections and dependencies between species, habitats, and geological formations. Imagine that one particular species of grass provided the most efficient food for cattle on the pasture, so that planting one's entire plot with that grass would support the biggest herd. If the entire commons is planted with this one species, the result will be an ecologically fragile monoculture, more susceptible to diseases than the ecosystem would be if one-tenth of the pasture were planted with a mix of native grasses. Under these circumstances, simply dividing the commons into private property wouldn’t solve the tragedy. All would be better off if each herder planted one-tenth of her plot in native plants, but without assurance that others will do the same, no one herder will have an incentive to sacrifice her overall yield. Here the commons has been privatized, but tragedy persists. A crucial component of the market solution to the tragedy of the commons is that all those affected by the externality be involved in the Coasian negotiation, which outside a single pasture, simply doesn’t happen.

Stripped of excess verbiage, Hardin’s essay asserts that human beings are helpless prisoners of biology and the market and that unless restrained, we will inevitably destroy our communities and environment for profit. I sincerely believe that we are neither trapped in inexorable tragedies nor free of moral responsibility. What Hardin had portrayed as a tragedy was, in fact, more like a comedy. While its human participants might be foolish or mistaken, they are rarely evil. Hardin simply ignored what actually happens in a real commons: self-regulation by the communities involved. Despite evidence that in the real world, small farmers, fishers and others have created their own institutions for preserving resources and ensuring that the commons community survived through good years and bad, many are still all too willing to believe the worst of their fellow humans – to the detriment of conservation efforts worldwide. Those assumptions, whether conscious or unconscious, close off an entire universe of alternatives.

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