Law and the Conditions of Freedom – II

One of the great revelations I had while taking Professor Hurst’s course was a glimpse of how American law really functioned. It was, in some respects, not an entirely new perspective, since my first year Contracts course was taught by a group of scholars strongly committed to a sociological approach (so much so, that I never learned basic black letter terms like “offer” and “acceptance” until after graduation when I took a commercial course to prepare for a bar exam). But even in those courses, like most other academic ones in law school, focused on supreme and appellate court opinions – in other words, what the judges said the law was in the mad dance to weave their rationales into those articulated by other judges in previous court opinions.

Professor Hurst also had us look at court opinions, but his focus was on legislation and administrative regulations, and how they were written, interpreted, and enforced. He had us start with the radical reformation of the law that occurred in the nineteenth and eary twentieth centuries, when people struggled with de facto social and economic laws and the difficulty of fitting English common law principles to the new situations presented in the young United States.

What was most striking was the context in which the famous (to lawyers) Footnote Four appeared in the United States v. Carolene Products Company, 304 U.S. 144 (1938). That case dealt with a federal law that prohibited filled milk (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. The issue was whether a doctrine known as substantive due process would continue to be used to thwart government regulation of business activities. In a great reversal, the Court decided that such legislation would be considered presumptively constitutional if there was any rational basis for it – a decision that removed some of the major obstacles to New Deal legislation. Footnote four, however, carved out an exception to the new rule that, in effect, created something quite new – the notion that substantive due process was a principle that would be used to protect the interests of “discrete and insular minorities” because a majority-ruled legislature could act out of prejudice or ignorance of such interests. What it came to mean, as developed in later cases, was that regulation adversely impacting such minority interests would be subject to higher judicial scrutiny. [Historical note, that higher test, later known as “strict scrutiny,” was first applied in the dissenting opinion of Justice Black in Korematsu v. United States, 323 U.S. 214 (1944), in which the majority infamously upheld the constitutionality of the internment of Japanese-Americans during World War II.] Strict scrutiny was later seen to be implicated as follows:

It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause. These are the two applications that were anticipated in footnote 4 to United States v. Carolene Products.

(Strict Scrutiny, Wiki).

Most of us who went to law school at Wisconsin back in the late1970’s and 1980’s came thinking of American law in terms of the civil rights movement and civil liberties. The Warren Court was still very much in our consciousness, and although personal politics and philosophies were not necessarily in agreement with it, and our career plans may have involved work in other areas of the law, it still made a huge impression as to grand scope of human conduct and societal concerns that law might address.

Personally, I was especially enamored with issues concerning civil liberties, since I had just come from working to help ex-prisoners and mental patients transition into the private work force in Winnebago and hoped to return to help them with my legal skills (as I did, in fact, for a few years – return, that is, not sure that I really helped much). But whatever romantic notions I had about the Bill of Rights and individual freedom were, if not blown away, replaced by the much fuller, richer view of American law that Professor Hurst gave me and which I later had the good fortune to see in practice working for a judge with a similar perspective.

What I discovered was that freedom, from the beginning, was founded in economic principles and actions. While one can choose to think in the abstract about being “free” in terms of personal liberties, for at least the male, non-slave population of the United States, freedom meant being free to work, earn money or goods, and buy and sell property without the kind of legal and social restrictions found elsewhere (i.e. Europe and areas under its control).

Freedom, in this sense, did not mean doing whatever the heck one wanted, even though our literature and later cinema exalted rugged individualism and self-reliance. Having real, effective, economic freedom meant having a set of expectations and relations that one could rely on, as well as the absence of certain kinds of constraints.

Let me try to give a simple example. Say person A buys or stakes out a homestead along a creek or river. Then B and C come along acquiring land up and down stream. How does one decide how to allocate use of the water and water flow, for irrigation, power, or whatever? Perhaps in England the law might provide that person A, who was there first, has first and exclusive rights, but in developing America, the kind of privileges afforded the existing gentry did not make much economic sense. So, the whole notion of what ownership means, which bundle of rights goes with the land and land adjacent to water (and the mineral rights below and the air above), had to be reformulated, by courts and legislatures.

This was not just, for me, a matter of historical record (though I found the developments that followed – the rise of the corporation, labor unions, health and welfare regulations, government bureaucracies, and the vast, hidden allocation of resources by increasingly complex taxation schemes -- fascinating in their own right). It was a realization that the things that count the most in everyday life, at least in terms of physical survival and our place in society, involved the protection of freedoms that are far more complex than notions of personal autonomy. In fact, personal autonomy alone does not get one anywhere – one must be free to give and receive, be obliged and rely on others’ obligations, to have any measure of self-control and direction, let alone personal fulfillment.

From a more academic point of view, this meant the following:

Hurst's focus on the multiple roles of law in society was key to his historical sociology and the point at which his work gets most interesting. In contrast to interpretive critiques that reduced Hurst's conception of law's function to a simple economic instrumentalism or middle-class values consensus, Hurst explicitly and repeatedly recognized (and called for further research into) four broad and salient combinations of value and function that marked "the distinctive roles of law in United States history": violence/force, liberal constitutionalism, procedural rationality, and resource allocation. Those four roles were the basis of Hurst's historical-sociological definition of law: "Law has meant organization for making and implementing choices among scarce sources of human satisfaction—organization marked (1) by successful assertion of a legitimate monopoly of violence, (2) by constitutionally ordered power, (3) by procedures which emphasize adherence to legitimated form and to continual cross-check of generals and particulars, and (4) by its regular use to allocate resources to affect conditions of life in society."

William J. Novak, Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst, Law and History Review, Vol. 18, No. 1, at 23.

I’ll have more to say about this in time. But, at the risk of beating a dead horse, I want to say that I will be considering this perspective from Hurst in contrast to that of Rowan Williams, which seems so sterile and arid in comparison because it ignores the social context and nature of American notions of freedom in general and, in particular, with regard to how our law defines individual rights (which, I think, in turn impacts how Williams considers the role secular government and law should play in governing matters of individual choice, including the practice of religion).

More on that later, but for now, Williams again, for a reminder of his views of Western culture supposedly posits about freedom:

1. A doctrine about human rights. …. the assumption that human beings were born with entitlements to certain kinds of freedom, more and more envisaged as freedom of access to what would make each human being content with their situation and would permit no potential in human beings to go without being developed…. this model of individuals as endowed with the right to win control of their environment as far as possible.

2. The assumption that freedom understood as the absolute liberty to choose between alternatives is an unqualified good.

3. Democracy. If no individual or group or class has the right to define what is going to be possible for others, the organisation of social life has to be by means if the widest possible consultation about people's preferences, with the option of changing those who administer the law and policy of society when change is desired.

4. The distinction between public and private. This means encouraging people to think in terms of a sort of contract by which the greatest benefit to the greatest number is assured by majority decisions, and individuals accept that their specific choices may rightly be limited when they have possible consequences for others that would limit the liberty of those others. But this is offset by the agreement of public democratic authority to allow an almost unqualified freedom in those areas where there are no obvious public consequences for choices. Modern democracy brings with it a pluralist assumption about personal morality.

5. The character of modern European art and literary culture. This is something that focuses intensely on the complexities of the individual's awareness and emotion. It appears in musical Romanticism, in a variety of modernist movements in visual art, but above all in European (and American or Australian) drama and fiction. What people look at and think about when they read novels or watch plays and films is the records of specific individuals making their choices, experiencing the effect of their choices, battling often to secure the right to choose and so on.

Five characteristics of European-American culture, extracted from Rowan Williams, Europe, Faith and Culture (January 2008).