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Monday, August 14, 2006
Property and the Rule of Law

NOTE: I am not sure when this post will appear due to publishing issues at Blogger.

There is on-going tussle--the world battle might be too strong of an image--between those who believe that the institution and idea of the 'rule of law' makes democracies more resilient, and those who believe that economic success, premised upon a strong conception of property rights, are the source of democratic strength. It is probably a combination of both--that property rights are protected within a framework of the rule of law--but let us assume that the logic of law and the logics of property are in tension and explore where that gets us.

Justice Anthony Kennedy sides, recently, with the rule of law crowd. Dahlia Lithwick, covering Kennedy's recent speech, wrote:
Kennedy—for all [he] cannot seem to stop being Kennedy, even in Honolulu—arrives with a serious project. He is charging the assembled attorneys to do the job of selling to a doubting world "the essentiality of the rule of law." "Make no mistake," he warns, "there's a jury that's out. In half the world, the verdict is not yet in. The commitment to accept the Western idea of democracy has not yet been made, and they are waiting for you to make the case." Referring to terrorism and violence and totalitarianism, he says, "The tide has gone out, and we are on the beach."

It's a tall order to swallow with your aquamarine bikini-tini. But it's a quintessentially Kennedy point: "Our best security, our only security, is in the world of ideas, and I sense a slight foreboding." The world of ideas may be far from Honolulu. But the world of ideas is the only place Kennedy calls home. To that end, he assigns himself a seemingly impossible task: He wants to define "rule of law" so we can start to peddle the concept worldwide. It is not enough to sell the world on the U.S. Constitution, he says. That is merely a set of "negative commands." He is looking for a positive formulation for the rule of law...

Kennedy believes that justice has a purpose. It is not a neutral set of ideals. It is a promise that humans "can dare, can plan, can have joy in their existence." It's premised on the view that poverty and hopelessness and alienation should cause us worry. Maybe that premise is too ambitious. Maybe it is truly not the province of the law to pave over the differences between those who are suffering and those who are not. But Kennedy at least recognizes that all this suffering and alienation is the handmaiden of lawlessness; and that it is as much the task of lawyers to fight lawlessness as it is to serve some dispassionate, neutral machine called the law.

We cannot sell this cold, rational notion of justice and democracy and—as he warns these lawyers—"You can make this case. You must make this case."

Kennedy's inability to find certain, easy answers and his tendency to hold grandiose hopes for the law are fodder for his detractors. This is the Kennedy of Casey, and Lawrence, and Rapanos, and it's the Kennedy that plows up fields of constitutional law and sows seeds of confusion and inscrutable grandeur in their place. This is the Kennedy who drives conservatives nuts with his notion that the courts must fight injustice, regardless of the messiness that ensues. But as he concludes with the charge that our freedom rests on our ability to sell the world on democracy, the crowd is on its feet.

Maybe the fact that Kennedy is suddenly experiencing his moment in the sun isn't just a historical accident of a four-four court with a guy in the middle who can't seem to make up his mind. Perhaps this country is actually ready for what he's selling: the twin notions that the world is an enormous, embattled, struggling place and that the law has a responsibility to try to fix it. Not just in service of the Constitution, but in the service of freedom.

Is Kennedy correct? Is the rule of law the greatest weapon in the arsenal of democracy? Or, is private property and economic development the key? (To be fair, Kennedy questions whether the rule of law can occur within the context of mass deprivation. I am going to briefly gesture at the interrelationship between law, property, and development.)

. You could have a private property regime without the rule of law. Private property, without the rule of law, breeds conflict and does not protect individuals. 2. The rule of law, most liberal or democratic philosophers believe, must contain protections for private property. 3. Thus, the rule of law is the most effective ideational weapon in the arsenal of democracy.

1. The classic case of the right of property without the rule of law is aristocratic privilege. The aristocrats themselves were only bound by the rules that the central aristocrat--often known as the monarch--could enforce. The monarchy itself was bound by no rules it did not recognize. Though there was no true sense of the equal rule of law, the idea of property and property relations within this context were quite embedded within the social framework. Nobles derived their claims from ownership of land, title, and monies associated with both of the former.

Let us consider the colonial context where law and property come into an even stranger relation. Classic Lockean principles, which allow for the appropriation of land that is not being used at its maximum efficiency (by European standards), posited that private property was a sacrosanct contract that transcended governmental boundaries. Locke argued, quite controversially, that America was in a model state of nature. In this state of nature, all land was available for appropriation by private citizens because the land, not being put to productive and profitable use, was not property. Once an individual mixed his labor with the land, and thereby made it (his) property, natural law itself was sufficient to justify that individual continuing his claim to that property and to participate in property relations without any reference to a civil authority. This logic justified the settler acquisition of land and the colonial imposition of new property and social relations, a process began by England in Ireland and perfected in the Americas.

The relationship between the settler and the native was a relationship of war and blood unfettered by the rule of law. What that means in practice is that the land acquired by the settlers immediately became a part of their polities and governed by their laws whereas the land yet to be acquired by settlers was seen as a justifiable object of conquest. No authority, natural law, or civilizational imperative tempered settler appetites for more land; in fact, as soon as the military balance of power favored the settler governments, they unleashed terror, military force, concocted extemporaneous treaties, and implemented policed repression--Michael Mann describes as the ethnic cleansing of settler democracies--to bring more land into the settler polity and under settler control and cultivation. Once the settlers owned the land, the land itself became the subject of juridical property relations; that is, the land was either privatized or demarcated for government use and was unavailable for extra-legal transmissions of ownership. This privatization and demarcation of space was a precondition for the emerging capitalistic imperatives that would spring from England and its imperial international economy and allowed for capitalist development.

Once under the dominion of the law, the land and its inhabitants were ruled by law. However, the law was suspiciously silent, as it usually is, on the modes of acquisition which preceded its power. In the colonial context, we observe most clearly what property rights without the rule of law--settlers taking lands from the natives prior to that land being incorporated into the settler polity--looks like in contrast to property rights within the rule of law--the land after it becomes a party of the polity and earmarked, legally, for public and private ownership and use. Once the land entered the settler polity it was safe from the state of war and, ostensibly protected individual rights and access to their land; before the land was incorporated, however, the gun often determined who owned what.

2. Most liberal philosophers believe that the rule of law first begins with the protection of private property. The rule of law, in the liberal case, being the idea that ever person stands equally before the law to be judged in accordance with its rules. I find the Kantian defense to be the most straightforward and intuitive.

Kant argued that once the liberal juridical and legal structure guaranteed the right of property the necessary preconditions were in place to create a contract into which all could (and should) enter. Before liberal legal relations, henceforth called the rule of law, Kant describes social relations as being under private law. Private law was something he called 'provisional' (and the state of nature) because the only guarantees a person had that a contract would be enforced was the amount of force that that the individual could muster to protect that contract. Protecting private property ending the provisional nature of private law by guaranteeing all individual contracts, even when or after the individuals themselves could not guarantee those contracts. In international relations jargon, the rule of law solves the credibility of commitment problem.

Once the rule of law commenced with the protection of property, the guarantee of contracts, and the basic protection of individuals from wanton violence, social relations are characterized as being under "public law" by Kant. Under public law, the individuals (in the state of nature) become citizens (in the state of civil society). The rule of law grans citizens three characteristics that individuals lack. First, a citizen gains 'lawful freedom' to obey no law to which she has not given consent. Second, a citizen possesses 'civil equality' which both recognizes no one as superior to any other person under the civic constitution and allows every citizen the 'moral' right to bind any other citizen by the civic laws. Third, citizens gain 'civil independence' from owing their existence and sustenance to the arbitrary will of any other in the civil republic. This means that the civic constitution grants each citizen the necessary 'rights and powers' to secure their own existence and precludes every citizen's representation 'in matters of right' by anyone else.

The rule of law allows for the creation of citizens, who, in their equality and independence, gain the ability to direct the affairs of state in accordance with their values and social position. The rule of law is a type of social relation designed to allow for the contestation of many ideas of the good, and, for governance of diverse people under a civic constitution. The benefit of the rule of law is that with the fundamental characteristics of citizens--freedom, equality, and independence--any people can fashion a set of legal relations that they choose for themselves in respect of their own observances, cultural forms, and ethical discourses. (This formulation would expressly allow for Islamic democracy.)

A people choosing for themselves the laws that they will live under, if you believe the neo-Kantians like Habermas and Rawls, pacifies the polity by creating non-violent domestic institutional outlets for public grievances (grievances which now manifest of international terrorism). This is the promise of democratic governance that Kennedy was defending.