Farmers’ Intent

How should constitutional cases be decided?  We sketch elements of a new theory, Farmers’ Intent:  Among the legal outcomes permissible under a ‘Living Tree’ Doctrine, choose any that could seriously be intended as an outcome by a reasonable farmer now working the land of the jurisdiction.

Owing to space limitations, we cannot provide the full proof of FarI. It draws support from the Kant-Mill Theorems, afforced by lemmas of Quesnay, Mirabeau, and Turgot. But an intuitive sense of its shape may be provided by considering other theories of interpretation:

Living Tree: Although the Living Tree is one element of any correct theory of interpretation, its incompleteness was demonstrated almost a century ago by Sankey Laboratories ([1930] AC 124, [1929] UKPC 86). Sankey et al showed that LT is necessary because any constitutional provision that is authoritative at T0, may not only be incomplete, but will lose legitimacy no later than Tn. (This is a consequence of the Mortmain Result, established already in 1279 by E. Plantagenet). We now know that Mortmain itself is a specification—we omit obvious steps—of the principle DML (diminishing marginal legitimacy). The Sankey team also showed that organic development has ‘natural limits’. Objections that LT does not deliver a unique juristic ‘result’ are misguided. Observational studies show that every living tree must have more than one leaf. The proof of LT does not rest, as beginning students assume, with the good interpretations it generates, but with the bad interpretations it cannot generate (e.g. that women are not ‘persons’—again, Sankey 1930, and similar results below, under OPM)

Framer’s Intent:  The fallacies in Framer’s Intent selection are easily shown:  

(1) There are constitutions that have no framers.

(2)  In any constitution having ‘framers’, the extension of the set of framers cannot be a question of law, which law did not exist at T0, the Framing Moment.  (This is a corollary of Kelsen’s GN-Reduction (1937)).  It follows that any ‘framer’ purporting to frame does so without legal authority.  Not having such authority at T0, it cannot be transmitted to later authorities. (For the simplest proof, see Nemo dat quod non habet: Justinian et al, 528-534 CE). True, authority could be assigned retrospectively to a ‘framer’, thus enframing him. But the retrospective intent of a non-framer that F be treated as framer at T0, cannot itself be derived from FI. Thus, if FI is sound, FI is unsound. QED.

(3)  (The more familiar objection that there is often no fact of the matter about the truth of FI(L) is irrelevant. If there is an interpretive gap, LT still governs, and its outcomes remain legally permissible: deontic closure.)

Original Public Meaning: OPM was originally meant as a way to derive the (supposed) results of FI (e.g. that women are not persons) without relying on the absurdity of FI.  The intuition was that, although there are constitutions without framers, necessarily all (legal) constitutions regulate a public. OPM directs judges to select that interpretation of L that would be least surprising to a representative, uninquisitive, member of the public who could have heard of L, at the most remote historical distance from the public that the Constitution now regulates. (In OPM theory, this is called ‘democracy’.)

Legal scientists remark on the difficulty of estimating (OPM)L. This is exaggerated.  As Sankey’s team demonstrated, there was no evidence that uninquisitive people ever considered women ‘persons’.  The result had been confirmed at many other sites, and accords with such well-known findings as that of Billings-Brown Consultancy, who showed (1896) by methods never controverted in OPM, that ‘in the nature of things, [equal protection of the laws]  could not have been intended to abolish distinctions based upon color.’ (163 U.S. 537)

The crux, then, is whether any interpretation that is consistent with DML, survives LT, and is also consistent with OPM, dominates every other permissible interpretation. That seems possible. Is it possible that it is necessary? Repeated attempts to even sketch a proof elude us. (The Biden-Schumer Conjecture, that OPM is extensionally equivalent to any result generated by a virtual machine emulating the Mercenary Toy Bat™, though plausible, has not been proved either.)

Farmers’ Intent (FarI): Now, a standard application of Hume’s Pitch-Fork (=df ‘consign sophistry and illusion to the flames’) rids us of both FI and OPM, leaving logical space for FarI. Essentially, FarI combines results by Smith (1759) and much earlier conjectures by Y. de Nazareth (ca 28 CE), with the Kant-Turgot series noted at the outset, to force a quasi-ordering on the set of LT-outcomes. The only further premise we need is that although not all constitutions have framers, all constitutional orders have farmers.  This seems intuitively plausible, and is supported by early efforts in constitutional theory (e.g. Hammurabi 1754 BCE). To note:

  • FarI, unlike FI and OPM, can be proved consistent with DML.
  • The reasonable Farmer has properties analogous to those of the ‘reasonable person’ and, indeed, to the representative person in a fairly constructed ‘original choice position’ but, unlike either, does not admit of a purely procedural interpretation, because:
  • The Reasonable Farmer is a person who (d1) has to farm, that is, to actually do work rather than, say, extract rent or commit fraud; (d2) and in the here and now; (d3) under conditions of uncertainty; (d4) so makes reasonable provision for herself and others in case of plague, fire, drought, tyranny or other calamity, and (d5) therefore accepts that government regulation, including constitutional regulation, need satisfy no further test of legitimacy than LT and be morally sound.*

(In a forthcoming paper, we show what FarI entails for judicial appointments, emoluments, and term limits. Though preliminary, these results are as convincing as any of the other bullshit that passes as constitutional ‘theory’ in the law reviews.)

*This paper is part of the Judicial Plower Project, at whose lack of financial support we are not surprised.

When ‘good faith’ goes bad

In law and in life, it matters that people act ‘in good faith’.  Bona fides varies in different contexts, but the main idea idea is that beliefs expressed are sincerely held as true or acceptable, and that cooperative actions are undertaken in a spirit of honesty.  That sounds like a good thing.  Sometimes it even excuses or mitigates conduct that would otherwise be wrong: ‘At least he was acting in good faith.’

The law of contract carries an implied covenant of good faith: the parties are held to a presumption that they deal honestly and fairly with each other, aiming for a mutually agreeable deal, not a plot to destroy someone.  In employment law, one cannot refuse reasonable accommodations for workers with disabilities, though the fact that something is a ‘bona fide occupational requirement’—genuinely necessary to the job—will deflect a claim of discrimination.  (An airline need not hire a blind pilot—not for now, anyway.)

But satisfying a principle of bona fides can be neutral, or even bad, in particular circumstances.  Knowing that someone has said something, or done something, in good faith can make things worse.

Some things said by politicians are said in bad faith. Perhaps some Russians believe homosexuality is a Western import, that gay men prey on children, and that homosexuality is contagious.  But I doubt Putin really believes that.  He may be evil, but he is not stupid, as current leaders of the superpowers go. Putin says and supports these things only to pander to his ‘base’, thinking—perhaps rightly—that some of them believe it.  But I think he knows it is all malarkey, and I will assume he came to know that in the right way for it to count as knowledge. Putin’s pandering is in bad faith; it is strategic, aimed not at sincerity or truth but at power. So we subtract moral marks for pandering and dishonesty, but not for being irresponsible in forming his beliefs. Putin knows the truth, and we can give him one mark for that. 

Suppose, now, that that a western Lawyer campaigns against non-discrimination protections for gay people, resists teaching children about the variety of human sexual interests, and opposes same-sex marriage.  He labours, not on behalf of a paying client, but intellectually and politically to keep gay people in their place. Still: he is not pandering.  He is aware that his views stain him (in societies that aspire to any form of liberalism) as comical, even contemptible.  There is hardly anyone left with such views to whom he might pander.  But—I here assume—the beliefs on which he bases his views are not only manifestly false, but also that it is open to him to find that out.  He just fails, as philosopher John Rawls puts it, to bear ‘the burdens of judgment.’  He does not eschew lively argument.  Far from it–he is a model Millian controversialist. He knows how to assemble propositions into paragraphs that look a lot like arguments.  Some even turn out to be valid (though not sound). He never insults or growls; he calmly explains and argues.

In my hypothetical, Putin gets a moral minus for monstrous conduct, but a modest plus for knowing the truth. Lawyer, however, gets two minuses. Like Putin, he promotes policies that are unjust and inhumane.  Unlike Putin, he sincerely believes them, and in all bona fides.  Putin grasps the truth but refuses to let it shape his conduct. Lawyer persists in falsehoods (a strict liability offence in this case) with complete sincerity. He acts in good faith, but here bona fides makes his character, and our world, not better but worse. If Lawyer were just a hack or a hired gun, we might care less. But he believes this stuff. Putin has a vice in his heart. Lawyer has a vice in his heart, and another in his head.

And so it is with some who believe: that blacks have failed to pull themselves up by their bootstraps, that the police preserve the rule of law, that vast concentrations of wealth trickle down to the greater benefit the poorest, that face masks poison us with carbon dioxide, and that COVID-19 will disappear like magic, one day this summer.   

Odd as it must sound, I actually hope such folk know that all of this is false, and that they are just displaying their colours, taking the piss, or trying to grab a minute’s attention online.  In that case, we may have something to work with.  But I’m sometimes afraid that their beliefs and attitudes are sincere, and held in complete bona fides. If that is right, we are in big trouble.

Your freedoms–and theirs


The COVID-19 pandemic will end when enough people acquire immunity or die, or when we create an effective vaccine (and enough people take it).  Until then, our only hope is to slow transmission by testing, tracing, and isolation; masks, handwashing, and ‘social distancing’.   But most are weary of this, many are anxious, some are angry.  A few now say the cure is worse than the disease, not because of the health or economic costs of the mitigations, but because they involve giving up something beyond price—freedom.

The first thing to notice is that most of our actual mitigation strategies are advisory or prohibitive, not preventative.  Advice limits no one’s freedom, and a legal prohibition, or the imposition of a legal duty, limits freedom only when it is enforced or when a credible threat of enforcement renders an action infeasible. In most places, with respect to most strategies, enforcement remains the exception.  Advice and prohibitions make some people angry, but you can be very angry while remaining perfectly free.

The second thing to notice is that, when freedom is at stake, it appears on both sides of the equation.  Ill health itself limits our freedom to do a wide range of things, and not only for the twenty percent of victims who end up hospitalized or who suffer irreversible lung or kidney damage.  Weeks of poor health is a real restriction on anyone.  Those who refuse precautions or who insist on large indoor gatherings impose on others the risk of a freedom-limiting illness.  The others can avoid that risk only at the sacrifice of their own freedoms, for example, by staying home to avoid the negligent and the reckless.  In a pandemic, our freedoms are interlinked.

Admittedly, there are disagreements about freedom.  Some philosophers say these turn on people having different ‘concepts’ of freedom; others say that we have various ‘conceptions of the concept’ of freedom. (It can only be a matter of time before someone says that we have different ‘concepts of a conception of a concept’ of freedom.)  My own view is parsimonious.  I think we are free to do what we can actually do, and not free to do what we cannot do because we are prevented from doing it or because the action has been made infeasible.  What we disagree about is why freedom and unfreedom matter.

Some people hate restrictions just because they hate anyone making them do things they don’t want to do. (Teenagers, and some libertarians, tend to fall into this class.)  For others, unfreedom is of concern only if it also limits their autonomy, the power to shape their lives to fit their needs and character, as JS Mill put it.  Being forced to wear a mask while shopping may outrage the first group, but not the second because (save in special cases) wearing a mask does not limit any further activities.  A third group have still narrower concerns.  They only chafe under unfreedoms they judge to be imposed arbitrarily or unreasonably, in which cases they think they are being ‘dominated’.  These are all real disagreements, but they are fundamentally disagreements about the value of particular freedoms, not about freedom’s nature.

The disagreements are nonetheless likely to affect people’s willingness to comply with measures necessary for linked freedoms to be preserved.  We tend to imagine that the free-rider (the non-masker, the crowd-basker, the anti-vaxxer) is always a simple cheat trying to take the rest of us for suckers.  There are plenty of those.  And I doubt we can demonstrate that they are always making some kind of logical error or disappearing into a self-defeating vortex of egoism.  We need other tools to deal with cheaters.

David Hume—no pessimist about human nature–recognized this when he wrote about the ‘sensible knave’ who thinks it reasonable to reap the benefits of social cooperation while refusing to chip in on the costs.  ‘That honesty is the best policy, may be a good general rule, but is liable to many exceptions: and he, it may perhaps be thought, conducts himself with most wisdom, who observes the general rule, and takes advantage of all the exceptions.’  Hume’s answer is only this:  ‘I must confess that, if a man think that this reasoning much requires an answer, it would be a little difficult to find any which will to him appear satisfactory and convincing.’  That is: if you find yourself dealing with someone who genuinely wants you to prove, on his own premises, that he shouldn’t cheat, you will come up dry.  But Hume wondered how many such people we really encounter.  Almost everyone has some fellow-feeling.  The photo at the top may make you despair at the selfish vectors of new infections.  But look carefully—at this photo or other similar ones—and you’ll see that the reckless have come to the party without their parents or their children.  Most people care about some other people.  We can try to widen that circle.

And we can remember that not every self-styled freedom-fighter is a ‘sensible knave’.  Freedom is what it is.  But it is a lot easier to comply with restrictions if you judge the costs to be lower because you think the freedoms lost are less important than the freedom gained.  People make such tradeoffs all the time.  Is there any way to build consensus around which freedoms are, in the end, not really that valuable?  I am not confident, though it seems to me that the Teacher is right when he says, ‘Anyone who is among the living has hope—even a live dog is better off than a dead lion.’  Perhaps we could start there.