Response to “Contra Legal Realism”

Here is a post contra legal realism, arguing that:

The only thing that Bruenig’s exposition on “Christian” legal realism manages to demonstrate, with perfect simplicity and innocence, is that under this theory, even in a world ruled by men as wise and holy as Augustine minorities will end up despoiled and brutalized by the state. And that is sufficient to reject it.

The post accuses my scholarship of a touch of shoddiness and questions my faith; this is pretty typical of this author. But the meat of the argument is that if legal realism obtains, we are always in danger of the state deciding to administrate property ownership terribly, thus resulting in horrible despotic outcomes.

0.) I’m absolutely right about Augustine. Let’s just get that established straight out the gate. Oliver O’Donovan, Charles Avila, Robert Dodaro, etc all share this reading. It was also a feature of my dissertation my readers especially enjoyed and praised — these are full time Cambridge academics who spend their days immersed in the Patristics. So my scholarship is just fine; this really is Augustine’s position, and whether you wanna use proprietary terms to describe God’s relationship to creation, he does,so if one’s goodness can surpass his, go for it I suppose. But I am right on Augustine.**

1.) Legal realism is a descriptive theory. It describes how property actually exists in the world. This is why the author and I actually agree: states really are horrible stewards of property from time to time! For instance, look at the poor. Because of how property laws are set up, wealthy people can keep amassing their wealth for generations while the poor suffer, and the poor have no recourse but to hope the wealthy choose to slide a little their way.

Why is this schema terrible? It observes state conventions of ownership that are out of joint with the rights of persons to legitimate use of God’s creation. Therefore the state is acting unjustly. Augustine acknowledges that there are gradations of iniquity, as it were, when it comes to states; some create and maintain laws that respect the moral gravity of the human person, and some do not. The author is correct to say that states which fail to respect the dignity of persons through manipulative and abusive proprietary law are unjust. We’re living in one right now; see: all the children suffering in poverty who in some other state would have a little relief.

2.) So was Augustine right or wrong? This author points out that Augustine’s use of the state actually did strip people of their property. This makes it look like legal realism is the absolutely correct descriptive view: property that did belong to a set was then stripped and made not-theirs by the state’s decision about what laws to enforce. Augustine was right about property not because he was a Doctor of the Church, but because he had a functioning brain. The author does not seem to realize that pointing out that Augustine was successful in getting the state to change laws so that heretics could not hold property is a point in favor of the reality of legal realism, because it demonstrates quite clearly that ownership as we actually experience it in the real world is dependent upon such laws and their enforcement.

3.) Legal realism is not a normative theory. Observing that it obtains does not mean observing that it is ‘good’; it is neither ‘good’ or ‘bad’, but descriptive of how property works.  Augustine’s approach to the Donatists can be proven to be wrong by his own moral philosophy precisely because the fact that it featured an example of legal realism does not remotely reflect upon its rightness or wrongness. Were legal realism the normative theory this author thinks it is, I would be incapable of claiming both that Augustine’s behavior toward the Donatists is an example of legal realism and morally wrong; however, I can quite easily do both because the ‘legal realist’ tag is descriptive, inflecting no moral judgment whatsoever.

4.) Therefore you do not ‘choose’ whether or not to buy into the theory of legal realism; you argue whether or not it appears to be true. This can be done with a thought experiment: if I live under modern laws and I claim that I own you and therefore take you outside and beat you, I will be criminally prosecuted. If I live in ancient Rome and I claim that I own you and therefore take you outside and beat you, I only might be criminally prosecuted, because a set of laws exists in ancient Roman jurisprudence that allows me to really own you. The question becomes not whether you were harmed or not, but whether the relationship between you and me matches the criteria for ownership under the present Roman laws. If it does, the state will decline to take any action against me. If it does not, some action will be taken. This is because laws dictate property ownership by defining what the state will and will not intervene to enforce.

Does this mean ancient Roman slavery was a good? No, it was a grave moral evil, as all slavery is. But slavery is not a grave moral evil because it’s confused about who is actually property, it’s a grave moral evil because it involves states intervening to vastly neglect and abuse human dignity. This is a final point I’ll rest on: people who try to erect entire moral systems based on the idea of property always run into big time theological honk-ups because property simply isn’t a moral institution. Thus states that abusively play with property laws are evil, but so are individuals who similarly use existing property laws to carry out evil ends. This is why we should retain a clear-eyed and suspicious view of property ownership (as Christ himself did) to make sure our institutions respect primary moral goods in their creation and maintenance of property laws.

Addendum: There’s now a post following up to this one up on Patheos. In it there are two questions:

For example, I do not understand why Bruenig uses her description of Augustine’s legal realism as a retort to the desert theory of property, which is a normative, not a descriptive theory (that something is deserved cannot be a pure statement of fact–this is tautological). Bruenig is not simply correcting the record in re: a misrepresentation of Augustine’s view; she is clearly arguing that we should reject desert theory. But how does one reject a normative theory solely on the basis of a merely descriptive one, without imbuing it with normative implications or presuppositions?

The author did not read my entire post. My entire post separated Augustine’s view of property into two levels. It’s very clearly demarcated, even numbered. See for yourself here. The first level discusses divine proprietary theories; this is the normative level. The second discusses legal realist proprietary theories; this is the descriptive level. There are two because there is a gap between heavenly justice and earthly enactments of it. This is how Augustine (and I) can say legal realism is descriptively true and that it is layered over a divinely ordained plan for property that is normative.

As for labor-desert: it is sometimes normative and sometimes descriptive. Locke-types will periodically say labor-desert merely explains how an individual comes to own something. This is in fact the metaphysical change in property Locke is getting at with ‘labor mixing’, whatever the hoot that means. Then they will sometimes use it as normative, e.g. ‘the state ought to respect this condition as the one that confers ownership, because it’s good and wholesome’ or whatever. Augustine would agree with neither. I also do not agree with either use.

The second question is this:

The problem for me, to get down to it, is that there is nothing in what Bruenig writes here, or in the rest of her post, or in anything else I have read by her on the subject, that gives me the impression that Bruenig believes anyone could have a principled objection to–let’s say–a total redistribution of property.

Yes, I have no principled objection to this. If a Christian community wanted to live in this way, communally, that would be fine. If a community did not want to live in this way but could come up with another institutional way to make sure all needs were met, that would also be fine. I have no principled objection to any institution until they begin to harm/damage the apprehension of the worship of God and/or human flourishing; whether or not such institutions really do destroy flourishing or harm the apprehension of the worship of God is usually debatable, but the point is that legal realism itself is institutionally agnostic.

The author did not seem to realize why I mount a Christian legal realist argument so often. Here is why:

Me: We should make sure the poor are supported.

They: Why though?

Me: Christ commands it. [Normative theory of property]

They: Yes but not through the state.

Me: States can’t be just when they’re allowing their most vulnerable to be harmed.

They: But the state must rob me to get taxes.

Me: No, taxes are not robbery. [Legal realism.]

That is where the legal realist argument fits in: in a sequence of other arguments that are striving to evade the use of the state to provide some form of protection for the poor. It is not its own normative theory of property, but if you are not used to hearing objections such as the “state-as-thief” objection then I can see how you’d be confused by it. I can imagine one does not hear that objection often if they are in the habit of agreeing with libertarians because it’s one they tend to trot out when they’re backed into a corner morally. It is also possibly the case that the place of legal realism in a Christian understanding of property did not occur because there might be agreement on the normative point; the author now assures me he does not believe in absolute property rights, meaning the argument would be what the proper use of property is, rather than an immediate default to the idea that, regardless of outcomes, people have absolute rights to ownership the state simply can’t ‘interfere’ with.

I hope this clears things up.

**This passage has caused a lot of heartache for a lot of people — I’m surprised! But please take it just as it is: my security that, on this very narrow interpretive point, I’m not misleading you. I’m wrong about plenty of stuff plenty of the time; this is one very small area where I’m pretty sure I’m not. It’s not a blanket claim to constant rightness, nor any kind of claim that would legitimize the whole of everything I do. It’s just this one tiny point, which is still a bit much for some!