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MattConroySecondPaper 2 - 24 Mar 2018 - Main.EbenMoglen
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< | | | | | | | If one is not careful it would be easy to see the development of freedom in the history of the English Law as deriving by contingency only. This is because the nature of law is to depersonalize the actors within the system. This leads to the conclusion that things just happened because it removes the people who made it happen.
Armory v Delamirie | |
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< | Let us look at a minor case which in the grand scheme of things does not matter very much: Armory v Delamirie (1722). If not for being an interesting fact pattern and illustrating the notion that finders keepers is actually law which makes it a fun read in a casebook, no one would remember this case. But for the small boy who gained the possibility of actually living a life as a human being instead of as a tool to be cast aside, it deeply mattered. He found a piece of jewelry in the pitch back soot of a chimney, and took it to the finest silversmith to see what it was worth. The shop assistant stole the jewel out of it and was going to give him a pittance. Instead of accepting his lot, the chimney sweep demanded the jewel back. Then when the assistant refused the boy convinced a lawyer to bring a suit and won. Sure it was luck to find the jewel. Maybe if you subscribe to the Eben Moglen interpretation that the only reason he was able to get a lawyer was that the lawyer saw the injustice happen, then winning would be just luck. But maybe the boy convinced the lawyer, and seeing the truth in the boys eyes the lawyer agreed to help him. The historical record does not tell us. But that does not really matter because either way it was a willful act by the lawyer to seek justice that resulted in freedom for Armory, not just contingency. | >
> | Let us look at a minor case which in the grand scheme of things does not matter very much: Armory v Delamirie (1722). If not for being an interesting fact pattern and illustrating the notion that finders keepers is actually law which makes it a fun read in a casebook, no one would remember this case. But for the small boy who gained the possibility of actually living a life as a human being instead of as a tool to be cast aside, it deeply mattered. He found a piece of jewelry in the pitch back soot of a chimney, and took it to the finest siglversmith to see what it was worth. The shop assistant stole the jewel out of it and was going to give him a pittance. Instead of accepting his lot, the chimney sweep demanded the jewel back. Then when the assistant refused the boy convinced a lawyer to bring a suit and won. Sure it was luck to find the jewel. Maybe if you subscribe to the Eben Moglen interpretation that the only reason he was able to get a lawyer was that the lawyer saw the injustice happen, then winning would be just luck. But maybe the boy convinced the lawyer, and seeing the truth in the boys eyes the lawyer agreed to help him. The historical record does not tell us. But that does not really matter because either way it was a willful act by the lawyer to seek justice that resulted in freedom for Armory, not just contingency.
It's not clear to me what the meaning of "just contingency" might be: as usual, the problematic word is "just."
From my point of view, the definition of history as a discipline is the study of the role of contingency in human affairs. "Just contingency" seems from that perspective to be not a useful historical proposition to argue either for or against, or to apply as a measurement or basis for anything. What is the universe with "just the weak force" or "just gravity"? Whatever that universe is, we can't do much physics with it in this one.
I think the best way forward here, not just with respect to this example—which take it as you will involves surely issues of accident and contingency at the individual but not at the doctrinal level—but with respect to the following illustrations, too, is to describe contingency's role qualitatively, rather than quantitatively, and surely not with value 1.0.
| | | Black Death
There should probably be a section here about how the Black Death happened, and so the resulting changes in the labor market allowing for some freedom for the serfs was merely contingent on rats carrying fleas stowing away on boats, and then the vagaries of lords negotiating with their peasants over the next 100 years. It creates a nice narrative, and therefore this birth of freedom was merely contingent. This narrative disregards the fact that every time freedom was given, it had to have been demanded. Every time freedom was refused, it was still demanded. The law does not show these demands because it does not show the people. It only shows the law. This again creates the appearance of contingency, but it hides the fact that a lot of energy went into collapsing the wave function at freedom. |
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MattConroySecondPaper 1 - 30 Jan 2018 - Main.MattConroy
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Just Contingency
-- By MattConroy - 29 Jan 2018
If one is not careful it would be easy to see the development of freedom in the history of the English Law as deriving by contingency only. This is because the nature of law is to depersonalize the actors within the system. This leads to the conclusion that things just happened because it removes the people who made it happen.
Armory v Delamirie
Let us look at a minor case which in the grand scheme of things does not matter very much: Armory v Delamirie (1722). If not for being an interesting fact pattern and illustrating the notion that finders keepers is actually law which makes it a fun read in a casebook, no one would remember this case. But for the small boy who gained the possibility of actually living a life as a human being instead of as a tool to be cast aside, it deeply mattered. He found a piece of jewelry in the pitch back soot of a chimney, and took it to the finest silversmith to see what it was worth. The shop assistant stole the jewel out of it and was going to give him a pittance. Instead of accepting his lot, the chimney sweep demanded the jewel back. Then when the assistant refused the boy convinced a lawyer to bring a suit and won. Sure it was luck to find the jewel. Maybe if you subscribe to the Eben Moglen interpretation that the only reason he was able to get a lawyer was that the lawyer saw the injustice happen, then winning would be just luck. But maybe the boy convinced the lawyer, and seeing the truth in the boys eyes the lawyer agreed to help him. The historical record does not tell us. But that does not really matter because either way it was a willful act by the lawyer to seek justice that resulted in freedom for Armory, not just contingency.
Black Death
There should probably be a section here about how the Black Death happened, and so the resulting changes in the labor market allowing for some freedom for the serfs was merely contingent on rats carrying fleas stowing away on boats, and then the vagaries of lords negotiating with their peasants over the next 100 years. It creates a nice narrative, and therefore this birth of freedom was merely contingent. This narrative disregards the fact that every time freedom was given, it had to have been demanded. Every time freedom was refused, it was still demanded. The law does not show these demands because it does not show the people. It only shows the law. This again creates the appearance of contingency, but it hides the fact that a lot of energy went into collapsing the wave function at freedom.
Depersonalization as a requisite for freedom
Communities are defined not by their interiors, but by their boundaries. Humanity is decided by examining each person and deciding if they are inside the boundary or outside of it. Inside you are a free person. Outside you are a slave. These boundaries can be drawn along any number of dimensions (race, gender, class, weirdness, etc.). The quest for freedom then becomes an effort to either move the boundary so it encompasses the individual, or creating an interference pattern of the person which puts enough of them inside the boundary to confuse the powers that be. This is massively important because it explains the capacity for law to grant freedom to the unfree.
Law is a highly formalistic and ritualized system. There are rules and magic words which must be observed. It is a special class of in-ness within the broader class of who society recognizes as a human being. Going back to young Master Armory, he needed a lawyer to win his freedom. Without a lawyer he is something to be disposed of when convenient. By hiring a lawyer and entering the Court, in essence he ceased to be himself and instead became his lawyer. His lawyer by nature of being a lawyer was already inside the community. Armory as a person must be recognized. Upon this recognition, the Court must find in his favor, no matter how much money and power Paul de Lamerie had. Because the shop assistant stole from a person, not from a thing.
Stories
History matters because the stories we tell determine who we are. As a young lawyer, the story that I tell about the law determines who I am. It is dangerous to tell the story that the transformation of freedom was merely contingent precisely because it can be true. But it is not required to be true. I want to be a lawyer who tells the non-contingent story.
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