Natural Law In Ancient and Modern Guise

welcome to this wonderful occasion when Georgetown federal society honors people for their lifetime service to the cause of liberty justice and the rule of law the Georgetown Federal Society engages conservatives and libertarians in the campus dialogue by hosting speakers debates panels and social events the society was founded on the principles that the state exists to preserve freedom that the separation of governmental powers is central to our Constitution and that it is emphatically the province of the duty and the duty of the judiciary to say what the law is and not what it should be today we are the Georgetown federal society is presenting Richard Epstein with its annual lifetime service award to individuals who have made a significant contribution to the realization of these principles and as a Co will tell you I substantially rearranged my travel schedule so that I could be here today to make the Welcome of Richard Epstein and I want to tell you why because I am one of Richard Epstein's achievements for better for worse when I was a third-year law student I organized a conference at Harvard Law School on criminal justice theory and one of my heroes who I'd never met was a fellow from the University of Chicago Law School who had written a series of articles on strict liability in tort law and which actually explained tort law in a way to me that my professor had not in fact his description of strict liability in tort law bore no relation to the theory of strict liability my professor was no slouch charles freed but somehow I found that I hadn't learned torts until I read Richard's articles and when I put this conference together on criminal justice theory I used it as an excuse to invite Richard to write about criminal justice theory for the first time in his career in those days I mean now you all know Richard as a polymath is that what you call it where he writes about everything but in those days he really had just gotten started and he was primarily a tort scholar and so this was his first opportunity to write about criminal justice and it was a really big conference and a lot of fancy people there and it ain't it produced the first book that I had called assessing the criminal but the highlight for me was the opportunity I had to ride on the bus from the Copley Plaza Hotel to the Harvard Law School we've had to put everybody up in the köppen classification hotels in Cambridge at the time and I got to ride next to Richard Epstein as a third-year law student to and from the conference wouldn't be quite as big as real today as it was then but I can tell you something it was an enormous that was a that was a dig yes it was but but it was an enormous thrill then so that was my first introduction to Richard Epstein and which I really went to great lengths to try to make happen so I got to meet him the second thing which was every bit as big as the first was after I was a criminal prosecutor in the Cook County State's Attorney's Office I went into the teaching market the ALS teaching market to try to get a teaching job and went through the teaching market and I think I had about seven interviews and no callbacks and I got no job so what to do and what to do was to go to the University of Chicago as a research fellow and that was made possible by the fact that Richard sponsored me at the law school with the D and Jeff stone at the time and prevailed upon him to basically create a fellowship position that didn't exist call the research fellow and that gave me the opportunity to be at the University of Chicago Law School and when I went back into the teaching market having done nothing else other than what I'd previously hadn't started on my research yet the only thing that changed was my affiliation I was no longer a Cook County State's Attorney but now I was a research fellow at the University of Chicago Law School as a result I had about 25 interviews I'm not sure I don't remember how many callbacks three job offers and actually got into academia that would not have happened if I had not changed my affiliation from the Cook County State's Attorney's Office to the University of Chicago and that would not have happened if it hadn't been for Richard Epstein and finally I had to decide what I was going to research at the University of Chicago Law School and all my interest up until this point in my legal career had been criminal justice I'd written about criminal justice I practice criminal justice it was the reason I went to law school because of criminal justice and I had to decide what I was going to do and I was sort of bored with criminal justice theory a little bit and I wanted to do something completely different and so I decided to be a contracts professor because my aspiration was to do for contract law theory what Richard had done for tort law theory so in that sense he was an inspiration substantively as well as facilitating my entry to my legal career and then the rest as you know is history so if I could be considered an achievement my career could be considered an achievement or a mate or and my career could have been considered as a contribution to the cause of Liberty justice the Constitution and the rule of law then Richard Epstein made that career possible and that's the reason why I came here tonight to welcome him and as well as to welcome you to this event and now to tell us all about his career and why it's so special and why it was so inspiring to me and generations of students as my colleague Nick Rosen crass that was great thanks Randy I am delighted to be here I'm always happy to talk to the Federalist Society talking to federal society events I am as you know the faculty advisor to the Georgetown chapter here I also serve on the Board of Visitors I it's a particular honor for me to welcome Richard Epstein and be and introduce him at the occasion of this Lifetime Achievement Awards I too count myself as an achievement of Richard Epstein's and the the effect that Richard Epstein had on me was even earlier in my career so before I had even decided to be a lawyer I graduated from Yale undergrad in 1992 and I went to New York and I did theater for years I was directing plays I was working at the Atlantic Theatre Company and whatnots and then in the summer of 1995 and I unfortunately don't have the date I was reading the New York Times and I came upon this book review in the New York Times 1995 summer and it's a review of Richard Epstein simple rules for a complex world and I had never heard of Richard Epstein and I had never heard of this book or any of these ideas but something about this book review seemed incredibly intriguing to me the reviewer clearly wanted to dismiss the book out of hand clearly wanted to dismiss Richard as some sort of crank and couldn't do it just couldn't do it so we got even in the first say first paragraph here Richard Epstein a professor of law at the University of Chicago has a record of proposing radical and extreme alterations in key areas of law alterations that perhaps initially could be dismissed as so far from the center of legal thinking as to be of only theoretical interest but then turn out to have much more political life in them than one could have thought possible and the review goes on in that vein at the end we read it is bracing to undergo a cold bath in the pure doctrine of the simple rules and in many areas they will give us practical guidance this reviewer wanted to hate this book and couldn't manage to hate it it was so intellectually powerful and intellectually honest I read this review then I went out and bought the book I read the book and then I decided to apply to law school and so I literally would not be here today but for this review and this book true story I don't believe Richard I've ever told you that story but it is a true story I'm gonna tell just one more Richard Epstein anecdote and then I'm gonna give you the man himself so then I went to Yale Law School and got involved with the federal societies of students and we invited Richard to come and speak and of course this was a particular thread for me in light of the prior story so we invited him to speak and were delighted that he accepted and it occurred to us after he accepted that it would be perhaps even a better event if we could arrange it as a debate so the Federalist Society debate is a central core tenant of the Federalist Society that ideas are best best examined the vigorous debate with zealous advocates on both sides and so federal society to the extent possible is always keen to organize debates rather than mere speeches and we decided wouldn't it be great if we could have Richard Epstein debate unfortunately true then as it is now it was it was often hard to persuade speakers to come and debate it's much easier to give a speech than to debate it's much easier and particularly Yale the Yale Law School faculty a little bit intimidating to some people many people much rather just get up and talk about their scholarship than actually really have engage with someone and so we knew was kind of a long shot we thought it was kind of a long shot we called Richard Epstein and we said you know would you maybe consider doing this event as a debate with one of the Yale professors and he gave what I now take what I now know to be the classic Richard Epstein answer to this particular inquiry which was quote I will debate anyone at any time on any topic I actually thought surely that must be an idle boast but I have subsequently had the opportunity to hear Richard Epstein to be a enormous variety of speakers on an enormous variety of topics and I have yet to see him lose one of these debates with that Richard Epstein actually now I don't even know whether I should give my prepared speech I do want to comment on the two things that were done and let me see with Randy I have to make one correction Jeff stone wasn't Dean at that time you were there what arrest his Gerhard Kasper I think that was the Dean and then Jeff was his successor but we forgive you that error and I have to tell you Randy sat in on my torts class when I did that he sat on the right than the lower time right and I still remember he would come up after every session and either critique me or explain to me what it was that he had learned and then it was one day I remember I came from sometimes too close to some woman he said you almost went over the line that you remember saying that to me well you did and so I had to basically pull my hands back to myself so not only was he a constant guide in the classroom but he served as a moral tutor for which I am extremely grateful and with respect to Nick I do want to tell you a little bit of the back story about that review there are two features about it one you didn't mention whom it was written by I believe it was Nathan glazier Nathan glazier was a neocon which meant that he was an ex liberal who could never quite get over the guilt that he had for not wanting to share the wealth he was also a very close friend of Daniel Bell who was my mentor when I was at Columbia College both whom I taken many course he had always been enormous ly supportive of me but thought that my incorrigibles libertarian tendencies were definitely the sign of an intellectual death now even now at 91 years old he sort of looks at me whenever I see him which is not very often with a slight disapproving heir as to why it was I didn't become more time so I think and part ii wrote it that way because he actually knew the connections to me through this other source of person and and the other story about it was this was a great tribute to the harvard university professor press they knew that this was going to be the lead review if i'm not mistaken it was on page three or some such thing i think work but very brough close to the beginning what it is it's page three okay and and you know they had this a month in advance and unlike most reviews you were not the only one they can thought that it would be appropriate to get it and of course they ran out of copies the day after the thing came out and and so I called Michael Aronson who's still a friend that I said why on earth is this triumph of planning and then I quoted him for Bob Bork's famous long which I thoroughly endorse which he says the only industry in the world that makes you pine for socialism is the publishing business right because they couldn't figure out what anticipated demands would start to be since that time the New York Times has a better approach with respect to book reviews either they planted in somebody who's sure to be hostile or even better they just ignore everything you write down because I mean it's gotten to the point where they don't even want to give a forum to ideas which to some extent are disagreeable with them if you don't believe this I suggest you take a look at the April 17th 2005 issue with Jeff Rosen's effort to be nice with a picture which comes straight from Dracula when they did a study on myself and Mike grieve I think was also in that and chip Mel tormé I don't see here was the third villain of the particular piece now I'm supposed to talk about stuff and I'm in Washington and so what I did is I steeled myself in the following fashion with a stout permanent resolution not to talk about anything at least apparently the deals with current politics so the title that I've chose for this particular talk has something to do with I can't remember the title but it has something to do with natural law both ancient and modern I think it's close enough and the question is why would I want to teach this and since everybody else has been autobiographical let me be at least a little autobiographical myself and sort of indicate to you one of the great calamities which turned into one of the great trance triumphs of my life I did not start Law School in the United States I had won a scholarship from Columbia College and I'd gone off to Oriole college and I decided that I was going to study English law in a very self-conscious judgment that knowing a little bit about two systems would be better than knowing only things about one of them and so I thought if I knew the English side and the American side it would kind of help and then by the luck of the draw it turned out that I was at Oriel College and the tutor was a man named Allen Watson who is a bonafide antiquarian and his expertise was in Roman law so unlike studying a Marbury and Madison the first day of law school the first text that I ever read in law school was guy as 388 and it says now we shall transfer two contracts and so I essentially did the Roman law of contracts my first quarter of Law School it was the only thing that I did and since that time I actually got hooked and one of the reasons why I regardless is a great fortune is that a subject which to all of you would seem to be mightily irrelevant to the way in which you think about the modern world essentially became the first exposure that I had to the world and I have to tell you that I became implicitly some kind of a Romanist I know this sounds very strange because I don't mean this in any sort of Roman Catholic type sense it's just that I got kind of seduced by what I thought to be the the eerie sort of formal rigour and great intuitive common sense associated with Roman law I have taught the subject in American law schools now since 1973 most recently on Monday morning and in some sense what I'm going to do but Monday afternoon is here is to kind of tell you the way in which that experience as being a Roman law professor has essentially shaped my life in order to do that I have to sort of hit back on a theme that Nick said that on the sort of anytime any topic any subject whatever it was that's not only my philosophy with respect at the base that's also been my philosophy with respect to teaching which is I sort of the Dean asked me what I want to teach him I asked what would you like me to teach and then we finally negotiate and I get a little upset if I have to teach same thing too many times in a row but Roman law is one that's been pretty much a steady and what happens is when you teach this particular way what you do is I think developed the single most important virtue that you could have is a modern academic and I only mean this half in jest which is superficiality but you have to do when you work with respect to legal stuff is to avoid the paradigm which will kill the next generation of scholars and law schools which is to be a mile deep and an inch wide so that you know everything about something and after a while that something turns out to be nothing so you don't know very much at all but you have to be prepared to do is to kind of see the way in which broad themes integrate with respect the subject matter and as I started to think about this over the years with Roman law as being essentially my linchpins I decided that the only effective way to be to understand legal theory was to have something which comported with all the essential virtues that one could think of in a desireable theory you wanted to have a theory which was old you wanted to have some kind of an approach to a subject which was able to last and to be expanded in two dimensions you'd like it to move to some extent across cultures and you'd like it to move with some extent across time so that the kind of provincial tea that's associated with much of modern American law would not be part of your general sort of jurisprudence in addition to that you would like it to sort of respect tradition on the one hand but bring to it a kind of intellectual rigor which depends upon every one of the modern intellectual developments which takes place outside the law which you could use to understand those things which occur inside the law and so since I was a kind of a general pack rat to begin with as an undergraduate choosing never to major in a particular subject when I found that that I could minor in three of them and get away with that what happens is you'd like to be able to bring mathematics to bear on this stuff you'd like to bring linguistics to bear on the stuff you'd like to be able to bring evolutionary biology to bear on this stuff knowing a little bit about game theory would never hurt you knowing something about history knowing something about economic theory whatever it was that you could find to learn was something that you wanted to incorporate the basic sort of view that I have of the way in which intellectual scholarship should work is that you want to make sure that if there's any discipline which seems to have any relationship to anything that you want to do you want to be part of it and that's always been the way in which I've tried to do this but the question is where do you start with this particular inquiry and essentially I started with the beginning of Roman law if you go back and you look at both Justinian's which is the sort of classic institutes and a book by a man named Gaius who wrote some 350 years before it for bony and put together the Institute's they both begin with a discussion of the importance of natural law and the legal firmament and within a very short space mainly no more than two or three lines essentially what they do is they hit upon three of the major themes which turn out to be essential in the which natural law theory has slowly been able to migrate forward to become a much more complicated sort of body of law today than it was at the time simply because we have a more complicated society today than we had going earlier on I did write a paper once called the Roman law of cyber conversion which sort of indicates to you that I think there's nothing old but you want to forget when you're trying to do something new and so you look at these three themes and what are they well the first one is this clearly an evolutionary theme which is intended to show that the way in which you understand human behavior is not to isolate it from the way in which you understand the behavior that takes place by ordinary animals under other circumstances so essentially natural law was put in there phrase is something which is written in the heart of all species including human beings and you know to some extent when you start thinking about that anybody who wants to sort of talk about a system of natural laws apply not only to people but also to animals to piece the Ducks er to whatever it is may in fact appear to you to be certifiably insane but in fact it's exactly the right set of impulses when you do it because the first thing that this requires you to do is to ask what it is that animals and people have in common notwithstanding the fact that in matters of speech and intellect they have a great deal that separates them and it turns out that a sort of a lot of the basic desires that animate human beings come from evolutionary pressures that long antedate the creation of human beings and that suggests you that they're going to be much more and movable and indelible than you might have otherwise thought so that when somebody starts to think about what human beings are like and what natural law is you come up with the right instinct not the wrong instinct which is there's something deeply embedded in individual personality that any legal system is going to have to take into account instead of looking at everybody around this room and saying that really all you are is a social construction of somebody's influence is one way or another infinitely malleable and infinitely changed and I think that once you understand those things and the question is what is it about these people that you discover which turns out to have that form of in develop ability and let me just mention a couple of these things one of them is of course a very sophisticated version of what we sometimes call self-interest and in this particular case if you start with the biology you don't mean individual self-interest you mean it's self-interest with respect to some larger group a family a clan or a tribe and so forth when you try to figure out what that means is it says that at least within these groups there's a kind of a strong interdependence such that you can depend upon goodwill of one form or another for them to take care of each other and it doesn't matter whether you're talking about a mother and her child on the one hand or a lion and our cub on the other what you do is you understand what they always told you in Africa don't stand between a hippopotamus and its calf because it will just run you over by virtue of the fact of these natural impulses and so once you realize that people have them and that you realize that they only run within the family what you start to do is to develop one of the central distinctions that exists with respect to all forms of legal systems and that's the distinction between arms-length transactions on the one hand with strangers and familial transactions on the other hand and those arms length transactions should be understood as you discover linguistically always literally you're keeping somebody at arm's length and there's only one reason why you're doing that you don't trust them and if you keep them at arm's length they can't stamp you one of the reasons you shake hands is to prove that your business hand most people it's the right hand doesn't contain a concealed weapon and so forth and you realize therefore that you're going to need two kinds of relationships in order to organize the world simply by starting with that result and the second thing that you start to realize about this is again the willingness to be completely accepting of the complexity associated with mental states one of the modern curses of legal systems is to sort of say that it's only the objective that matter states of mind really don't count at all Oliver Wendell Holmes who was wrong on many things was also wrong on this one when he started to talk about the relationship between tort and crime but anybody who's ever studied animals will start to tell you an animal knows when it's provoked an animal knows when it's an aggressor an animal knows when it's defending its own kind and what you realize by doing this is that the things that drive you are not cognitively significant they're basically built into the deep part of the brain which explains why it is that they're going to be so difficult to move and difficult to change and therefore if you get this architecture right all of a sudden you could drop grade it by talking about the difference between relational contracts and spot contracts and you can start to figure out how you evaluate these things because all of this has sensually anticipates Hamilton's famous contributions about inclusive fitness which were only formalized on the way in which the precise mathematical relationships was in family in the Journal of theoretical biology in 1964 so it's a kind of a very nice way in which once you understand what the modern stuff is doing you go back and you look at the ancient stuff and their intuitions were pretty good even though their formalization with respect to this was not very strong well that's paragraph 1 in paragraph 2 you find two other elements with respect to natural law both of which again have an enormous influence on everybody's on the F evolution of the subject and on my thinking about it and the first of these is when you're told that something is natural law what you mean by that particular expression is that it's a part of the law which is common to all people in all places throughout the world and one of the things of course that some of the modern anthropologists do is to take exactly the opposite position and to say that if you really want to understand the way in which legal systems work what you have to do is to be deeply sensitive to the variations that exist between them and not to be misled by the fact that there may be one or two kinds of common elements I think in effect that guys had it exactly right when he said this because what happens is if you start to look across various kinds of cultures what you do is you discover that there are certain kinds of features which are in fact very indelible and very common and then as he said elsewhere in that book the same paragraph in fact there are other kinds of situations which is subject to variation by the law of particular jurisdictions so the students always says what's giving here if the statutes could always trump the common law rules if natural law is always beaten by statute why do you even bother to talk about it you should become some kind of a to use the modern term positivist in which whatever is decreed by the state Trump's whatever is done under natural law and you look at gaius and it's quite clear that he and Justinian both understand that this is a grim political reality but what they refuse to do to yield to the next conclusion that whatever has to be the case in terms of the structure of the Roman Empire also has to be the cases in normative matter and so you then try to do is to figure out how it is that you can partition the world between those things which in fact are universal across custom and those things which in fact are distinctive with respect to the local system recognizing all the time as our friend Justinian said quote cranky bleep lock wit legis wit Gorham Hobbit that which is pleasing unto the prince has the force of law which is essentially so there's this constant tension between the natural law stuff and the sort of authoritarian stuff how did Gaius and Justinian try to resolve this well essentially what they wanted to say is that there are basically three fundamental categories dealing with human experience and then there are in some of these cases a set of formalities that can vary from locale to locale so you then look at the Roman system and actually three or four and what you do is you start out with the discussion on the Roman law of persons and that's actually the most discouraging part of the entire system because what you do is you see in Justinian the proposition that all men by nature are born free and then you recognize but in some cases they're in change because slavery is in fact a positive institution and what you discover very quickly is it was such a positive institution that no jurist could simply overthrow it and it was probably something of an act of courage on the part of the jurist to say we know what happens and we know it's wrong and in fact it's the know it's wrong stuff which is most powerful from the normative point of view and if you push that just a little bit further you now understand what becomes much more apparent when you start doing the later British empiricist that principles of individual ownership or individual self-rule I'm not going to worry about the nuances between them or in fact an essential portion of the way in which any legal system is to operate and sure enough if you take this notion of autonomy as meaning not that everybody owes you a living but rather that you are entitled to be free of the interference by force and fraud of other individuals you now see in some of this early stuff in Justinian the origins of modern libertarian in classical liberal the autonomy of the person is something in fact which is the first and key element of the system now how do you acquire that is very interesting because the only way you can describe it is by nature now what they meant by that is not that you went out and did some kind of ritual and so forth but they just simply treated that posit that proposition is one which was so necessarily true that you should not be in a position to deny and so you could start to see in some of these early natural lawyer stuff a cross between necessary truths on the one hand and empirical truth on the other and they never could quite figure out which of these two particular elements they thought more important and in fact the phrase natural law is not the Roman phrase the correct translation is it's the reason of nature rather than natural law because in addition to commonality as being one of the sources of a liability or responsibility and entitlement they also had kind of this natural necessity based upon the internal coherence with respect to doctrine now when you want to play this out one of the things that you discover when you read these Roman texts carefully is that at every time there's a critical move inside the system the word natural right or natural law Lord reason one or another of these variations comes back and there's a very strong reason why they're doing this because they have extremely strong awareness of the way in which the system of a whole is put together and they understand where all the pressure points on and rather than being able to spell out coherent and systematic justifications for what happens what they do in effect is they always throw in a by nature of my natural reason or by common consent to do it and what they're trying to do is essentially to cover both bases if it's done commonly then in effect what you do is you have durability and university or salary as the test of what's going on and that in the libertarian tradition tends to lead you into the Hayek in description of the way in which things work through self evolution and if you start putting there by reason of nature and so forth now it's the kind of necessary true side which is associated with a very diverse group of people ranging from Murray mothball today to Leo Strauss who's not necessarily a libertarian but the same idea of eminent necessity as being the drive force with respect to natural law how does it then play how well you start looking at some of the cardinal distinctions and you can see exactly the way in which the system works and the first of them which begins in Justinian at the beginning of book 2 is the distinction between private and common property and he says in effect that certain kinds of property by nature and necessarily and called in common and others he said in effect our race nullius which means the thing owned by no one which can be subject to occupation so it becomes a theme owned by someone and then the key feature is to ask what's the distinction that he puts between them and sure enough he gets it right on the common side you have rivers you have the ocean you have the beach and you have the air and on the private side that is things capable of private ownership you have land you have chattels various kinds of movable things and you have animals so the Romans are terrific on this classification and then you ask yourself well is this just simply arbitrary because after all there's no formal justification when all you're doing is appealing to this kind of natural wall language without any explicit justificatory strategy and the answer is no it's not arbitrary and there are two ways in which you should be able to demonstrate this the first of these ways is just sort of flip it over and see the way in which you think that the world is going to look so what you do is you say by nature it turns out that those things which are subject to private ownership are the beach the waters and the air and the thing which you have to remain necessarily collected are going to be land and animals and movables right and then ask yourself what kind of a world are you going to have if you just simply reverse the characterization well it's gonna be a terrific world if land is held in common you'll never get it cleared then you'll never get any agriculture which is why it was that when Blackstone talked about the justifications for private property he starts to put it in slightly more consequential so utilitarian terms when he says in effect there is nobody who was going to so unless he's able to reap and the fancy economic version which comes out of that is in effect that unless you can eternalize the future games from productive activities there will be a huge agency cause problem and you'll never undertake the activity in the first place all of these guys barking up exactly the same tree and what the modernists do is they take the old classification and what they explain is why it's correct they are not doing something to explain why it is that they got it absolutely backwards and Daffy and then when you look at the common side what's happening is you now discover that basically property has two kinds of fundamental things and I call this a new branch of law called law and geometry and essentially this is the way it works what no matter what kind of system you take and it starts with the biological you always have two kinds of structures you've got square ones or cubic ones essentially for which you have production and then you have a long and skinny ones which you use with respect to collection and remember we started with a bunch of biological sort of situations and if you're trying to figure out how the body works essentially you have solid organs like the liver and the pancreas and the lungs and then you have two long and skinny systems that link them together one for circulation and the other for neurological connections it's exactly the same way when you try to organize another system and so what happens is when you try to explain these guys you realize that Justinian just happened to hit upon the stuff about network industries and he decided that all those things which essentially are networks have to be held in common and the key feature about a network which is going to be held in common is you're not going to allow anybody to snip and so when you start to say in effect that these things are inherently public what you're really saying to the public at large is that we understand that if you allow privatization of this stuff you will see happen to your rivers what happened to the Rhine River before the Treaty of Westphalia there'll be a bridge with a toll at every two or three miles and the essential value of the system will turn out to be worthless so what you really do under these circumstances is you now have both sides of this things being put forward as a matter of natural law but you can start to see really powerful fundamental sort of instrumental justifications that are so strong that there's really nobody except the perverse who would think that the system would work better if in fact you started to flip it over but at this particular point I said that modernity also makes its claims on you and so now what you have to do is to start to figure out robust these systems are as a function of various kinds of social changes because it turns out that no matter what system you start to look at if populations are relatively low relatively simple property structures we'll be able to answer the question of how you're going to communicate along a river just keep the darn thing open what are you going to do with land just let the first possess it take but the moment you get to a situation where the intensity of use becomes very heavy whether you're talking with land or with water or anything else all of a sudden you start to realize this serious problems and with respect to rivers there are two of them which are quite obvious or one of them turns out to be the fact that you start getting congestion and then you also have the very serious question about how it is that you maintain this particular River if in fact the traffic starts to let its silt up and so forth then the question is how do you take these things into account without altering the fundamental nature of the common property and what you do is you develop from this very naive sense of justinian a volume of the world about how it is that you now make property essentially into a common carrier which of course is one of the dominant classes the private property which is covered may be 20% of the economy and one of the great tragedies of a modern legal education is most students will actually graduate and have never studied this particular body of law in a systematic fashion which it clearly deserves but sure enough the trick in all of these situations is to figure out how you could keep the essentially open characteristic of these things while finding ways 8 to have rules of the road and to have a system of public or private finance which will keep these things going forward so you don't want to allow a river to be closed down in any particular fashion because you have to dredge it and so forth you'll want to keep the access you may have to charge tolls and out of this common law tradition of open access comes the modern rules called the so-called Rand rules reasonable non-discriminatory access which is essentially designed to figure out how when you need to make public expenditures you can still keep the system relatively open as it had been in previously times the private law seems to understand this pretty well and you could chase this down from Matthew Hale going through an effect Lord ellenborough where all the correct Sybil's are announced as early as 1810 the only place where it starts to get screwed up is in modern American constitutional law and there's a perfectly sound explanation as to why it as they get it wrong it's because when we do constitutional law for the most part in the United States it's always with a dismissive sneer with respect to traditional common law or private law conceptions most of which are not understood by the people who are dismissing them and so when it came to water what they said in effect is not when the government makes an improvement does it have to respect all the private rights of individuals along the river which developed in this very complicated customary web instead what they said is oh no no if you look at the commerce power it's not just a power it gives the government the dominant navigation servitude and that navigation servitude allows it to wipe out all private rights along the river without compensation so the failure to understand what's going on means that if you want to build a dam your foot somebody's land and the repairing lose all their rights no property rights at all and you can see it in the nominalism of modern law take a very sophisticated opinion by a wonderful Justice Robert Jackson in the willow privet keek River the willow was Willow River case in which exactly one of these guys is claiming the loss of a basically of a mill of the ability to have the water go down a gradient when they basically change a major river on which he's a tributary and they say this is too evanescent to be a property right no kind of protection so it's so ironic about it is the constitutional side of this thing is much less sophisticated in the private in the property rights area than the private side precisely because it has no knowledge of the tradition from which it goes and so when you're trying to figure out what the modern applications are of ancient law what you have to do is to see how you can preserve it through these complexities and the same thing exists with respect to the first possession rule because sure enough when you start going after animals as opposed to land the common pool and exhaustion problem is extremely severe and trying to figure out how it is that you alter the system so as to make the yield sustainable becomes a very important task if you were in the tradition of the common lawyers you would never be able to say that just wiping out the right to acquire property is something which really doesn't matter you would have to treat that as a fundamental part the system which means that when it comes to design your catch system you're gonna have to try to make a fair allocation of the larger parts of those people who had some portion of the original catch by virtue of customary rights and uses and sure enough the relentless modernism and it's sort of kind of nominalism that takes place it's completely insensitive to those kinds of distributional concerns and it allows you to put all sorts of strange positions you know systems into place and since you don't care about the distributional system in some cases you could actually net that net out with certain larger social losses than would otherwise be the case so just working through the property side you can see exactly how it is that the transformation of ancient systems still is important technically put what you'd like to do is to have every time you find a technological difficulty the legal fix that you give to it creates the situation in which previous holdings are fully respected and the gains are divided amongst the previous holders and that turns out to be with a little bit of variation something like a Pareto improvement so once again you can see the way in which one you start with natural law figure out how social changes start to come to bear what you do in effect is you invoke modern systems of social utility our time is obviously running short so let me just mention very briefly on the contract side and on the tort side the same kind of issues and how it is that they do first of all with respect the contract this is perhaps the easiest place for saying the universality of the principle yields to the particular ization of forms in a given society the basic proposition that you get after you have a system of property rights the first possession rule and a system of self ownership is how under this world of simple rules right you managed to have gains from cooperation and you need just one principle to do that which is to say that you encourage cooperation by is essentially allowing positive sum games to take place through voluntary transactions and you discourage coercion which essentially will result in negative sum games so the older version of force and fraud and voluntary arrangement Maps perfectly into the modern game theoretical situation as to whether or not games are positive or negative some and you rarely will think of these games as cons and some cuz most of the time they're not you won't incur transactions cost in a private transaction just to leave yourself where you were before you got to get the gains out of these things so that oddly enough if you understand the way in which the modern economic theory and games Theory ties in with the older systems you can see that these guys intuited all the virtues of positive some games and we rightly suspicious of negative some games which drives things in the opposite direction and so how do you make this thing work essentially to them the major challenge in the law of contract was not to defend the principle freedom of contract which they thought was solidly grounded on natural law principles it was to make sure that all the frictions associated with the execution of voluntary agreements were in fact going to be dealt with by responsible civil institution so you know you start having recaudación you start having in Roman law stipulation which is rote repetition of words so that people know that it's a serious bargain not just simple kind of complication conversation you end up with the parole Evidence Rule and so forth and what Gaius meant when he said that we have these local laws is all of these formalities will vary from place to place for all sorts of good and sufficient reasons but essentially they all are designed to deal with the same thing unless you have a system of formalities that are built in ex ante you're gonna have huge enforcement costs next post and that everybody will be the better off if in fact you can have clarity of transactions which formalities themselves are able to supply now the modernists often get this one completely wrong because they say oh you've accepted formulism therefore it means that you believe in regulation so somehow rather the fact that you now accept the parole Evidence Rule means that you have no principled objection to the minimum wage laws because those are just another form of regulation with respect to voluntary contract and that's again where the ignorance of the tradition leads to fatal confusions in this understanding all the formalities in the earlier systems were designed to expand the level of contractual choices for the parties by allowing them the security of forward transactions at the very low cost of a formality so if you were to ask any broker hey could we improve the system by repealing the statute of frauds they're going to stick a knife into you because they know their business goes to pieces unless they could rely on the written agreements as being the source of liability and the source of obligation and the modernists in effect they just don't bother to distinguish between regulations that create positive some games and those that create negative some games and so they say you can seed one you can see the other but of course a minimum wage law is not designed to improve the enforceability of transactions it's designed to circumvent and to limit the space for essential gains between the parties it's a negative some type of operation by blocking positive some transaction and so again if you understand the way in which the early natural lawyers thought about this subject you would never make the mistakes which are endemic to the majority of the United States Supreme Court both of liberal and conservative persuasions because they none of them even the originals on the Supreme Court are really steeped in the historical tradition from which all of these originalist doctrines apply now the third thing I'm going to talk about very briefly is the tort law system and here of course it's a slightly different variation and the first thing to note about the variation with respect to the tort laws that the formality issue simply drops to one side there is absolutely no way in which you're going to say oh in order to make the tort law go do well what we'll do is we'll have a system of formality so if you want to go kill somebody you have to sign up on the following bulletin board so that everybody knows what your intentions are we know in effect that we don't want to give formalities with respect to these wrongs precisely because anything which increases the security of committing wrongs will necessarily decrease the overall level of Social Welfare and in fact very early on the system's understood that the only time you really are worried about freedom of contract is when the externalities flip over from positive to negative as they do when you go from a contract to sale of an ordinary good to a contract of a sale of weapon which is going to be used in order to assassinate er to kill somebody else and so you get this very coherent doctrine of conspiracy which essentially flows from understanding that individual wrongs when aided by gains from trade are more dangerous which is why it was that the common lawyers were right when they said in effect that conspiracy is not simply an additive offence it's a multiplicative offence two people are more dangerous than one plus one precisely because of the gains from trade that they achieve at social cost when they combine their own so you understand why you want the talk look interestingly enough you also understand what the scope of the tort law is going to be the Romans started this off out with an expression which in fact contains more wisdom and towards on proximate cause then you can find in the entire Restatement of torts which is a doctrine which only piles ignorance upon stupidity to the point where nobody can understand what it means and they said you want to figure out what the law of torts is about corpora kippur and what does that phrase means it means by the body to the body it's essentially the Roman equivalent of the common law of trespass which says don't punch somebody in the nose now somebody would want to say well is that the entire law of torts and the Romans of course were experts in poisoning and so they could figure out how it is by the body to the body would work if I opened up Nick's throat and rammed some poison down it but if I was a little bit more gung-ho and I simply gave Randy a plate of food which was laced was poison so he aided himself and that was not by the body to the body does it mean there was no liability at all and sure enough what the really good feature about Roman law was is they understood the power of analogies how to make it work and when to quit and so they developed after talking about all the force cases a distinction or a second category wrong called causal mortis per story and what that phrase means furnishing a cause of death and again the secret for understanding the phrase is to take it very literally I have gone to Randy I have furnished it with some food which turns out to be a cause of death and then we develop from that a much more powerful theory of causation which says that there are two things that Randy can do which do not several causal connection one of them is we could force it down his throat and the others we can deceive and sure enough they map in perfectly to the Aristotelian distinctions between actions done under mistake and actions done to duress neither which essentially are going to be regarded as fully voluntarily voluntary even though they are in some sense volition and once you start doing the tort law in that fashion and start working out from close cases and go beyond all of a sudden you realize why it is not only an unintelligible completely baffling that anybody would have any interest in a set of which started with the but-for theory of causation to be limited by a theory approximate cause the genius of a system of causation that works is you start with close connections then ask yourself at every stage how far you go and then you have to come up with a test for risk for ending the causal chain and those turn out to be if you think about it amazingly simple so if I dig a hole and I covered over with some kind of thanks so it's a trap and somebody else can fall in generally that is a live danger whether the you fall in by accident somebody pushes you in accidentally somebody pushes you in deliberate well what's going to end the causal chain it's not the intervention of a deliberate act it's the fact that somebody fills the darn hole again so you're back to the original kind of condition and over and over again the Romans get that point right so that you never have this theory of infinite causation necessary and sufficient conditions all the effort to take logical conceptions and to put it into a system of total so what's the moral that you get from understanding these guys it's that if you really go closely and figure out the way in which these people work their individual cases instead of finding a kind of conceptual framework what you can do is make the system more rational and more coherent than they did by simply chipping away at some of their mistakes and making it into a basically coherent system whereas try as you might with modern academic theories of causation like the nests necessary element the sufficient conditions you can't do it because what happens is they're simply barking up the wrong tree by trying to take illogical conceptions and use them to describe descriptive connection so what I've done here is talk only about private law conceptions and in effect I haven't talked about the fences and a lot of other stuff which complete the system but let me suffice it to say that one of the great achievements of the Roman law is they actually knew how to plead a case to joinder of the issue and didn't simply say that it was a device for discovery it was a conceptual way and so when I was writing this stuff very early on I would plead cases out to six or seven stages using the mouvement methods and of course they got it right and the effort to compress all this stuff in ways that make it essentially unformed which was a mistake but there's also another benefit that you get from this system which tells you about how system should work if you put together your public government trying to figure out how it is that you first respect the rights of property the rights of autonomy contracts and understand the enforcement of torts and then try to create Pareto improvements of that by having such simple things as statutes that are designed to deal with bag limits or statutes of frauds and so forth essentially what you do is you build off this basic system of rights and constantly improve overall on systemic social welfare the modern conception of the state is not one which is designed to realize and fulfill natural law ambitions it's to overturn and essentially the single most dangerous element that you have is that saying oh once the government gets involved you don't have to worry about all these limitations you can now introduce any regime of positive rights that you darn well please and sure enough by the time you're done you'll get room to wound-care of which the latest and most egregious advance of that to radicular direction was the health care bill and you know what's the root difficulty it is in a sense changing the definition of rights so that the right to health care doesn't mean the right to buy from somebody who's prepared to supply it to you it means the right to tax other citizens so that they will take care of your health care and then we'll turn around and tax you to take care of theirs and if you go through it all what we've done is substituted a set of negative some transactions for a set of positive some transactions and so all of the natural law theory turns out to be when properly understood and explicator the strongest barrier against what's going on inside the public law space which is why when I wrote the takings book I was so insistent on starting with private property and then figuring out how government could make the system work rather than doing the modern constitutional game which is to assume that anything under the Constitution as a matter of public law so that somebody who actually knows something about how private law transactions are put together is suffering from some kind of a pre political delusion instead of actually understanding the sound principles of statecraft so I've spoken enough I'm supposed to end at 7:30 at the very latest that leaves you no time for questions of course which I'm happy to take but essentially the lesson is unless you can master the ancient conceptions of natural law you will never be able do modern public policy well thank you all right thank you questions by anybody somebody oh come on I don't want it to be automated anybody anytime in time but I won't take any questions what a what a crowd come on somebody I'm feeling embarrassed yes Rogers thank God a strong natural or libertarian who worries about my socialist tendency this is the man to ask the question yes thank you this is basically the duty of necessity that falls in yes I know that I think and I wonder if you would do so the distinction between natural law and natural rights is one which a lot of people when you go to do the casual scream with such issues that say homosexual rights people take the taken aback Thank You Roger for making miss my plane um but you're actually asking two questions which are completely different than both are perfectly relevant and correct I think if you remember when I started to talk about the natural necessity stuff I said there's some people who tend to treat individual autonomy as something which they regard as kind of a historical and evidentiary truth and there are others who sort of believe it is something which is close to natural necessity so that you can only deny on fear of self contradiction and you know if you go back and you start to look at the justifications for the autonomy principle particularly unlock what you do is you find out that he does very badly with respect to it because he says that a man's person is something which we rightly can say will be his and it's an extremely powerful sentence because everybody kinds of agrees with it in terms of its conclusion but people are very upset about the fact that there's no justification and so one of the ways in which people tried to do this is to say look you look around anywhere every time you do see slavery and nobody defends it so it's quite clear that the common consent of mankind is behind some version of the autonomy principle because every time that it turns out to be violated we attack it and then when you get into modern times you could even strengthen that argument by giving the historical evolution of personhood which in Roman law was an extremely complicated body of law and as you go forward through the from starting in the 18th century to go forward essentially personhood is designed to say that every natural person has full legal rights and so you transform slavery you train for infants not infancy but people who are in the power of their parents after their majority you transfer the sex differences and all the rest of that stuff so you get that historical stuff then you get the people like Strauss and so forth who just take contingent explanations because they think that you can start to deny them without some without for yourself contradiction and they want to ground the basic principle they think of human dignity in something which is stronger than this sort of cultural commonality and so they they are the ones who start picking up the necessity language and the reason why you said that's a kind of an illicit move is that necessity in this sense does not mean logical necessity where you deny it on contradiction it starts to have a more Conti and flair where it sounds like something like the synthetic a priori a posteriori right the sort of things which have to happen to be true but aren't necessarily true and nobody understands what that is I mean there's that long battle between Hume who denied any such relationship and Kant to tried to resurrect them and you kind of fight this one to a philosophical draw so now how would I come out on this well essentially you know my view about social welfare is heavily influenced by some of the work that Ronald Coase had done as I mentioned to some of the students at lunch at dinner tonight that Ronald Coase is the economist who discovered friction and it turns out friction or transactions costs are inherent everywhere else and so you just applied to individual autonomy the same kind of arguments that Ronald apply to any other property rights in a system in which there are zero transactions cost what will happen is if individual autonomy which gives you complete control over your body and we can treat control over my body is the optimal situation we will get there through an infinite number of transactions that take place in a zero amount of time and that's why it is that the whole zero transactions cost world is so grotesque because it presupposes essentially that there are no obstacles to infinite equilibration and in fact time doesn't mean anything at all and what really happens is as Ronald said go to the second half of the argument positive transactions cost and the thing that we note is that there's no way that any one individual can make contracts with all individuals to deal with something like autonomy in a state of nature and the explanation is really powerful explains also the origins of property and the concerns about coercion and force which is an order for the autonomy claim to be good as a contractual situation you have to be able to do a separate piece with everybody if one person stays out of this particular arrangement he could stab you in the dark of night and you'll never be able to sleep and in fact if you take the most dangerous person and buy him off with perfect enforcement the second worst person will do that so the argument in favor of individual autonomy is as a moral vision you'll look around and you're trying to think of any end state which you would prefer to the one which says that each person has equal liberty and exclusive control over his own person subject to the mutual renunciation of force and you ask yourself can you find something that generalizes which is better than that and it turns out you can't and it's as powerful as the distinction why it is that rivers are common in private property your house is a private property and so forth so you'll look at both parts of this thing the first thing is you want to get rid of the Equality constraint that I've just given sort of equal limit well if you get rid of it you're going to have to explain what the differentials are across not only to people which you can do in contract but of course every person on the stage of the gulp and you're gonna have to have some metrics on entitlements which will tell you which get preference is by how much over everybody else and you have to keep consistent transitivity so you can't at all do that so you don't want to get rid of the Equality stuff then in effect well what about the Liberty stuff on non-interference the great advantage of Liberty in this situation is the technical matter is it's the only configuration of Rights amongst people which is perfectly scaleable independent of wealth and what do I mean by that generally speaking when you start talking about families you can have all sorts of ad hoc arrangements between husband and wife and three children's you got two sets of families and put them together in the same household not gonna work so good right so informal dense network relationships are not scalable above a very very small amount and indeed the moment you get it large you introduce another kid into the family everything else has to be recalibrated but non interference from the use of force is in fact perfectly scalable and you could do it in a small society of a thousand or a large one of ability and in fact it's durable in another regard because it's scalable with respect to wealth changes unlike positive rights where you never know how much you could give so much and tell you know how much you could produce so you put all this stuff together and the way you come out to it is in a positive transactions cost world you end up with the autonomy is the desired straight because in a world where you can't have individual transactions having gone through the mental calculus you're quite confident that this would turn out to be the focal solution for just about anyone anywhere at any time and so if in fact you get that kind of inevitability using this analysis all of a sudden the kind of natural necessity language takes on a third meaning and what that third meaning turns out to be is it's the equilibrium point that fully informed people would reach if their transactions cost was zero and you're so confident about it that this distribution has a single peak and there's nothing around and in the end I think that's why if you look at it the common custom and the natural necessity people they all point you in the same directions for different reasons I think the explanation that I've given is actually better and I'm going to tell the same story I told it lunch or dinner to some of the students huh when we had it before I was trying to explain this or some version of this years ago to a an English professor from a place called Wofford College and all George Martin was a libertarian later president of the Liberty fire you happen to remember and he listens to me going on for about 20 minutes getting myself into high dungeon in spirits and then he just stops me and this is what he said this is Richard I've listened to you now for about thirty minutes and I think I've understood some of what you said but not all but I can tell you one thing for sure is that if I took a transcript or a tape of this conversation I could get you civilly committed in any state in the Union that's what he said now why now this was actually a really it was a good solid body blow because it explains what the real difficulty is I was giving these explanations to defend perfectly homespun arguments which everybody accepts intuitively in a formal way and to most people the intuition is much more comfortable than the explanation so one of the great difficulties that sort of moral theorists who come out of the consequential tradition as I do is to always be able to link up what we're saying by way of proof for what other people ordinarily believe and we have to ourselves check our own intuitions against in fact their intuitions and then have to try if you could get them to sit down long enough to listen to you explain why it is that what you're doing is really just making more form what they've done and I think in effect that it is ultimately the right explanation which explains to quote you again why it is this is such an unconventional view of natural lawyers because most of the natural lawyers who defended this stuff have no idea of the apparatus that are bringing to bear upon it so the language that I'm using is this alien to them as it is to the ordinary man in the street now the other question you asked about natural law and natural right with respect to gay marriage is in fact a very different type situation and essentially the modern interpretation of this or explication of this has to do with the scope of the morals power of the police power and if you go back and you read all the traditional views on individual liberty what you see in the late 19th century is a very in cautious but instructive list which says that you could limit the individual liberties of ordinary people or the way in which they use it dispose of their private property to deal with the health safety general welfare or morals and every one of these terms is contested in some important dimension but the one morals is I think most instructive for these purposes if you were taking sort of the traditional view of you know sort of what natural law requires as consistent with ordinary human beings and not being so much a libertarian but rather being somebody who sort of looking at as accepted social mores and so forth you would tap in in modern terms to the very powerful intuitions that people have about the so called discussed norms in fact there's some very good work about this by man named Jonathan Haidt at the University of Virginia who says basically people's or intuitions always precede their judgments that is they rationalized what they feel and that they have three sets of instincts one of the instincts is reciprocate which is contract and others keep your hands to yourself with just a toy and the third is to be aware of disgust and deals with such things as adultery sodomy prostitution homosexuality polygamy masturbation you name it it deals with it right and it turns out the dominant kinds of intuitions that people have are not libertarian precisely because anything which is sexual is close to something which is familiar and anything which is familiar is organized on deep concepts of interactions which are not part of this libertarian world that you have keep everybody at the arm's length have strong property rights and do so historically there's no question that if you go about this the 19th century decisions that tapped into this morals tradition were very consistent with a large amount of Western civilization what is interesting is the Supreme Court which doesn't believe that two people are allowed to work one for another in a wage of five dollars an hour all of a sudden believed that homosexual sodomy and everything else is absolutely the single most important feature on life and you can see it because if you go back to the 19th century versions when they talked about homosexuality it was a meretricious relationship I had to go to the dictionary the first time I read it to figure out what this denunciation meant and now when you read Lawrence against Texas it all sudden becomes a transcendental experience right well what you've done is you've keep the vector very large but you just changed the sign from positive to negative and so the battle you therefore get and it's a deep one is between those people whose views of natural laws being conservative means in effect that they believe the kinds of practices that kept us alive traditionally the ones that we follow today in con law tradition that says Stephen Calabresi accurate reading in my judgment the privileges or immunities in the 14th amendment as referring only to traditional liberties of which homosexual sodomy was not one and so it's not covered and then the modern ones are pure libertarians on this dimension but on no others and they say you don't like it you take offense about it squat just don't watch it or as Barney Frank said very telling me you don't like gay marriage don't attend the wedding right I mean and at that particular point they then say well marriage licenses we're in favor of marriage but what's this license business and all of a sudden the same people are saying well if you're gonna grant marriage licenses to heterosexual couples are the licensing powers a monopoly power of the state they have to have non-discriminatory rules there's no rational distinction between them and couples and so therefore you got to grant it to both essentially what these guys do is they become perfectly consistent libertarians within a narrow space and that's a profound difference and if you realize that the autonomy principle is both supportive of and has been limited by these moral cases you can see why there will be blood on the floor for a long time to go now what's my view about this issue Roger asked and I will state it in a sense I think the constitutional cases has to respect the history even though there's no text because remember there's nothing about the police power that's written into the Constitution and on the other hand if you ask me how I think I think what you have to do is to say even if you find this stuff squeamish and so forth as a social matter the decent and proper thing to do is not to allow your sense of offense to block the way in which other people live their lives so I become a constitutional conservative and a political lip and I regard the first as being accurate to the constitutional tradition and the second being more consistent with my libertarian instincts and by the way a classical liberal should have exactly the same attitude on this the areas where they differ from libertarians are such things as eminent domain and taxing powers you know rate regulation and so forth but on individual bilateral transactions the two theories collapse into one of them so that's the answer to that question is there one other question that was 15 minutes I mean you know I'm quite happy to stop and let you all get a drink but I don't want you feel intimidated for Christ's sake I don't know if another question come on somebody somebody going once I don't feel like an adult you are yes thank you get to that microphone and sing natural law and as applied to humans you said it has an aspect it's evolutionary that we will look at the rules that developed from the time immemorial and even before two thousand years of our evolution that kept us alive made us a lot to the extent that it applies to animals as it does to us we can look at that and one might look at homosexuality as being unnatural in that sense because no evolutionary explanation just to throw one example there could be many yeah and but my question is as somebody who thinks somewhat as find some appeal of natural law is that it is we say natural law we look not we look at human nature as being perhaps distinct from animal nature that we are different in that therefore what is natural for us might be quite different from even our we might have a natural right a tendency to transcend our evolutionary past I mean not completely we can't just you know become disembodied you know angels or something like that but in some ways we are we really aren't animals we are different we have a human nature that is not animalistic and therefore could arguably not be bound by all of that evolutionary stuff that came before even if there are some strong tendencies that we may want to overcome those things and I don't think that's the way the natural lawyers thought of it I think they're actually in this case a little bit more subtle I think actually more correct than that account which is they said look you put on a cerebrum on top of a cerebellum you still got a cerebellum so human beings are going to have certain types of situations where their limbic system will take over and their cognitive system will disappear my favorite illustration of that is a little scene in the movie called the Culpepper Cattle Company did anyone ever see this great movie it's about a thing and what they do is they have a rattlesnake in a jar okay now what they do is they provoke the rattlesnake and he starts to try to bite you and the glass obviously stops the question is whether or not you could put your hand on the jar and keep it there with full knowledge of the fact that the rattlesnake will come at you and they can't reach you how many people do you think could keep it zero well why is that because you have power your your basically your cognitive system in the face of what is perceived as imminent peril shuts off all this stuff starts to take off and you know so you're like a rat when you're trapped under these circumstances they turn off the top and they go down so you can't get rid of the bottom stuff and you don't want to say to give it homee on it because you now could build two stories up you have to ignore everything in the foundation you got a deal with the brain that both parts and so the the traditional natural lawyers they sort of understood these aggressive tendencies these intuitive tendencies the importance of mating raising children and so forth they said hey you know we can think so if you're talking about animals their capacity to make forward-looking contracts they're gonna be limited because they can't have form and so forth well we like forward-looking contracts we're not animals we'll have a statute of fraud then you look back at animals and you know you discover they can after a fashion make forward-looking contracts just in a very limited nature so if you study the way in which troops in buffoons work and you're sort of male and females together and access to females and alpha males and double males what you do is you see these kinds of loose coalition's and alliances taking place in which there's mutual aid and support and then of course you can get toppled when the your alpha-male gets a little bit too old and one of the other guys goes in revolution so what you find out is that virtually everything people can do animals can do worse and/or better I mean you know certain instincts I mean they're better hunters in many ways because they don't they're not clouded over by doubt and in the way to look of pockets yeah and they don't have pockets or whatever it is but you know they have other so you then start to figure out a natural law theory says okay we add cognition we add moral awareness and we start to add on language and so forth and now we're a little bit different this actually has become a very important battle when you started to talk about animal rights this was a very big issue ten years ago and let me just tell you a little story and then we will stop for real is I was sitting in my office one day when I get a phone call by a guy named Bill glabrous who was a reporter for the New York Times and you know it consisted without I think he says I understand you were an authority on animal rights I said I don't know what that subject is I said animal rights there's this guy then and then he started to talk about a couple of people Stephen wises in particular who were very strong animal right skies and they had announced that I was an authority on the other side I said okay let's just talk about animal rights he said and I did I said look I could tell you a lot about animal law because I remember I'm a Roman lawyer by training and the thing you have to understand is that animals were much more important capital asset than than they are now so huge portions of their law are devoted to understanding how you start dealing with animals and so I start explaining them how the law is organized and so forth and you know we go on this and he's looking into the telephone in a very weird way but kind of mildly interested in what's happening and then I said look and it's a serious problem that these characters start to have when they start saying this with animal law how far do they want to take this thing and I said do you want to treat bacteria's animals and then I said you know there's another problem which is if you try to superimpose today's modern norms about animals on earlier society you never broken the sod and we would still back in primitive position and I then I talked about a bunch of other things having to do with vicarious liability and the conveyance of animals and so forth that didn't interest him so this thing goes out in the paper and and glabrous enhance the story and they cut it so that my name is on the front page of the story as being the opponent of animal rights who made these two objections and I'm often Charlotte doing some antitrust case and I get on my voicemails in 1998 and I turn it on and in nineteen messages I said I don't have 19 friends what the hell is going on well sixteen of them were from people on various and said we understand you're the leading opponent of natural animal rights in the United States we would like you to be on MSNBC this the other day and so I start going on these shows because now at this time I had an extra I said hey you know this really is crazy and you know animals voting and all the rest of the stuff animal territory for his possession rule you know which of the rules you keep which them do you not and so I do this it ends up I actually go on National Geographic and have a debate with Stephen wises I mean I became a real celebrity in this thing for that four or five years before essentially it went the way of all lamb chops and people just got tired of the issue it sort of disappeared so I became this expert but the one argument that that really drew blood with other people is they they wanted to say you know these animals really should be treated with respects to human beings and so I said to them well let's see what we can do about this because we believe in the principle of autonomy right you won't let it wild animal kill why don't you find a lion out there and explain to him that it's not a good thing to eat a chimpanzee and see if you could get it in the wild to listen to your injunctions and so they look at you and they say you're crazy professor FC everybody knows they have no moral sense I said well that was exactly my point right okay and so what you did is you really could see the differences between animals and human beings when you look to animal animal interactions so Stephen wises for example only really cares about chimpanzees for the obvious similarities and so you look around and you find the typical cat of the chimpanzee going up a treat and dismembering a monkey and eating so I said Stephen are you gonna tell this guy it's the wrong thing to do and he says well I might but first you have to prove to me that monkeys are sense8 individuals you know and yeah that's right I mean it's just that's what happens to the moral argument you start having these kind of factual denials of these things but the basic point sort of remains truth is that the kinds of codes that you can teach and impress upon your children it's beyond the capacity of animals to learn the only thing they have by nature is a caution respect with respect to conspecifics and even that of course if you read the chimpanzee wars and so forth is it's quite imperfect it tends to be client as much as animal loyalty and a certain kind of brutality associated with them but it's an inbred morality that you cannot you actually look at the modern sociobiological and neurological literature that's coming up more and more of it turns out to be pre-programmed in terms of the eyes of many people in terms of the way in which people interact why they're successful why they're happy I mean there was something just yesterday in the paper about why people believe in religion because it actuates certain hormones that make them own you know sort of be at rest one way or another I think a lot of that stuff is actually really quite true and so the the kind of true story is you know we have this superstructure and that may mean that we have a ten story building but it's not just that the foundation is based upon these natural instincts but even as you go up the levels there's always going to be some influence so that what happens is you start at the base is heavily naturalistic as you move up it becomes less so but never does it become entirely cognitive and if you only if you get that kind of view of what human nature is like that you'll understand I think how you want to put these kinds of rules together and you will also understand why it is that everybody who has a totalitarian instinct their first desire in life is to break down people's natural moral sensitivities by extreme deprivation in order to remote so essentially if you're not a totalitarian you sort of have to live with the imperfect nature of human beings I think we should have a drink hello everyone thank you so much for coming my name is Iike a pocket and I'm the president of the Georgetown federal Society for this year and I think it's clear from professor Epstein's remarks and from the introductory remarks from fresco Rosencrantz and professor Barnett that Professor Epstein has had a great influence on Federalist thought and ideals and I'm very proud to present him with the 7th annual lifetime service award I'm now going to return the award to know that the nature of the transaction is determined by us intention this is basically

Channel: The Federalist Society

Views: 34,405

Keywords: federalist, judiciary, law, supreme, court, conservative, libertarian, public, policy, natural

Id: R_ge4tYI8Vk

Length: 79min 25sec (4765 seconds)

Published: Fri May 28 2010