[From my Webnote series]

• Federal Judges Aren’t Real Judges
• “Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society
  • “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010)

Ideally law ought to be developed in a decentralized fashion by judges, juries, arbitral tribunals applying developed legal principles based on libertarian ideas about justice and property rights, to new disputes and fact situations.¹ This was the basic model of the two grand legal systems in history: the Roman law, and the English common law. Better yet if the state were not involved, but in any case, an decentralized, caselaw, organic system is to be preferred.

But we have a system now dominated by legislation, by statutory law. The Roman law was codified legislatively by Napoleon and others, resulting at first in elegant civil codes enacted by legislation and backed by the force of the state. This enshrined legislation as the supreme source of law–legal positivism.² These are the continental legal systems, the so-called civil law. In the meantime even the relatively propertarian and elegant civil codes have been swamped by a deluge of inelegant artificial and special-interest favoring legislation. Meanwhile the English common law has also been gradually submerged in a flood of English statutes. The US English-influenced common law system has also become steadily dominated by state and federal statutes. This should be no surprise given that the fount of our law is the Constitution, itself nothing but a statute, a piece of legislation. Sure, the Constitution as legislation is broader and more general and aspirational than most modern specialized statutes, which means that it is vague and ambiguous and subject to arbitrary interpretation–and since it is the state’s courts that interpret it, this means that it will be construed over time to grant more and more power to the state.³ Don’t fool yourself: the Constitution is nothing special, and is not libertarian. It’s just a cover for a centralizing power grab.⁴

When you get legislation law is divorced from justice. In a normal dispute, a case before some judge or tribunal, the court can attempt to “do justice” and find the right answer by appeal to developed legal principles and even abstract principles of justice.⁵ In such a system, it is at least possible for the legal principles that develop to be internally consistent–as the judge seeks to reconcile his decision with previous precedent and developed law–and to also be compatible with justice, since that is the purpose of such a dispute resolution proceeding. The law grows like a coherent crystalline structure on a substrate of justice and libertarian property rights. This is even true to some degree of civil law systems, even though they are based on legislated codes, since they are themselves elegant codifications of legal principles developed in decentralized form in the Roman law system. This is why scholars are able to speak  metaphorically of the legal principles staked out by articles of a civil code as embodying a

plasma that bathes and nourishes an entire code and its institutions. The obligations articles are traditionally rich in analogies, making them, in Portalis’ famous phrase, “fertile in effects.”⁶

But when law becomes dominated by legislation the judges’ job becomes merely to interpret words–words that have no necessary connection to justice; words of a statute decreed by a committee of corrupt, power-hungry political elites; a statute that embodies conflicting compromises and that has provisions not even guaranteed to be internally consistent, much less consistent with other statutes. For example, the Constitution itself is incoherent (it does not authorize censorship yet provides limits on what and how the state can censor; it does not authorize federal eminent domain yet places due process and compensation limits on this nonexistent power; it recognizes free speech rights yet authorizes the censorship of copyright) and contains ambiguous provisions (the interstate commerce clause, the general welfare clause, the patent and copyright clause, the necessary and proper clause). And the patent and copyright statutes empower the granting of monopolies, all the while the various antitrust statutes decry them, leading courts to helplessly conclude that there is “a tension” between antitrust and IP law. These modern statutes, even the Constitution, could hardly be viewed as enunciating principles of natural law that are embedded in a coherent “plasma” of natural justice. (The US Constitution is more abstract and general than modern statutes, and is based in part on organically developed principles of the English “constitution” that are somewhat compatible with libertarian principles, but as noted above, it is riddled with ambiguity, inconsistencies, and blatantly illiberal provisions precisely because it was the artificial decree of a committee of politicians, bureaucrats, and power-seekers. It is more accurate to say that the natural justice and libertarian principles that do inform parts of the Constitution’s fabric serve not to make it libertarian, but to give even its illiberal provisions legitimacy in the eyes of a confused and duped public. On this see Lysander Spooner’s comments about supporters of the Constitution being knaves or dupes.)

New York lawyer James Carter recognized this when he worte, in 1884, in opposing David Dudley Field’s attempt to (legislatively) codify New York’s common law, to replace case law with centralized legislation:

At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!

This gives rise to a phenomenon I have referred to as “classificationism.” When the positive law becomes dominated by artificial state decrees–whether actual legislation, or administrative “rules” made by various federal “agencies,” or fumbling attempts by the courts to make sense out of mere words of a statute, the meaning of which is not connected to natural property or justice–then law devolves into endless squabbling and bickering over definitions and classifications.

There are a depressingly endless number of examples that could be given. Under the Americans with Disabilities act, what is, or is not, “reasonable accommodation” made by a business owner to the disabled? Who knows?

In copyright law, what is “fair use”? In patent law, when is an invention “obvious”?

If someone “is” an “employee,” they are subject to different regulations than an “independent contractor.”⁷

If a type of musical event “is” a “rave,” then it is banned; otherwise it is not.⁸ If money you get is “income” it is treated differently than if it’s Officially Classified as a Gift, or as a Capital Gain. Tax “avoidance” is legal, but tax “evasion” is not. The examples go on and on.⁹

And the latest example is whether something is or is not Officially A Sandwich. Is a burrito a sandwich? A taco? How about a slice of pizza folded over? Curious minds want to know–especially the tax man and regulators. When legislation becomes the dominant source of law, there are no objective answers left. The state has greater discretion. Justice becomes irrelevant. And as absurdity becomes law, law becomes a joke.

[Update: See also Manuel Lora’s post The Power To Classify Is The Power To Destroy; Isaac Bermann’s The Perils of Positive Law]

Here’s Mike Masnick’s Techdirt post on the sandwich classification issue:

Why Some ‘Easy’ Legal Questions Aren’t Always So Easy: Is A Burrito A Sandwich?

from the enjoy-your-burrito dept

I will state, up front, that I am mostly posting this because it’s hilarious — but there is a bigger point, which we’ll get to. For reasons that aren’t entirely clear, Aaron DeOliveira sent over this story from GOOD, analyzing the question: is a burrito a sandwich? This may, at first, seem like a silly debate. But, as the article notes early on, it actually was the crux of a legal dispute not too long ago, in which Panera Bread sought to block a Qdoba Mexican Grill from opening in the same shopping center, pointing to a clause in its contract promising that it would be the only “sandwich shop” in the complex. Panera argued that a burrito — the main item Qdoba sells — is a sandwich. In the judge’s ruling (pdf), he used both the dictionary and his own experiences to claim that a sandwich should involve two pieces of bread. The burrito uses a single tortilla of course, thus, Qdoba opens, and Panera has to live with it.

From there, GOOD author Amanda Hess dives deep into the debate, and I can’t emphasize enough how worthwhile it is to read the whole thing, but here is a snippet to whet your appetite:

Can a food become a sandwich simply by calling itself a sandwich? Does an open-faced sandwich constitute a sandwich, despite the lack of sandwiching employed in its construction? If so, is bruschetta a sandwich? Buttered toast? Pizza?

What if you fold the pizza in half? Must the unifying exterior item be split in two in order to constitute a sandwich? Is a hot dog a sandwich? A submarine roll split in the middle, but with a hinge still hanging on? Is an omelete a sandwich?

A note on methodology: Is it necessary to consume the sandwich with one’s own two hands? If one were to douse a sandwich in gravy, would it neutralize the sandwich, converting it into nothing more than a bread-based entree?

If we’ll accept a hinge in a sandwich, what about a filling that’s encased on two sides? On all sides? Is a kolache a sandwich? A pasty? A corn dog? A calzone? An egg roll? A dumpling? A pop tart? Is a wrap a sandwich?

Is a burrito a sandwich?

It goes on from there, and just gets better, including conflicting governmental definitions of just what constitutes a sandwich, and even under whose regulations sandwiches fall (“a sandwich built with two slices of bread is controlled by the FDA; only an open-faced sandwich lies within the USDA’s purview”). Hess apparently reached out to notable “experts” on sandwiches — and at least one burrito expert — none of whom seem to fully agree on the sandwichness of a buritto.

As I said, it’s an amusing and absolutely worthwhile read, but it also highlights a key point: something that seems simple, when tossed out in normal conversation, can often become very complex under the law. We see this all the time with things we write about. Take, for example, copyright law. People who favor stricter copyright law, seem to think that it’s easy to extend copyright law without it negatively impacting creation or innovation. They say things like “infringement isn’t free speech” and “how can company X not know that content Y is infringing?” Yet, under the law, this is a lot more complex. Copyright claims can pull down non-infringing content, and that’s where things get tricky, and what may seem “obviously” infringing in some cases, often isn’t so obvious at all. Similarly, with stories about the Computer Fraud and Abuse Act, the law was put in place to deal with computer hacking. It was specifically about “unauthorized access.” Yet, over time it’s been twisted and changed to mean all sorts of things, including companies charging employees under the act for doing something personal on a computer — because it’s not “authorized.”

In some ways, this is a defense of the need for lawyers — even if they can be easy targets to hate. In a world where you can spend so much time arguing over the sandwichness of a burrito, there’s a need for lawyers. But, it’s more a warning about thinking that passing new laws and interpreting them is “simple,” and that the resulting laws will not be abused in dangerous ways. This is why we’re so concerned about many of the legal changes that come from certain industries, where they’re always presented in a simple and straightforward manner, without any concern for the eventual unintended (or sometimes sneakily intended) consequences.

Update: see http://www.tax.ny.gov/pubs_and_bulls/tg_bulletins/st/sandwiches.htm and Planet Money, Episode 554: How The Burrito Became A Sandwich

[Mises]

1. See my articles “Legislation and Law in a Free Society” and “Legislation and the Discovery of Law in a Free Society.” [↩]
2. See my post Logical and Legal Positivism. [↩]
3. See John Hasnas, The Myth of the Rule of Law. [↩]
4. See Rockwell on Hoppe on the Constitution as Expansion of Government Power. [↩]
5. On the difference between more abstract principles of justice and more concrete, specific legal precepts and applications of the abstract principles, see my Knowledge, Calculation, Conflict, and Law. [↩]
6. See Shael Herman, Detrimental Reliance in Louisiana Law–Past, Present, and Future (?): The Code Drafter’s Perspective, Tulane Law Review, 1984, pp. 708-709; also idem, Minor Risks and Major Rewards: Civilian Codification in North America on the Eve of the Twenty-First Century, Tul. Eur. & Civ. L. Forum, 1993, n. 11; idem, The Louisiana Civil Code: A European Legacy for the United States, 1993. [↩]
7. See Melanie Trottman, “Unions Want Limits on Firms’ Use of Contractors,” Wall Street Journal (Dec. 8, 2010). See also my post The Over-reliance on State Classifications: “Employee” and “Shareholder”; also Corporate Personhood, Limited Liability, and Double Taxation; Update: see this post about whether a nightclub shareholder should be classified as an employer or not for FLSA purposes. [↩]
8. See Mike Masnick, California Politician Discovers That You Can’t Ban Specific Type Of Music; Admits ‘I Didn’t Know What Was Going On’. [↩]
9. Other examples include:
   • Whether there “is” an “emergency” (guns might be prohibited if there is; 2);
   • whether waterboarding “is” “torture”;
   • who is a “journalist” (2), e.g. whether a blogger “is” a “journalist,” e.g. for purpose of enhanced freedom of the press immunity from defamation lawsuits or whether you can be forced to reveal sources–see also “medium of communication“; see also Senators spar over definition of ‘journalist’…
     • Also re Don Lemon covering the ICE protests in a church in  Minneapolis; Don Lemon pleads not guilty in Minnesota church protest case
   • “famous brand” for purpose of trademark law;
   • “generic” mark for trademark law;
   • “famous person” for purpose of defamation law;
   • who is an “adult” (matters for a host of issues, e.g. statutory rape, child porn, alcohol);
   • whether a machine “is” an anti-circumvention technology (DMCA);
   • “cigarette“;
   • are emails “papers”?;
   • whether you “are” a “lawyer” or “doctor” or “engineer” or “hair braider” (for purpose of licensing requirements);
   • “health care“;
   • “interstate commerce“;
   • whether a Star Wars stormtrooper suit “is” a “sculpture” and thus a “work of art,” or “instead” a “prop”–copyright infringement turns on it;
   • whether a shopping mall or restaurant is a “public place” or not (and thus subject to antidiscrimation or other regulations);
   • whether a truck is a “food truck” or not (2);
   • “pornography,” “child pornography,” “obscenity,” and so on;
   • “legitimate business purpose” (for tax deductions, etc.);
   • “dangerous weapon” , e.g. is a baby a “weapon”?
   • owning a gun “for a sporting purpose“;
   • is a pot scrubber a “silencer“?
   • what is “crime”?
   • inflation;
   • GDP;
   • what counts as “genocide“;
   • “bong” versus merely a “water pipe”
   • “legitimate governing authority“;
   • “machine gun,” “semi-automatic weapon,” “assault weapon,” “multiple sales“, “firearm“, “short-barreled shotgun,” “sporting-purpose shotguns“;
   • “obese,” “handicapped,” “disabled,” etc.;
   • “minority” (do Jews count? women, who are a majority? Cajuns like me?);
   • “citizen”, “resident“;
   • “married”;
   • is marijuana a “medicine”?;
   • Medical Marijuana Prescription Not an “Order” to Smoke Pot;
   • “war” or merely “support role”?;
   • Are “lap dances” “tax-exempt”?;
   • “app store“;
   • “bourbon,” “champagne,” “parmesan cheese” (for trademark issues);
   • “day care” (tax deductible if it is; not if it’s merely “school”);
   • “actually innocent” (a jailed innocent man’s compensation depends on it);
   • “gambling“;
   • “hard liquor” versus “soft liquor”;
   • “church” and “religion”–tax breaks depend on it!;
   • “conscientious objector”;
   • “creative”–copyright depends on it;
   • “expert”–judge approves you to give testimony if he deems you to be one;
   • “new home purchase” and “home equity loan”;
   • “non-commercial” or “personal” use (watching a DVD at home with 8 friends visiting, some of whom bought the liquor);
   • “performance” (for copyright purposes);
   • “felon”;
   • the US “is” a “Republic“–or is it “a” “democracy”?;
   • “sex” (n.b. Bill Clinton);
   • whether a private swimming pool is really public;
   • “resident“;
   • “footlong” sandwich;
   • “computer“;
   • “insane”;
   • “car“;
   • “beef“;
   • “indigenous culture“;
   • “hobby”–if it is, you can’t deduct losses;
   • “butter” (vs. margarine);
   • “wireless networks” as “regulated medical devices“;
   • “tour guide“;
   • whether a medical marijuana prescription is an “order” or not;
   • whether a police raid is “excessive” or not;
   • “unemployed”, also “full time” versus “part time” employment;
   • is pizza a “vegetable”?
   • is computer science a “liberal art”?
   • “compact truck“;
   • “financial institutions” for purpose of issuing “National Security Letters”;
   • whether a sperm donor is a “manufacturer of human cells” for purposes of FDA regulation;
   • MP3 players are “computer peripherals” instead of recording devices for purposes of US royalty taxes;
   • whether Marvel’s mutant X-men characters are “human” characters or not, for purposes of IRS tax rules (h/t Geoff Plauche);
   • whether ACTA is a treaty requiring Senate ratification or merely a trade agreement that Obama can sign on his own;
   • whether an iPad is a computer or not, for import tax purposes;
   • whether something is a “religion” or not, for tax exemption purposes;
   • whether Ender’s Game is pornographic or not for purposes of disciplining a teacher who read passages from it to her students;
   • whether “Entering one’s bedroom with a bottle in one hand and a cigarette in the other” is foreplay;
   • whether poker is a “game of skill” to determine how it should be classified under federal organized crime law;
   • whether tatttoos are free speech;
   • whether a section of a city is “blighted“;
   • whether lap dances are “culture“;
   • whether a tablet, like the iPad, or an iPod, is sufficiently like a smart phone for copyright-jailbreaking purposes;
   • the meaning of “clothes“;
   • whether the Insane Clown Posse’s fans called “the Juggalos” are gang members or not;
   • whether remotely recording broadcast TV is a personal home recording or a public broadcast;
   • how to classify ISPs for purposes of FTC or is it FCC regulation;
   • whether an ATM “is” or “is not” a “branch” of a bank (see INDEPENDENT BANKERS ASS’N v. MARINE MIDLAND BANK; this paper, at note 2; discussion of same by Russ Roberts et al. in this episode of EconTalk.
   • whether a foam drone is an “aircraft” or not for purposes of FAA regulations;
   • whether a GPS-enabled smartphone running an Uber app is a “taximeter”.
   • whether fish are tangible objects.
   • whether bumblebees are fish
   • whether a capital gains tax “is” an income tax or an excise tax – Washington Supreme Court to decide capital gains tax case
   • Warhol’s Images of Prince: Social Commentary or Copyright Infringement?
   • whether an airbnb “is” “a hotel” – Are Airbnbs hotels? In Houston, one neighborhood is pushing to upend short-term rentals
     [↩]
   • See Federalist Society event After Drummond: What’s Next in the Debate over Religious Charter Schools?; Oklahoma Statewide Charter School Board v. Drummond (Oyez; ScotusBlog; Wikipedia); A Divided Supreme Court Ruling Prohibits Oklahoma from Using Government Funds to Establish a Religious Public Charter School; Volokh Conspiracy posts: Religion at the Supreme Court; Further Thoughts on Justice Barrett’s Recusal in Oklahoma Statewide Charter School Board v. Drummond; Some Quick Thoughts on the Oklahoma Charter School Case; Oklahoma Supreme Court Finds Catholic Charter School Unconstitutional; 3 Unsettled Questions Regarding the Constitutionality of Public Funding of Religious Schools. [↩]