Exaptation of the Law

24 March 2009


Usually I don’t think much about the philosophy of law, but I recently listened to fourteen lectures on the philosophy of law delivered by Stephen Mathis as part of the Modern Scholar series produced by Recorded Books. Recently I wrote about social exaptation, and it occurs to me now that law is one among social institutions that might be exapted.

Exaptation is a constant in our lives. Whether it takes the form of tennis balls used as toys for dogs or shopping carts used as portable storage for the homeless or in a more abstract form such as the humorous exaptation of concepts in irony, we are surrounded by both things and ideas that are put to use for purposes other than those for which they were intended or for the function they naturally emerged to serve.

Although Mathis’ lectures on the philosophy of law were not tendentious or ideologically motivated, one thing I took away from listening to them was the extent to which the law is intrinsically conservative, or, perhaps better (as that ideological word invites misunderstanding), law has an intrinsic bias in favor of the past.

How does this bias toward the past come about? If we think of the common law tradition, in which there is no constitutional basis but only a history of case law, it is obvious that precedent plays a central role. A ruling in the past establishes a convention that is followed in later rulings preserves the past into the present. And we may think of the establishment of a constitution or formal statutes as a “re-setting” of precedent. Laws and constitutions are not written in a vacuum, and the legal history that precedes such an effort must loom large in the minds of those so occupied.

The presence of the past in the law immediately puts us in mind of the claims made on behalf of the “original intent” of the founders, i.e., those who wrote the US Constitution. I am deeply skeptical of these original intent arguments; Mathis’ lectures were not exactly sympathetic to the doctrine, but seemed ready to give the idea the benefit of the doubt. I am skeptical about it because most of the advocates of the doctrine of original intent in the law are ideologically motivated and are promoting a reactionary social agenda.

Some of the objections to the historically informed performance movement in music are entirely parallel to the arguments that have been put forward against the role of original intent in law.

Besides the bias toward the past in law, another thing I took away from the lectures was the role of principle in law. Mathis emphasized that judges, in reviewing law, look for a principle and resist a patchwork of ad hoc legislative acts with no real legal principle involved in them.

What is the principle behind original intent as a legal doctrine? It could be formulated in many ways, but one formulation of original intent could be cast in terms of exaptation. Original intent is a proscription upon the exaptation of law.

As a principle, this strikes me a being rather weak and with no theoretical standing. Why ought law not be exapted? Why should we not apply laws differently than intended by the legislators who wrote them?

One can easily imagine a society in which the exaptation of law is pushed to the utmost extent for the express purpose of testing the limits and possibilities of the law. A creative and innovative society might want to experiment with the law in this way to determine its precise meaning and scope.

Indeed, one need not imagine such a society, because this society is in fact our society. Where there is a financial incentive to re-interpret the law to the furthest extent of possible meaning, a way is found to justify this re-interpretation. One need only think of the many notorious lawsuits that routinely are reported in the popular press, in which an excuse is found to press a case against who ever has “deep pockets,” however obliquely related they may be to the cause of the lawsuit.

And then there is the obvious example of tax law. The tax law code is so large and so complex that many attorneys devote their entire careers to specializing in one small part of the tax code. No sooner is tax legislation formulated than a whole industry devotes itself to finding a loophole that will exempt their paymasters from having to pay taxes.

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Grand Strategy Annex

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