For today’s post, further thoughts inspired by Barry Lam’s book Fewer Rules, Better People.
When Lam puts forth arguments in favor of legalism in his book, one of the main values he argued legalism seeks to preserve is the idea that justice requires we treat like cases alike. If you and I engage in the same behavior, but you are punished for it while I am not, that is arbitrary and unfair. So far, so good.
However, there’s a problem. Legalism requires clear and consistent definition for rules of conduct so these rules can be understood by both citizens and enforcers. Unfortunately, working out a consistent definition that accurately classifies every case turns out to be a dead end. As I discussed in my post on Daniel Dennett’s Prime Mammal thought experiment, lines drawn will always end up somewhat arbitrary, and there will be clear cases where that line defines things incorrectly.
This isn’t just the case with defining mammals. Michael Huemer wrote an entire book about the nature of knowledge, running over 350 pages. And in the opening line of the first chapter after the introduction, Huemer writes “In this chapter, we will try and fail to define ‘knowledge’.” He starts with the basic first-pass definition of knowledge as a justified true belief, then shows that there are situations where someone can have a justified true belief that X, but still not actually know X – and this turns out to be true for all of the ever more complex definitions of what knowledge is. He makes a similar point in is book Ethical Intuitionism about defining something as simple as a table. He’ll have his students attempt to work out what the definition of a table is – and no matter how carefully they attempt to craft a definition, you can still find instances of things that are obviously tables that don’t fit the definition, and things that fit the given definition that still obviously aren’t tables.
This is not to say that attempting to define things is pointless, or that the inevitably inexact nature of definitions shows the utter meaninglessness of the phenomenon these definitions attempt to describe. But we should be aware that for any definition, if we drill down enough, there will be cases when it falls apart, and when that happens, sticking to the definition for its own sake can seriously lead us astray.
One example that comes to mind is the Clean Waters Act passed by Congress. The purpose of this act was straightforward enough – to put limits on pollutants being dumped into “the waters of the United States.” However, simply saying “the waters of the United States” is too vague – that term required a more precise definition. So regulators attempted to do just that, adding among other clauses that it included areas “sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”
This turned out to be a problem for a father and son duo named Ocie and Carey Mills, who were building a cabin on a wooded plot of land in Florida. Unfortunately for them, this wooded lot, with no standing water, contained within the property line a small patch of marsh grass – and marsh grass constitutes “vegetation typically adapted for life in saturated soil conditions.” Thus, by introducing sand and fill dirt on that plot of dry land as part of constructing the cabin, they were guilty of “discharging pollutants into the navigable waters of the United States.” The judge presiding over the case agreed that the Mills couldn’t have realistically been expected to understand that dry land constituted “navigable waters” on the basis that it “may have some saturated-soil vegetation, as is the situation here.” Unfortunately, The Rules Are The Rules™, and Ocie and Carey Mills spent 18 months locked up in a federal prison for polluting the waters of the United States.
(As a postscript, after their release, they were instructed to remove those “pollutants.” In this instance, they managed to convince the judge presiding over that case to actually visit the site. Upon doing so, the judge was agreed that it made no sense whatsoever to call the area a “wetlands” constituting “navigable waters,” and described the legal definitions used in this case as “a reversal of terms that is worthy of Alice in Wonderland.”)
And this can be a case where the limits of drawing lines and establishing legal definitions can end up working against the value legalism is meant to preserve – the avoidance of arbitrary treatment by ensuring like cases are treated alike. One the one hand, you have a prototypical case of someone dumping waste into a river. On the other hand, you have the Mills placing some fill dirt on a driveway on dry land. For a judge to look at both of those cases and say “Yep, the people in both of these situations ought to be sent to federal prison – after all, justice requires that I treat these like cases alike!” would almost seem like a Monty Python sketch if it wasn’t actually true. This wouldn’t be treating like cases alike – it would be a case of pretending that completely unalike cases are actually alike, and treating the act of putting dirt on a driveway on dry land as the same as dumping chemicals into a river. This seems as arbitrary as anything legalism wishes to avoid.
If justice requires that we treat like cases alike, we should also bear in mind that a by-the-book legalism that refuses to make distinctions or exceptions can also result in us treating wildly and obviously unalike cases as if they were alike.
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