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Nine-tenths of the Law. Hannah Dobbz
Читать онлайн.Название Nine-tenths of the Law
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isbn 9781849351195
Автор произведения Hannah Dobbz
Жанр Юриспруденция, право
Издательство Ingram
Despite the successes and failures of the nineteenth-century land reformers, and despite Ingalls’s noble idealism in regard to land occupancy, there was still a problematic element to homesteading that was unavoidable: The frontier (be it Upstate New York, Maine, or the West) was not empty wilderness as many Anglo-Americans of the time presupposed. When the goals of developers were not to conserve wilderness, they were to rapidly convert that wilderness into civilization. Either mode unavoidably adopts the old British argument that he who can use the land the most productively should have title to it, and anyone else is out of luck.[68]
That said, the lawlessness of the West appears to have been as mythical to settlers then as it is to Americans now. While pioneers were indeed entering somewhat uncharted territory and carving worlds for themselves from raw materials, John Phillip Reid argues that they still operated under the memory of law. They were “products of a legal culture” and continued to have the same expectations of each other and the same assumptions of property as if they were governed by the laws from their places of origin. These memories affected average behavior in the way that cultural customs and traditions dictate interactions with peers. One example Reid uses is the tendency for goods to be divided among groups according to the law of ownership rather than according to need, particularly on the Overland Trail. This is a replica of normal interactions under the conscious reign of formal law. When pioneers traveled beyond the reaches of such institutions, the memory of them persisted; “the remembrance was not only of things experienced, but of institutions that had only been observed, or perhaps only described.”[69]
Because Westerners had the potential to shape the law according to their (sometimes faulty) memory of it and according to the immediate needs of settlers (including squatters), American law had the potential to morph as it traveled across the continent. Indeed, adverse possession laws vary state to state and there is a visible trend of laxer requirements from east to west. For example, New Jersey requires sixty years of occupation to claim ownership, while Arizona requires only two. But Reid argues that the law did not change as much as it could have, despite the West’s alleged wildness. He describes the legal culture as one of “law by legislative command rather than custom, of rights secured by judicial direction rather than jury consensus, and of legal rules upheld by police enforcement rather than by community self-help.” In this climate of legal expectations, the courts would seem unlikely to support a squatter movement. As Reid describes, “the Anglo-American expatriates equated law with enforcement. For them, a ‘law of contract’ had no substance if the stipulated obligation could not be enforced. Fair dealing, reasonable price, adjustment, compromise, and accommodation were not enough.”[70]
This explains why the West was easily perceived as being “lawless” despite imported legal expectations. Westerners simultaneously believed in the sanctity of law and displayed “no real respect” for the government’s title to natural resources because that title was unenforceable, as were many of the supposed laws of the West. So what Westerners, like most Americans, actually believed in was enforcement. And because the West was new and lacking infrastructure, and the memory of a legal institution did not have the means to prevent settlers from breaking its remembered laws, Westerners harbored little respect for the system. This one-dimensional respect for enforcement perpetuates behavior that considers only artificial consequences. Questions of ethics weigh in decision-making less frequently than do questions of the risk of getting caught, even today.
While Peñalver and Katyal charge that breaking laws is a crucial step toward changing them, they also recognize that deterrent law enforcement—the system that pioneers recalled and re-created, and the system that we today continue to revere—can be harmful and self-defeating. “Deterrent models of punishment,” they write, “are likely to call for levels of punishment that overdeter or preclude certain forms of productive transgression.” Indeed, the events of the homesteading era suggest that direct action is a viable and perhaps even exclusive method of informing property law. “In cases of persistent, widespread disobedience, citizen behavior communicates vital information to property owners and to the state, indicating that some element of a property law or of the owner’s use of the property may be out of date, unjust, or illegitimate in some respect.”[71]
With this notion in mind, we move into the modern era of housing justice struggles.
a. The state eventually favored speculators, who bought Maine land in large blocks to divide up and parcel out.
b. History is filled with such instances of (usually white) men disguising themselves, often as Indians and sometimes even as women, to avoid incrimination during mob actions. So despite the novel sound of it, this tactic was not unique to anti-renters.
c. Though their reputation had been marred by the stray bullet incident, anti-renters asked themselves, “Has landlordism never caused death?”
d. The duration of occupation necessary to claim adverse possession in New York state has since been reduced to ten years. For a table of adverse possession limitations by state see Appendix E.
e. We find similar phenomena in legislative bodies today when responding to homelessness and the “housing crisis,” as discussed in Chapter 4. It would seem that the tendency of written law to cripple the lawmakers themselves is a pathology that transcends time and precipitates injustice onto every generation.
f. Interestingly, Taylor notes that he “avoided the labels ‘radical’ and ‘conservative’ in favor of the more appropriately ambiguous ‘agrarian.’ On the one hand, the land rioters do not seem ‘radical,’ in the twentieth-century sense of the word, because they counted on a defensive localism to protect their interests, instead of pressing a systematic program for restructuring social institutions. On the other hand, the label ‘conservative’ does not fit comfortably atop settlers who nurtured a labor theory of value and who perceived a chronic class struggle between laboring producers and parasitical gentlemen. The agrarians behaved and thought neither as radicalized proletarians nor simply as backward-looking traditionalists. They hoped that their relatively diffuse and restrained tactics (dictated by their limited means and rural dispersion) would be enough to secure important social consequences: the preservation of America as a land of small producers able to support their families free from domination by an employer or landlord” (p. 6–7). Taylor, Alan. Liberty Men and the Great Proprietors. Chapel Hill: University of North Carolina Press, 1990: p. 4–6.
Taylor then poses the question, “Were they promoting, or resisting, America’s development as a capitalist society?” He eventually answers himself by explaining that “agrarians hoped to sustain American capitalism at a simple stage of development where households bought and sold the fruits of their labor without having to sell their labor itself” (p. 8).
Chapter Three:
Junkspace and Its Discontents:
A Modern History of Urban Housing
“The suburb is a space of forgetting, where domesticity flourishes precisely because it succumbs to its own infantile logic: expensive comfort from which all signs of exploitation have been removed.”