So welcome everyone to tonight’s Constitutional Conversation put on by the Constitutional Law Center here at at Stanford Law School. This will be the last of these events of the quarter. Next quarter we’ll kick off with a talk by Emily Bremer on the relationship between administrative law and constitutional law, an increasingly hot topic.

But tonight we have a topic which is both Extremely timely, but also extremely timeless. That is to say, one that goes back What would you say, Richard, 3, 000 years? As soon as this goes. No, I would say 1850. Oh, 1850, okay. I thought we were going back all the way to Roman law. Roman law, oh my God. And, because Richard is an expert on Roman law.

But let me first just introduce the program. I got, I distracted myself. So tonight we’re going to hear from two of the countries leading writers and thinkers about the relationship between natural law and the public and private law currently. So this is, has become an extremely important question in recent times, and not just from one side of the and I’m really pleased to be able to welcome Richard Epstein on my far left and Jud Campbell in the middle to talk about this, and I’m especially pleased for personal reasons Richard was my teacher, in fact, I, my very first class in law school was Torts class taught by Richard Epstein.

So Richard was my teacher and I was Judd’s teacher. So I sometimes think of these scholarly relationships as analogous to family. So in a sense, Jud is Richard’s grandson in a scholarly sense. And so I, that makes me happy. And so I’m, without any further comments, first Richard is going to.

Talk, and then followed by Judd, and then I’m going to facilitate some conversation between them, and then we will open the floor to to the audience for further questions. Richard. It’s very nice to be here. Michael sat in the back of the room, and he said, I’ve told him the importance of drawing lines down the middle of a highway, and he said, that was the origin of my book on simple rules for a complex world.

I’m not. Cool. Could you hear me? No, what about now? So anyhow I’m not here to talk about that. Michael mentioned that my origins in Roman law were profound. I don’t know how far it went in terms of practice, probably 500 BC, but the major works on which everything is based is the systematization that took place in the high period of Rome.

And the one original text that we still have from that period is a book by a man named Gaius, which was only discovered in 1816. And so understanding the way in which this thing worked became extremely important. And I was trying to figure out how you do it. There is a long tradition of natural law.

And it turns out it’s been both passionately defended and also vigorously attacked. And both sides of this relationship, as is usually the case when you take opposites, are, in my view, overdrawn and incorrect. And, of course, as the man who takes the middle road, by definition, my moderate position must necessarily prevail.

On the first side, there are large numbers of people, many from the Catholic tradition. who essentially say Leo Strauss is one of them, he’s not Catholic, and they say a natural law is completely immutable, and anybody who wants to defy its situations simply does not understand about the inexorable moral nature of the universe.

And so they say nothing changes in any way, shape, or form. This is true from the beginning of time to the end of time, and it’s everywhere. On the other side, there are many notable skeptics about the subject. They’re saying natural laws, whatever, everybody wants to believe. And there’s a famous man named Alf Ross, who’s a Scandinavian realist.

What his position was, there isn’t a theory in the world which you cannot justify on the name of natural law. If you want the modern equivalent, just use the rule of law as a phrase and it justifies all things to all people. And then there was a reader named Judas Shkla, who also said it was completely improvident, utterly formless, and just a series of excuses for other things that went on.

There’s something clearly wrong about this just as a historical matter. A Roman law as a systematic subject began around 160 AD and right at the center of that all the way through roughly the end of the World War I, Roman natural law was the dominant mode of thinking of everybody in the entire Western civilization.

Whether you were Roman in origin, whether you were English in origin, or whether you were American in origin. And indeed, in many of the cases, what you actually discover is people from alien cultures essentially absorbed these Roman law principles and made them into their own. So the question is, how can you get that kind of durability if the system is essentially random?

So it’s not. And Gaius, essentially, in his first book, starts with a distinction. which, by and large, describes the state of play to the current time. And the way he puts it is there are two bodies of law. There is the just gentium, the law of all peoples, and then there is the lussivel. And the first of these essentially outlines the durable relationships that are necessary for all human beings to exist.

And the reason why these rules turn out to be uniform, if you actually want to check it, is that many of them are based on physical principles, where gravity turns out to be the thing that links everybody together. And other things are biological principles, where essentially the necessity for reproduction, for nursing, and for caring, is an equally imperative.

These imperatives do not vary across cultures, and so what happens is, you have to figure out how people adapt to them. There is a common misconception about what natural law means, which says whatever you happen to do, since it’s done by nature, is a matter of natural law. This is maybe a Darwinian theory, but it is certainly not the classical natural law theory.

The classical natural law theory worked in exactly the opposite way. What it says, there are certain fundamental relationships that have to be observed in order for a people to survive and to flourish. And we’re going to tell you what these are. And then there are a series of local norms and customs about how these things are enforced within a legal system, which will vary wildly as we move one across one system and another.

So if you Don’t draw that description or distinction, what’s going to happen, you see much more variance in natural law than in fact exists when you’re looking at it. So what are the fundamental relationships that you have to deal with and then what are the formalities associated with them is the way this thing starts in the private law side.

The first of these is obviously an institution known as marriage and it’s necessary for propagation. It turns out, as the modernists know you have to have Natural love and affection, notice those words, between the parents. And then you have to have a strong natural connection between the parents and the children.

These are private relationships because you’re talking about natural law in a state of nature. There is no state that can buffer them in any way, shape, or storm. What the state comes about under these circumstances is to figure out how you preserve these relationships when they’re subject to various kinds.

of stress. But the whole model, which was most famously associated with Locke, is that the natural law rules are the ones that you’re trying to preserve by the imposition of various procedural safeguards to make sure that they’re not abused and not gotten rid of. And so with marriage, the situation that would call for state intervention would be abuse or neglect naturally, narrowly defined.

And no matter where you look across the legal system, that is the linchpin by which state governance takes place on this. That is a corrective of what parents do. It is not a general situation which requires the state ownership of the various children. Then the next relationship that you have to deal with is one that is recurrent with the relationship with respect to property.

And the fundamental relationship is defined first by the Romans, and in, that is, Gaius, and then by Justinian, is to draw a very powerful distinction between common property and private property. This is often overlooked in modern law school classes because since there’s not a lot of litigation, you think over public property, people tend to start with property, and they start thinking about cases like Pearson and Post and the like.

But in fact, this distinction is absolutely critical. And the way you could understand why it’s so powerful is just to imagine first what the rules are and then to figure out what happens if you reverse them. So when Gaius and Justinian begin this subject, It turns out they start talking about common property.

That’s the air, that’s the sea, it’s the beach that runs along the sea, it’s rivers and so forth. And what is it about this form of property that makes it distinctive? It turns out it is property that nobody’s allowed to reduce to private possession. It is only property that everybody has a right of access to, not being able to exclude anybody else.

And the question is, suppose you reverse the rules and had the rule with respect to land, which says the first person who occupies some particular piece of land is in fact its owner against everybody else, you could imagine what would happen if the rules were reversed. And that tells you something about their overall efficiency.

If you’re talking about water, and you allow this thing to be appropriated by a private person, within a very short period of time, every river would be dammed, the water would be diverted somewhere else, And you would lose all the gains from communication, all the gains from natural resources, all the gains from transportation, and everything else.

And so the system would be so utterly beastly incompetent that civilization would come to an end if you applied private property to these kinds of arrangements. And from the very beginning of time, the first approximation was always that what you do is you have a system in which these things are left open and then the question turns out to be thereafter, is there any way that you could mix some private uses with the public uses, so to expand the gain without destroying the essential quality of a river, which allows for all of these things to happen.

And this is very sensitive to the different kinds of land that you have. But the simplest system on the riparians, it was those people on the edge of the river would in effect have the right to water their cattle to it, so long as they did not upset the continuous flow of the water, which meant that things had to be done in a proportionate level to the rainfall and so forth.

You have multiple people on the river, and the standard rule, which has always been applied as a natural law matter, is you think of these things as being done by pro rata so that you can have a relatively simple divisions exercise instead of some more complicated system of the way stuff works. You will then discover with water, as with everything else, if you leave it in that particular state, there are going to be degenerations, too many people using it, are the rivers sifting up, and so forth.

So in the state of the civilization, what the government does in, and it tries to stabilize these kinds of relationships. And this, in fact, has been the dominant pattern everywhere that you look. To give you but another illustration of how ubiquitous this situation turns out to be what happens when the river starts to move in or out?

And there is a very clear rule called the Rule of Elluvian. which says small movements of the river do not create vacant land, which can be taken by individuals. What happens is to avoid a situation where somebody has a useless slip of land that blocks somebody from making use, the general rule has always been, you never give anybody the right to exclude anybody else unless they can make some kind of use of the land themselves.

So the riparians get the water, and down to that, and the small fluctuations don’t matter. How powerful is this? It turns out to be the dominant rule that’s used for rivers. It’s also when you have state boundary disputes, it’s the rule that’s used. And when you have international stuff, it’s the same rules that are used.

And the reason why you call these rules rules of natural law is because their uniformity across all of these situations is driven by the fact of the high efficiency that they have. If it turns out that the rivers violently move from one way to another, What happens is the standard rule virtually everywhere is that the old river is now divided along its thread, you have no riparians, and the new river starts to form somewhere else, and you then use the riparian rules there.

And that rule is applied again pretty much uniformly everywhere throughout the work. And the explanation is why do these things endure? And the answer always comes in the same form. Even if the people who do these things don’t understand them, there are two tests for custom that seem to explain a large amount of these civilizations.

One of the tests is that it applies across different civilizations. And the other test is that it applies for a long time with any given situation. So what happens is the natural lawyers had a very pragmatic situation. What they did not have in earlier times and what modern scholars are supposed to supply them with is a different situation, a set of coherent rationales as to why this takes place.

And for that, you need to use some modern game theory. And just to give you in fancy term what the form is. Every time you have a water system, there are two serious problems, or a land system. One is externalities are doing harm to somebody else, and the other is blockade. And essentially, the rule which says that land is privately owned means that the blockade problem is not really the dominant one.

The dominant problem is exploitation and growth. So you switch the rules around, and the efficiency gains are there. But natural law, as it is everywhere else, It’s not a system of one fixed only. It’s a system of substitutions in addition. And there is a standard rule in modern terms that applies. Every time you want to make a deviation from the natural law.

You cannot do it by simply changing definitions. What you have to do is to show that the change creates gains for at least some people and no losses for others. So you’re always trying to use this in more modern terms to create social improvements. And even though the natural lawyers did not think in those terms, that’s the way in which they work.

On the other side, there’s private property, and here there is a huge debate as to what this means. And one of the great catastrophic mistakes of John Locke is that he thought in terms of the labor theory of value. That is the way in which you acquire property is to mix your labor with somebody.

Interesting enough, if you look at any of the classic historians on this or write it, nobody ever uses a term like that. What they say, the term is occupatio. And the question is this just a verbal difference or does it make a huge difference? And the answer is it makes a huge difference. If you’re playing a system under the rules of occupatio.

There is a necessity to keep land private if it can be developed, farmed, and so forth. But the last thing you want to do is to spend so much money keeping the private element there that you lose potential gains from fighting. If you start having a labor theory of value, it turns out you have to spend more and more in order to acquire the property, and then it’s only not clear whether you just get the value of your lien or something else, and so this system is very inefficient.

The rule with respect to occupatio is do as little as you can in order to demarcate the property as your own so that the gains that you get from using it will be as large as possible. These gains are not just personal to the person who acquires the property. It turns out that it could be shared with other people because the full system of property rights is one that not only allows you the right to exclude, but to enter, but also the right to develop and the right to essentially allow other people to come in the land one way or another.

And putting all of these things together means that you get property rights in the most constructive fashion. The great fly in the ointment in this case is what do we do about pollution on other people? There are natural law definitions of pollution always involving offensive smells and so forth.

And one of the great questions is if you take this seriously, you do not allow any state to redefine the term nuisance so as to cover things that weren’t by the natural law difference. Because under those circumstances, the moment you engage in the re descript, the re description, everything turns over.

So as to give you one famous example, on this, on the private side you have a situation where the common law rule has always been, if you’re in urban settings, not rural setting there is no easement of light or air you can build as high as you want and other people can do the same thing.

Because it turns out it’s just too much of a drain on development if nobody could build everything for fear of somebody else. And then there’s a famous case called Fontainebleau, but you can change this by zoning. And if you’re a natural lawyer, you can never change things by zoning unless you can justify the change.

And it can’t be a matter of legislative definition. So moving to the constitutional law side of this for a second. If you started with one of the more famous cases, New York Times against Solomon, one of the great insights of Justice Brennan in that particular case, he said you just can’t call something liable and make up the label, you have to show that it meets the standard definitions.

And what he’s saying, in effect, this constitutional scrutiny is consistent with the natural law tradition, and he’s not going to allow you to deviate from that. When you start getting to property relationships, it’s always the other way in modern constitutional law. You want to change the definition, God bless you, and we could always use it the new way.

And it’s interesting because the more you have a traditional system of strict scrutiny or even intermediate scrutiny, the less degree of freedom you have. So the notion of nuisance in a First Amendment context tends to be fixed. In a property context, it tends to be totally fluid. So then the question is, and I have what, about six more minutes or something, Mike?
Is how would you then work this thing into a constitutional framework? And it’s absolutely critical to make the following basic transformation. When you move from private enforcement to government enforcement, the fundamental rule always should be that what happens is the government takes resources by way of taxation.

By way of state, and what it does in effect, is it uses the common law rules that define the relationships between private individuals. to define the relationships between the individuals in the state. That is, in this translation, to solve the problem of enforcement, which is the major problem of a purely private system, you do not allow people to transform the way in which substantive rights are done, because if you start to do that, what you end up with is a gentle form of tyranny.

So let me give you one out of a huge number of examples. One of the most famous cases in the lexicon. At least my lexicon is a case called the Willow River by against the United States, which was decided in 1945. And this was a very simple water case in which the person who was on a navigable river raised the liver so that somebody who had a mine, a mill on the non navigable river lost his water head.

Of course, the water could not go down. And the question is, what do you do? If this were a private dispute, the answer is absolutely clear. If you start to alter these kinds of changes. Then in effect what you are doing is altering the natural arrangements and it’s tortious. So the guy on the top of the river can force the guy on the bottom to do it.

If the state wants to do it, the logic would be it could condemn lands for public use, but what it has to do under these circumstances is to compensate the fellow who lost that. Justice Jackson then makes the most fatal mistake that you could make. He said, look, when you’re dealing with these cases and the state comes involved the state is not bound by the rules that deal with the private parties.

And it can do whatever it wants with respect to the land because of what it calls a paramount easement that the government has over this kind of property. So if they wanna raise the river and wipe you out, that’s just fine. Couple years later, there’s another case called Rands, in which the government, in order to make sure that the river would flow freely, simply barricaded it so the riparians could not get there.

And it said that the single dominant issue, the paramount easement, was all that it took to do this. Now, you have to understand what the transformation is. In a private law system, all relative, water rights are relative, they’re multiple uses, you’re constantly trading off one against another. And now the government comes to the fore and says, we don’t have to do this at all.

What we can do is just simply stop it in this particular way. And so they, you have no private rights. Now, where does this end up? It goes from water to land in a case that all the lawyers have heard on, namely the case called the Penn Central. case in which what Justice Brennan does is he takes the remarks from Willow River and says, when it comes to the government, we can define things any way that we want.

And therefore, if you start to look at that case, this was a situation of air rights over a sink building that were perfectly protected under state law. You could exclude others. You had the right of support from your building down below. You could lease it. You could sell it. You could mortgage it. You’d give it away.

And it was a strong right system. And he says, I don’t know what that means. All rules have to be ad hoc, and the moment you make it ad hoc, you just have to ask the question of whether the governed interest is more important than the other side. Those are questions that nobody can answer in a coherent fashion.

So in the end what happens is you have a system with respect to land use regulation, which is so unwieldy and so catastrophic in many ways, that at the bottom line is it leads to an enormous amount of social losses because you don’t follow the other thing. And then just to finish this up, I’ve talked about the natural application of the takings rules to this area.

There’s also the question of how you do preside, procedure rules and so forth. And it turns out if you’re a natural law theory, what you’re worried about is general relationships which are not dependent upon those institutions that are created by the state. So there’s no natural law which tells you whether you should or should not use a jury of one form or another, set the burden of proofs.

The two natural law rules that you have to obey are audie alter impartum and namo iudex in causa sua, i. e., these are still modern rules, you have to hear the other side, and you have to have a neutral chooser. Why is it that you have to do these things? Many people think there’s a serious gap between procedural and substantive law, but the natural lawyer doesn’t think that.

You look at these rules and you say why are they put there? Ask yourself what would happen if they’re not there. And so you have two parties and there’s a coin, which is normally 50 50, which would reflect the outcome of the case. And if you don’t have to hear the other side and you don’t have to have a neutral tribunal, that coin becomes loaded.

And now it becomes a 70 30 coin. The net effect of having dubious procedures is to make a wealth transfer between the two parties that is illicit. And so what happens is it’s a taken. And the case literature understands the very close connection between these two things, but there are too many literary skeptics who say they’re completely different worlds.

And this is the point on which I want to end, which is if you understand how the natural law system works, it is largely uniform across all of these various situations, where the distinctions that you get turn out to be subordinate procedures, do you or do you not use a jury. This comes up in the Insula cases and it turns out the old judges got it right because what they said is the natural law rules carry over whether you’re dealing with the United States of Puerto Rico or the Philippines but the procedural rules can differ amongst these various places exactly as our good friend, Gaius, would have it.

So
All right. Thank you so much. It’s really a pleasure to be here. I think it’s a principle of natural law to, Give gratitude to your parents and grandparents, so I’ll just say thank you, Michael and Richard. Richard and I come at this topic in very different ways and so I just want to start by saying a little bit about how I come to the topic.

In Richard’s remarks, that he is a natural lawyer, and so he’s just off to the races explaining how our legal system makes sense in light of principles of natural law. I’m an intellectual historian. And what I focus on is how people thought about ideas of fundamental rights particularly in the late 18th century through the 19th century and I’m both not coming at this from an internal perspective as a natural lawyer and I’m also not in my writing typically engaged in very granular, detailed analysis of what particular rights require.

I’m more interested in kind of big picture questions about how different concepts fit together, where rights came from, and so on. So my comments are going to be in that vein less engaged in particular granular reflections on Richard’s wonderful comments and a little bit more how Americans thought about this at a higher level of generality.

And I want to make three main points one of those points is about the relationship between natural law and thinking about natural rights from a social contractarian standpoint. The second is going to be about the institutional role in deciding how to determine rights.

And then lastly, I want to make a comment about, and this is particularly relevant with respect to the constitutional dimension of this, a distinction between ordinary general law and then fundamental general law. Okay, so let’s just start with thinking about the relationship between natural law and a social contractarian.

Up through the Enlightenment, there’s a basic appreciation of natural law as an ordering principle for all legal systems. This is very much in line with what Richard was saying. And that’s certainly true of the major Enlightenment thinkers who inform how the founders thought about law. So here I’m thinking about people like Hobbes and Locke, Vettel, Pufendorf, Grotius.

A whole line of Enlightenment thinkers are steeped in this natural law tradition. But they tend to view the idea of natural rights in particular with a really important overlay from social contract theory. And the basic idea here is we imagine what The basic functions and limits on governmental authority would be if we engage in a thought experiment, imagining what life would be like without a government, and then reconstructing the reasons why people would choose to create a polity in the first place.

And for the founders, this was really important because it put on the table a concept that Richard’s comments are not engaged with, which is consent. For the founders, what they think of when they think of retaining natural rights, they’re largely focused on the idea that you retain control to make decisions about how those rights are restricted.

And although people like Blackstone are very much natural lawyers, they’re filtering an understanding of the role of legal institutions and so on. Through this idea that political authority is grounded on consent just as much as it is grounded on a sort of natural law need to have a structured polity in which we solve coordination problems and so on.

So that’s really important because when the founders come around to making natural rights arguments during the 17 seventies in support of their revolutionary cause. They’re not claiming that principles of natural law limit the extent to which Britain can impose taxes. What they’re claiming is that they, because they hold natural rights, must have representation in decisions about how to limit those rights.

So the very idea of natural rights here is functioning not as a way of substantively defining what the government can or can’t do. It’s very disengaged from. What Richard was talking about, it’s much more focused on a question of institutional functions within a political society. Who gets to make decisions about the control of those rights?

So that then leads into the second point that I wanted to engage with, which is about institutional role. So how is it within a society that we make decisions about what the natural law requires? Now, the natural law writers that I was talking about earlier recognize that there are some principles of natural law that are just self evident, where there’s not going to be any disagreement.

The unjustified killing that unjustified killing is unlawful, or that parents have an obligation to support their children. Basic things like that, there’s not going to be any disagreement. But across a huge area of law, there are going to be disagreements. And part of the disagreements are going to be based on underdeterminacy in the natural law.

We just don’t have a specified point at which somebody can be identified as having the consent to the capacity to enter into a contract. And so we need for positive law to come in and tell us. It’s 15, or 60, or 18. You need some decision about the question of capacity in order to make the legal system work.

And then also, there can be situations where even if in the abstract there is a natural law answer to a particular question, we might just have widespread disagreement about what the law, what the natural law requires. And so just as a matter of epistemic authority, we need somebody to tell us what it is that the natural law requires.

Okay, so in a lot of these cases, we need an authority to tell us what the law is. We need some positive law to help implement the natural law. And what is that authority? This ties back to the first point I was making about consent. For Americans, the authority to determine the dictates of natural law resided in themselves and in representative institutions.

Because it was necessary to preserve your natural rights, to maintain control over those rights, to only have those rights limited with your consent, it could only be representative institutions that actually engaged in the delineation of positive law to specify natural rights. Of course, the legislature is a primary authority for doing this.

Representative legislatures speak for the people. You elect those representatives and they can then consent to restrictions of rights on your behalf. But there are other ways of doing this. Juries are actually seen as central to the implementation of a system of natural law because juries are thought to be the people themselves, assembled in a much smaller, more local way but still retaining self possession of rights in the implementation of law, not just in the creation of law.

And then lastly, and perhaps even most importantly for the 18th century thinkers on this topic, common law itself is thought to have the authority of popular consent because the common law. As a matter of custom is widely accepted by the people themselves. So through the longstanding acceptance of common law principles, the people themselves, not just their legislatures, have come to recognize the applicability of those common law rules.

So this is really important because each of these ways of delineating natural rights is not so much about how do we get the answer right. If you’re just asking, how do we get the answer right as a matter of natural law, you would look to whatever epistemic authority is best situated to tell us what the natural law requires.

And the answer to that question is sitting on my left. But that’s not their answer, right? Their answer is largely based on this. It’s understanding that rights are all, retaining rights is all about retaining self determination. And so they look largely to democratically responsive institutions to delineate the content of natural rights.

The last point I want to make is about general law and a distinction between general law that is ordinary. And general law that is fundamental. And this is really important for conveying how I think about the relationship of general law and the Constitution. So there’s all sorts of general law that’s ordinary.

So just there’s a slew of common law rules that apply to property transactions contracts transactions and so on. But then there are also a particular, and those, because they are or, aspects of ordinary law, those principles can be displaced by legislatures that are acting in their role as regulators of rights.

So you might have a principle of contract law recognized by the common law. But a legislature can come in and say, we actually think this principle needs to be modified. Along the lines of what Richard was saying, how principles of natural law can in their specification change over time. And the legislature had a role in doing that in many of these situations.

But there’s also an idea in the late 18th and throughout the 19th centuries that some aspects of the general law are fundamental. That they actually constrain legislative decision making. And here there are two variants of this. One is a notion that some particular common law rules are fundamental in character and therefore can’t be abandoned by legislatures.

The rule against prior restraints is a good example of this. Also the rule against uncompensated takings that Richard mentions is a good example of this. Where it’s just contrary to general fundamental law for a legislature to say, nope, you no longer have that right because we think that it would be better serving the common good to get rid of it.

So some particular common law rights have this fundamental status. Then there’s also a recognition that But natural rights generally, but in a much thinner sense, have fundamental status. So as a citizen, you have a right to liberty. You have a right to property. That right is regulable by legislatures and promotion of the common good.

It has very minimal legal content, but it still is among your fundamental rights. And, in order for the legislature to limit that it has to do so in service of the common good. It can’t do so arbitrarily or corruptly. And that’s really important for the framers of the 14th Amendment, for instance, who recognize these rights as being among the rights of citizens, because they think that the black codes, the codes that imposed lesser legal status on newly freed black citizens.

were the quintessential example of corrupt and arbitrary legislation. So they think it’s really important, even though your right to liberty or your right to property is underspecified by natural law, they think it’s really important to recognize a limit on state authority to restrict that right.

And to make sure that federal institutions could come in and ensure that limit on state authority was respected. And so this is a notion of general law that’s quite thin. It doesn’t provide a lot of legally specific content that you can come in and claim in court, but it does allow for you to make an argument about the boundaries of legislative power having been overtaken.

And so I’ll just end with two comments on how that idea and the decline of that idea of general rights ties into two of the points that Richard was making. So because these rights were thought to be general law rights, they’re the sort of rights that no particular jurisdiction has authority to settle.

So when a state legislature comes in and says, we think that you’re right to liberty. Entails X and not Y. The state legislature can do that, but it doesn’t have the authority, the final conclusive authority to settle the question of how far their regulatory authority extends. Because it’s a question of general law.

It’s not a question of state law. So when you come into the Supreme Court cases starting in the 1950s and 60s, where the court becomes much more robust in its implementation of rights. But after the point at which it has rejected a notion of general law, what the court starts to have to do in those cases is to classify everything that it’s doing.

As a matter of federal constitutional law, it can no longer rely on the general law and say that the state has gone beyond its authority under principles of general law. Rather, the court has to start saying things like, this violates the first amendment of the constitution, which creates positive law that is Federal in character, or this goes beyond the Fifth Amendment takings clause, which creates positive law that is federal in character.

And two of Richard’s examples are great illustrations of this. The New York Times versus Sullivan case. Where the court says that the First Amendment imposes a new element on state tort law, requiring states not only to, um, apply tort law in ways defined by state law, but also to recognize that in cases involving suits against public officials for performance of their duties, the state has to, or the plaintiff has to prove actual malice by the defendant.

So that’s the court doing something as a matter of federal law, because it has to look to federal law, it can no longer look to general law. If we lived in an earlier world, the court could have said, the state’s manipulation of basic principles of tort law here is just a manifest violation of basic general law principles.

So it doesn’t, it would not have to come up with a new element. And call that new element something that is grounded in the First Amendment, distinctively federal law. It could just rely on principles of general law to say what the state has done here is well beyond its capacity to regulate and define general law.

The other example is the Penn Central case. So there’s not a. appropriation in that case. The government hasn’t taken title to the air. But what it has done is it is limited the ability of the property owners to use what the government continues to recognize as their property, the air rights.

And in an older world that would have been litigated as a question about the scope of the police powers. So there wouldn’t have been a need. To treat that as a Fifth Amendment Takings Clause case, you could have just treated that as a case about how far does state authority under the police powers go, and that’s just a question of general law.

And so I think it really fundamentally reframes the way that we think about a lot of these constitutional problems when we move from an era of general law to an era in which we just have state law and we just have federal law. Michael, can I respond? Yes, please. This is very interesting. I want to thank him for restating my position in somewhat different terms.

And let me explain why it is that I want to do that. We started off with the general observation that consent is one of the key variables in the way in which democratic authorities start to work, but not so strong as to essentially prevent the progressivity of fundamental rights. The fundamental difficulty that all political theorists have with consent is, does that mean the consent of everybody to deal with the particular problem in question, which is always unattainable, particularly if you’re trying to bind future people, or is it the consent of a majority of a legislature on some complicated procedure, at which point you have to worry about the position of those people who did not join in the rule.

And so what happens is the Just Compensation Clause is an effort to get out of that incredible dilemma. by saying, in effect, if you wish to impose a restriction on somebody else by general legislation, you have to impose that restriction upon yourself so as to prevent the massive transfer of wealth from one party to another.

So what he called the general welfare is what I call the Pareto Improvement. And there’s essentially no fundamental difference in the way in which these two things start to operate. Then there’s the question that we distinguish between ordinary rights on the one hand and fundamental rights on another to back it into the system that I use, those things which were, we talked about as the natural law principles, marriage, the sacred of the liberty of the person and so forth, to engage in other kinds of relationships, those are the fundamental rights that exist.

What happens is, in the era of the natural lawyer, when they were dominant before the modern period. What happened is you never had to worry about a federal overlay. What you did is you simply announced that the kinds of restrictions that the state wanted to impose by legislation could not be done.

So to give you a very recent example of what he said which turns out a Supreme Court on steroids, is the state of Minnesota decided that it had a rule that if somebody was delinquent in their taxes, When the state foreclosed on the mortgage, it not only got principal interest in cost, which was the rule for every other mortgage over time, and the rule for every other mortgage in the state of Minnesota, at that time, they said, we take everything.

And the Supreme Court said they can’t do it. Now in the system that I went through, every statute has to justify itself by approving some kind of a social or general improvement. Nobody could say that this statute in this opportunistic form means that. They could not use the natural law theory, so they did exactly what he said.

This is not a question anymore of state law. This is now a question of federal law. So this is not an accident. What happens is, as the decline of natural law principles starts to take place and becomes more and more salient, what happens is the Supreme Court, in order to do something with it, has to federalize every kind of issue under either the First Amendment or the Property Amendment and so forth.

And what I’m saying in effect is that the dangers that come out of that particular system is that the federalization is not always a very smooth and sensible process. So the air rights case that you have in Penn Central, they never did get what the state law required. What they did is essentially they said every time you have an air right, you have to prove to us that it’s more important to you than it is to the other guy.

That is generally true of zoning. These systems now get a rational basis treatment so that the natural law principles don’t have. And just as a rough approximation, the total wealth loss in society from general zoning laws, probably more than 10 percent of the real property. And so what happens is everything he says about the way the system works maps into the system that I’ve put.

Fundamental differences, procedural rules that are variable and so forth, worries about the difference between ordinary legislation, and so on. I think it’s the same thing. The point is, the challenge to Jud, is since he says that we have this, Much more difficult for him if he doesn’t use the principles I’m talking about to figure what it is.

And he hinted at that by saying, I keep looking to what old Richard said when we’re doing this. And it seems to me, therefore, that his approach is not so much a criticism of the one that I took. It’s a slight verbal reformulation of it in ways that I think undercut the natural law element. And give too much weight to the federal government, which on this particular issue is inconsistent with the original constitutional design of having fundamental rights controlled by state law, residual federal powers, and also leads to too many slips in translation because the guys who are making the situation, they don’t believe in the property part of this equation.

Nuisances, whatever I think it turns out to be, is a very common phrase. And so what happens is the federalization also leads to skepticism, and the skepticism leads to a fundamental destruction of important rights that a natural law theory would protect. So thank you, Richard, and I like the fact that we’re beginning to tease out, what are the differences between, I didn’t think Jud was I’m sorry.

offering a critique of your position, but it’s also not clear to me that the two positions are as close as as you may think. So let me just ask Judd, if I understand what Richard has said, he thinks that the idea of common good, what you have said is that natural rights can be altered with consent but only in the interest of the common good.

it. And I think I understand Richard to be saying that common good is a term which needs more specification and the specification is Pareto optimality, do I get that right? It’s the first thing he asks, it’s not, that turns out to be insufficient. The other half of it, which requires a lot of explication, is the unconstitutional condition stock.

Let’s get to that in a moment. Okay. Let’s begin. I wonder what Judd thinks about the first step. So Pareto optimality if I can remember my econ 101, Pareto optimality is when there is a change in circumstances such that some people are better off from the change and no one is worse off.

That’s Pareto improvements, not optimality. Optimality is defined as that position in which you can only make one person better if you make somebody worse off, but you’re close enough. But I think what you’re saying is that the common good would be defined in as as in terms of well Pareto improvement.

And I wonder if Jud would agree with that. Yeah I tend to think that their views of the common good are more underspecified. So they’re tending to view the common good as the general good of the society and its people and don’t engage much in detailed granular efforts to define exactly how how the common good would cash out in particular ways.

It’s more of a concept that’s defined in opposition. To certain things that they recognize as contrary to the common good so the sort of quintessential example would be government that is in service of private interests rather than public interests so those English kings who had engaged in efforts to enrich themselves, to pay off members of parliament, to do their bidding, and so on, are seen as the sort of equ quintessential departures from the common good.

And so it’s a, and then there’s also a notion that arbitrary restrictions that don’t promote the good of the society are not permissible. What you don’t see is a sort of granular effort to delineate whether or not a improvement in aggregate utility is sufficient or whether or not it needs to be a Pareto improvement.

That’s just not a debate that they have much. Interest in at the founding, and so I just don’t know how to answer it as a historian because we don’t see direct engagement. There are, though, um, engagements with particular issues that would suggest a broader conception of the common good.

So they think that it’s okay to restrict individuals from engaging On net are harmful to the society, even if they have some benefit to those particular individuals. So for instance, gambling, you could restrict gambling. That’s a type of restriction that promotes the aggregate welfare of the society, but not every single individual’s welfare.

Presumably somebody’s out there winning from gambling. And so it suggests to me at least the. There is a possibility of regulating activities and promotion of aggregate social welfare. I just, I don’t want to take the position that like, they are firmly against a more limited Pareto improvement based definition because we just, we don’t really have any particular text that would indicate that.

But I don’t see them defining it in the sort of more limited way. So I want to suggest that the That what you’re backing into here, Judd is the standard case and indeed the case for almost all legislation and regulation that is, that re almost every regulation, benefits some and hurts others.

It’s a matter of and the per the Pareto, and so the concept does not seem to apply to most regulation. And I wanted to ask Richard if that is not, if that is does that mean we’re just, it’s simply illegitimate? For with the consent of the people through their representative institutions to hurt some people because they think other people.

I don’t think it’s true. Let me give you an example. This is a much more determinative system. You And one of the examples or reasons why you start looking at these micro issues is it turns out that most of them when they occur actually follow the strong Pareto position. So let me first explain what’s wrong with Pareto improvements in terms of the stability of the polity and then talk about some of the devices which are in the law which actually designed to reflect that.

If you start at the origin in zero zero and you have a society of only two people, you can scale this. It’s a Pareto improvement to go from. 0, 0 to 2, 5 or to 5, 2. And so the question then is, which of those two do you prefer? And if it is left to the political process, the rent seeking consumption will in fact lead to very bad results because you won’t get to either 2, 5 or 5, 2, you’ll be closer to the origin.

And so the Doctrine of Unconstitutional Conditions, the doctrine for non discrimination across places and so forth, says what you have to do is stay on the diagonal. And that means, in effect, I can only go up if I make you go up and so forth, very similar to the just compensation position. And so that’s what the Doctrine of Unconstitutional Conditions is about.

It says we’re gonna not allow you to do something which leaves everybody better off. Because what it does is it brings you closer to the origin when the proration or non discrimination rule is put into the place. And the question is, can you do this? There’s this wonderful Justice Stevens opinion about when you’re doing the Dormant Commerce Clause, do you allow people to tax by the axle or do you require them to tax by the mile?

And it turns out that if, in fact, you have local and non local people, if you use a per axle tax, it favors the domestic people hugely. And what he did is he required them to use the other system, saying in effect if you’re trying to make an optimality rule, you would never get a rule which would lead you to a position where there are going to be these kinds of distortions.

At that level when we start dealing with individual cases, it turns out that we’re much more astute in the way in which it’s done, so long as we have a higher level of scrutiny. And that’s all that I’m saying about this, and then if you want to go through in some detail, every case that gets wrong on con constitutional additions.

You can figure out where it is that they made a mistake, usually because they don’t understand the proper definition of the initial property rights. And then they are willing to say that so long as I leave you better off than you were before, I can take the lion’s share of the gain. Very simple case is the Knut Kuhn’s case.

Look, you want to basically put something on your land as a development. We’ll let you do it so long as you repair a bridge, which is far miles away, right? Remember the case? And you’re better off because you get the bills and we’re better off because we get the bridge. And you can’t allow that because what’s going on in those cases is in fact the skewed situation that you’re talking about.

You’re allowing the state through regulation to essentially ask the outsiders to bear the cost of a common improvement from which everybody shares equally. And so you don’t allow them to do it. But when it comes to controlling their own emissions. It’s a very different problem. And that kind of situation is there.

You mentioned about gambling, winning and losing, it’s also true of nuisances. But the point about the nuisance is how do you decide that’s different from anything else? Do the following little thought experiment. Run a condominium association. Okay? In which you have a single owner, so you have no externalities.

And ask yourself the number of cases in which you find that this organization permits nuisances of the sort would be actionable in common law. And the answer is none of them do it. So if you could get this by consent, it means the externality problem drops out. So then when you have communities where you don’t have a common origin, you imitate that rule.

Whereas other things like aesthetics are much more variable, and so generally a nuisance law won’t deal with it. So no, what I disagree with is I don’t think these things. As loosey goosey, and in fact, as you start looking, there’s a, the proposition, the more you have strict scrutiny, the better you will be, and you can get this stuff right.

And that’s what I’m trying to do. So I don’t agree with you, Michael, that the legislature does that. What it’s designed to do is essentially to make sure you don’t get these imbalances that we talked about in adjudication. So you can’t have a statute of limitations which says that the X group has 10 years and the Y group has 5 years.

That’s the kind of thing that you want. John, did you have anything to say about that? Or I also have Yeah, I guess all I would say is in order to preserve natural rights, you have to preserve democratic institutions authority to settle a lot of these questions. And so I think that it’s, it’s a it’s very important to try to have substantive arguments about what natural law requires or what the common good requires.

But if you’re trying to think about the problem from a founding era perspective, you don’t want to let those debates obscure the question of institutional authority. And so for the most part, these are issues that would get hashed out in legislature is, hashed out and political debate. And they aren’t the sort of things where we would empower judges to step in and override those legislative decisions.

With respect to the question 14th amendment does, visa V federal and state authority. I actually think the 14th amendment is largely, It’s designed around an assumption that state legislatures retain principal regulatory authority to settle questions about how far you should be able to engage in gambling or whatever it is, whatever the restrictions of your natural rights are.

And so the federal judicial overlay here, it’s not a power to come in and make de novo decisions about what the common good requires. It’s a power only to recognize. In extreme cases, departures from the obligation that the state has to only regulate and promotion of the common good. And so an arbitrary limit like a race based restriction on your ability to contract is something that’s federal judges can come in and recognize or a limit that is sufficiently determined by existing fundamental law like the right against uncompensated takings.

That too is something a federal judge can come in and enforce. But when we’re talking about these questions about have we or have we not reached a point of Pareto optimality in the degree of regulatory authority that the state is exercising. I think that is in almost

And I think that’s a, To ask a slightly different question it’s, it seems to me that Richard, you have set out, a number of granular provisions that come from, that you think reasonable people will come to these if we, if it was a single owner condominium association, the condominium owners will all come to.

Certain things I assume there’s some things where they’ll come to different ones because of different tastes, but, no, the point is, given the fact that there’s somebody that’s a policy admirer to the Q, what that person will do is create a situation where there are no externalities because everything you do is consented to, and he’ll make the trade off, I’m going to put this restriction on X because the gain I get from Y is greater.

But the point is, I think you believe. That in at least most or a lot of these cases, every reasonable condominium owner will come to the same set of conclusions about the rules that we’re talking about. Just as you were talking about the the natural law, every country, every people tends to come to the same set of rules and and I was gonna ask both of you.

Whether this is the same, whether you understand this idea of certain rules that sort of emerge from natural reason as being the same as what Jud has labeled general law? Let me answer it the following way. Every condominium association has two kinds of rules. There are certain rules that are fundamental, meaning the scope of a department and its size and so forth, which you cannot get rid of.

But every condominium association, like every corporation, realizes there’s some mid level decisions, like when do you paint the lobbies and so forth, and those things are delegated to a board, subject to the unreasonableness requirement. So essentially, if you look at these kinds of organizations, what they do is exactly that, and the key point about the first principle is, if you don’t like it, you just don’t join that association.

And to the extent that you get people who join an association whose views are more like one another, it turns out that the second order decisions, what do we do in the lobby and so forth are easier. And it is very clear, my wife and I went through this many years ago, if you’re in a condominium association where half the people are retirees and the other half of the people have small children, when it comes to common facility, they fight.

And so what happens is, often what they do is they restrict the way in which you could join membership so as to reduce the variances at the front level so as to make governance easier. But these systems of private governance are the model on which public governances work and they have these distinctions.

So when we move from this private model as, it was just really a metaphor for the for the community as a whole. My, my question is, are these ideas that you’re talking about, these principles that emerge from, that would emerge from rational people thinking about it, is that the same thing that Jud is talking about when he talks about general law?

It’s very close, remember the point here was that I said all of these kinds of small mid level issues on procedure and so forth are in fact not part of the natural law and you expect to find a high degree of variations amongst them and that was true for example in the insular cases. One place in the Puerto Rico I’m, but, so I’m not asking at a level of detail are they always identical, I’m asking are these the same conceptually, are these, What he is saying about the things that are left to democracy are essentially about the formality rules that you put into place to buttress the natural laws, which is the fundamental one.

So that’s what I said in the initial speech. If you actually make it operational, there isn’t all that much difference. The point about the natural law theory is when you’re talking about what the fundamental principles are the question is how generative they are. I wrote a paper many years ago about H.

L. A. Hart. When he wrote something called the Minimum Content of Natural Law, and the answer that I gave was the not so minimum content of natural law. Saying if you start with those principles and then do things by way of analogy and comparison, the substantive system is much more comprehensive. So if you really believe that you can’t take somebody else’s property, then you believe that you can’t shoot guns when these people are trying to sell property to somebody else.

That’s interference with advantageous relationship by force. And you keep So I’d be curious to know whether Judd thinks that these are the same thing. Yeah. So I think the idea of general law is It’s trans jurisdictional or cross jurisdictional law, and that would include principles or rules that apply everywhere.

So principles of universal law, as the founders would have called it, would apply in every civilized nation, and so those ideas would be part of the general law. But it would also include those principles that are common to universal law.

And there were certain things that were general law that applied everywhere, but there were also some aspects of the general law that were specific to nations that, or states that had inherited the English common law. And jury rights are a great example of this. Richard does mention that jury rights are contested, whether or not they should be recognized as part of the natural law.

That’s right. But there are plenty of Americans who think even though jury rights are not a principle of universal law, they are a fundamental feature of our legal systems as inherited from the English common law system. And there’s nothing that I said that borrows that. And so that would be part of what I’m calling general fundamental rights, would be not only those rights that would be.

natural rights, but also rights that are specific to the common law that are recognized to be fundamental in status. Now let me show you the intellectual origins in the reverse direction, that is, the parent learning from the child. Your co author, Bill Bowd came to NYU and started to talk about the general law in connection with Swift and Tyson in various cases.

And so I listened to him on that. And I said, that’s exactly a general law, which is not a constitutional law, but essentially the point that you make is if you have checks, they have to run with speed across different jurisdictions or they’re gonna be useless. And so what they did is, in effect, they developed the principles of negotiability.

And the famous case of Swift v. Tyson, which you discussed there, was the one which cited all sorts of international sources. To indicate that was the principle. So why were they there? Because it was a cunning case. The story when he wrote this is, I’m not sure New York follows this general principle, so I’m gonna make it a principle of general law, not a principle of local law.

And he was just telling a falsehood. And New York essentially did follow this general principle, but he wanted to make sure that nobody would deviate, so he used the general law principle. And the difficulty, of course, as you guys pointed out. is we’re not caused of whether general law is state or federal, right?

Where does it sit? And how do we get to it? And then it turns out the general law principle is mangled by many cases where local law should have done. And so then you get ERIE. And then ERIE does not apply to general law. Is this me blowing up in some sense? And what you start to see is different variations.

I could go through all the stuff, but essentially what happens is if it’s long and skinny and crosses jurisdictional lines, local rules are never allowed to dominate. If it’s short and squat, local rules should do that, and that’s true with property. And so when Justice Holmes, in several cases, said I don’t believe in this natural law principle, he gave this as a jurisprudential issue, which I think he was wrong, saying you don’t have a body of law outside any individual state, which is binding on everybody, but he had two very powerful points.

He says, you don’t want to use the general law to decide, in effect, how to foreclose a mortgage in one state. And you don’t want to use the general law to figure out whether or not somebody has an exclusive right to pick up trains in a particular jurisdiction. You want to use local law for those things.

And what happened is, by the time it got done Erie V. Tompkins was overruled in the next case Hinterleif. Because what they said in that case is, there is a federal law. When it comes to figuring out what we do with boundary disputes about rivers, long and skinny again. And that turned out to be the position that we have today.

So overruling Swift and Tyson was not getting rid of that. It was getting rid of all the applications of general law to things that were essentially local. Just the same kind of distinction you have under the Commerce Clause between local and general stuff. I’d like to invite members of the audience to come to the microphones.

And ask questions and please please line up. And I’m hoping that Professor Gienapp, who’s, has a chapter in his recent book on, on general law and also natural law, will maybe start us off. Jonathan, are you willing?

Yeah. And I’ll, while Jonathan’s coming up, I’ll just Adding a comment to Richard’s last comment, which is, in diversity cases, Justice Story does not limit himself to the application of general law that has trans jurisdictional implications. There are cases that involve uncompensated takings, where Justice Story says, in diversity cases, where he’s not limited to the application of federal law, where he says a state doesn’t have authority.

To take property without compensation and give it to someone else. And he says that not on the basis that there’s some interstate ramification for that, just on the basis that it’s a well established principle of Anglo American law, fundamental in character, and so on. It’s a garner against the city of Newburgh, is what he’s saying.

Go ahead. For the, this rich discussion. So in trying to maybe tease out whether you two agree, disagree where it might be Judd really emphasized the question of representation at the founding, and I spent a lot of time thinking about that and so much of what they understood to be the common good was downstream from what counted as adequate representation in the 18th century, and there wasn’t necessarily agreement on that, and that cut across both, do we understand it in the sense of legal authorization, that might be voting but might not be, there were different ways to think about that, or in the sort of more classic English sense that went back certainly to the English Civil War, but predated that about mirroring in the sense of representation like a portrait, right?

And it had little to do with authorization or didn’t have to have much to do with authorization. It was about whether or not the assembled institution could be said to, in the words of John Adams, think, reason, and feel like the people. But then there’s also the jurisdictional dimension of sort of state versus federal.

Which often hinged, and whether there was residual authority on your account of, it could be any number of things, but it had a lot to do with historically thick accounts about what the United States was, and whether or not the government that spoke for the United States spoke for a nation of individuals, or something closer to a nation, or a set of states.

So I’d be curious, I think Jud is really emphasizing all of those dynamics in the institutional sense, which is not just about consent. and the common good, but it’s about particular understandings of what it means for a legal actor to speak for someone else. And I’d be curious, to everybody, but also specifically you, Richard, how you see that setting in.

I completely agree with that. That is, when you start with one of these systems, you have natural principles, institutions and enforcers become very large. And to give you one historical illustration, our good friend John Locke, what did he did? He wrote the Second Treatise of Government. Six years after the passage of the Statute of Frauds and 15 years after the Tenure Abolition Act, right?

And what he said, in effect, I’m worried about how we preserve property interest. And I think what he was thinking about is it’s okay for a state to get rid of this elaborate system of tenure because it’s so inefficient. And it’s certainly the Statute of Frauds is designed to fortify the enforcement of voluntary contracts.

And when he meant regulate contracts, He meant essentially, figuring out how you could put in a formal system which would make these things clearer. He didn’t mean, oh, we’re going to regulate contracts by putting a 10 minimum wage on that. It was a very different conception. And that’s absolutely part of the picture.

Now, with retaxes, let me give you, are you familiar with the law of special assessments? I’ve heard of it. Yeah it’s a very interesting field because it shows you exactly what’s going on. The basic 19th century principle was that you have a development which benefits only a small group of people, and therefore you do not want to put the tax on a large group of people who are not affected positively or negatively.

And what you do is you create a taxing distance, say for a cul de sac with 50 houses in it or whatever, and you have a rule which says you have to do this by vote, but you have to win a social super majority in order to get a revenue tax on that. And then you have to have it roughly equal proportion to the properties.

And they then have a huge debate as to whether it’s the value of the land or the value of the improvement which is the correct measure of that. You get to 1905, and you get Justice Holmes wrecking the system, as usual. It’s a case called Louisville and the Nashville Railroad. And what happened is you had a road that was a public road, and what they did is they decided to tax the properties on the right side.

50 percent and the properties on the left side 50%. The property on the left side was in fact a railroad which abutted the road but didn’t use it. And the properties on the right side were people who used it but shared it with all sorts of other people because it was a through sheet, not otherwise.

And so what happens is, this is a classic case of what Judd talked about, getting a real perversion of the system and how did it get through? Rational basis. But the earlier cases always had a much closer thing, and there’s a great article by Stephen Diamond in, written in about 1981, where he talks about all of these cases, and the move from essentially a system where you’re trying to match benefits and costs so as to prevent redistribution, and a system where you don’t care about it.

And then the whole system breaks down, in part because if it’s so crazy, you might as well use general revenue taxes to do this, and there you still have the problem. And it’s still a problem today. If you’re going to give general taxes, you spend the money on the streets in poor neighborhoods, rich neighborhoods, or whatever.

And the allocation question, the delegation question, becomes then the central question of how you manage these systems. And so we are also blessed by having a Ninth Circuit judge and Stanford alum, Carlos Bea, with us. Ninth Circuit judges love to ask questions, and so there he is. Some of us like to answer questions also.

We’ve been talking at a level of generality which has been very interesting, but I’d like to put a some concrete examples to you. There is no area where we have such varying results in the different circuits as the area of gun control. And I was wondering if there was any insights that the natural law or the general law can give us to resolve any of the present problems that we have in, What the government can do as far as gun control.

You want to go first? Or do you want me to go first? Look, this is one of the key problems of all systems. And what happens is, the major issue that we face with gun control regulation and similar regulation is a question both of substance and of timing. And so the first question is, can we regulate who buys a gun?

Or not. And I think the answer to that question depends upon your estimate of alternative error, which is going to get you to a legislative judgment, just as Judd said. So you’re going to say we have a categorical rule, you don’t sell guns to people under 14, you don’t sell guns to people who are former criminals, and so forth.

But, presumptively, and then you start going into the various categories of people can do it. And the only thing you could do when you have uncertain homes, and this is going to be highly contentious, is to try to figure out what the errors of going too much regulation against too little regulation.

So in cases of uncertainty, it’s not a natural law inquiry. What it is a balancing of two kinds of error, where you have both normative problems on the one hand, and empirical questions. On the other hand, that’s why this thing becomes extremely difficult. So you then have to do exactly what Judd said is, can you find cases where it turns out that it looks like the case is so easy on one side or the other side.

There was a recent case, I think in the court which said, can you keep the guns out of a hand of somebody who’s a Hardened criminal and the Supreme Court said of course you can do that, right? And then there are other cases Can you tell somebody they can’t keep a gun in their home for self defense and the answer is maybe yes Or maybe no and then there’s the question of whether you have to have a license or not and which they are So there is under any case of that.

It’s not just guns. It’s any kind of nuisance or environmental harm The world becomes ten times more complicated Maybe a hundred times more complicated when the issue turns out to be uncertainty than it is in the delineation of the rights. And at that point, what happens is you do get exactly what he said.

You get a greater level of judicial deference to administrative stuff, and you spend most of your time She had said it again, going after the extreme cases where it looks as though there’s something which is very often seen. So the Broon case in New York, in effect, it looked as though it cut too deep.

But again, I don’t want to talk, I want to talk about the substance. The odd thing is the Second Amendment does not apply to the District of Columbia. Amongst other things. And, but those are doctrinal stuff, but let’s suppose you had no constitutions. So Judd has written an article on natural rights and the right to keep and bear arms, so Jud, so maybe we should hear what he has to say too.

Yeah, so I think as long as you’re thinking about this problem in terms of just general natural rights I agree with what Richard said. That is that the state has the authority to regulate general natural rights and those rights are subject to regulation and promotion of the common good. And then the question becomes a question of how far Has the regulation gone and what are the costs and benefits of that regulation and so on.

And so that’s largely a legislative determination. The thing that I think gets really tricky with respect to the Second Amendment is two things. So one is, do we give any epistemic authority to the assumptions that the founders had about how far a regulation of firearms would be conducive to the public good?

Because their ways of thinking about the answer to the benefits and costs of regulating firearms very well might be very different than ours. And so one of the questions that comes in, even if you’re dealing with a general natural rights paradigm, is does the fact that they wrote the Second Amendment down with certain assumptions in mind.

I don’t have any bearing on how we think about the scope of regulatory, state regulatory authority. And I think that’s a tremendously difficult question. I don’t have a good answer to it. But but I think that’s one area where the answer might get a little more complicated than what Richard offered.

The other thing I would just say is that it’s also the case at the founding that certain rights were stronger, that they were thought to be part of the common law. And that they had more determinate legal content. And so one of the things that you would want to know if you’re trying to delineate what the Second Amendment requires is whether it’s one of those types of rights.

And so you might argue, for instance, that an effort to disen to eliminate firearms usage under a GAME Act. Like the type that they passed in England in the 1870s, would be contrary to a fundamental right to keep and bear arms, because that, and so that, that’s a, that’s the type of move that you would want to engage in with if you’re thinking about these rights questions from a founding era perspective.

I think actually answering the questions as an originalist matter is tremendously difficult because we actually don’t have very much. evidence to go on. Most people assume that this right exists and they don’t say very much about what it entails. And because all of that evidence comes before the point at which it was actually socially productive to limit firearms, because we just had developed the types of arms that would create the harms that required widespread limitation.
And so it’s only in the 18 teens and 20s that firearms become capable of doing the type of harm in hand to hand combat that requires governmental intervention. And by that point, we’re well past the founding. So I think it’s a really difficult question to answer from an originalist. And I think you answered it correctly.

That is, if the ultimate test is it two kinds of error, regulating too little or too much, and now under regulation has many higher costs than it did earlier on because of the lethal nature of the weapons, then it seems to me that more regulation is going to be justified than otherwise. And this is a dynamic element which has to be introduced to the law.
Figuring out what the errors are and whether they’re large or small is an essential part of this. And if you get repeating rifles and so forth of course, you’re going to have to do more in order to deal with this. So I, essentially, I’m an originalist, an unfaithful originalist is what I would describe myself as.

But if you want to do this, I think the dynamic element of That you would put back to originalism is every time you start talking about the principle of equity and trying to figure out how far you go. It’s two questions you worry about, two kinds of errors and on the injunctive side. And then the question is ex post how effective is a revenue in damages if it turns out somebody goes too far.

And so in this case, I think he’s clearly right. But take the environmental stuff. Most of these risks now are much, much smaller than they were even two decades ago. So the heavy level of anticipatory regulation is much less justified, because the interference with productive activity is much greater.

And so I think if you keep that, it doesn’t tell you whether you go more or less. It tells you a lot that you have to know what the facts on the ground turn out to be. And you can’t be a useless theorist like me. You have to be a devoted empiricist on these questions. Question over here. So you distinguish between fundamental legal relationships, which pertain to put the speak into the mic.

Okay. You distinguish between fundamental legal relationships, which pertain to the use gentium and then the codification or formalization of those relationships, which pertains to the use vela. And it seems that parallel to this, you have two criteria for identifying what’s part of the natural wall.

Stability or durability and Pareto efficiency. But it seems that these two criteria pertain more to the identification of which rules that have formalized these relationships should stick around, as opposed to which are the fundamental legal relationships that we want to keep. So if, even if you go back, so my question really is, how do you reconcile disputes amongst natural lawyers about which relationships are fundamental such that they’re part of the U.

S. Gantt theorem? Thank you. For example, even Cicero, in the Deo Ficci’s Book Two, says, he says that private property does not pertain to the uscantium. He says it’s only a uscavile. And Justinian does the same thing when talking about slavery. And he seems to actually say in that context that people have a different opinion than him.

Yeah. So these are my worries. Oh you have big worries. And let’s take the biggest worry, slavery which was, in fact, one of the great contentions. If you go back. And you start with it. Gaius essentially just talks about it as an institution. Justinian has a slightly more expansive view in book one.

And he says that slavery is in fact an affront to the principles of natural law because it underfunds the fundamental carpet of equality amongst individuals. And we know that they’re unequal. We may not know in a world of equality what the ideal rights are going to be, but we know that this is gone.

And then, in the next chapter, He says in the Latin, quote, Principi cocco et legis regorum habit, that which is pleasing unto the prince hath the force of law. And so it’s a judgment about appetite, not about morals. There’s no word good in that. And it turns out, we viewed slavery from the beginning of time.

So we’re using a different definition of natural law. A definition that says it’s a pervasive institution in a given society. What we do is we just understand how it works. And virtually all of the ancients, when they did that, were technicians. Also, I teach the, I’m a Romanist by training, I teach the law of slavery.

If you want to spend your time saying, Oh, this is a terrible institution, be my guest. But if you’re really trying to figure out what the law of slavery is about, it’s the question, if you have two owners and you stipulate with the authorization of one, but don’t tell it to somebody else, does the second guy have part of the interest?

Highly technical questions like that. And the larger questions were essentially only answered in the political discourse, they were never answered in the other one. And remember, Deifices is one of these really weird books, right? There’s a lot of it is moral sort of reminiscence, personal history, anecdotal stuff, and then there’s some really tough, very nice legal analysis, mainly of all things on the question of disclosure later on in the thing.

So you can’t do too much from that. You go back to Aristotle, he thought it was natural in the sense that natural differences in people. The answer in Gaius was conquest is an act of mercy if you keep these people as slaves instead of selling them, right? But of course, what do you do with their descendants?

What do you do with people whom you capture and so forth? The actual war of slavery meant that the aggressor who captured somebody was entitled to keep them. It was not only the just war person who was allowed to do it. And it ends up in bloodshed in civil war and everything. So Judd, would you like to jump in or should we have one last question from from Baird Johnson?

Thank you. I was wondering as a historical matter about the relationship between the English common law and natural law, because it had been my impression that Locke is really idiosyncratic in not talking about the common law at all it’s been brought to my attention that this is, I, this view is likely far out of date now, and was wondering how English common law and natural law interact.

Locke was not an English common law. Let me give you the first point. When he begins with property, he says that property is a gift of God to mankind in common, right? And so the great challenge for him is how do you extricate yourself from the common? If you were a common lawyer everything that was not owned in common, i.

e. the rivers and waters, was erased nullius. Nobody owned anything, so there was never the problem of how it is that you extract something from common ownership. And the Lockean view turns out to be much more difficult to operate. And so when you throw that in with the labor theory of value, the occupation theory doesn’t get you a left wing bunch.

But when you start talking about labor as the justification, and then how you get that labor, there are left wing Lockeans who are very insistent that his definition of private property, public property, essentially precludes the common law rules of private property. So the difference in the starting points of Lockeans.

And the Roman lawyers, and the English lawyers, was very pronounced. Make no mistake about it, when Locke put this stuff together, the English common law was not based upon divine origins. Judd, I think you might have something to say to the Baird’s question. Yeah, so I, I think the way to think about this is that natural law sets up a basic framework for how to think about legal problems, but it requires specification.

And so you have a tradition of natural law that operates throughout Europe. And then some legal systems within Europe use common law as a way of delineating substantive rights and delineating procedures to adjudicate claims, so juries instead of inquisitions and so on. And then you have a civil law tradition that’s heavily focused.

On codes, on written law and so on to delineate what those substantive rules are and then didn’t have judge based adjudicatory procedures rather than having juries. And so the common law and the civil law system are in some sense competitors, instantiations of a system in which. Positive law is providing specificity to dictates of natural law.

And so Okay, one comment on that. Sure. The Roman laws didn’t care about judges. They cared about academics. So The judges are simply followed formulas that were derived by others, but essentially the guys who really did it were the five great judges of the Joyce of the time. So the public choice view of what judges are motivated is not there.

One other point I want to say, because this is, you’re a very different kind, you and Michael are very different kinds of people from me, is that when you talk about the general law as modifying the prima facie cases the Romans and everybody else thought about this as a matter of theory. You tend to think of it as a matter of legislative history and there’s a very profound difference because in the continental systems that rely on this legislative history is much less important than it is in the way in which we do law in the United States.

If I heard you correctly, Richard, the the Romans did not care very much about judges, but did care about academics. That sounds like a utopia to me. Let’s hear it for the Romans and also for our speakers.

So thank you very much. And as I said, this is the last of our constitutional conversations for this quarter, about April 14th. Please join us again for a discussion of administrative law and constitutional law.