Thursday, November 13, 2008



By : I. Seymour Loote, Senior Litigator and Legal Scholar, Loote, Pfennig, Till & Quid, Attorneys & Counselors at Law

Our civilization depends upon the law. Indeed, one can see the law’s influence simply by beholding the grandeur of legal buildings. Typically they are the most ornate and impressive structures in any capital city, with Roman columns, arches, massive stairways, imposing statues and awe-inspiring chambers. Many legal buildings are made of stone or marble, reflecting the law’s “bedrock” importance to our society. Often, words are carved into the stone above the arches. They, too, reflect the law’s stonelike weight and power in our world: “The firmest pillar of good government is the orderly administration of justice.” Put another way, legal buildings reveal our society’s unshakeable dependence on the law. It is the “pillar” upon which our society stands. Without it, the whole structure would come crashing down.

We must all bow before the law. The law governs us. It expresses our values as a people. It punishes the wicked. It holds men to their word. It compensates the injured. It protects safety. It regulates land. It creates a stable environment in which all men can do business without fear. And it lays down the principles that guide us as a people. But do we really know what “law” means? Does it have any limits? If it does, can we escape those limits?

Immanuel Kant defined law in his Metaphysics of Morals: “Law is the authority to compel.” Law, then, means a governmental power to force individuals to do or refrain from doing certain things. We all have liberty, but the law can order us to do things we would rather not do. This is legal power. The law has “authority” to take hold of a person and control his behavior, whether he wants to do something or not. This is only right, for why would any man keep his promises if a higher power did not put a sword in his back if he does not? Force is essential in society. Without the threat of force, no one would take his promises seriously. Human beings respond best to fear. And the law encourages honorable behavior by tapping into the fear of force. If a man promises to pay $500 to another and fails to do so, the law must force him to pay. If he still refuses, the law may force its way into his property to take what he owes. Men fear force. Thus, they pay the $500 to avoid confronting legal force.

Yet this leads to a problem. If law means the authority to compel, does that mean it can compel anything? Can it compel a man to believe that Sunday is actually Wednesday, or that there is a Tooth Fairy? Can the law compel a man to accept Jesus Christ as his Lord and Savior, or Allah? In other words, is there a limit to the law’s power to force things? Yes. Martin Luther tells us in his treatise On Governmental Authority (1523) that: “[t]he temporal government has laws which extend no further than to life and property and external affairs on earth, for God cannot and will not permit anyone but Himself to rule over the soul.” We see, then, that the law holds sway over three main things: (1) the body; (2) property; and (3) external human relationships. Even ancient thinkers understood that the law’s power only extends over these things. In his Discourses, the Stoic Epictetus wrote: “Here thieves and robbers and courts of law and those who are called tyrants are thought to have some power over us, because of our poor body and its possessions. Suffer us to show them, that they have power over nobody.” The Discourses, Chapter 9, verses 14-15. Even the United States Supreme Court understands this to be a “well established principle”: “[E]very State possesses exclusive jurisdiction over persons and property within its territory.” Pennoyer v. Neff, 95 U.S. 714, 722 (1877).

As the above sources show, legal power has clear limitations. It holds authority over men’s bodies, their property and all their relationships with regard to their bodies and their property. That means it has authority over liberty, private dealings, speech, conduct, propriety and order among men. As long as the law does not directly regulate belief, it stays within its bounds.

But who cares about belief? In America, body and property are all that matter. Americans live their lives to satisfy their bodies and increase their property. From our earliest history, the colonists lived to expand their landholdings and improve commerce. The law provided firm, dependable rules that encouraged beneficial commercial behavior. Today, we continue the colonists’ quest for improved commerce. The law ensures that men deliver goods when they promise them and pay for land on agreed-upon dates. It forces negligent people to pay money to those they injure, and it denies bodily liberty to those who violate our values as a society. It forces irresponsible parents to pay money to support their children and provides an orderly system to distribute the financial risks of commercial enterprise. No one wants to go to prison, and everyone wants money. The law plays a central role in both of these aspirations. Belief simply does not matter.

Legal terminology and reasoning may be esoteric, but the law’s subject matter is not. People essentially want three things from life: (1) to avoid bodily suffering; (2) to gain property or money; and (3) to avoid losing property or spending money whenever possible. The law provides mechanisms by which people can fulfill all three goals. Imprisonment and capital punishment target the body; people can refrain from crime to avoid them. When men do business with a view to making money, they know they can sue one another if someone breaks their word. This provides comfort in commercial life. It encourages people to take business risks, because they know the law will give them a remedy if something goes wrong. By the same token, when one man sues another for money, the law allows the other man to defend his property, thus fulfilling his interest in avoiding property loss at all costs.

People fight fanatically to protect their lives and their property. They stop at nothing to gain property and to avoid losing it. The law reflects these desires by creating obligations, rights, remedies, liabilities, entitlements, procedures and debts. When a man fails to meet his obligations under law, the law may exercise its authority force him to comply. But there is a problem here. After all, a man may break his word, refuse to meet his obligations and run up enormous debts to his fellows, then die. We know that the law only operates on the body, property and relations involving the body and property. Thus, if a man dies, the law loses all its power. It cannot force a dead debtor to pay anything. If a criminal dies before an execution, the law has no power to inflict pain on his corpse. In this sense, death cheats the law. Force only works on the living. Because the law derives its power from force, the law has no power on the dead.

How can this be? If the law is the bedrock of our civilization, how can a man escape it simply by dying? Dying is too easy an escape from legal obligation. A man may promise to make installment payments to a health insurer totaling $413.87 per month until May 2031, but if he dies in May 2009, the law can do nothing to sanction him. It may initiate proceedings against whatever property he owned at the time he died, but what good does that do if he had no savings or real estate? Men fear the law when the law inflicts inconvenience and misery on them. But a corpse feels neither inconvenience nor misery. Put simply, death robs the law of its coercive power. The law revels in its power to compel people to do things they do not want to do. Yet it cannot exercise its coercive power on a dead man. What good are wage garnishments, writs, past due letters, eviction notices, court judgments, liens and assessments when the delinquent debtor is dead? The law can no longer coerce or intimidate a dead man for money.

This is a serious problem. We must take action to restore respect for the law, and to ensure that the law has power to inflict inconvenience, pain and misery on those who fail to fulfill their legal obligations. We must find a way to make legal obligations live on. After all, we all acknowledge that our society could not function without the law and its coercive power. Yet we allow people to deny the law’s power by dying. Pursuing dead people’s estates is not enough. We need to ensure that the law intimidates and hurts people who fail to meet their rightful obligations. Without inflicting pain, inconvenience and misery, no one will fear the law’s retribution. And without fear, no one will respect the law. To that end, some living person must bear pain, inconvenience and misery when a legal obligation is breached. If a person dies owing money, the law must be allowed to begin proceedings against the dead man’s relatives or friends. Some living body must contend with garnishments, evictions, writs and even corporal punishments. Someone’s body or property must suffer to avenge the dead man’s legal wrong. Some living body must experience stress, anxiety, pain and fear under the law’s sanctions. If a man dies in an accident owing $45,000 to a bank, the man’s wife must answer for the debt. Why would a bank lend money if it knew the borrower could shirk his responsibilities by doing something as simple as dying? In our society, the law reinforces responsibility by punishing irresponsibility. Someone must bear the pain from that punishment, dead or not.

We must think creatively to save the law. We all know that body and property are the only things that matter in American life. Recognizing that, we must confront cowards who die rather than meet their lawful obligations. The dead cheat the law. They deny its right to sting the body and property. True, a dead man arguably loses because he no longer can enjoy bodily pleasures and property. But those lost opportunities for pleasure mean little compared to a creditor’s frustrated economic expectations. Our Nation depends on healthy economic activity. And healthy economic activity, in turn, requires men to fulfill their promises, no matter how circumstances change. The law forces men to fulfill their promises through the fear of pain, misery and inconvenience. We must strive to ensure that the law does not lose its power to create fear, and we can only do that by eliminating death as an escape hatch. The law must always win, and that means someone’s body and property must suffer. If it can’t be the debtor, then let it be his wife, son, nephew, mother-in-law or grandfather. It really does not matter who foots the bill; obligations are obligations, and they must be satisfied.

Law protects our deepest values as a society. Yet death denies its power by taking away the living body upon which it operates. Do your part today by telling your Congressman that this has to stop. Tell your Congressman that you respect the law, and that you refuse to let deadbeats, criminals and student loan debtors to escape their obligations by merely ceasing to breathe. In our new legal world, death will simply transfer the law’s power to inflict misery onto a new living body. Let that be a warning to all you debtors and bill-dodgers: If you think you can save yourself by dying of cancer or AIDS, think again. Your wife and children will assume all the responsibilities you thought you escaped. If the law can’t sting you, it will sting your loved ones. Our message is simple: Keep your word. Pay your bills. Behave yourself. If you don’t, you will suffer. And if you don’t answer the law in full, your loved ones will.

So when your bills pile up and you think you have no future, don’t be selfish and die. If you do, you will land your loved ones in a world of trouble. Rest assured, the law will defeat death. That will make every man confident to lend money, invest in real estate, extend credit and do business without fear, enriching us all. And when men do business without fear, everybody wins. In our happy future, the dead will no longer ruin happiness for the living.

1 comment:

SteveW said...

Just wanted you to know I enjoyed this one.