PREPARATION:

• Read de Soto, Chapter Five

NOTES:

I love this chapter for its unique slant on the American experience.  As de Soto says at the beginning, he isn't out to rewrite U.S. history but just to look from a different point of view at what we already know.

The first lesson you should gain from this is simple:  when people stop obeying a law, it ceases to be a law.  Calling it a law doesn't make it one.  In the end, law exists by people's willingness to obey it, which in turn comes from their sense of  being treated justly.

Common law — "adverse possession" (7 years in Kentucky if one paid taxes and improved the land)

De Soto is wrong about British common law ("Leaving Behind Antiquated British Law, pp.110-113).  British common law developed out of centuries of judges trying to make sense out of the reality on the ground, resulting in a body of precedent that both made practical sense (for the most part) and, just as important, had been accepted by the people to whom it made sense.  This is the message given in the famous quotation (at the beginning of the next chapter) from U.S. Supreme Court Justice Oliver Wendell Holmes:  "The life of the law has not been logic;  it has been experience."

Nonetheless, De Soto is correct that a common law developed for a particular people and situation -- the British in Britain -- cannot simply be transplanted whole into a new people in their new situation.  What he describes is not the failure of common law but rather the failure when we abandon its basic principle:  rooting the law in people's experience on the ground.  As so often happens, the people of the time confused the law's content with its structure, its form with its substance — as (surprisingly) does de Soto.

[Exercise:  Where do you see the change of law happening "on the ground" these days?  Suggestion:  look for areas where the law is simply being ignored and/or where people enforcing the law are being attacked.]

You should certainly pay attention to the history given in this chapter, case after case, situation after situation, just to build up your historical muscles (and knowledge).   I will grant that it becomes pretty boring by the end, but that's just because de Soto is making the same point over and over:  that when social needs conflict with formal law, it is the law that loses.  This important point is worth a bit of boredom.

But there is a point to be made beyond this, because leaders have four options to deal with such conflicts, not just the two obvious, extreme ones.  One obvious but lousy option is for the leaders to resist the illegality to their dying breath — which, as the section entitled "Shooting the Sheriff" points out, might come pretty quickly.  And even if the leaders manage to avoid being killed by having the army or the police do their dirty work, there comes a time when even the people in Braudel's "bell jar" are revolted by what is being done.  The other obvious but lousy option is to capitulate to the illegality — to stand back and let nature (or force or fraud) take its course.  Then, third, there is also grudging acceptance, fighting read-guard actions.  But there is a fourth choice, one that seeks to accept the reality on the ground and yet guide it in beneficial ways.  The government need not abandon the field, but it has to meet its citizens halfway:  accepting the fact of their needs and yet creating a legal system (and, more generally, a system of governance) that people come to respect as useful, recognizing (however grudgingly) that some order is necessary and that in the long-term, having a rule of law will be to the advantage of all.  ("Preemption" of "tomahawk rights", pp.119-120.)

This is, of course, what de Soto is trying to point out to the elites of the Third World (and their patrons in the First World -- we are deeply implicated as well):  the only real option is to face the reality of extralegality and try to fashion something good out of it.  It can't be resisted, and it won't go away.

Notice that de Soto specifically rejects the idea of the Third World replicating the experience of the West.  As his analysis indicates so clearly, the law needs to arise out of the situation on the ground, not some prepackaged, cookie-cutter doctrine.  (Read:  "globalization".   Read:  "Structural Adjustment Programs".)  The Third World needs to have latitude to grow its own way, not in the way dictated by the "experts" of the First World.

Notice also that this assumes that these experts (and the institutions and political systems from which they arise) don't have their own agenda but instead are solely concerned for the welfare of the 3rd world.  This assumption may be true for some NGOs, but for the big aid donors, it certainly is not true.

[Exercise (which, alas, probably requires more knowledge of real Third World societies than most of us have):  Choose a society (say, Tweedistan) and figure out some way to solve Tweedistan's problem of extralegality so that something especially beneficial comes out of the solution.]