American Exceptionalism and the Law

October 16, 2013

The Miriam-Webster dictionary defines exceptionalism as “the condition of being different from the norm.”  As applied to a country, however, the term has its roots in the romantic writings of the eighteenth century German philosopher-historians Johann Herder and Johann Fichte.  These thinkers de-emphasized the political state and instead emphasized the uniqueness of the people (“das Volk”).  To understand the concept of “American Exceptionalism,” therefore, one must understand the historical and social milieu that gave birth to our nation and our system of governance.

Our “noble experiment,” as American democracy has been called, represented a radical departure from the top down approach to governance that characterized both the European and classical liberal approaches to governance.

European governance had its roots and traditions in centuries of monarchical rule, which, in essence, leaves development of laws and customs based upon the naked preferences of and deference to the ruler.  While limits on such naked preferences were imposed through force during the seventeenth and eighteenth centuries, even under the resulting constitutional monarchies, the sovereign retained considerable power.  Commoners lived and worked “by the leave” of the nobility.  Culturally, commoners were not even permitted to think that they were entitled to common courtesies.  The terms “please” and “thank you” were reserved for lords or one who was a similar hierarchical superior.  “Please” is short for “if you please,” “if it pleases you to do this” — it is the same in most European languages (French: s’il vous plait: Spanish:  por favor).  Its literal meaning is an acknowledgement that “you are under no obligation to do this.”  Similarly, as David Graeber noted in his book Debt:  The First 5,000 Years, “In English ‘thank you’ derives from ‘think,’ it originally meant, ‘I will remember what you did for me’ … but in other languages (the Portuguese obrigado is a good example) the standard term follows the form of the English ‘much obliged’ — it actually does means ‘I am in your debt.’  The French merci is even more graphic:  it derives from ‘mercy,’ as in begging for mercy; by saying it you are symbolically placing yourself in your benefactor’s power — since a debtor is, after all, a criminal.”

England began to diverge from Continental Europe in the development of its legal system.  Rulers on the continent adopted top-down codes that were developed by philosophers and scholars and which became the Civil Law tradition.  Under this tradition, the goal in arguing any case was to show that a core, primary principle was at play in the case that was presented to a judge.  Civil Law codes thus reflected the classical liberal approach that the interests of society were paramount and thus individual choices were to be subservient to what the sovereign knew to be best for the people.  As for private commerce, effectively everything was prohibited unless the sovereign expressly permitted it.

The Common Law tradition in England took the opposite approach.  There the law grew in accordance with decisions of individual judges who sought to do rough justice or deal with what was the right result at the time.  Innumerable exceptions and technicalities were grafted onto the various forms of actions or criminal laws; in the latter case this probably was due to the fact that, with over 170 crimes punishable by death, judges sought, for example, to find ways to avoid having to send a young lad to the gallows for simply stealing some bread.  Thus the Common Law pursued an approach of distinguishing the present case from others and, thereby, began to highlight individuality.

However under both systems, all real property belonged to the state, in the personification of the ruler.  “Ownership” of land therefore was by a grant of tenure.  As the king or Queen owned all land, lords were “enfeoffed” with the grant of a parcel of land in exchange for their reciprocal obligation to provide services, taxes, etc to the ruler, and these lords similarly made sub-grants to sub-lords upon similar requirements.  Thus all ownership was “of” or “through” a superior lord.  Obviously, under such a system concepts of “squatting” or “adverse possession” cannot exist.  (Indeed, even in America today principles of “adverse possession” cannot apply as against state or federally owned land.)

America, certainly through the mid-nineteenth century, was effectively a third world country.  The first settlers who came to these shores were, as described vividly by historian Peter Charles Hoffer in his Law and People in Colonial America, a “cold, tired, apprehensive assemblage of men and women … gathered on the western shore of the Atlantic, peering into a densely wooded wilderness.”  Law then in the colonies rapidly began to change.  Economist Hernando de Soto, in his book The Mystery of Capital, describes this succinctly:

Initially, colonists attempted to apply the doctrines of English property law to bring order.  But English Common Law had not envisioned a society that was rapidly generating new forms of property access without an established and generally accepted titling system. …

Most of these colonists, however, had little comprehension of the technicalities of English law.  Many did not know or care to know the differences between legal writs, law and equity and other subtleties. …

In matters ranging from domestic political autonomy to the use and distribution of land, colonists began to deviate in significant ways from English laws that had little or no logical relevance to the realities of colonial life.  As Peter Charles Hoffer emphasizes, “In theory they were part of the king’s personal domain [and subject to all his laws], but fact preempted theory.  Far from England, thinly populated, rich in natural resources, and occupied by men and women who knew their own minds and grasped a bargain when they saw it, the colonies edged towards self-government.”

Primarily due the lack of any reliable title records, ownership here began to be established through American concepts such as “squatting,” “cabin” or “corn” rights (building a cabin or planting corn), all of which evolved into our laws of “adverse possession.”  American juries refused to convict the “holder” of such titles from killing the sheriff who came to evict them.  As a consequence, land ownership in American evolved into “allodial” ownership that was free of any of the incidents of tenure that accompanied ownership in Europe.

The significant import of this development however was that laws and governance (a) followed from the will of the populace – that is, bottom up versus top down – and (b) as pragmatic responses to real life necessities.  Thus, when the thirteen colonies thus broke with England, those principles were formally reflected in the establishment of a governance system that (a) derived its authority from the consent of the governed (i.e., bottom up) and (b) was established as a republic of reason (as opposed to naked, monarchical preferences).  Further, checks and balances were created so that no branch of government could ever impose its will on the others and unbridled political debate was enshrined under protections of complete freedom of speech.

In the realm of commerce, this also created a culture of individualism and an enabling approach to business and invention; that is, everything was permitted unless it was specifically prohibited.  Further, major internal policies, such as the Homestead Act of 1862, were adopted in response to and as a formalization of cultural changes that already existed among the populace, as opposed to rulers or philosophers determining what was best for society.  The law here was thus the trailing, as opposed to leading, edge of change.

Continental Europe, and most of the rest of the world, is still guided by the dead hand of their historical roots.  It is in our differentiation from those traditions and approaches, exceptionalism, if you will, that America stands apart.

© Richard L Wise and 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Richard L Wise and with appropriate and specific direction to the original content.


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