Contingency

-- By MattConroy - 06 Apr 2018

Unfreedom did not transform into freedom over the course of the English Law by contingency only. Contingency played a major role, as it always does in history, but for legal history especially freedom came about because of people making things happen and taking advantage of the hand they were dealt.

Armory v Delamirie

Let us look at a minor case which in the grand scheme of things does not matter very much: Armory v Delamirie (1722). If not for being an interesting fact pattern and illustrating the notion that finders keepers is actually law which makes it a fun read in a casebook, no one would remember this case. But for the small boy who gained the possibility of actually living a life as a human being instead of as a tool to be cast aside, it deeply mattered. He found a piece of jewelry in the pitch back soot of a chimney, and took it to the finest silversmith to see what it was worth. The shop assistant stole the jewel out of it and was going to give him a pittance. Instead of accepting his lot, the chimney sweep demanded the jewel back. Then when the assistant refused the boy convinced a lawyer to bring a suit and won. Contingency is part of this story. It was luck to find the jewel. Maybe if you subscribe to the Eben Moglen interpretation that the only reason he was able to get a lawyer was that the lawyer saw the injustice happen. If so, then winning would be down to a bit of luck. But maybe the boy convinced the lawyer, and seeing the truth in the boys eyes the lawyer agreed to help him. The historical record does not tell us. But that does not really matter because either way it was a willful act by the lawyer to seek justice that resulted in freedom for Armory. Contingency set the stage, but the people made freedom happen.

Black Death

The Black Death occurred from 1348-1349 and caused ramnifications for the labor market in Britain. The extraordinary loss of life allowed for serfs to exercise more economic power against their lords. This plague occurring was contingent on rats carrying fleas with the bacteria stowing away on boats. Roughly half of the population of Britain died in this 18 month span. Over the next 100 years the peasants were able to negotiate their labor with their lords and slowly gain freedom. Sometimes they were successful, and sometimes not. There is contingency here but it is important to emphasize the fact that every time freedom was given, it had to have been demanded. Every time freedom was refused, it was still demanded. The law does not show these demands because it does not show the people. It only shows the law. It hides the fact that a lot of energy went into collapsing the wave function at freedom.

At a more granular level, the Black Death was also a catalyst for the the Peasants' Revolt of 1381. This uprising featured John Ball proclaiming "When Adam delve and Eve span who was then the gentleman?" The revolt ultimately failed, but it implanted the idea that the feudal system is wrong because it is unfair that magically lords became lords and peasants became peasants. We are all descended from the same lineage. Again we see people using their contingent circumstances to make change in their society through willful action. This is also an important anecdote because it shows the power of words. John Ball is a hell of a lawyer.

Depersonalization as a requisite for freedom

Communities are defined not by their interiors, but by their boundaries. Humanity is decided by examining each person and deciding if they are inside the boundary or outside of it. Inside you are a free person. Outside you are a slave. These boundaries can be drawn along any number of dimensions (race, gender, class, weirdness, etc.). The quest for freedom then becomes an effort to either move the boundary so it encompasses the individual, or creating an interference pattern of the person which puts enough of them inside the boundary to confuse the powers that be. This is massively important because it explains the capacity for law to grant freedom to the unfree.

Law is a highly formalistic and ritualized system. There are rules and magic words which must be observed. It is a special class of in-ness within the broader class of who society recognizes as a human being. Going back to young Master Armory, he needed a lawyer to win his freedom. Without a lawyer he is something to be disposed of when convenient. By hiring a lawyer and entering the Court, in essence he ceased to be himself and instead became his lawyer. His lawyer by nature of being a lawyer was already inside the community. Armory as a person must be recognized. Upon this recognition, the Court must find in his favor, no matter how much money and power Paul de Lamerie had. Because the shop assistant stole from a person, not from a thing.

Stories

History matters because the stories we tell determine who we are. As a young lawyer, the story that I tell about the law determines who I am. It is dangerous to overstate the role of contingency when telling the story of the transformation of freedom. I do not want to be a lawyer who overstates the role of contingency. I want to be a lawyer who uses contingency to my advantage and bends contingency into justice.