What is “the
law?”
Usually we ask a slightly more specific
question, such as “what is the law about under age drinking?” or “What is or
are the legal definition(s) of “murder”, “manslaughter”, “mayhem”, “malice”,
“maritime”, “marriage”, “materiality” or “mortgage”? (In the Law as in the list of states in the
Union, labels, names and words that begin with “M” seem to be
disproportionately numerous and very important).
The most disconcerting thing for any
one to learn, I guess, is that there are no fixed answers to any of these
questions.
Every answer in law is a dialogue,
which is to say that every answer is a process, not a classification. Worse yet, every dialogue in the law
concerns the process of classifying something.
Every “Final Judgment” in the law is basically a classification:
“guilty” or “not guilty”, “liable” or “not liable.”
So whether you negotiate in court or out of court, you are
doing the same thing in law: you are talking and/or exchanging ideas in
writing, whether you do so in the courtroom, the corporate boardroom, the
billiard lounge, or the bedroom.
So what is law?
Twenty-six years after I matriculated in the University of
Chicago Law School, I still struggle with this question and all I can tell you for sure is that ALL answers are horribly, frustratingly unsatisfactory---but I think the following is at least "true": Law is a Process, Not a Fact.
I think that the best answer is that “Laws” are basically
mental pictures, symbols which we use in our heads to convince others that we
are correct. “Laws” are symbolic
expressions of what we want, and how we use these symbols in our dialogues is
open ended.
All the “M” words above are “Hot Topics”, likely to inspire
passionate discussion between any two people old enough to pronounce the words
and not yet so senile as to forget what they were talking about.
Let’s just take the hot topic that is most particularly
relevant: what is a “mortgage”?
A “mortgage” is a special kind of contract, the purpose of
which is to transfer ownership, usually of real estate, incompletely and over
time. A “mortgage” is a particularly
complex “legal” contract because it has lots of conditions and special terms
which might shift “equitable” ownership back and forth between buyer and seller
(or creditor and “accredited” borrower). Suddenly we see a classification we
weren’t expecting: what is “law” and what is “legal” on the one hand, compared
with what is “equitable” or “fair” on the other? How does “legal” ownership and right differ
from “equitable” ownership and right?
This question opens up a brand new dialogue INSIDE our initial dialogue
about “what is a mortgage?”
And this is a typical example of how legal dialogues go: the
raise questions in the process of answering them.
The art of dealing with these multiple layers of questions
and answers and subordinate questions and sur-replies, or “surreal replies” in
some cases, is the art of law---the art of rhetorical manipulation of concepts
and symbolic expressions to achieve symbolic, and sometimes practical,
“victory” in an argument or negotiation.
There are other aspects of the “what is a mortgage” question
even without further elaborating the answer: Who is a buyer and who is a
seller? What exactly is being bought and
sold in a mortgage? Is it the dirt
underlying a home together with the bricks and cement in the home? Or is it a legal document called “title” to
the dirt and bricks and cement?
Why does every mortgage have a “note” attached to it and what
is that note all about? The law answers
in all its magisterial mystery: “A promissory note when accepted and approved
by a Federally approved bank is the equivalent of money.” That’s just the answer you were looking for,
right? Another word to be defined and
argued about: “money”. And a weird
phrase “the equivalent of money”---say what you say?
Well, you see, the NOTE is the consideration for the TITLE,
and it what makes the buyer’s ownership of the Title (and the land represented
by the title) but it is also the SECURITY for payment of the consideration in
real money (since the note is only “the equivalent of money?” Aren’t you glad you asked? So what is a SECURITY?
Well, SECURITY obviously means a guarantee of some sort,
right? A promise that you will keep your
promise or else something bad will happen maybe? “Cross my heart and hope to die, stick a
needle in my eye”? That sort of
thing? Well, maybe, but the law is not
so crass.
Under the Laws of the United States, a “SECURITY” is defined
as “ANY NOTE.” You can see we’re really
making progress here, can’t you?
All I can say, folks, is this: if you can’t stand the heat,
stay out of the kitchen. If you’re going
to argue, be prepared to ARGUE and know the language of the law---it is ONLY a
language, it is not a set of clear answers.
Law is the process of argumentation, only this and nothing more, quoth
the raven, nevermore....
CEL III, writing from New Orleans 70130, "way down upon the Swampy River..."
