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THE RHETORIC of REALTY.Rtf 1 THE RHETORIC OF REALTY Kevin Gray and Susan Francis Gray [ in Joshua Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths, London 2003), 204 – 280 ] 1. Introduction Although Holmes famously maintained that the law ‘cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics’,1 it is in the law of land that the perfection of pure reason appears most nearly attainable. 2 English land law 3 -- more obviously than any other area of the law -- seems to be characterised by the rational application of axiomatic principles to a limited number of highly artificial jural constructs. 4 The propositional dogmas of land law control relationships amongst a set of estates and interests whose taxonomy was meticulously enshrined in codified form in the property legislation of 1925 and is left virtually untouched by the Land Registration Act 2002. 5 It is arguable therefore that land law can be seen as comprising a modern ratio scripta whose conceptual purity and internal coherence are unrivalled across the field of contemporary law. 6 Indeed land law displays many of the features of a closed system of logic or an 1 Oliver Wendell Holmes, The Common Law (Little, Brown & Co, Boston, 1881), p 1. See also Jerome Frank, Mr Justice Holmes and Non-Euclidean Legal Thinking , 17 Cornell LQ 568 at 571 (1931-32). 2 Some three centuries before Holmes, Coke had described law as ‘the perfection of reason’, adding that reason was ‘the life of the law, nay the common law itselfe is nothing else but reason’ ( Co Litt , 97b (sect 138)). 3 The use of this phrase necessitates, of course, the ritual apology that ‘English’ law connotes, for the purpose of this essay, the law of England and Wales. 4 See F H Lawson, The Rational Strength of the English Law (Stevens, London 1951), p 79 (describing the English law of property as ‘more logical and more abstract than anything that to my knowledge can be found in any other law in the world’). 5 Effective 13 October 2003. 6 The Real Property Commissioners of the 19th century clearly envisaged that the result of the reforms proposed by them -- and largely realised in the property legislation of 1925 -- would ‘come almost as near perfection as can be expected in any human institution’ (see A W B Simpson, A History of the Land Law (2nd edn, Clarendon 1986), p 275). 2 autopoietic order, prompting immediate analogies with mathematics 7 and, more particularly, with the discipline of Euclidean geometry. 8 Land law resembles, in this sense, a specialised game, 9 played by a rarified caste of amiable eccentrics, in which the outcome of every strategic move is dictated by an arbitrarily predetermined set of foundational principles. 10 Accordingly, it could be posited that the discourse of land law is governed by its own internal grammar; that the outcome of all land law operations is preordained by the unchallengeable starting points which lie back of, or beyond, the law; and that property in land ‘behaves’ in a manner just as predictable and verifiable as any other branch of rational science. It is the purpose of this paper to argue that, although the law of real property contains many emanations of a strict logic or deep rationality which orders the intellectual processes of the land lawyer, there remains much that is not resolved by the mechanical application of formal or mathematical reasoning. 11 Instead the logic of land law is heavily infiltrated by a variant mode of reasoning -- a ‘rhetoric’ or persuasive logic based on conventional understandings reached by the ‘interpretive community’ of land lawyers. 12 In some important way, ‘property talk’ within this community settles the parameters of legal doctrine. This alternative mode of rational discourse has ancient roots. It draws its vitality as an ‘appeal for the adherence of an audience, which can be thought of, after the manner of Kant’s categorical imperative, as encompassing all reasonable and 7 This is not to deny that the science of mathematics is also characterised by an aesthetic or nonanalytic component which transcends the purely logical experience (see Philip J Davis and Reuben Hersh, The Mathematical Experience (Harvester Press, Brighton 1981), pp 298-316). Indeed, for many mathematicians ‘the distinguishing feature of the mathematical mind is not logical but aesthetic’ (Seymour A Papert, ‘The Mathematical Unconscious’, in Judith Wechsler (ed), On Aesthetics in Science (MIT Press, Cambridge Mass 1978), p 105). But then again the intense beauty of highly ordered schemes is also one of the primary attractions of the law of realty. 8 See Walter W Cook, Scientific Method and the Law , 13 ABAJ 303 at 304 (1927). 9 All common law-derived systems of property consist of systematic abstractions which ‘seem to move among themselves according to the rules of a game which exists for its own purposes’ (F H Lawson, op cit, p 79). 10 Ironically, the rational strength of English land law may also explain some of the distaste felt, in certain quarters, for the discipline of real property. All too often there is a perception that land law is mechanical, bereft of cerebral vitality, its highest claim to intellectual merit being that it remains encrusted with the relics of an arid medieval scholasticism. One extremely distinguished jurist has alleged that ‘[m]any legal decisions, for example those in the law of real property, are very largely devoid of any moral or social ideals; they rest entirely upon the application of legal rules’ (A G Guest, ‘Logic in the Law’, in Guest (ed), Oxford Essays in Jurisprudence (Oxford UP 1961), p 187). Even Blackstone ended his account of realty in a state of evident disenchantment, recording his fear that ‘it has afforded the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding volume’ ( Bl Comm , Vol II, p 382). 11 Here we adopt Laurence Tribe’s definition of ‘mathematical methods’ as encompassing ‘the entire family of formal techniques of analysis that build on explicit axiomatic foundations, employ rigorous principles of deduction to construct chains of argument, and rely on symbolic modes of expression calculated to reduce ambiguity to a minimum’ (see Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process , 84 Harv L Rev 1329 at 1330 (1970-71)). 12 Here the term ‘rhetoric’ reverts to its true or original meaning, not as a pejorative description of verbal posturing, but rather as a form of discourse ‘concerned with creating opinion and inspiring action’ (see Allen D Boyer, Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law Tradition , 10 Intl J for the Semiotics of Law 3 at 4, 10-11 (1997)). 3 competent men.’13 The epistemological function of this ‘rhetoric’ is no less compelling than that of the Euclidean theorem and, when let loose in land law, reveals itself as a powerful motivating force behind the directions taken by the modern law. The ‘rhetoric’ of realty, in fixing the co-ordinates, orientations and movements of land law concepts, is actually much more a matter of geography than of geometry. 14 Land law has always had its reasons, of which reason -- in the purest sense -- knows very little. And the more generalised image of the law which emerges from this analysis reflects a richer and more subtle understanding of the normative structure of legal phenomena as a product not only of collaborative human endeavour, but also of a creative tension between formal and informal sources of law. Over the last 20 or 30 years the process of ‘rhetorical’ or nonformal argumentation has exerted at least three recognisable kinds of impact upon the development of English land law. First, the modern rhetoric of land has induced a heightened norm of rationality in respect of those one-off transactions in which we deal with each other as strangers . The effect, felt principally in the context of sale and mortgage, is dramatically to tighten up and stabilise matters pertaining both to land titles and to the priority of claims which would derogate from the absoluteness of titles. The overriding concern here is with the maximisation of systemic order. Second, a new norm of reasonableness has been injected into those areas in which, in some broad sense, we deal with each other as neighbours . The impact of this imperative, measured in terms of the tolerances and accommodations increasingly required of those who choose to co-exist in mutual proximity, is both extensive and surprisingly unremarked. Here the dominant focus is upon the maximisation of social co-operation. Third, the contemporary rhetoric of realty has started to reinforce a significant norm of reciprocity in those wider contexts in which we deal with each other as fellow citizens . This trend is evident in the way in which an intensified element of community-oriented responsibility is being quietly engrafted on to the phenomenon of land ownership in the Britain of the 21st century. The governing preoccupation here is with the maximisation of civic equity. The implications of today’s new ‘rhetoric’ are, of course, interactive: the three spheres of interface -- as strangers, neighbours and fellow citizens -- are never wholly distinct or discrete. Yet all three of the normative drifts (or ‘meta-principles’) which we identify in this paper can be seen to mirror more profound social, cultural and economic developments. In combination they demonstrate that it is the rhetorical power wielded by land law’s interpretive community which controls the logic of modern realty and preserves it as a more or less orderly structure of rules which is responsive, albeit slowly, to the processes of societal change.
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