Building Blocks of Reality
by Lauren Rayner Davis
“To make a thief, make an owner; to create crime, create laws.”
―Ursula K. Le Guin, The Dispossessed
Does our reality create the law? Conversely, does the law construct our reality? Or, is our reality best described as a constantly ebbing and flowing tide of brackish water, where the salt water represents reality and the fresh water embodies the law? In law school, a professor of mine once said that the law provided the building blocks of our reality. The bricks in the building in which we sat were dictated by law. The steel beams supporting the structure were in place because of laws. We were able to walk across the street to class because of laws our society has accepted. In short, the law is all around us––all day, every day.
United States Supreme Court Justice Oliver Wendell Holmes, Jr. stated that, “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community.” To illustrate Justice Holmes’ larger point, in human societies that rely on foraging, hunting, or subsistence farming, laws protecting property are often rare. Because population densities in such societies are generally low and environmental resources are readily available, land, water, and other vital resources are shared among community members. In other words, the community engages in joint “ownership” of common elements. The law in this instance grows out of reality.
On the other side of the coin, the law can be seen to shape reality. Consider criminal laws that classify the act of assisted suicide as an act as murder. While the person assisting the suicide may argue he or she is engaging in a moral and just act, especially in cases of terminal illness or old age, it is the law (and not their lived reality or morality) that dictates whether society deems that person to be a murderer.
The sovereign states and localities of the United States operate not only under legislated statutes and ordinances, but also under a patch-work of judicial rulings called the common law. The origins of common law are not unlike the origins of storytelling in our culture; the most apt jurists are able to weave together the facts and the law to reach a logical and cogent opinion that achieves an equitable and just result, and the outputs of these arguments then become the legal rules and standards that constitute common law. One case leads to another ruling, which leads to another, and to another. Occasionally, a court may disagree and overturn precedent, but doing so is often rare and flies in the face of American jurisprudence. And, once again, we witness the interdependent relationship between the emergence of reality (history) and the rules that dictate it (law).
Legal scholars and philosophers appear to have mused over the question of whether the law shapes our reality or vice versa for millennia. For it was Socrates that expounded,
If you don’t get what you want, you suffer; if you get what you don’t want, you suffer; even when you get exactly what you want, you still suffer because you can’t hold on to it forever. Your mind is your predicament. It wants to be free of change. Free of pain, free of the obligations of life and death. But change is law and no amount of pretending will alter that reality.
Socrates poignantly identifies the true predicament of such a complex question: our minds create our reality, yet the law is typically slow to change. The slow rate of change in the law can quickly become an issue when we live at the quick whims of our mental state. In a rapidly globalizing landscape, where the technological advances of our society demand quick responses, the law may increasingly need to become more adaptable, more responsive, and more translatable across borders. We have entered an era of so-called “fake news” and of unprecedented social interaction across screens over millions of miles. The law has struggled to keep up with the latest version of reality that our society faces, and perhaps it could be said that societal change has outpaced the law at this point in time.
Regardless of whether the law shapes reality, or reality shapes the law, it may turn out to be an insurmountable task for the law to keep pace with the evolution of human society because, in a way, the law is always trying to catch up to some version of reality––a reality which, according to Socrates, is continually shifting in our minds.
Lauren Rayner Davis earned her Juris Doctor degree from Brooklyn Law School where she served on the executive editorial board of the Brooklyn Law Review. Her law review note critiquing federal trade secrets legislation was published here in 2017. Currently, Lauren is a judicial law clerk to the Honorable James Den Uyl in the Superior Court of New Jersey and she previously served as a judicial intern to the Honorable Victor Marrero in U.S. District Court for the Southern District of New York.