Law

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On the Vitality of Community, Culture, & Customs

Last year, I put together a series of bullet points about the sustainability of a culture and its customs. This list is in the spirit of Blake’s Proverbs of Hell (but sadly not as poetic) — or maybe the Maxims of Equity from the English Chancery tradition. That is to say, they are related as a bundle, but not necessarily in order. What sparked this exercise was an attempt to express how the forms of traditional urbanism are cumulative artifacts of the actual lives and living patterns that particular towns and cities have hosted and supported over generations; and that there is value in looking at traditional urbanism as a bundle of customs — forming a larger culture.

In order to develop a framework that looked at what made urban customs a sustainable culture (or an integral part of a larger one), I made an effort to square my observations about urban patterns with more general patterns that signal vitality in a living culture and its customs. In addition to urban history, Aristotle’s Politics, Burke’s Reflections, and a variety of readings on the English common law each had some influence on the substance of these — filtered through my own thoughts.

I had initially thought this bulleting exercise would be the basis for an essay, but it has been more challenging that I’d expected to conceive of a way to pull these strands together into a single coherent narrative that is more effective than the present list. I think my next step may be to distill this framework down to something tighter and more manageable, then apply its principles to the various incremental aspects of town-building. For now, here are some interim Maxims on the Vitality of Community, Culture, & Customs:

  • Culture comprises customs, which are the primary shaping factors of a community’s characteristics.
  • Culture is formed by individuals sharing and reiterating a bundle of customs, and transmitting these to other individuals across time and place.
  • Successful customs temper or channel human nature — they are shaping factors that create better outcomes from natural impulses.
  • Successful customs are simple: they can be learned by almost all and sustained by the force of habit.
  • Excessive complexity discourages the formation of a common custom.
  • Customs are distillations of experience that often contain more wisdom than brilliant, tabula rasa proposals; they are the products of survival bias.
  • The so-called social sciences have supplanted the social arts, which once preserved and transmitted more complex customs: law, religion, philosophy, rhetoric, fine arts, politics, and (sadly) war. 
  • The English common law, the Western canon, the English language, music, and traditional urbanism are examples of elaborate and high-level secular customs in our own culture.
  • Most customs have high-level and vernacular threads; these complement each other.
  • These are composed of doctrines, texts, and physical patterns (respectively) that have survived; they have intrinsic wisdom that yields benefits even without being fully understood. 
  • As Holmes wrote, the path of the law is experience, not logic. This could be said for all customs.
  • Ceremonies (e.g., weddings and funerals, board meetings, religious services, public records) reflect simpler but still formal customs, with similar advantages.
  • Practices related to arts, crafts, and home life — food! — follow similar but less formal patterns. Practices related to dress and manners, games and entertainment, as well.
  • Cultural transmission is initiated by (1) lived examples, (2) writing and art, (3) teaching.
  • Cultural transmission is received through (1) an individual’s immersion (2) observation and self-directed study, and (3) formal education (in descending order).
  • Individuals sort themselves out, within their limited latitude, according to the roles that best fit them. Over time, the resulting life patterns of many individuals coalesce into a social hierarchy. There is danger in upsetting the results of this process too quickly or stridently without knowing the consequences. This awareness is a fundamental impulse of conservatism.
  • Yet — circumstances and rigid customs can mechanically assign individuals to positions that may not be appropriate to their talents and abilities; there is injustice, and possibly danger, in allowing these mismatches to persist too long. Awareness of this is a fundamental impulse of liberalism and social reform.
  • Every culture, at every time, offers a unique a mix of latitude and obstacles that affect an individual’s autonomy in this sorting process; individuals and their characteristics are filtered through this mix.
  • Individuals’ fortunes rise and fall with the fortunes of the groups to which they belong. There is no individualism in a vacuum.
  • Things that work tolerably well, to paraphrase Burke, should be cast aside only after great thought; stability should be valued.
  • Who decides what’s tolerable? A critical mass that chooses toleration over disruption.
  • Social hierarchies don’t need to be ideal or just to be tolerable; but if they are especially pernicious or dysfunctional, they lose legitimacy and invite challenges.
  • Social hierarchies may have no moral justification, but their tendency to take similar shapes throughout history indicates a futility in attempting to dismantle them under tolerable circumstances.
  • Social hierarchies may be most useful as a method of organizing society. They limit the proportion of individuals who can be decadent and create incentives for many people to work and pursue improvement.
  • Consumerism corrodes culture and wastes wealth. Savings and durable products should be promoted by economic policy; not debt and disposable products.
  • Corporate charters without accountability to the community are an industrial-age legal distortion. Traditionally, shareholders were granted limited liability in exchange for public benefits bestowed by their organization. Modern corporations, freed from such obligations, are zombies marching through what remains of the cultural landscape.
  • Sales taxes on consumption, cash assistance to those in need, and the freedom to be resourceful are better than property taxes, loans, and excessive rules.
  • Most things should be built to be permanent; but these should be repurposed, or replaced, as needed — without excessive interference by the law.
  • Consumable and disposable items should be a limited fraction of all that is made, apart from food and fuel.
  • True wealth is that to which one has access without money: the bounty of the land, the reciprocal help of real people, the inheritance of a culture, the assets already owned. Most wealth should be held in these forms, not in currency or debt instruments.
  • Tribalism based on a shared culture is a cohesive force. It can be good, as long as it does not cross into bigotry toward outsiders or hostility to individual difference. 
  • However, the danger of self-righteous or aggressive mobs/factions must always be kept in mind. They seem to be a natural outgrowth of the healthy aspects of tribalism; so does small-mindedness. Blake said to expect poison from standing water.
  • Liberal customs like due process, separation of powers, and freedom of conscience have evolved to temper these excesses, and must be jealously preserved. These, too, are among our particular customs and have not developed organically in many human cultures. 
  • Political communities, per Aristotle, must be small enough for trust to exist between members. Too much anonymity leads to alienation, cynicism, and contempt. 
  • Most people like to stay close to home, and customs should facilitate this norm. A smaller fraction like to travel often or migrate. A stable and dynamic culture has room for both tendencies, acknowledging that they complement one another. 
  • Those who stay home deepen the culture; those who engage with outsiders exchange ideas and counter parochialism.
  • Communities must fulfill and sustain the humanity of their members, not just economic and security needs. This entails supporting the human/customary aspects of community (e.g., aesthetics; idiosyncrasies; traditions).
  • Laws that hew roughly to the patterns of power and human nature can be legitimate; at some point, raw power or common instinct will ignore paper laws. If the powerful have certain customs, challenge them very cautiously.
  • The very wealthy are obviously powerful; but so is the self-righteous mob. Successful customs acknowledge both truths.
  • Successful cultures jealously guard the welfare of their people — the agents of their culture — and actively develop the cultural fluency of the next generation. 
  • Political communities that manifest successful cultures prioritize their customs through education, resource stewardship, trade, and wise investment; they favor the wellbeing of their own members because doing so encourages loyalty, but also because their members are the basic agents of the culture.
  • Education is a positive force in transmission of customs, including the intellectual traditions of critical thought and self-reflection. At its best, our own culture of education builds on its traditions and canonical texts but does not propagandize or cater to closed minds. This fosters the customs of precedent and continuing debate. 
  • A broad middle class, as Aristotle prescribed for political stability, is also best suited to transmit a healthy culture. With durable wealth distributed across self-governing communities, it can support local cultural institutions and raise healthy and educated children — who can sustain and transmit the culture down to the next generation.

Interested in readers’ thoughts.

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Zoning Reform: a Return to Traditional Norms

My latest article at TAC‘s New Urbs is a response to the recent op-ed in the Wall Street Journal by Donald Trump and Ben Carson. Contrary to the president’s rhetoric, allowing people to build neighborhoods that evolve in response to land markets is an old common-law tradition — and one that has been increasingly distorted by local governments over the last century, under an ever-more-restrictive morass of zoning requirements.

I argue that measures that would restore even some space for neighborhoods to grow organically, in response to demand, ought to be embraced by Americans across the political spectrum. New laws in California, Oregon, and Minneapolis are good first steps. And proposals to condition certain streams of federal infrastructure funding on having non-exclusionary local land-use laws in the communities that benefit from such taxpayer investments should not be dismissed out of hand.

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The Singularity of Single-Family Zoning

Another mainstream piece — this one by Justin Fox at Bloomberg — zooms in on the role of zoning laws in the housing crisis of metropolitan America. This one focuses on the abnormality of the American approach, which has set aside large portions of our municipalities for single-family housing since the days of Euclid v. Ambler. It feels like we’ve reached a crescendo of MSM coverage of the zoning-affordability question. Here’s another recent article from The Economist. This trend in coverage is good news.

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Minneapolis 2040: Have the YIMBYs Already Won?

Two historic houses in Minneapolis. Photo: McGhiever via Wikimedia Commons

Time to note a major victory: the City of Minneapolis is on board with YIMBYism in a serious, substantial way. Minneapolis has become the first major U.S. city to adopt a comprehensive plan that eliminates single-family-only zoning districts. And, although its amended zoning still caps out development of many parcels at just three units, it will still (in broad theoretical terms) allow builders to triple the number of housing units within those neighborhoods. That’s impressive. And since housing markets are more regional than municipal, and Minneapolis is the largest city in its region, I predict this legislation (presuming it passes the remaining hurdles) will have a salutary effect on housing affordability throughout the Twin Cities, for years to come. This really is great news.

In a related story, the Oregon Legislature may soon consider a Democratic bill to eliminate single-family-only zoning districts in cities with a population of 10,000 or more. The fact that the lead sponsor is the House Speaker indicates the degree of acceptance that our kind of zoning analysis has attained, politically, in a very short time. Of course, there is pushback, as there always is in politics. But once it comes into focus, the picture is pretty clear, and economy, equity, and the environment all call for one basic solution: expanding the latitude of property owners to build more housing in response to the need for … more housing. People see the need to stop protecting a calcified status quo that is working for fewer and fewer people.

When I first started writing here about exclusionary zoning laws and their distortion of housing prices (way back in 2010, when I was a law student at Rutgers) it remained a very arcane issue. The basic nexus between restrictive land use policies and declining affordability had been well documented in New Jersey case law through the Mount Laurel decisions of the 1970s and 80s. But outside the local community of housing activists, the slow crisis of an artificial, regulatory shortage of housing units in growing metropolitan regions was hardly on anyone’s radar. Today, housing activists on both right and left accept this common-sense analysis: zoning laws that limit development of new units play a major part in the lack of housing affordability in growing cities.

I got into this issue because I saw people being displaced from their long-term neighborhoods across the New York & New Jersey region in the late 1990s and early 2000s — and nobody with a voice seemed to be noticing. Since then, the soaring cost of housing options in metropolitan America has become, perhaps, the most glossed-over factor among the myriad economic challenges facing Millennials. Now, finally, we are making some real progress, and although we’re not there yet, I am more optimistic than ever.

Cheers to everyone who is out there working on the front lines.

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The Defeat of California’s SB-827

Sad to report that a promising and important piece of legislation went down to defeat this week in the California State House. SB-827 , placed in the hopper by Senator Scott Wiener (D-San Francisco), would have superseded municipal zoning ordinances to permit five-story housing development within half a mile of most railroad stations, and within a quarter mile of certain major bus routes.

California, of course, has some of the highest home prices in the world. More than its booming tech economy, a resistance to new development, combined with decades of population growth, has driven the crisis. Local political resistance comes from two sources: sentiment and shrewdness. Between residents who hate change, and those who realize that their own property values are inflated (at least while the music keeps playing) by an artificial shortage, it is usually possible to muster opposition to any new proposed development if the permission-granting institution is only accountable to municipal residents. SB-827 would have overridden the local political resistance to new development in the parcels most able to support higher densities than what is presently allowed.

The shortage of affordable housing in the metropolitan regions of California — as in the regions surrounding New York City, Washington, and several of the capitals of Western Europe — is perhaps the most salient driving force behind rising inequality in the West. High housing costs block people from moving to the cities where the opportunities exist; they shut people out of opportunities to build equity in real estate; and they enshrine the economic advantages of those who inherit, or can afford to purchase, real estate in hot markets. Ryan Avent wrote about this phenomenon at length in his well-written piece, The Gated City. LT has belabored it for years. And my recent article advocating for a left-right consensus on zoning reform is focused on the costs of bad zoning policy.

The good news is that, although SB-827 has been defeated, it has also significantly raised the profile of the nexus between zoning and housing supplies. The expectation (and certainly my hope) is that a revised version of the bill will be presented soon. It is a hopeful sign that in the California State House, even the bill’s opponents were forced to concede that the diagnosis was accurate, even as they rejected the prescription. This issue is not going away, and neither is the impetus to address it. I don’t think we can (or should) be returning to a Victorian-era, common-law land use policy, where bare-bones building codes, private covenants, and nuisance lawsuits are the only restraints on private development. BUT, we do need to move in the direction of significantly liberalizing the density restrictions on housing development in competitive real estate markets. SB-827 would have been a major step in that direction; and with the heightened awareness that its debate has caused, creative variations on the proposal can now be tested in the laboratories of democracy.

Only with a lot more supply — new units — can the cost of housing be returned to some sort of equilibrium with people’s incomes. And only with such a change can we hope to create in the economic centers of the West a tangibly more egalitarian economy.

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Shaping the Urbanism of Victorian America

 

I’m happy to report that The American Conservative, in its New Urbs feature, has published my article about the key factors that shaped Late Victorian urbanism in the United States. My piece focuses on this period before zoning, and explores the physical, legal, economic, and cultural phenomena that drove neighborhood development in the absence of comprehensive plans. I chose this period because it has intrigued me for a long time; and because so much of the New Urbanism of today seems to be imitating the forms of that era without necessarily asking the important questions about the larger context that created them. TAC deserves credit for taking a lead in discussing the important dynamic between urban form, society, and sustainable communities. Here’s a nice piece by executive editor Lewis McCrary about the walkability of New Jersey shore towns, many of which I have walked through, and many of which have an urban fabric that dates from the same period that my article describes.

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What Makes Property Private?

Stones once set off private property. Photo: John Fielding. Used with permission.

Stones once set off private property. Photo: John Fielding. Used with permission.

In a piece called, “This Land Is Your Land. Or Is It?” Justin P. McBrayer uses the occupation of the Malheur National Wildlife Refuge in Oregon as a jumping-off point to question some of the most pervasive assumptions about private property, including how it comes to be, and the moral standing of one’s claim to ownership. Challenging the idea that history illuminates claims, he writes:

What are the chances that the money you used to buy your phone can be traced backward through your employer, your employer’s customers, and so on back through history without passing through the hands of a serious injustice? Slim to none. The same can be said for the seller’s side of the transaction. Chances are excellent that your phone arrived in your hand only after the exploitation of workers, abuse of the environment, theft, fraud, human trafficking, or any number of deal-breaking injustices.

This is true. It is especially true of currency, which passes through so many iterations of title, often in short periods of time. But even with tangible or intellectual property, and especially with land, a good number of today’s titles were created or have changed hands since their creation via some form of trickery or theft. Knowing this to be the case, one of the major challenges of property law is to determine when, if ever, the law should throw its weight behind a private claim to ownership. One could make the argument that the presumption ought to be against such claims; that the burden of proof should fall on the person in possession who seeks to claim anything more than mere possession. To some extent, this burden already exists. Buyers take title at their own peril, hence, the need for title insurance. But the burden could be greater. Good title, itself, could have to be proven against the presumption of historical wrongs, before it could vest. That is to say, the moral rationale that underpins legal title could have to be proven by the one claiming ownership.

One inevitable result of such an approach would be to have much more property in common ownership. That is to say, such a burden would be so difficult to meet that, were it to be established as a requirement, nearly everything in private hands would default to the commons. From a socialist viewpoint, this mass erosion of title might seem desirable, providing as it would a basis for tearing down claims to private property that are undoubtedly dubious, but that nonetheless, because they are supported by legal presumptions, provide the basis for real economic and political power in the present time. But, as with most attempts to legislate an ideal, such a structure would present its own host of difficulties through its intrinsic conflicts with human nature. The human propensity to fight over property creates powerful incentives for the law to sanction and settle who has title to what, without necessarily examining the immemorial chaos that has gotten us to the status quo. By decisively recognizing titles, and presuming that possession can be equated, in most cases, with recognizable ownership, the law averts an infinite number of potential conflicts, and creates incentives for individuals to acquire wealth peacefully, rather than by force.

This compromise, like most law, remains both logically and morally imperfect. But, so what? If, as Holmes famously remarked, the path of the law is experience, not logic — that is, if there is no perfect answer to the power struggles that characterize life within civilization that can be reconciled with what we know of human nature — then why shouldn’t practicability have the last word on these matters, at least when what is most practicable is not in direct conflict with any fundamental moral consensus? From such an angle, the current system of private property titling is actually quite defensible, so long as there is sufficient opportunity in the marketplace for those who act legally and peacefully to acquire enough private property for the system of incentives to work. With this caveat, the system largely keeps the peace and provides incentives for individuals to work, invest, and improve their property. The practicable imperative, therefore, is not to divest a large number of economic stakeholders of their admittedly dubious but nonetheless socially stabilizing claims; it is to ensure that enough economic opportunities exist for others, still in line, to ensure that existing claims do not become the obsessive objects of jealousy and scrutiny.