For today’s post, further thoughts inspired by Barry Lam’s book Fewer Rules, Better People.
When Lam puts forth arguments in favor of legalism in his book, one of the main values he argued legalism seeks to preserve is the idea that justice requires we treat like cases alike. If you and I engage in the same behavior, but you are punished for it while I am not, that is arbitrary and unfair. So far, so good.
However, there’s a problem. Legalism requires clear and consistent definition for rules of conduct so these rules can be understood by both citizens and enforcers. Unfortunately, working out a consistent definition that accurately classifies every case turns out to be a dead end. As I discussed in my post on Daniel Dennett’s Prime Mammal thought experiment, lines drawn will always end up somewhat arbitrary, and there will be clear cases where that line defines things incorrectly.
This isn’t just the case with defining mammals. Michael Huemer wrote an entire book about the nature of knowledge, running over 350 pages. And in the opening line of the first chapter after the introduction, Huemer writes “In this chapter, we will try and fail to define ‘knowledge’.” He starts with the basic first-pass definition of knowledge as a justified true belief, then shows that there are situations where someone can have a justified true belief that X, but still not actually know X – and this turns out to be true for all of the ever more complex definitions of what knowledge is. He makes a similar point in is book Ethical Intuitionism about defining something as simple as a table. He’ll have his students attempt to work out what the definition of a table is – and no matter how carefully they attempt to craft a definition, you can still find instances of things that are obviously tables that don’t fit the definition, and things that fit the given definition that still obviously aren’t tables.
This is not to say that attempting to define things is pointless, or that the inevitably inexact nature of definitions shows the utter meaninglessness of the phenomenon these definitions attempt to describe. But we should be aware that for any definition, if we drill down enough, there will be cases when it falls apart, and when that happens, sticking to the definition for its own sake can seriously lead us astray.
One example that comes to mind is the Clean Waters Act passed by Congress. The purpose of this act was straightforward enough – to put limits on pollutants being dumped into “the waters of the United States.” However, simply saying “the waters of the United States” is too vague – that term required a more precise definition. So regulators attempted to do just that, adding among other clauses that it included areas “sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”
This turned out to be a problem for a father and son duo named Ocie and Carey Mills, who were building a cabin on a wooded plot of land in Florida. Unfortunately for them, this wooded lot, with no standing water, contained within the property line a small patch of marsh grass – and marsh grass constitutes “vegetation typically adapted for life in saturated soil conditions.” Thus, by introducing sand and fill dirt on that plot of dry land as part of constructing the cabin, they were guilty of “discharging pollutants into the navigable waters of the United States.” The judge presiding over the case agreed that the Mills couldn’t have realistically been expected to understand that dry land constituted “navigable waters” on the basis that it “may have some saturated-soil vegetation, as is the situation here.” Unfortunately, The Rules Are The Rules™, and Ocie and Carey Mills spent 18 months locked up in a federal prison for polluting the waters of the United States.
(As a postscript, after their release, they were instructed to remove those “pollutants.” In this instance, they managed to convince the judge presiding over that case to actually visit the site. Upon doing so, the judge was agreed that it made no sense whatsoever to call the area a “wetlands” constituting “navigable waters,” and described the legal definitions used in this case as “a reversal of terms that is worthy of Alice in Wonderland.”)
And this can be a case where the limits of drawing lines and establishing legal definitions can end up working against the value legalism is meant to preserve – the avoidance of arbitrary treatment by ensuring like cases are treated alike. One the one hand, you have a prototypical case of someone dumping waste into a river. On the other hand, you have the Mills placing some fill dirt on a driveway on dry land. For a judge to look at both of those cases and say “Yep, the people in both of these situations ought to be sent to federal prison – after all, justice requires that I treat these like cases alike!” would almost seem like a Monty Python sketch if it wasn’t actually true. This wouldn’t be treating like cases alike – it would be a case of pretending that completely unalike cases are actually alike, and treating the act of putting dirt on a driveway on dry land as the same as dumping chemicals into a river. This seems as arbitrary as anything legalism wishes to avoid.
If justice requires that we treat like cases alike, we should also bear in mind that a by-the-book legalism that refuses to make distinctions or exceptions can also result in us treating wildly and obviously unalike cases as if they were alike.
READER COMMENTS
Craig
Jun 13 2025 at 7:58pm
“The judge presiding over the case agreed that the Mills couldn’t have realistically been expected to understand that dry land constituted “navigable waters”
This piqued my curiosity because if the judge writes this that obviously would impact the defendants’ mens rea so I found it difficult they would sentence them to 18 months for what would have to be a violation based on some kind of negligence. Nevertheless the case is a bit different than that.
https://law.justia.com/cases/federal/appellate-courts/F3/36/1052/563049/
“small patch of marsh grass”
The case describes it as “major portion of one of the lots was a wetland”
Beyond that their predecessor had begun to lay fill on the wetlands and the US Army Corp sent a cease and desist letter.
The case continues: “The unrestored property was later acquired by the appellants [Ocie and Carey Mills], with full knowledge of the problems surrounding its partial designation as wetlands. They continued to deposit dirt and sand fill on the wetlands area without a permit despite receiving two additional cease and desist letters. They also impermissibly enlarged an existing drainage ditch causing it to become subject to the ebb and flow of the tide.”
Of course the statutory term ‘navigable waters’ when I read that would typically not include ‘wetlands’ so the statutory argument that the statute should provide fair notice is independently an interesting issue, but the Corps took the position that wetlands were included and that issue had previously been litigated and decided by the Supreme Court itself according to the case:
” In Riverside Bayview Homes, Inc., the Supreme Court held that the Corps’ interpretation of “waters of the United States” to include wetlands adjacent to navigable waters is reasonable and in keeping with the expressed intent of Congress.”
Kevin Corcoran
Jun 13 2025 at 8:47pm
That is indeed how it was described in the case – by prosecutors, anyway. On the other hand, the judge who had actually visited the area while overseeing the Mill’s orders to restore the site described it by saying the lot in question
I think it’s fair to say that “a relatively narrow strip of marsh grass” can also be called “a small patch of marsh grass,” but perhaps that’s a terminological hair to split? Regardless, the judge also goes on to note:
It’s true that the Army Corps of Engineers had told the Millses that they needed to stop building. But it’s also worth mentioning that the Millses, understandably bewildered at the notion that they were occupying “navigable waters,” sought out advice and “consulted with a state agency, which gave them the okay to keep working.”
And it’s true that, as you note, the Supreme Court had upheld the Army Corps of Engineers interpretation of “waters of the United States.” But that, too, was mentioned in the legal ruling I cited earlier, where the judge had said
Nonetheless, the judge in question was constrained by the Supreme Court’s ruling, and thus he felt the need to uphold the conviction. And that’s more or less the whole point of the post! I’m not denying that technically the Corps of Engineers had defined things in a particular way, or that technically they had been granted the authority to do so, or anything like that. I’m simply saying that in this case, where the line was drawn had absurd implications.
Ron Browning
Jun 15 2025 at 10:29am
Hayek stresses that the objectivity strived for in the physical sciences can be quite detrimental when applied to cases in the social sciences, where the subjectivity essential to a human being is often the only method that leads to intelligibility. A baseball bat could be considered a sporting good, or a souvenir, or an investment or in some cases a weapon. The subjective perceptions of a person succeed where the highly detailed objective descriptions lead to confusion.
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