April 5, 2006
First, I am not now, nor have I ever been, a fan of Star Trek. Somewhere in my very distant past I recall seeing an episode where a creature was trying to protect its young or its nest or something from miners and, as I recall, it was blasted into oblivion. Perhaps that was social commentary; not sure, but that did it for me. (And maybe I’m wrong about the plot–-the important point here is not the plot of the show but how I interpreted and remember it.) Nor have I spent much time with the various work on the jurisprudence of Star Trek (or here) and what Legal Affairs terms “Enterprising Scholarship.” (Ha, ha).
So when we were talking today on Monday about zoning and Ryan Markham wondered about the appropriateness of extending the police power into something that looks like “Vulcan Jurisprudence,” I was puzzled. Now, I’m familiar with Judge Janice Rogers Brown's “Whiter Shade of Pale” speech, which discusses what might be termed "Whiter Shade of Pale Jurisprudence." I’m working on a post I’m going to call “Aloha Jurisprudence.” And I might do something on "Twilight Zone Jurisprudence" at some point. But "Vulcan Jurisprudence" was a new one to me.
Side-note here: through the magic of google, I see that a couple of other people have used the phrase “Vulcan Jurisprudence,” but not in the way Ryan used it. I have no clue what those pages are about (what’s Kraith? and what's Mens Rea by Bionic Zombie?).
Back to the main point: Ryan explained that by “Vulcan Jurisprudence” he meant the "needs of the many outweighing the needs of the few" (drawing on the theme of Star Trek II: The Wrath of Khan, I now learn). (He wasn't, just to be clear, advocating this position. In fact, he was wondering how the police power grew into "Vulcan Jurisprudence.") Of course there are lots of places in property (and in religion) where that appears to be the rule-–Euclid v. Ambler is certainly one of them, Boomer v. Atlantic Cement is another. In fact, considerations of utility are very important in American legal and moral thought. But the difficulty is figuring out how that all works in particular cases, isn’t it? And, taken to an extreme, that can lead to some scary results.
When you start referring to “Vulcan Jurisprudence,” make sure you credit Ryan Markham for this one. Just like Boozer's lawsuit against Prince, this is something we may hear about in future property classes.
Endnote: Diego Velázquez’ The Forge of Vulcan (1630) provided by the Wikimedia Commons.
Alfred L. Brophy
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As I described in a previous post
one of my students asked a similar question about Justice Stevens and Kelo. Maybe this is a building cultural meme.
Posted by: Ben Barros | Apr 5, 2006 12:23:28 PM
Ah, Ben, how about that! There was a consistent (and well-developed) Vulcan jurisprudence. Also suggests, perhaps, how out of touch movie culture is with current attitudes towards property.... Maybe I should spend more time reading "enterprising scholarship."
Posted by: Alfred L. Brophy | Apr 5, 2006 3:26:10 PM
Let's just make sure we have the discussion framed correctly: are we talking about "Vulcan Jurisprudence" or "Vulcan Political Philosophy?" The idea that "the needs of the many outweigh the needs of the few" ("or the one" as the good doctor adds) is pure utilitarianism as a political philosophy. It need not lead to a jurisprudence which circumscribes individual rights to the collective needs.
As a good rationalist, perhaps Mr. Spock subscribes to the consequentialist interpretation of utilitarianism (I certainly don't), which still might support strong private property rights on an instrumental (rather than fundamental) justificatory scheme: private property rights promote security of investment, which results in economic growth, thereby securing the greatest good for the greatest number.
But Vulcan Jurisprudence would have to be restated. Perhaps what we mean is that "the needs of the many outweigh the rights of the individual." But is that what we are really saying the police power amounts to?
Doesn't Euclid (my spin on it, anyway) teach us that property rights of the individual, though circumscribed for the good of the collective, are also protected by the same circumscribing of my neighbors' rights. Its that "average reciprocity of advantage" thing! Thus, the needs of the individual leads each one to accept the police power to protect individual rights, thereby promoting "the needs of the many."
You see: property theory is the final frontier. It's continuing mission: to explore strange new paradoxes in rights-based theories, to seek new life for old legal doctrines, to boldly go where no SCOTUS Justice has gone before!
(May I also give a shout out to my brother Michael Paulsen, Law Prof at U. of Minnesota. I believe he should be given credit for "Star Trek" jurisprudential concepts. See:
Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-Third Century, 59 Ala. L. Rev. 671 (1995).
Posted by: Kurt Paulsen | Apr 5, 2006 6:55:22 PM