Saturday, January 22, 2011

Pragmatism and Personal Jurisdiction

In these glorious and (in certain respects in any case) united states--and perhaps even in less favored lands--a court can render judgment personally binding on a person only if it first obtains personal jurisdiction.  It does so by the service of process on that unfortunate individual.  Sadly for those so served, they need not necessarily reside or even be in the state in which the court is situated when presented with the papers, which act subjects them to the court's authority.  This authority is nonetheless imposed on them through what are called "long arm" laws, after the fabled and often irritating long arm of the law, I think.

I was surprised to find this expanded version of legal jurisdiction being addressed in Experience and Nature by "Big John" Dewey.  There was a time when jurisdiction was far more limited.  In those simpler times, a court's jurisdiction was limited to its particular location or an area around its location, e.g. within a 100 mile radius (one still finds such limitations on a court's subpoena power).  And the scope of the jurisdiction or authority of a state's laws were generally limited to those within the geographic area of the state.

This legal imperium grew, however, and Dewey is right I think in contending that it did so as a response by society in addressing a problem which required resolution.  It was generally felt inappropriate that a manufacturer could produce and sell in a state products which when defective would injure persons and property in that state, but escape the reach of the courts in that state, thereby rendering the effort of those injured to seek compensation difficult if not impossible.  Legislation was adopted to grant courts jurisdiction of these and others who by actions out of state caused injury in that state, at least in certain circumstances.

Dewey seems to use the expansion of legal jurisdiction in response to the development of commerce, society, technology and their impact to contrast the law favorably to philosophy, at least in that respect.  He felt philosophy remained fixated on questions and concepts which had fascinated thinkers who lived in other and very different times, and still relied on the same kind of reasoning and method employed before the experimental method was created, largely despite philosophy.  Jurisdiction had adapted to intelligently address problems which arose, expanding beyond geographical limitations when necessary; philosophers still spoke of ideas, perceptions, illusions as being "located" in the mind, as if displayed on some screen situated in the head or some less mundane location.  Philosophers remained convinced that the mind, or perhaps the real, lay somehow apart from the "external world" and that this realm rather than the "external world" was philosophy's domain.  The proper study of philosophers if not mankind was a mankind separate from the world instead of a part of it.

This contrast between the law and philosophy is pleasing to a lawyer, it must be admitted.  But Dewey thought that philosophers (perhaps even like the wiser and more practical lawyers!) could and should deal with the world made up of people and the other constituents of nature and the many problems which result from their inevitable interaction.  Although it is probably unreasonable to think that the achievements of philosophers will ever rival those of lawyers (yes, I'm trying to be amusing), even when philosophers turn their thoughts to what is "out there" in the world, I hope they'll do so more and more.  I hope this because philosophy, or at least philosophy as I was taught it too long ago, is a great source of and instruction in critical, analytic thinking (as is the law) and that is something we can use more of in these increasingly unthinking times.

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