Spencer Heath Archive

Item 2491

Carbon of letter of December 3, 1956, from Heath to Wilber G. Katz, 1321 East 56^th Street, Chicago 37, Illinois. Note that this letter is largely copied with appropriate modifications (and some editing towards the end) from Heath’s letter of June 20, 1954, to Roscoe Pound (Item 2374). Heath sent a similar letter, likewise an edited version of Pound’s letter, to Justice Arthur T. Vanderbilt on July 27, 1955 (Item 2425).

 

 

Dear Dr. Katz:

 

My associate. Mr. Spencer MacCallum, and I have just attended a conference on “Work in Today’s World” in Chicago. While there, we remembered some contributions of yours to a discussion of natural versus man-made law in a faculty paper entitled, “Natural Law and Human Nature,” which was brought to my attention by my friend, Dr. Wilford O. Cross, at the University of the South in Sewanee, Tennessee.

 

 Remembering that you were in Chicago, I looked forward to the possible pleasure of a personal discussion of these matters with you. It was therefore a disappointment to find that you were not available by telephone while I was there. Dr. von Hayek and I were discussing these matters at the Quandrangle Club last Saturday. I am sure we would both have been happy to have you join us for luncheon on that occasion if it had been possible.

 

Lately reviewing quite a number of the writings of Dean Pound, I have been much impressed by his review of legal theory from Aristotle and Socrates on down as involving two contrasting views of authentic law: one, that a people should be ruled by a body of abstract precepts more or less idealized to which all legal enactments and decisions should conform. The other, that the authentic law consists in whatever the political power decrees or enacts as such.

 

 I think you show a commendable bias in favor of the former, but I can not help wondering if you have ever entertained a third alternative differing from and transcending these two. It is to be observed that both of these historical theories rest on a single pre­sumption — namely, that, entirely apart from those persons who are given to violent or otherwise anti-social behavior, it is the normal function of the public authority to prevent certain kinds of behavior which it is normal for civilized men to engage in and to coerce the law-abiding population generally into conformities to which they will not otherwise submit.

 

 It would seem that if there is a higher alternative than coercion; if there is a means of conducting the public and community affairs without resort to coercion, violence, and ultimately war, such alternative should be carefully looked into.

 

 A key to this seems to be given in the distinction between the dominium and the imperium; between property right and the political prerogative; the right of ownership resting on title and consent and exercised by contract, and the right of expropriation springing from discovery, conquest or surrender, and exercised by force. With your profound scholarship, you are of course aware that the imperium historically was in most cases preceded by a proprietary administration of community services and needs on the continent of Europe and especially in England for some five centuries before the Conquest. This proprietary administration was in most cases broken down by rivalries between proprietors of communities necessitating taxation to maintain their petty wars. Corruption of this proprietary authority seems to have been delayed in England by reason of remoteness from continental practices derived from the spirit of Rome and the proprietary system not completely broken down until the Conquest in 1066.

 

 To me it is significant that much of the English common law was socially evolved between the fifth century and the tenth, during which time proprietary communities were the rule and civilization advanced to the Alfredian Renaissance shortly before the Conquest. The typical community, however crudely administered, was owned by a land lord and occupied by free men — men who were free because they were related to the public authority by con­tract instead of by compulsion, the rent they paid being at least approximately the equivalent of the protection and other community services they as occupants severally received.

 

 May it not be possible that in the foreseeable future, highly specialized owners of metropolitan communities will merge their separate holdings by vesting them in a single corporation and taking in exchange shares of stock according to the appraised value of their several and respective contributions?

 

 Such a community corporation would then be in busi­ness of administering its total properties for the benefit of their rent-paying inhabitants, receiving voluntary revenue for use of its properties and sale of its services, just as any other productive corporation does. It could produce and distribute public services and amenities of every kind and thereby obtain large revenue in the rent voluntarily paid for such services and amenities and in the vast values that would accrue.

 

 A corporation of this kind would be under no temptation to impose taxation or violence in any degree. It would be under the strongest motivation to defend the inhabitants of its properties, their properties and their businesses from every kind of loss or harm, lest its own values and income be destroyed or at least impaired. And such a municipal or regional corporation, becoming rich and prosperous, the inhabitants of its properties would almost of a certainty be both able and eager to buy into its shares of stock and thereby become, in proportion to their ownership, themselves the ultimate prideful and truly democratic public community authority

 

 This is the alternative, as I see it, to the present anomalous practice of non-owning (and thereby irresponsible) community authorities coercing the community inhabitants in order to serve them. In the enclosed folder, I have drawn a brief prospectus suggesting how such a community owning corporation might be established.

 

 I should be most happy to have you advise me what you think of the possibility of a new advance in social evolution through the development of proprietary and contractual in lieu of political and coercive community administration. It may seem at first sight an unlikely avenue of investigation, but it should be remembered that great advances after long delays often spring from the most unexpected sources.

 

 Congratulating you on the contributions you have made in the juridical and related fields, and with great respect, I am

 

                            Sincerely yours,

 

                                

Spencer Heath

 

SH:sm

Encl: “Notes on the Organization of Real Estate”