Locke in Winter

Neighborliness vs. the letter of the law

Philadelphia — Some people see the City of Brotherly Love as having a chip on its shoulder, being about halfway between New York City and Washington without anything like the prestige of either city. My own view is that it is in the main a charmingly modest, self-deprecating place. It is, by American standards, a very old place, a fact of which one is sometimes reminded in stark terms: A house that came on the market last year was built in the 1690s, and it was nearly a century old when it began attracting the unwanted attentions of British soldiers — three of whom were killed and quietly buried on the property.

Philadelphia is much older than the United States, and cities are more durable than national claims — Santa Fe, founded in 1610, kept right on being Santa Fe when it was part of the Spanish empire, when it was part of the Mexican republic, and for about five minutes when it was purportedly part of the Republic of Texas, a claim that did not work out particularly well for the Texans. Cities often seem to be the most sensible unit of mass government: Even a place as large as Philadelphia (1.6 million souls) or San Antonio (1.4 million) can be comprehended to an extent that something as sprawling and complex as the United States cannot.

Local communities also tend to be remarkably self-governing entities, ruled as much by tradition and consensus as by the letter of the law. But those two things sometimes are in conflict, and in Philadelphia the symbol of that conflict is the lawn chair in the snow.

I had once thought this a uniquely Philadelphian thing, but apparently the tradition of clearing out a parking space after a heavy snow and then marking the space as one’s own — often with lawn furniture, but sometimes with other flag analogs — is a custom observed in Chicago and Boston as well. The premise is a mostly straightforward Lockean model of property: Philadelphians exert themselves to clear out a snow-logged parking space and, having achieved the mixture of their labor with the environment, make a property claim to the cleared space, albeit a provisional claim that melts away with the snow.

This is a matter of intense controversy: The old-school element sees the lawn-chair placeholder as a time-honored tradition, one that ensures that the worker enjoys the fruits of his labor; the pedantic and legalist element (the platoons of little Obamas) protests that this custom not only lacks legal standing but in fact flies in the face of the law. Every so often, a mayor or prim-mouthed municipal do-gooder promises to end the practice, and, so far, all have failed.

That is not the only parking-related conflict between custom and law in Philadelphia. South Broad Street is divided by very wide (I suppose you’d say “broad”) medians, many of which are only painted rather than being raised concrete. For years, Philadelphians have treated these as convenient parking spaces, right in the middle of the city’s main north-south boulevard. This is, strictly speaking, illegal. But it is an illegal habit that is nearly universal, and that is accommodated by the amusing fact that nobody wants to take responsibility for policing it: Illegally parking at corners or along the side of the street is a parking violation, but illegally parking in the middle of the street is a traffic violation. Technically, the parking authorities are not responsible for ticketing cars in the middle of the street, and if you know anything about local government in Philadelphia, you know that if something is not technically somebody’s job, then that somebody is not going to do it if that somebody is on the city payroll.

Robert C. Ellickson of Yale Law School wrote a famous article, “Of Coase and Cattle: Dispute Resolution among Neighbors in Shasta County,” in which he explored the question of how well the Coase theorem works out in the real-life version of Ronald Coase’s famous thought experiment (his “parable”) about how a rancher and a neighboring farmer might resolve disputes involving livestock trespass. Coase got part of the motive “exactly backward.” Ellickson writes:

The Parable’s explanation is that transaction costs are low and that parties respond to a new rule by agreeing to an exchange of property rights that perpetuates the prior (efficient) allocation of resources. The field evidence I gathered suggests that a change in animal trespass law indeed fails to affect resource allocation, not because transaction costs are low, but because transaction costs are high. Legal rules are costly to learn and enforce. Trespass incidents are minor irritations between parties who typically have complex continuing relationships that enable them readily to enforce informal norms. The Shasta County evidence indicates that under these conditions, potential disputants ignore the formal law.

Who really knows what is legal and what is illegal, what is constitutional or unconstitutional? Al Gore famously protested that there was “no controlling legal authority” preventing him from making political fund-raising calls from the White House, and David Brock, the most servile man in American public life, dusted off that very language in defending Hillary Rodham Clinton — her defense being his main professional obligation, apparently — from charges that she obviously did what she obviously did: conspire with malice aforethought to evade accountability and oversight in regard to her communication as secretary of state. The federal courts very often cannot agree about what the law means, and the Supreme Court hands down a great many more 5–4 decisions than one might expect. This feels antiquated: In the 21st century, our most prestigious authorities are in the sciences, where there are not very many 50–50 splits on important questions. But governance is not science, and the history of attempts to make it a science is a catalogue of horrors.

It is tempting, though, to “ignore the formal law,” like those Shasta County farmers and ranchers. If the best that Hillary Rodham Clinton can say for herself is that what she did was not technically illegal, fine — there’s no need to technically clap her in prison. But she should be shunned and driven from public life nonetheless, because she’s a dishonest, self-serving, arrogant reprobate. There’s no law against that.

The animating principle in the Shasta County situation that Ellickson wrote about was neighborliness. And neighboring is a serious business: Those repeated interactions over long periods of time are a big part of what life is made of, and reputation matters a great deal in such situations. (It is for this reason that I suspect that review services such as Yelp will do more to police bad business practices than formal regulation ever could accomplish.) I have seen Philadelphians mark their parking spaces with lawn chairs, but I also have seen them shovel and clear their neighbors’ sidewalks and driveways (the advent of the snow-blower has, I think, encouraged this; one wants to make the most out of a capital investment) without expectation of recompense, or even thanks.

There may be some self-interest there, an expectation of generally reciprocal neighborliness, though I do not think that that is always the case, such exertions being linked in the mind to manful virtue. Or it may be the case that self-interest is being indirectly served by the knowledge that it is good to live among good neighbors, and that being a good neighbor oneself is necessary to that. But mainly it is simply that good people try to be good neighbors because that is what good people, and those who want to at least be perceived in their communities as good people, do.

But neighboring is a peer-to-peer phenomenon, and that’s one of the reasons why, as stated above, the municipality (or perhaps the county) seems to me the most effective unit of government for many things. Your mayor or city councilman is your neighbor. That does not always ensure good or even decent governance (we have been talking about Philadelphia here) but it does offer a kind of connectivity, at least to those citizens who seek it out. And perhaps that is in the end what is wrong with Hillary Rodham Clinton, Barack Obama, et al.: We live in a community, they live in a community, but they are not the same community — our communities are miles apart even when they occupy the same physical territory.

Ed Rendell, the former mayor of Philadelphia, was very popular, even when he was performing poorly in office, in part because he gave Philadelphians the sense that he was one of them (at least as much as a New Yorker could be). There is a certain kind of person who encounters the Clintons (e.g.) and instinctively recognizes his own, I suppose: Warren Buffett, maybe, or Bill Gates, or Davos Man, people who recognize the faux populism of a Hillary Clinton or an Elizabeth Warren for what it is: a sop, like leaving an extravagant tip for a waiter in the knowledge that it does not cost very much and one will be returning to the restaurant, a potentially fruitful investment in the goodwill of the insignificant little people who are the instruments of wealth and power to such crypto-aristocrats as the Clintons.

Barack Obama does not strike me as the sort of man who shovels his own driveway. If he shoveled yours, you can bet that there’d be a news crew on the scene.

— Kevin D. Williamson is roving correspondent at National Review.


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