Legal is what legal does
Philosophy of law in stool banks, Icelandic sagas, and the contemporary federal government
I work for the federal government. In recent days, friends and family have asked multiple versions of the question: “Is so-and-so legal?”
This seems like a simple question. I was raised, implicitly, to believe that some things were legal and some things were not. If it wasn’t clear to me as a lay person if something I wanted to do was legal or not, I would ask a lawyer, who would tell me the answer.
Clearly “legal” isn’t black or white. But even more than that, I don’t even think “legal” is a property of a thing. The legal system isn’t a scientific enterprise dedicated to classifying things as legal or not; it’s a conflict management system. “Legal” isn’t black or white, or even the act of painting; it’s the process by which people come to stop asking what color something is.
To illustrate my point, let me tell you about the Icelandic sagas. These are written stories about medieval Iceland, roughly spanning the years 1200 to 1300 AD. For most of this time, Iceland was a “commonwealth.” There were something like 50,000 people on the whole island. There were no cities and no state. People lived on individual farming compounds, interacted with their neighbors or traded with other countries, and had little assemblies where they would do things like settle disputes and arrange marriages.
The plot in many of the sagas is driven by a feud: someone insults someone else, the insult escalates into a killing, and the first killing escalates to a cycle of revenge. With feuding comes law, and many of the sagas turn on legal events and legal procedures. The climax of one of the most famous sagas occurs when a man, who has been lawyering from afar because his leg has an infection, becomes so enraged by his opponent’s legal maneuvers that he picks up a spear, lances the boil that prevented him from walking, and strides across the assembly to his opponents and starts slaying.
Murder was of course illegal in the Icelandic Commonwealth, but the interesting thing, as a contemporary reader, is the system of enforcement. The two parties in the feud could negotiate a settlement, and the movement of money from the perpetrator’s family to the victim’s family could prevent further conflict. If there was no settlement, someone would probably be outlawed. An outlaw had to leave Iceland, either for three years or for life. If they did not, they could be killed, by anyone at any time, and the outlaw’s family would have no legal recourse. (I wrote in a previous post about the unbearable pathos of an Icelander who chooses to hasten his own death rather than leave his farm for three years.)
In both medieval Iceland and the contemporary US, murder is illegal. But what “illegal” means has such different outcomes. In medieval Iceland, it meant that the victim’s family would assemble a posse and try to kill the killer, who would either flee the country or savagely fight back. The bigger and stronger your family, and the more allies you had, the more likely you were to get a favorable outcome. In the US, it usually means that law enforcement officers —professional agents of the state— will pursue the killer, quickly or slowly, imprison them, and —I will read the carceral system generously— try to reform the killer before returning them to society. In the US, the more money you have, and the more connections, the more likely you are to have a favorable outcome. So “the law” isn’t just what is “permitted” or not, or even what consequences a person could face, but it’s the reality of what they do face, and how that comes about.
Let’s zoom ahead from medieval Iceland to my first job out of academia, at a fecal microbiota transplantation nonprofit. Fecal microbiota transplantation, or FMT, is the process of taking stool from a healthy donor and transplanting it into the intestines of a sick person. FMT is recognized in the medical community as a very effective treatment for a very specific kind of infectious diarrhea, recurrent C. difficile. (There has been substantial interest in other kinds of diseases FMT might treat, and some elements of the broader wellness community like the idea of balancing the microbiome, but the only disease for which the risk-reward balance is even remotely close, for now, is recurrent C. difficile.)
High quality donor stool is hard to find. Most of us carry some kind of pathogen which, although harmless in our intestines right now, could be deadly if transplanted into a very sick person. Also, most people aren’t that interested in donating their stool. The logic of this nonprofit was to find the small number of people whose stool was “clean” enough to pass medical-grade testing and who were crazy enough to routinely come into an office and deliver their stool to strangers. That material could then be processed and shipped around the country to the many people who needed it but who didn’t have the resources to find this kind of donor, or have a donor’s stool tested and processed to FDA standards.
The FDA is where things get really interesting. Was this treatment “legal”? Clearly, lots of medical practices are legal. It is legal for a pharmaceutical company to manufacture, advertise, and sell a pill, with a defined substance inside, so long as the substance has been rigorously tested in clinical trials and the manufacturing and advertising follow strict guidelines. It’s also perfectly legal to distribute human-derived products like blood, again with lots of careful restrictions about how it’s done.
But was FMT legal? There was no law saying yes or no. Instead, Congress had passed laws saying that FDA got to decide, via regulation, whether stool should have to follow the rules used for drugs (because the bacteria in feces were the active ingredient of a pharmaceutical?), for blood donation, for cord blood donation (which is a whole different thing), for organ donation, and so on. FDA chose to regulate FMT mostly like a drug, meaning that, to use FMT legally, you would either need to conduct a multimillion dollar clinical trial proving its safety and efficacy —a feat that multiple for-profit companies failed to accomplish— or you would need to apply for a special case-by-case exception, the sort of thing used to allow for a drug to be used in a clinical trial in the first place.
But then the FDA said even one more thing: it would exercise “enforcement discretion.” Whether it was “legal” or not, if you followed certain rules when performing FMT, the FDA wouldn’t come after you. And this wasn’t a wink and a nudge. The words “enforcement discretion” are written in the Federal Register.
So was FMT “legal?” (The PR people at the nonprofit looked at me like I had three heads when I appeared confused by this question. Of course it was legal! they almost shouted at me.) To be honest, I still don’t know the answer to the philosophical question. But now I have a new philosophical question: what is the difference between something being legal, versus something being illegal but having no legal consequences? What if medieval Icelanders called murder “illegal,” and declared killers to be outlaws, but had no way to assemble a posse and enact revenge?
Oliver Wendell Holmes, one of the most important lawyers in US history, in an essay that the Supreme Court gift shop calls “the single most important essay about law ever written” (and also, incidentally, “the perfect gift for anyone who ever entered law school”), put it this way:
Take the fundamental question, What constitutes the law? [...] The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
So is something “legal?” This is tantamount to asking “what will the courts do in fact?” I am not a lawyer, whose job and expertise is to speculate on such matters.