Chapter 1: Why “Property” - Foreign Military Studies Office - U.S. Army

would have to hurdle a number of legal and political barriers. 15Regarding the “rule of law,” it bears repeating that Horace’srights were evidenced in written, signed and witnessed documents.Kansas, like all of the United States, has a Statue of Frauds. Ajurisprudential inheritance coming from 17 th century England, thestatutes require that in order to be enforced, important agreements mustbe in writing, and that all agreements involving an interest in land areimportant. In other words, if the State is to hold up society’s end of thesocial contract we call property (that is to say, enforce the alleged rightsof an owner or claimant against some trespass, infringement or denial),the agent of the State (perhaps the court) must be shown a writtendocument. Acceptance of this standard is so broadly internalized thatwe refer to the document itself as the contract (or maybe we say, “Whohas the deed to the ranch?”) – no document, no agreement, nothing toenforce. In almost every dispute regarding an interest in land, thedefense lawyer will at the outset invoke the protection of the Statute ofFrauds when there is no instrument (acceptable writing).The purpose of statutes of fraud may be variously stated – toavoid a fraud on the court, or to protect people from false allegations ofhaving entered into a binding agreement. The aggregate historicalpurpose, however, and what makes the Statutes of Frauds a gem of theEnglish-speaking jurisprudential heritage, is broad practical rejection oforal evidence of important contracts. This rejection of oral evidenceserves justice in several ways. For one thing it protects the judicialsystem. To put a court in such a position that it must choose amongcontending stories is to assure that on occasion the party telling thetruth will loose in spite of the best efforts of judge and jury. In such acase, the righteousness of the truth lies with the loser, thus engendering15 The positive scenario does not deny the worrisome drama of federal “takings”issues, usually appearing in environmental cases that have raised the question ofproperty out of its century-long slumber. Perhaps best among the readings that putUS property rights in historical, philosophical and international context is TomBethel, The Noblest Triumph: Property and Prosperity through the Ages, New York:St. Martin’s Press, 1998.19