The Myth of the Rule of Law
faculty.msb.edu
faculty.msb.edu
Because the legal world is comprised of contradictory rules, there will be sound legal arguments available not only for the hypothesis one is investigating, but for other, competing hypotheses as well. The assumption that there is a unique, correct resolution, which serves so well in empirical investigations, leads one astray when dealing with legal matters.
which I think is an interesting perspective on legal matters. Contradictory assumptions mean that there's usually a bunch of different "right" answers, and which one you get is kindof a matter of luck of the draw.
On the other hand, I guess the whole point of precedent is to slowly whittle down the space of possible answers. If the law can't always be right, it can at least try to be consistent.
He then goes into an extremely extended analogy about how having one legal system for everybody is just like having one shoe size for everybody, which seems like a fairly flawed analogy.
I just skimmed it again in a bit more depth, and in the end he really doesn't seem to come up with any ideas about what it would actually mean to "end the monopoly" of the single legal system which currently prevails, and certainly not with any ideas about how to overcome the huge inherent problems which you'd get if you implemented something like that (the most obvious one being that if my legal system says I'm right and yours says you're right then we're legally screwed).
The author appears to hold the pre-eminence of property rights over competing rights. The result is an extremely polarized economic system. Medieval feudalism as a model legal system? Yet, we appear to be trending in that direction. When property rights take precedence, then the holders of property buy the "legal" outcomes they want, and they buy the "law enforcement" they want, and they buy the "laws" they want. Such is the author's proposal to remedy the current unrealistic expectations.
The free market proposed by Adam Smith in "The Wealth of Nations" was premised explicitly on a consistent, logical system of moral (God's) law, enforced by the Church (a.k.a. the state - far less distinct at the time). Without that premise - and the article's author takes care to destroy precisely that premise - the free market is destructive. Asymmetries in information and power create monopolies, bubbles and crashes.
So the law is inconsistent and illogical. It is good to remember this. It is good to remember that any large or long lived community can be shown to have betrayed its professed ideals. It is good to remember that historical ideals - our own as well as society's - have typically been superseded by better ones. Does that mean we should abandon those ideals, and let "the market" rule? I agree with Holmes, if only in this: "repose is not the destiny of man". Rather, one works to move toward the ideal; the failure to reach it means there is more work tomorrow. Peace, Justice and Freedom will not find a logically consistent incarnation in our lifetimes nor in our children's, yet the work must continue.
It is true that the Crits want to impose "democratic" or
socialistic values on everyone through the mechanism of the
law. But this does not distinguish them from anyone else.
The second half is, by comparison, a let down. I happen to believe that the state needs to have a monopoly of force, in part because there are regions that have tried a free market in violence (such as contemporary Somalia and 4th century BC Ancient Greece) and it hasn't worked so well for them. And a monopoly of force necessarily implies a monopoly of legislative and judiciary functions to guide that force in a manner that is not too harmful to the rest of society. It's no wonder the author waffles when confronted with the question of what market-based law would look like - it's simply a concept that can't be defined too precisely without making it look completely unpractical to even the most unbiased reader.
I was absolutely fascinated by the first part; such a shame, the author wasn't able to apply its point to his own suggestion: Whether the law is made by one body or by many -- it will remain an authority, a government made by people, used to impose one set of values to other people, and open to misuse.
His blind faith in free markets seems to have clouded his judgment.
Counter-examples to his free market for laws are easy to find. Sharia laws in Britain are just one example. Women are hardly 'free enough' to voluntarily accept its authority. What about children: Can they voluntarily accept the authority of a certain court? According to the cases of child indoctrination and abuse by crazy religious parents, priests, and schools, not so much.
Markets fail rather often (depending on the definition of failure). Shoes are a perfect example of a free market that somehow 'works', but is inherently inefficient in many regards. One just needs to try to find a shoe that (a) fits, (b) is subjectively good looking, and (c) priced fairly. Now imagine one would additionally need to look for (d) an acceptable court for clearing disputes!
Still reading, but I disagree with this point:
If your response to question two was "False," you chose to interpret the word "Congress" to refer to the President of the United States and the word "law" to refer to an executive order.
Wrong. I chose False because the executive branch's job is to enforce the law, and the President cannot issue an order to enforce a law that does not exist.
He still got me with many of the other questions though. This is quality stuff.
While correct, your choice is not based on "your personal understanding of [that] sentence's meaning", but on "your knowledge of constitutional law". The restriction of scope is critical to the point being made.
Sure, I’m free to define words any way I want – but that’s not how society works, that’s not how law works. There are necessarily mechanisms to arrive at common definitions, in everyday life and in the legal system. The common definition of “executive order” – which, obviously, comes packed with information about constitutional law – clearly states that executive orders are severely limited in their scope.
That’s the definition of “executive order” I’m carrying around in my head and it is flat out impossible for me to divorce that definition from my understanding of constitutional law. I also can’t divorce my understanding of the word “standing” from what I know about gravity. It’s nonsensical.
But neither the President, nor executive orders are mentioned in the First Amendment, which was the subject of the question at hand. The issue was not whether something is un/constitutional, but whether something is un/constitutional by dint of the First Amendment.
The eagerness with which some wish to skip beyond that scope is interesting.
If I make that one sentence from the First Amendment into the sole law of the land there is no confusion at all. The president is obviously allowed to ban speech with executive orders. Why would anyone disagree with that?
This is the setup of the Gedankenexperiment and since it is quite weird it is very understandable that many people would misunderstand it, especially since he is not very clear about that setup. I took it to mean that I’m supposed to interpret that sentence within the framework of US law but somehow without my understanding of constitutional law. That’s obviously impossible.
It’s a nice rhetoric trick but certainly no argument. Differences in interpretation obviously matter but the example he picked is complete rubbish and certainly exaggerates the problem in a completely dishonest way.
I don't think that the author is very clear at all. He is deliberately misleading. That sentence is clear as mist.
No, that's how people usually attempt to solve problems in some world that is mostly populated by scientists. It has little connection to the real world.
As far as the law goes, at least the common law and case law, one important thing to keep in mind is that when a problem gets to court you are basically in what in programming terms would be an exception handler. Something has ALREADY gone wrong, and it is often a foregone conclusion that someone is going to get screwed--the law is just trying to determine who to screw the least. You can often only try to minimize injustice, instead of providing justice.
For example, there is a case in contracts that involves a sale of cotton. A buyer entered into a contract with a seller for 125 bales of cotton that would be arriving in England from India aboard the ship Peerless.
Unfortunately, it turned out that there were two British ships named Peerless, both used for shipping between India and England. Neither party knew that there were two ships, and it turned out they were each thinking of a different Peerless when they made the contract. One Peerless was sailing in October from India, and the other in December.
Accordingly, the cotton arrived in England at a time when the buyer was not prepared to receive it. The parties could not agree on what to do with the cotton, and a lawsuit ensued. Someone has to get screwed here, and no one is clearly wrong.
The court decided to screw the seller.
Another example. Three men go out hunting for birds. As they cross a field, two of the men go to one side and the third goes to the other side of the field. A bird flies up in the middle of the field. The first group of two men fires on it. One of them gets the bird, and one gets the third hunter. This was before the days of fancy ballistics tests. Both men swear they were the one that got the bird, and there is no way to tell which actually got the bird.
The third hunter sues. Each of the defendants raises the perfectly reasonable defense that there's no proof that he caused any injury at all to the plaintiff, and in fact insists it was the other defendant who missed the bird.
If plaintiff wins, one of the defendants is screwed because one of the defendants in fact did not shoot the plaintiff. If the defendants win, plaintiff is screwed.
I don't recall for sure, but I believe the plaintiff won. The reasoning, I believe, was something like this. One of the defendants negligently shot the plaintiff. The other did not, but he shot in the direction of the plaintiff at the same time. That was negligent--he only didn't shoot the plaintiff because the bird took the bullet. Furthermore, if he had not been negligently firing his gun at the same time the other defendant was shooting the plaintiff, there would be no ambiguity as to who shot the plaintiff and so this defendant's actions are responsible for us not knowing who shot the plaintiff. Accordingly, it is justifiable to hold them both responsible.
It seems to me, though, that the state he describes--free market law--predates (as he sort of points out) currently prevalent systems. So doesn't the fact that all current major systems are ones of centralized legal authority suggest that that actually works better?
All permanent migration is hard by design, some of it is harder than others, but even in the optimal case it's not easy. Further, although there may be 192 legal systems from which to choose, they simply are not that different at the end of the day in most ways.
The reason governments can afford to be so terribly inefficient is because they are the ultimate natural monopoly, and most people don't realise just how locked down they really are. When you actually make the decision to leave the nation of your birth and go some place else that suits you better it becomes abundantly clear that this is nowhere near as simple as it sounds.
It may also be simply an instance of order vendors so to speak, the government as the party with monopoly of force maintains a wholesale on order so to speak, but there are many many resellers within a market that expand on that based on various values and require their adherents to hold to various responsibilities in return for various rights, to greater or lesser extents.
If you could argue that this is a system which would extract more value from the governed population than the current one, then it does seem to be something of a self fulfilling prophecy that this ought eventually be implemented in some fashion. Of course, that's in question at any rate.
"Readers of this column may have heard the Jewish joke about the rabbi who is asked to settle a dispute. After listening to one side's argument, the rabbi declares, "You're right!" After listening the other side's argument, the rabbi nods and says, "You're right, too." His wife, who is listening, declares, exasperated, "Rabbi, this is absurd! They can't both be right!" The rabbi sighs and replies sadly, "You're also right!""
Article as told by a psychologist:
"Lots of couples who are in the habit of fighting with each other, are mostly troubled by the eternal question: which one of us is right?
Often they will go to a therapist to find that out. Their hope is that in the therapist’s clinic, their justice will finally come to light.
The good news are that it often does. The bad news are that in most cases, the partner turns out to be right, too…"
Article as told by a professor:
It's not clearly drafted at all, nor "the clearest, most definite legal language"; the term "freedom of speech" is quite vague (insofar as it isn't interpreted literally, voice only, no writing, which certainly wasn't the intent), but there's no reason a law couldn't be written that specified in great detail what sort of activity is protected and what is not. It's just that we'd have to frequently amend such a law to account for changing mores, which is currently done on a more case by case basis.
> The very notion of a free market in legal services conjures up the image of anarchic gang warfare or rule by organized crime.
Are they not examples of such a market?
> One advocates a free market not because of some moral imprimatur written across the heavens, but because it is impossible for human beings to amass the knowledge of local conditions and the predictive capacity necessary to effectively organize economic relationships among millions of individuals.
This kind of hand-waving is usually used to justify the idea that the free market works best with as little regulation as possible. Unfortunately, the prevalence of harmful monopolies in history suggests that this is not true; state regulation is necessary.
> Although I am tempted to give this response, I never do.
You just did.
> This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market[...]
This is a somewhat disingenuous way of avoiding the point.
> A final example may be supplied by the many commercial enterprises that voluntarily opt out of the state judicial system by writing clauses in their contracts that require disputes to be settled through binding arbitration or mediation rather than through a lawsuit. In this vein, the variegated "legal" procedures that have recently been assigned the sobriquet of Alternative Dispute Resolution (ADR) do a good job of suggesting what a free market in legal service might be like.
It's a good time for this to come up, because AT&T and their contract requiring each defrauded customer to negotiate individually is a pretty good example of how private justice can be perverted. What if similar practices were allowed in criminal law?
> In disputes over consumer contracts, the parties might well be satisfied with the current system of litigation in which the parties present their cases to an impartial judge or jury who renders a verdict for one side or the other.
The consumers would be and the corporations would not. Guess who has more bargaining power?