Comments on: Caplan on the Law as a Phony Discipline http://www.truthonthemarket.com/2008/12/30/caplan-on-the-law-as-a-phony-discipline/ Academic commentary on law, business, economics and more Thu, 18 Mar 2010 04:28:41 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Manfred http://www.truthonthemarket.com/2008/12/30/caplan-on-the-law-as-a-phony-discipline/comment-page-1/#comment-144169 Manfred Thu, 08 Jan 2009 21:38:45 +0000 http://www.truthonthemarket.com/2008/12/30/caplan-on-the-law-as-a-phony-discipline/#comment-144169 I think the original post and the TOTM responses all suffer from the failure to distinguish between the perspective that can be taking in look at the law: There is the outside perspective, which observes law as facts of conforming behavior and sanctions for non-conforming behavior. But there is also the inside, normative perspective of a judge trying to rule on a dispute. Here statements about what the law "is" and what it "should be" can't be distinguished (since the existence of a norm is equivalent to the norm; iaw, "it is a fact that one should not steal" is equivalent to "one should not steal"). As much as I love the realists and Llewellyn, "predictions as to what the officials of the law in fact will do," aren't a helpful category and certainly useless to a judge. I think the original post and the TOTM responses all suffer from the failure to distinguish between the perspective that can be taking in look at the law: There is the outside perspective, which observes law as facts of conforming behavior and sanctions for non-conforming behavior. But there is also the inside, normative perspective of a judge trying to rule on a dispute. Here statements about what the law “is” and what it “should be” can’t be distinguished (since the existence of a norm is equivalent to the norm; iaw, “it is a fact that one should not steal” is equivalent to “one should not steal”). As much as I love the realists and Llewellyn, “predictions as to what the officials of the law in fact will do,” aren’t a helpful category and certainly useless to a judge.

]]> By: Geoffrey Manne http://www.truthonthemarket.com/2008/12/30/caplan-on-the-law-as-a-phony-discipline/comment-page-1/#comment-144150 Geoffrey Manne Tue, 30 Dec 2008 19:47:58 +0000 http://www.truthonthemarket.com/2008/12/30/caplan-on-the-law-as-a-phony-discipline/#comment-144150 I think it's fair to say that the law is not much of a science, but even then, if phoniness is defined by the influence of ideology or other subjective factors, then add just about every other discipline to the list, including economics. I also disagree with Bryan's premise that everyone imagines that the law agrees with their own priors. Quite the contrary--many of us have made careers out of pointing out all of the ways the law deviates from our sense of what good (efficient) laws would say. Finally (although there is much more to say), the fact that the law is open to interpretation hardly makes it phony-it might, in fact, be a feature and not a bug that laws are less than perfectly rigid and that reams of discussion and debate (think Talmud, Bryan) help to illuminate what the law should say, even if not what it does say. I think it was Daniel Boorstin who referred to the law as the only form of American political theory (he described Jefferson as being a powerful political thinker who never produced anything other than legal documents, or something like that) (NB: Borstin also titled one of his books, "The Mysterious Science of the Law," for what it's worth). Political theory seems like a real discipline to me, even if it isn't generally marked by a high degree of consensus. OK, now finally: To the extent that the law is an omnipresent and powerful institution, I would think that the study of the law's effect on human behavior--the ways in which law sets prices for various actions and the extent to which it efficiently defines (or not) property rights--would be a very real enterprise, indeed. But Bryan is a very smart guy, and these are obvious points, so he must mean something else. Bryan, if you're reading--what gives? I think it’s fair to say that the law is not much of a science, but even then, if phoniness is defined by the influence of ideology or other subjective factors, then add just about every other discipline to the list, including economics. I also disagree with Bryan’s premise that everyone imagines that the law agrees with their own priors. Quite the contrary–many of us have made careers out of pointing out all of the ways the law deviates from our sense of what good (efficient) laws would say. Finally (although there is much more to say), the fact that the law is open to interpretation hardly makes it phony-it might, in fact, be a feature and not a bug that laws are less than perfectly rigid and that reams of discussion and debate (think Talmud, Bryan) help to illuminate what the law should say, even if not what it does say. I think it was Daniel Boorstin who referred to the law as the only form of American political theory (he described Jefferson as being a powerful political thinker who never produced anything other than legal documents, or something like that) (NB: Borstin also titled one of his books, “The Mysterious Science of the Law,” for what it’s worth). Political theory seems like a real discipline to me, even if it isn’t generally marked by a high degree of consensus. OK, now finally: To the extent that the law is an omnipresent and powerful institution, I would think that the study of the law’s effect on human behavior–the ways in which law sets prices for various actions and the extent to which it efficiently defines (or not) property rights–would be a very real enterprise, indeed.

But Bryan is a very smart guy, and these are obvious points, so he must mean something else. Bryan, if you’re reading–what gives?

]]>