Bryan Caplan  

The Law: Going from Bad to Worse

History + Comedy = Rothbard... Gullibility, Madoff, and Fisca...

At risk of offending my many friends in the legal academy, I think that law is a shockingly phony discipline.  Virtually everyone - liberal, conservative, Marxist, libertarian, or whatever - imagines that the law conveniently agrees with what they favor on non-legal grounds.  Almost no one admits that many, if not most, laws are so vague that there is no "fact of the matter" about what they mean.

Once in a while, I should add, a law professor has told me this verbatim, and then gone back to arguing about the law.  The philosopher in me insists, "If there's no such thing as unicorns, we can't argue about unicorns," but the Great Unicorn Debate never stops.

Actually, it's getting worse.  Here's the best Cynical Quote of the week, straight from Tim Kane's latest post on the big-3 bail-out:

This also seems to be a blatant violation of the TARP, which weeks ago the administration was saying would not (and I thought legally could not) be used for industrial policy. So is it Constitutional?  It was once fashionable to re-interpret the intent of laws written decades or centuries ago. Now it seems the time horizon for creative interpretation of the law has converged to months.

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COMMENTS (19 to date)
dearieme writes:

It pays well though.

John Fembup writes:

Legendary baseball story from the early 20th century -

Baserunner slides into third in a swirling cloud of dust just as a throw from the outfield arrives.

The third baseman looks at Bill Klem, the umpire, and the baserunner demands impatiently "safe or out? what am I, what am I?"

Klem barks "You ain't nothin' until I call it!"

But that's just baseball.

In contrast, we have a government of laws, not of men. er, don't we?

El Presidente writes:


I think that law is a shockingly phony discipline.

I think the 'nation of laws, not men' concept was not meant to suggest that we can have meaningful rule of law absent thoughtful men. It wasn't meant to assert the primacy of written law for its own sake. It was a prescription with regard to restricting the ability of an individual to exert their own will without constraints, not to suggest that those constraints should prevent anyone from exerting their will altogether. In fact, I think Plato would say that this is more a failure of leadership than of the rule of law. After all, he thought only philosophers were fit to rule.

Disliking the final product may not be a good reason for deciding the discipline is phony. The discipline (practice) of law, in my understanding and experience, is about process, not the laws or the material outcomes. Those are the burden of the lawmakers. I would like better laws and fewer of them, but I don't disparage the legal discipline for the canvas it is given to work upon or the tools it is given to work with.

I think TARP is a very poorly written law, mostly because it allowed Treasury to put money in the wrong place, but also because it was written so quickly and required to be so flexible that it could not be precise enough to hold the Executive and administrators accountable or be interpreted easily by the courts. I dislike the manner in which Congress relied on Treasury to interpret the law in accordance with Congress's wishes. This was a time for precision and political courage and we got something less. The art of crafting laws has seen better days, as we now have more laws than we can keep track of, and many are somewhat unintelligible without at least rudimentary legal education. However, if we remove the role of "juris-prudence", the exercise of deliberation and discretion in matters of administering law, then we become slaves to laws, not masters of them.

Frampton writes:

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Carl writes:

There is a need to distinguish between the people who write the laws and the people who interpret the laws, whether judges or advocates; as El Presidente alludes to, there are incentives built into the political process for those who make laws to be purposively vague at times. Surely this purposeful vagueness of political actors is the major contributor of any of the law's phonyness...

Unit writes:

"...or whatever"

Do you include Hayek's point of view?

Doug Adams writes:

I agree. However, the same can be argued about Economics. Economics as a branch of philosophy, ok. As a science? Ha!

Les writes:

I think Bryan has it right, because of two main reasons:

1) Statute law is written by politicians, who tend to follow their own best interests, not necessarily those of the voters.

2) A few decades ago, lawyers received LL.B degrees, which were graduate degrees requiring a pre-requisite of a bachelor's degree. Now lawyers receive an LL.D. (often regarded as equivalent to a Ph.D.) for no more than what an LL.B. required. But an LL.D. is by no means equivalent to a Ph.D. because an LL.D. requires no dissertation, and thus no demonstration of capability to perform research that is a contribution to knowledge. So lawyers lack the essential skills for sound scholarship.

Jesse writes:

See for the Wikipedia entry on legal indeterminacy.

Contrary to Bryan's statement that

Virtually everyone - liberal, conservative, Marxist, libertarian, or whatever - imagines that the law conveniently agrees with what they favor on non-legal grounds. Almost no one admits that many, if not most, laws are so vague that there is no "fact of the matter" about what they mean.

there are a large number of prominent legal scholars, generally quite liberal, who recognize inherent limitations in the definitiveness of law. The contrary view is that the law is quite clear and all cases can be settled by simply being faithful to the text of the law; I think conservatives tend to be much more sympathetic to this argument.

frankcross writes:

This is not a matter of corner solutions. The law need not be crystal clear nor radically indeterminate. The law is typically relatively clear, ruling out vast numbers of acts as illegal. It is also unclear at the margin, so that some number of acts are legally ambiguous.

Niccolo writes:


I'm not sure what you mean when you say that law is a phony discipline. Part of me agrees with you, as I think no matter how much one tries to justify secular notions of natural rights, the final product always reduces to being just another preference.

Then again, part of me is still confused. Do you mean to say that law is merely a perspective created by human minds? Or do you mean to say that the debate about law - relying on pre-existing legal systems - can be manipulated in anyway, thus making law a moot point?

prp writes:

About 7 years ago, there was a symposium of eminent legal minds on Bush v. Gore. (It may have been in Commentary; I honestly can't recall.)

Shockingly, every single interpreter of the law came up with a (different!) rationalization for why their candidate should have won. In this group of well-known legal thinkers, not one liberal lawyer thought that Bush was the rightful winner nor did one conservative thinker reluctantly opine that Gore had won it.

What kind of discipline is that?

Mike Rappaport writes:

My view is that Bryan is half right. One needs to be careful about interpreting what lawyers mean when they speak about what the law is. If one is predicting how the courts, including the Supreme Court, will resolve a case, I think most lawyers and law professors are actually pretty accurate. And they are not too biased. The conservatives will not necessarily predict more conservative results than the liberals will.

But when law professors talk about how an issue ought to be decided -- that is, what the law really is -- then there may be wide differences, with political ideologies seeming to influence the result. But this should be no surprise.

I wrote a post at my blog about this. The above is a short excerpt. For the rest, see this link:

Mick writes:

You should probably make separation betweenb public policy law and the more technical brances.

I myself got in some legal entanglements and my (expensive) lawyer had to perform astounding feets of arcane jargonship to get me out of it. I personally would view this kind of lawyering as an analytically skilled profession apart from the nonsensical job of interpreting laws to ideology.

Nico writes:

I might be wrong here, but I'm pretty sure Prof. Caplan here means law as an academic discipline, not law as an institution, practice, or whatever. I'm inclined to agree, though I'm certainly open to being persuaded otherwise. It seems the predominant methodology is to come up with elaborate arguments to reach conclusions that conform to your established biases.

Gary Rogers writes:

Be careful what you wish for. Unambiguous law can be the worst kind and have the most unintended consequences. I would much rather see ambiguous laws applied with common sense than laws that are very clearly written applied to situations where they just do not make sense. Of course seeing laws applied with common sense is the hard part and that is why our goal needs to be a society where laws are used as infrequently as possible.

John Fembup writes:

I'm not persuaded that the problem is completely defined by the writing of "ambiguous" laws although that's certainly part of the problem.

Here's how I see it, FWIW.

Things change. Changing circumstances result in questions and disputes that were not and could not have been anticipated when any given law was written.

Our system provides relief for that kind of change in several ways. I don't see due process to accommodate change as government of men rather than laws - provided constitutional process is observed and so long as the players - the courts, the legislatures, and the people - - are satisfied that due process is followed.

I worry when the branches of our government appear to ignore their constitutional boundaries. For example, when the Congress attempts to administer tasks or agencies that arguably belong to the executive branch; or when the Judicial attempts to co-opt responsibilities that arguably belong to the legislative branch; or when the federal government attempts to expand its powers beyond what the constitution enumerates.

Mike Rulle writes:

All is permitted? It is thoughts such as these (The Law--Going from Bad to Worse) expressed by Bryan Caplan that can lead to a complete breakdown in the social order.... No society can maintain existence if it self consciously believes its foundations are pure artifice and trickery.... Can there be any more vivid example of this than the Festivus display approved for the Washington State Capitol?

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Randy writes:

Mike Rulle,

"No society can maintain existence if it self consciously believes its foundations are pure artifice and trickery."

I agree. And I suggest that you direct your concern to those who participate in the artifice and trickery.

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