Arnold Kling  

Law and Order

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When Doesn't the Law Matter?... The SEC-Goldman Flap...

Bryan writes,


It's clear that many existing laws have little or no effect on behavior. An even larger class of laws have little or no effect on most people's behavior. What are the main mechanisms of legal irrelevance?

In this essay, I coined the term "legamoron," meaning a legal oxymoron. That is, we have laws that, if they were everywhere enforced, would create chaos.

I am not familiar with the literature in legal philosophy. But it strikes me that the relationship between law, on the one hand, and order, on the other, is not clear cut. We believe that order requires the rule of law, but my guess is that under close inspection order has relatively little to do with formal law. I think that a Hayekian view would be that customs that evolve and become embedded in common law are more orderly than formal law.


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COMMENTS (8 to date)
Dave writes:

Prof Kling states

"A legamoron is any law that could not stand up under widespread enforcement. ...Rigorous enforcement of these laws ... would cause a furor"

He then includes immigration laws.

Sorry Prof Kling, an immigration law is not the same as a statute meant to control speeding.

Maybe the furor that would result would be that of illegal aliens who were angry that they no longer got free housing, medical care, food, and bilingual educations for their children, etc. as they are kicked out of the US. Maybe big agribusiness would be pissed if they lost their wage slaves to US workers or legal migrant workers, maybe people would be pissed if that steak cost 17 dollars instead of 15 dollars because an enrty level American was washing dishes instead of an illegal alien.

Sorry, but I am tired of economists brushing off illegal immigration a minor free trade issue. It is not. I for one, am tired of paying for 10 to 50 million people (I dont trust any statistics) to live here in the US and drain our society.

Oh yeah, I forgot the real furor would be that of the democrats weeping as their biggest constituency was deported.

If you love illegal immigrants so much, let them live next to you and pay more taxes to support them.

Scott clark writes:

Dave, it sounds like you should be mad at the govt which takes from you and gives to others instead of just being mad at the others. And you might be even more far off the mark for being mad at economists who point this out.

ThomasL writes:

I'm not sure "legamorons" are always and everywhere a bad thing--at least I think a certain number are naturally occurring and unavoidable.

My own thinking on this is influenced by Tocqueville's comments on decentralized administration of law. Namely, that a centrally crafted law which was bad could be rendered more wholesome when its administration were left to local levels. Without local administration "liberty would be banished."

Like Tocqueville, I'd prefer good, local laws to bad, central laws. However, in all cases, I'm not sure you can count on only having good laws, because no matter how hard you try, circumstances and locations have sufficient variation to thwart your best intentions. Some flexibility in the application of the law seems necessary.

It is a hard line to draw, of course. Too much flexibility and you don't really have a law.

Liam writes:

Scott, I loved your comment. Well said.

You know, Arnold, I have always considered the most important aspect of any law was to help remove the emotional aspect attached to consequences. I think order can stem from proportionality. Some of the most danagerous societies and chaotic governments also have disproportionate consequencies to crimes in general.

One of the things you and Bryan may have neglected was when people disagree with the consequences of the law they are more inclined to turn a blind eye.

Jeremy, Alabama writes:

The best way to get a law repealed is to vigorously enforce it.

(a). Therefore most of our laws have gone far beyond "natural law" (like murder and burglary).

(b). Therefore, also, laws are on the books to pander to constituencies and to demonstrate the reach of government, not to improve average people's lives.

(c). Coincidentally, the vast multitude of laws makes law-breakers of all of us, at the pleasure of the government.

JKB writes:

It is far to easy to muck up formal law. Take as example the law that Kansas just corrected. Turned out, via a prosecution, that it was a crime in Kansas to threaten to use deadly force in self defense. Actually using deadly force in self defense was legal but you broke the law if your threatened to use such force.

So logically and by the formal law, in Kansas when in imminent threat of death or serious bodily injury, you shot first without the illegal warning/theat that might induce the assailant to break off the attack. Obviously, this wasn't a commonsense or desired effect of the law so they had to fix it. Common law would probably been orderly in accepting that if you can use deadly force, you may also threaten to use deadly force as a precursor.

Dave writes:

"Never write a comment in anger."
Sorry if I offended anyone.
I was thinking about my comment on the way home last night. If I knew I could go to Canada (just picked it arbitrarily) and escape my failed nation state and have a much better life I would probably leave. I understand why people leave a land of tarpaper shacks to come to the US - so I understand the incentives. But why should the US have immigration laws if they are not going to be enforced?
More importantly to me,why should I work three jobs and pay taxes?
I guess what really irked me was the fact that immigration laws were lumped in with other laws that are not enforced consistently or are unpopular.

PS Sorry if I sounded angry at economists, they are some of my favorite people.

Engineer Bob writes:

It is impossible for smart people writing with extreme care to write large amounts of material that is to be followed exactly, without introducing unexpected consequences.

I consider the above to be the biggest empirical philosophical discovery of the last 100 years.

And it was a surprise.

It was discovered in the context of writing software. It is impossible to write large complex programs without bugs, which is just another way of saying unexpected consequences.

Some software people will argue with the above, but, in general, just look around you at the software you use in practice.

So. I think it is critically important to use soft law rather than hard law for as much as possible.

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