Friday, February 12, 2010

On law, part 2

Commenter Mr Aversion alleges that the sorts of things that laws proscribe are relatively uncomplicated: In response to my comment that
It's desirable to use formal, objective criteria for determining when we do indeed impose actual coercion on people, and those formal objective criteria need a formal structure to be even a little better than, "kill or imprison everyone we don't like on a particular day."
he replies
I don't really get this. It's not as if the undesirable things are mysterious, difficult to define, or constantly changing.
In present day society what we proscribe (and compel) might not be particularly "mysterious," but they do seem complicated to define (and difficult to learn), especially in edge cases. One has only to look at the text of statutes and case law, which far exceeds the complexity (and sometimes opacity) of even the most sophisticated large-scale information technology documentation.

He continues:
There is a small handful of socially unacceptable behaviours that are common amongst all people - so common in fact that in most modern legal systems, statutes about them derive from what is called 'common law'.
Mr Aversion incorrectly references what appears to be folk etymology regarding Common Law: Common Law is so named not because some small set of principles are common to all people. Common law is, rather, law developed directly through the decision of judges rather than through statute, legislation or royal degree. Common Law is of course written down, and it is the interpretation of what is specifically written down that determines its future application. Its use follows from "the principle that it is unfair to treat similar facts differently on different occasions."

The term originated in 12th century England to distinguish the Court of Common Pleas from the Court of King's Bench, to decide disputes between commoners, i.e. disputes in which the King had no interest. The "commonality" also refers to commonality between English jurisdictions in the 12th and subsequent centuries. Indeed, Common Law is a specifically English cultural construct, and in the West is found predominantly only in England and its former colonies (other European cultures and their former colonies typically use Civil Law, where precedent has much less weight relative to statute). It's worth noting that sharia (Islamic law) uses a general common law structure, but bears little relationship to English Common Law in philosophy, content and application.

Murder, theft, assault, etc. Most people know these things are undesirable and most people don't do them. As I said, I am not convinced that sufficiently many people are deterred by laws, to justify the existence of the cumbersome legal framework.
I first have to be a nitpicking pedant: people don't strictly speaking know anything about this subject, they have desires and preferences. We can only know what preferences people actually have. Murder isn't objectively undesirable; people rather do not in fact desire being killed. And murder is unlawful killing; theft is unlawful appropriation of property; assault is unlawful violence. Strictly speaking the terms are meaningless or vacuous without a law.

Nitpicking aside, I think the underlying premise first misses an important point. Mr Aversion appears to imply that a certain small set of principles regarding acceptable and unacceptable behaviors are generally held in common by human beings, and this common knowledge is sufficient for social regulation. This view, however, misses the point in that there's a lot of other stuff, stuff that is not held in common, that people also tend to coerce each other around. One important function of law (perhaps honored more in the breach than the observance) is to rule out what's not common by explicitly stating what is common.

Secondly, the underlying premise actually appears to be false. Our attitudes and preferences about what specifically constitutes "justified" and "unjustified" killing, appropriation of property, violence, etc. varies considerably across cultures and within cultures across time. About the only think we can find in common is that different cultures at different times make some distinctions, but there's no common content of those distinctions.

Your argument would make sense if there was a risk of many people forgetting socially normative behaviour, or for socially normative behaviour to be constantly and radically shifting, but in respect of these basic interactions among humans, the rules are well-established and require no elaboration.
The issue is not people "forgetting" socially normative behavior, the issue is that different people's normative conceptions differ. The issue is less that normative behavior is "constantly and radically shifting", but rather that it does shift, and there's value in recording those shifts. (There are also variations in time that do seem worth dampening to some degree.) And the rules are well-established only by the body of recorded law, and apparently do require considerable elaboration.

Fundamentally Mr Aversion attempts here to undermine the pragmatic value of law. Since he makes this attempt, it's worth rebutting, and I think his argument fails. This is not the only argument he makes; his particular argument is not, of course, the only possible (or even only known) specific argument undermining law; and there are other approaches. But the best we can do is consider each case as it comes up, and try as best we can to synthesize all the various cases into a coherent understanding of political philosophy and social psychology.


  1. I meant to comment earlier on law - obviously I have some knowledge in this area.

    One thing that this reminded me of was the writings of Judge Posner - he discussed an interested take on contract law. You don't get punitive damages for breaking a contract - you only get whatever harm was done to you by the breach. The logic behind this Posner extends to a general principle: You should break a contract where it is cheaper to do so than to follow it (assuming you will actually pay the damages to the other party for breaching). The logic is that economically speaking, it is inefficient to fulfill contracts where breaking them makes more economic sense. So if it becomes more profitable to break a contract (including the cost of compensating the other party for the breach) you are almost obligated to breach the contract.

    Extending thinking like that to other areas of the law has interesting consequences - one can read Posner to dig into that. (He has written a lot).

  2. DBB: Of course I'm always interested in your commentary on law.

    So if it becomes more profitable to break a contract... you are almost obligated to breach the contract.

    Philosophically speaking, the more precise phrasing would be, "... it would be rational to breach it."

    It's also worth noting that even in "pure" contract law, we need to write down all sorts of things, such as how we interpret contracts, what implicit terms are part of any contract, what must explicitly be part of a document to make it a true contract, what cannot be part of a contract, etc. ad infinitum. And we need to write down these elements for the same reason we need to write down criminal law: so that I know at least to some degree what I'm actually getting into when I do sign what appears to be a contract, and how any dispute that might later arise will be adjudicated.

  3. There's a larger context to breach of contract that complicates the payoff formula. For the prols we have credit ratings, for business we have general reputation that can be tarnished. Those considerations will often far outweigh any pecuniary concern. This is why a lot of people go down with their mortgages, while jumping ship would have saved them. Not saying that many times focusing on the basic contract wouldn't stand people in better stead, but in reality the situation is more complicated. This is one reason why contract fetish is simpleminded.

    Your argument would make sense if there was a risk of many people forgetting socially normative behaviour, or for socially normative behaviour to be constantly and radically shifting, but in respect of these basic interactions among humans, the rules are well-established and require no elaboration.

    My $.02 are that laws really are quite a bit like software specifications, and the bane of software is the undefined state. Imagine a court proceeding using "common law" (in the colloquial sense) and imagine the chaos that would ensue. I'm guessing that a large proportion of legal violations come from the human capacity to rationalize; we know the law, but believe that in our special case we are the exception. This extends from petty theft all the way to murder.

  4. I think what Posner argues is beyond just that it is rational to breach where econmics make it more favorable - it was basically a moral judgment that the ethical thing to do at that point would be to breach it. That stuck out to me because generally we think of it as unethical to ever break your word, which is ultimately how breach of contract is viewed - a breaking of one's word or promise to do something.

    Posner argues that since contracts are all about economics, if the economics of a situation make a breach preferable, then that is ok, that's the right thing to do, and that everyone should expect that.

  5. I think what Posner argues is... it was basically a moral judgment that the ethical thing to do at that point would be to breach it.

    There are two ways of looking at this argument. First, we can say that paying the damages is an implicit alternative of any contract: one actually fulfills a contract by causing any set of outcomes equivalent to the specified outcome. In this sense, a "true" breach of a contract would, philosophically speaking, entail failing to bring about any equivalent outcome.

    One example from my wife's Contracts class is a case where the venue owner arbitrarily cancels a concert at the last moment. The venue owner must pay not just the promoter's costs (passed on to the ticket holders and band) but also his profits. In a philosophical sense, the venue owner does not "breach" the contract by paying damages, he honors it.

    In this sense, payment of "damages" would be considered an equivalent outcome of the contract.

    However, as Hunt notes, there are ethical issues outside the pure economic outcome. There might be inherent value in the performance of the concert itself, not all of which is captured in the producer's profits. Indeed it's not logically justifiable to consider the ticket-buyer's transaction to be an equivalent exchange of value: they almost certainly value attending the concert more (perhaps a lot more than) than spending the ticket price on other commodities. The marginal use-value of the ticket is non-zero.

    (Indeed, there must be relatively large discontinuities in marginal use-value, otherwise most everyone would eat nothing but rice and beans and save all their money.)

    So I don't think Posner's position holds water.


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