Backwardness of law

Solved: The Problem of Indeterminacy in the Law

It’s not a problem of language. It’s a problem of writing:

Socrates makes the point in Plato’s dialogue [Phaedrus] that writing will not help in the search for truth. He compares writing to painting — paintings look like living beings, but if you ask them a question, they are mute. If you ask written words a question, you get the same answer over and over. Writing cannot distinguish between suitable and unsuitable readers: it can be ill-treated or unfairly abused, but it cannot defend itself. In contrast, truths found in the art of dialectic can defend themselves. Thus, the spoken is superior to the written word!

Michael D. Coe, Breaking the Maya Code 14 (2012).

The trouble is, if you don’t write it down, then you must enact people.

Backwardness of law Civilization

Realism in Action

A surprising number of Medals of Honor have been awarded for disobeying an order. For example:

The President of the United States of America, in the name of Congress, takes pride in presenting the Medal of Honor (Posthumously) to Technician Fifth Grade Lewis R. Hall, United States Army, for gallantry and intrepidity above and beyond the call of duty on 10 January 1943, while serving with Company M, 35th Infantry Regiment, 25th Infantry Division, in action at Mount Austen, Guadalcanal, Solomon Islands. As leader of a machinegun squad charged with the protection of other battalion units, Technician Fifth Grade Hall’s group was attacked by a superior number of Japanese, his gunner killed, his assistant gunner wounded, and an adjoining guncrew put out of action. Ordered to withdraw from his hazardous position, he refused to retire but rushed forward to the idle gun and with the aid of another soldier who joined him and held up the machinegun by the tripod to increase its field of action he opened fire and inflicted heavy casualties upon the enemy. While so engaged both these gallant soldiers were killed, but their sturdy defense was a decisive factor in the following success of the attacking battalion.

War Department, General Orders No. 28 (June 5, 1943).

The contrast, incidentally, between this sort of disobedience, and the disobedience that involves killing a child so that you can brag falsely to your friend back home that you used your knife in action, is rather stark. What matters for the realist project is that we can tell the difference.

Backwardness of law

Legal Realism and Two Forms of Obedience

You are told that an artillery barrage will begin at 5am and last for ten minutes, after which you are to attack and hold the enemy’s trench. Under no circumstances are you to advance beyond that trench until you receive further instructions. At the appointed time, your regiment scrambles across no-man’s-land and takes the objective with moderate casualties. But now you spy the enemy retreating in disarray down a communications trench perpendicular to the one that you have just taken. It is clear to you that with a minimum of loss you can take and hold the communications trench as well. Moreover, it is clear to you that if you do not take the communications trench, you will be vulnerable to counter-attack while you await further instructions from your commander.

The distinction between legal realism and legal formalism is this and nothing more: In blatant disobedience of orders, the legal realist would take and hold the communications trench. The legal formalist would not.

The appeal of legal realism is that legal realists will be more effective at carrying out the ends of the governmental enterprise, just as the army that nurtures officers who know when to disobey orders will be more effective at defeating the enemy. Nothing more.

Clearly, the distinction between realism and formalism has to do with consequences. It is the possibility of counterattack if you do nothing that induces you to advance. But it would be a mistake to see legal realism as a kind of consequentialism, as David A. Simon seems to do in his surreply to my reply to a piece by Adam Mossoff. At least if by consequentialism Simon means the method of value creation that purports to find values through an examination of their consequences. The problem of value creation–of ends–is for the lawgiver, whether a military general, or the legislature. The problem of the law, by contrast, is how to act according to received values–how to achieve a given end.

Legal realism is a humanism in the sense that it acknowledges and seeks to leverage the capacity of the human being to absorb and carry out the visions of others with a level of effectiveness–of faithfulness to the vision–that simply cannot be captured by mechanical obedience. Realism understands that mechanical obedience fails because of the impossibility of anticipating all possible future states of the world and writing a determinate rule for each. Realism accepts that the mind is able to coordinate with other minds in ways that science is not yet able to spell out. Realism therefore asks those who apply the law to use their minds to internalize the law’s values and take responsibility for realizing them, not merely to obey commands. The realist is to the legal formalist as the AI tasked with achieving an objective is to the conventional computer program executing a set of static instructions. The AI can identify the cat, even if the AI has not been given specific instructions about how to find it, and even though the builders of the AI are unable to explain precisely how the AI is able to achieve that.

But the identification of the objective remains in the hands of the programmer. I have no problem characterizing the sort of obedience owed by the legal realist to the lawgiver as religious in character. The worshiper asks himself: how can I live my life in a way that is obedient to God? The legal realist asks: how can I apply the law in a way that is obedient to the lawgiver? In other words, the legal realist is constantly asking: what would the lawgiver want me to do here? Just as the worshiper is constantly asking: what would God want me to do?

The letter of the law matters to the legal realist, but only to the extent that it helps the legal realist understand better what the lawgiver would want the realist to do, if the lawgiver were standing in the realist’s shoes, surveying the situation in light of what has been revealed about the world between the time when the lawgiver wrote down the law and the present moment.

This is an experience of constraint. Legal realism is not about value creation. The realist must be the lawgiver at a time and place that the lawgiver could not access for himself when the lawgiver wrote the law. This is precisely why legal realism is so much more powerful than formalism: because the realist becomes an extension of the lawgiver. By taking the spirit of the lawgiver into himself, the realist replicates the lawgiver across time and space. But, again, the decisions that the realist makes must be those of the lawgiver, or the realist’s best possible projection of the lawgiver. The decisions are not to be a reflection of the realist’s own personal values.

When the formalist approaches a situation that the lawgiver did not anticipate–which is always, because, in its multiplicity, experience is never as we imagine it to be in advance, when we make our laws–when the formalist approaches such an unanticipated situation, and goes ahead and applies the legal rule as written, not because the formalist believes the rule as written to be what the lawgiver would want the formalist to do in that particular situation, but simply because that is what the writing on the page says to do, the formalist does something unimaginably perverse and stupid.

For the formalist has no reason to believe at all that he is doing what the lawgiver wants. He may in fact be doing precisely what the lawgiver would not want if the lawgiver had known that events would unfold as they have. Moreover, the formalist might well be in a position to intuit, with minimal effort, the fact that the lawgiver would not want the formalist to act according to the letter of the law, if only the formalist would stop and think. The formalist takes the faculty of collective action in humans, evolved over billions of years to allow us to act as one mind, and shuts it off. We spank our children for that kind of behavior, for taking us literally, instead of doing what we want.

When the legal formalist seeks to deduce from existing rules new rules, not by asking what rules would be consistent with the values of the lawgiver, but through analogical thinking, the perversion is even greater, because what the formalist actually ends up doing will not even accord with the letter of existing rules, but only with the new rules that the formalist has dreamed up using some deductive process that is unmoored from the vision of the lawgiver.

Now, the lawgiver may not object to formal obedience; the lawgiver may even punish realism, just as the officer who takes the communications trench may be courtmartialed, or shot. But unless the lawgiver does that out of a fetish for formalism–meaning that one of the lawgiver’s values is formalism itself–in which case the problem of how to apply the law is resolved by mere fiat, the lawgiver does no more than harm himself, hampering his ability to achieve collective action in accordance with his values.

In the United States today, I think it is fairly uncontroversial to say that values are supposed to come from the people, and that the people care about business law only to the extent that it generates an economy that makes them better off. It is in that spirit that I offered, in my reply essay, some illustrative remarks about the considerations that might go into proper legal realist decisionmaking about whether to treat trademark rights as property rights. I did not suggest, however, that legal realism requires that trademark law must always be applied with the end of maximizing consumer welfare in the economic sense. It seems to me that our lawgivers today would like that. But tomorrow they might not — they might prefer that trademark law be applied only to advance worship of the Great Seal of the United States of America. And then the legal realist’s job would be to interpret trademark law to carry out that vision instead.

[Kindly note that I do not view posts on this blog as complete once posted, and do not flag revisions.]

Backwardness of law Civilization Legal education

The Chain of Judicial Command

Legal education typically assumes that in a world in which laws are clear, laws must be followed. If you don’t like the law, t’row de bums out. If a judge does not like the law, the same: the judge must still obey, until the people t’row de bums out. The legislative process is the only socially healthy way to change the law.

And yet, one finds in that most authoritarian, rule-bound of all cultures, the military, an understanding of the importance of having people not follow the rules, even in combat situations in which you might think that the chain of command would be most important.

I have:

Colonel Edson D. Raff was the kind of midlevel combat commander who saw what needed to be done and went ahead and did it without waiting for orders, the kind of innovative, aggressive commander any general would give a million dollars for — if he didn’t have him court-martialed and shot.

Orr Kelly, Meeting the Fox: The Allied Invasion of Africa, From Operation Torch, to Kasserine Pass, to Victory in Tunisia 113 (2002).


The company commander contacted the battalion commander by radio and asked for instructions. As he did so, his company spontaneously rose up, as one man, and assaulted the hill. The assault was such a surprise — as much to the American commanders as to the Italians — that the hill fell to the Americans almost immediately. The spontaneous assault was one of those rare battlefield phenomena where soldiers, acting without orders, see what needs to be done and do it.

Orr Kelly, Meeting the Fox: The Allied Invasion of Africa, From Operation Torch, to Kasserine Pass, to Victory in Tunisia 271 (2002).

I have never read anything like this written of a judge taking orders from a legislature. It is never said. But do judges in fact go ahead and do “it without waiting for orders?” Why, yes, they do. All the time. There is a culture of silence about this, as if judicial disobedience were a more worrisome thing than a lack of discipline on the battlefield. I would have thought, given the stakes, that it would be the other way around.

When judges do “it without waiting for orders” in the right way, and help us win the battle for justice thereby, they make a valuable contribution to our society, a contribution that makes them worth at least $900,000, if not the million that should go to the maverick who through inspired disobedience helps us to succeed on the battlefield. If we can talk about the fact and contribution of disobedience at war, we ought to be able to talk about the fact and contribution of disobedience in adjudication.

In other words, the law in action quite often fails to reflect the law on the books, not only because the law may have gaps, conflicts, and ambiguities, but because judges flout it. And that’s not necessarily a bad thing.

Backwardness of law

The Illegitimacy of Analogy

Reasoning by analogy is a staple of legal practice, but entirely illegitimate. Suppose that the legislature prohibits the separation of a product from its trademark. Suppose now that Facebook posts newspaper stories without placing the trademark of the newspaper beside the story. The lawyer might say: “that’s just like selling an iPhone with the name iPhone scraped off of the package!” And so it is. But if there is no reason to think that the legislature was thinking about newspapers when the legislature passed the law, there is no basis for interpreting the law to apply to newspapers. What matters for legitimacy is intent, not analogy. Put another way, lawyers suppose that legislatures intend all cases that apply by analogy to be covered by their laws. But what basis have we to think that? And yet lawyers interpret through analogy all the time.

Backwardness of law

Outside the Law

This demonstrates for me everything about economists that makes them superior to lawyers. The myopia of the lawyer and the breadth of vision of the economist.

Yes, it is possible for institutions not to follow the law. It is possible for laws to be written to be broken. You might think it would take a poet to realize that; or perhaps a lawyer, that great cross-examiner of witnesses, before an economist. What do technocrats know about the complexities of behavior, about dissembling and treachery?

But in the event it is the economists who present as ten times more humanist than the lawyers and shrewder judges of the soul. And it is the lawyers who present as robotic and shallow in their judgements. But how can this not be the case? The lawyers are invested in the power of the text. And not even a metaphorical text, like priests, but a literal text! They are invested in literalism, shallowness, and superficiality. Without it they have no claim to value and no professional respect.

So they will look at you and say, without the slightest irony, that if you read the text carefully the Fed had the power to bail out Lehman Brothers. As if, as if, as if what the text says has any first order relevance in determining what happens in the world.  As between the devotees of the written rules and the devotees of the unwritten rules, I choose the latter.

Backwardness of law

Doctrine and Predictability of Result

“[D]octrine was in a shambles and predictability of result at a minimum.” Dukeminier, Property, 7th, at 1073, quoting 57 Or. L. Rev. 203, 209.

One encounters the assumption of a connection between clear doctrine and predictability everywhere.  But has it been proved, or studied?  It doesn’t seem intuitive.  We don’t read White House press releases to predict what the President is going to do.  We read newspaper articles and works of political science that are based on many more sources.  So why would we suppose that a clear statement from a court press release (that is, a judicial opinion) is a useful predictor of anything?

Predictability would seem to have to do with information about the judiciary qua institution, who’s in it, the forces acting upon them, the views of peers, the media, the subtle pressure of interest groups, zeitgeist, the judges’ ambitions and fears, the way daddy treated them during adolescence, and the like, not merely the judiciary’s own self-serving statements about how it will behave in future.

And the same goes with people, too, doesn’t it?  You’re always the last to know when you’re  in love.