Caplan on the Law as a Phony Discipline

Josh Wright —  30 December 2008

Bryan Caplan writes:

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.

No offense taken.  But is he right?  Mike Rapaport distinguishes between lawyers predicting what courts will do (not phony because lawyers reach consensus) and what the law should be (phony, or at least no consensus because of political ideology influencing views).  I agree with the things Professor Rapaport writes, but what’s the relationship is between ability to reach consensus and phonyness?  I’m not sure precisely what Caplan is claiming here.  I think its that the law itself doesn’t have any meaning because folks can argue over what it means.  The corollary is that folks that study something that doesn’t mean anything are phony Unicorn Debaters, e.g. would evidence that the legal academy can reach consensus over some significant fraction of “what the law is” demonstrate legitimacy?

Maybe in addition to the positive v. normative distinction, there is some type selection bias here. Laws that really do mean something are not frequently discussed and debated on philosophical grounds.   Poorly drafted, vague, and legally questionable laws get a lot of attention and attract a good amount of attention in the form of legal scholarship, media coverage, and general debate.

Antitrust is a good example here despite the fact that “the law” is of the “federal common law” variety: judge made rules putting flesh on the bones of the hopelessly vague formulations about reasonable restraints of trade in the Sherman Act.  There is much consensus on what the law “is” with respect to price-fixing, and even with respect to mergers.  There is some law to speak of in both of these areas even if there is some disagreement on the margins.  On the other hand, the rules for monopolization under Section 2 are not only less clear, but there is also more debate over what they should be and how they ought to be applied.  If one asked a room full of 100 antitrust lawyers how a specific and detailed bundled discount program by a monopolist would be evaluated by the courts and what standard would be used to evaluate the program one would get much more variance in the answers than the same exercise for a hypothetical cartel.  Does Caplan’s position imply that those who work on the the design of legal institutions and rules for cartels are engaged in a legitimate exercise (because there is law) but those who work on monopolization are phony (because there is not)? Or does the phonyness only apply when no consensus is reached on what the law is?

There also appears to be some confusion about what it is that law professors do.  I suspect that the current scholarly output of the legal academy is heavily weighted towards normative scholarship rather than describing what the law is or predicting what courts will do.   On net, I think this observation probably cuts in favor of Caplan’s observation for reasons he doesn’t mention, e.g. to the extent that some non-trivial fraction of this work asserts without methodological rigor of any form that the “law should be X” because X is more consistent with the author’s personal policy preferences it probably satisfies Caplan’s definition of phony.

2 responses to Caplan on the Law as a Phony Discipline

  1. 

    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.

  2. 

    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?