Friday, December 26, 2008

Is Law a Phony Discipline?
Mike Rappaport

Over at Econlog, economist 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.

Bryan is an extremely insightful guy, so it is worthwhile considering his comment.  My view is that he 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 am an originalist, and so what the Constitution really is to me is generally the original meaning.  What the law really is to a living constitution liberal will be something different. 

So, to conclude, law professors do not reach agreement about what the law should be (or really is) for obvious reasons, but do reach agreement about what the courts will do.  Once one breaks it down like this, there is no surprise.  The key is to get clear about the nature of the claim being made. 

Update: Ilya Somin also addresses Bryan Caplan's post.  I agree with much of Ilya's post, although he makes something of a different argument than I do.

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Mike Rappaport


It would be a logical fallacy as well as fatuity of the highest order to conclude that law is a phony or faux discipline because of the vehement, incompatible disagreements between and among practicioners, jurists, and academics about the interpretation of the law(common, statutory, constitutional), or the existence of different schools of thought within the law. Within the realm of medicine, general practicioners, specialists, surgeons, and the professoriate have disagreed and continue to disagree about the disease a particular patient has, the etiology or cause of a particular disease, and the regimens, therapies or approaches the physicians' community should pursue. Engineers, architects, zoologists, and others have debated about critical dimensions within their fields.
Not all points of view,or hypotheses are equally valid, obviously, and some perspectives have been demonstrably refuted, or verified but the fact that unanimity has not been achieved is not an argument against the existence of the law as a discipline as a profession and mode less rigorous than engineering but certainly moreso than literature, journalism or the need for departments of education.

Posted by: Maurice Kane | Dec 26, 2008 12:01:47 PM

Economics is the ultimate phony discipline - a Humanities subject masquerading as a science.

Posted by: matt | Dec 26, 2008 1:48:32 PM

If you believe that "how an issue ought to be decided" is "what the law really is," then you are a very warped person. What the government actually does is "what the law really is." Who cares about the policy preferences of a bunch of law professors? Even the ones whose politics I share are not people to whom I would entrust authority over anything except grading little law students.

Posted by: y81 | Dec 26, 2008 7:21:08 PM

Isn't the problem here the Constitution, rather than the law in general? Statutes generally have clear, unambiguous meanings, because they're drafted with the goal in mind that they be consistently interpreted in a particular way that coincides with the drafters' intended purposes. They can also fairly easily be clarified if they're interpreted in the intended way. The Constitution, on the other hand, was fairly vaguely written, and is extremely difficult to clarify through amendment. As a result, it's much easier for interpreters to get away with conflating, "this is what the Constitution means", and, "this is what I'd like it to mean", than it is for them to conflate, "this is what statute X means", and, "this is what I'd like it to mean".

Or at least that's my impression. Am I mistaken?

Posted by: Dan Simon | Dec 26, 2008 11:14:00 PM

Anyone who believes in the law needs to see beachfront property I own in Utah. The only law that makes any sense is trial by combat. At least this would reduce the number of lawsuits and provide the same level of justice the current system provides.

Posted by: Thomas Jackson | Dec 30, 2008 1:09:35 AM