

The Myth of the Rule of Law - ataggart
http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm

======
hugh3
I almost didn't bother to read this because it sure as hell _looks_ like a
crackpot tract, but I found a gem of a tl;dr in the third section:

 _Because the legal world is comprised of contradictory rules, there will be
sound legal arguments available not only for the hypothesis one is
investigating, but for other, competing hypotheses as well. The assumption
that there is a unique, correct resolution, which serves so well in empirical
investigations, leads one astray when dealing with legal matters._

which I think is an interesting perspective on legal matters. Contradictory
assumptions mean that there's usually a bunch of different "right" answers,
and which one you get is kindof a matter of luck of the draw.

On the other hand, I guess the whole point of precedent is to slowly whittle
down the space of possible answers. If the law can't always be right, it can
at least try to be consistent.

~~~
AndyKelley
It sounds like you skimmed half the article and then formed an incomplete
opinion based on what you think the article was probably about. Just read it!
The author goes into great detail with good examples about what you're talking
about.

~~~
hugh3
After that point I decided it really _was_ too long and didn't read it. I
skimmed the rest, it seems to get a bit silly and suggests we should have
different legal systems for different people.

He then goes into an extremely extended analogy about how having one legal
system for everybody is just like having one shoe size for everybody, which
seems like a fairly flawed analogy.

I just skimmed it again in a bit more depth, and in the end he really doesn't
seem to come up with any ideas about what it would _actually_ mean to "end the
monopoly" of the single legal system which currently prevails, and certainly
not with any ideas about how to overcome the huge inherent problems which
you'd get if you implemented something like that (the most obvious one being
that if my legal system says I'm right and yours says you're right then we're
legally screwed).

------
reedlaw
This article was as much of a paradigm shift for me as reading Stephen
Kinsella's work on intellectual property
(<http://mises.org/books/against.pdf>). In one essay the author is able to
convince me my fundamental understanding of Law is flawed. What he proposes
may be hard to realize in the short term but I think if we move back towards
States' rights and local rights we will be moving in the right direction.

~~~
thyrsus
The two thirds of the article that exposes the "rule of law" as the antithesis
of a consistent logical system is quite useful. I think it accurately portrays
the reality.

The author appears to hold the pre-eminence of property rights over competing
rights. The result is an extremely polarized economic system. Medieval
feudalism as a model legal system? Yet, we appear to be trending in that
direction. When property rights take precedence, then the holders of property
buy the "legal" outcomes they want, and they buy the "law enforcement" they
want, and they buy the "laws" they want. Such is the author's proposal to
remedy the current unrealistic expectations.

The free market proposed by Adam Smith in "The Wealth of Nations" was premised
explicitly on a consistent, logical system of moral (God's) law, enforced by
the Church (a.k.a. the state - far less distinct at the time). Without that
premise - and the article's author takes care to destroy precisely that
premise - the free market is destructive. Asymmetries in information and power
create monopolies, bubbles and crashes.

So the law is inconsistent and illogical. It is good to remember this. It is
good to remember that any large or long lived community can be shown to have
betrayed its professed ideals. It is good to remember that historical ideals -
our own as well as society's - have typically been superseded by better ones.
Does that mean we should abandon those ideals, and let "the market" rule? I
agree with Holmes, if only in this: "repose is not the destiny of man".
Rather, one works to move toward the ideal; the failure to reach it means
there is more work tomorrow. Peace, Justice and Freedom will not find a
logically consistent incarnation in our lifetimes nor in our children's, yet
the work must continue.

~~~
billswift
I don't really think he (or much of anyone) really holds "the pre-eminence of
property rights over competing rights". This is a common "attack" many
liberals make against libertarian arguments and have been thinking about it
for some time. What I think is really happening, and that appears to be a
favoring of property over other rights, is that property rights can be more
clearly and positively assessed as to whether or not they have actually been
violated; so a "maybe yes-maybe no" decision on a speech issue, may clearly
and positively be a violation on a property issue.

------
cyrus_
The article is very well-written and worth a read regardless of whether or not
you are an anarchist [1], as the author appears to be. The naive advocacy for
a society without a government monopoly on force at the end of the article
falls flat, though. I don't see a convincing argument in there against the
natural assumption that such a society would be ruled by gang violence.

[1] <http://en.wikipedia.org/wiki/Anarchism>

~~~
Qz
Gang violence is just a microcosm of nation-states in conflict. Each gang has
a monopoly on force within its own territory. One could argue that the
monopoly of force is the only criteria necessary for something to be
considered a 'government'.

~~~
cyrus_
Indeed, and I said as much in my comment. If you agree that there needs to be
a territorial monopoly on force, the only thing you may disagree with is the
extent of such territory. The United States is clearly too big a territory,
with too diverse a people, to be ruled by a single monopoly, I suppose. But we
tried ending that, it was called the Civil War.

------
zeteo
The first half of the article, which makes the point that there are enough
contradictions in law to allow for the deduction of any politically desirable
conclusions, is quite compelling. I believe that most judges are rather
moderate in this respect, and usually choose to interpret law in ways that are
close to generally accepted social norms; but the observation that there is a
very great deal of subjective discretion involved in this process, and that
the social norms do change from century to century is very acute.

The second half is, by comparison, a let down. I happen to believe that the
state needs to have a monopoly of force, in part because there are regions
that have tried a free market in violence (such as contemporary Somalia and
4th century BC Ancient Greece) and it hasn't worked so well for them. And a
monopoly of force necessarily implies a monopoly of legislative and judiciary
functions to guide that force in a manner that is not too harmful to the rest
of society. It's no wonder the author waffles when confronted with the
question of what market-based law would look like - it's simply a concept that
can't be defined too precisely without making it look completely unpractical
to even the most unbiased reader.

~~~
cschwarm
I wholeheartedly agree with your summery.

I was absolutely fascinated by the first part; such a shame, the author wasn't
able to apply its point to his own suggestion: Whether the law is made by one
body or by many -- it will remain an authority, a government made by people,
used to impose one set of values to other people, and open to misuse.

His blind faith in free markets seems to have clouded his judgment.

Counter-examples to his free market for laws are easy to find. Sharia laws in
Britain are just one example. Women are hardly 'free enough' to voluntarily
accept its authority. What about children: Can they voluntarily accept the
authority of a certain court? According to the cases of child indoctrination
and abuse by crazy religious parents, priests, and schools, not so much.

Markets fail rather often (depending on the definition of failure). Shoes are
a perfect example of a free market that somehow 'works', but is inherently
inefficient in many regards. One just needs to try to find a shoe that (a)
fits, (b) is subjectively good looking, and (c) priced fairly. Now imagine one
would additionally need to look for (d) an acceptable court for clearing
disputes!

------
AndyKelley
Excellent, mind-opening article.

Still reading, but I disagree with this point:

 _If your response to question two was "False," you chose to interpret the
word "Congress" to refer to the President of the United States and the word
"law" to refer to an executive order._

Wrong. I chose False because the executive branch's job is to enforce the law,
and the President cannot issue an order to enforce a law that does not exist.

He still got me with many of the other questions though. This is quality
stuff.

~~~
ataggart
>I chose False because the executive branch's job is to enforce the law, and
the President cannot issue an order to enforce a law that does not exist.

While correct, your choice is not based on "your personal understanding of
[that] sentence's meaning", but on "your knowledge of constitutional law". The
restriction of scope is critical to the point being made.

~~~
ugh
I have a lot of trouble seeing the difference between my “personal
understanding of [that] sentence’s meaning” and my “knowledge of
constitutional law”.

Sure, I’m free to define words any way I want – but that’s not how society
works, that’s not how law works. There are necessarily mechanisms to arrive at
common definitions, in everyday life and in the legal system. The common
definition of “executive order” – which, obviously, comes packed with
information about constitutional law – clearly states that executive orders
are severely limited in their scope.

That’s the definition of “executive order” I’m carrying around in my head and
it is flat out impossible for me to divorce that definition from my
understanding of constitutional law. I also can’t divorce my understanding of
the word “standing” from what I know about gravity. It’s nonsensical.

~~~
ataggart
>The common definition of “executive order” ...

But neither the President, nor executive orders are mentioned in the First
Amendment, which was the subject of the question at hand. The issue was not
whether something is un/constitutional, but whether something is
un/constitutional _by dint of the First Amendment_.

The eagerness with which some wish to skip beyond that scope is interesting.

~~~
ugh
Ah, so the author cleverly toys with the readers’ understandable confusion
when encountering the question. That’s not really a convincing argument but
very clever.

If I make that one sentence from the First Amendment into the sole law of the
land there is no confusion at all. The president is obviously allowed to ban
speech with executive orders. Why would anyone disagree with that?

This is the setup of the Gedankenexperiment and since it is quite weird it is
very understandable that many people would misunderstand it, especially since
he is not very clear about that setup. I took it to mean that I’m supposed to
interpret that sentence within the framework of US law but somehow without my
understanding of constitutional law. That’s obviously impossible.

It’s a nice rhetoric trick but certainly no argument. Differences in
interpretation obviously matter but the example he picked is complete rubbish
and certainly exaggerates the problem in a completely dishonest way.

~~~
ugh
Ataggart, your response to me is for some reason dead.

I don't think that the author is very clear at all. He is deliberately
misleading. That sentence is clear as mist.

------
akkartik
Still reading, but I love the easter egg reference to Paper Chase
(<http://www.imdb.com/title/tt0070509>)

------
tzs
> In the real world, people usually attempt to solve problems by forming
> hypotheses and then testing them against the facts as they know them

No, that's how people usually attempt to solve problems in some world that is
mostly populated by scientists. It has little connection to the real world.

As far as the law goes, at least the common law and case law, one important
thing to keep in mind is that when a problem gets to court you are basically
in what in programming terms would be an exception handler. Something has
ALREADY gone wrong, and it is often a foregone conclusion that someone is
going to get screwed--the law is just trying to determine who to screw the
least. You can often only try to minimize injustice, instead of providing
justice.

For example, there is a case in contracts that involves a sale of cotton. A
buyer entered into a contract with a seller for 125 bales of cotton that would
be arriving in England from India aboard the ship Peerless.

Unfortunately, it turned out that there were two British ships named Peerless,
both used for shipping between India and England. Neither party knew that
there were two ships, and it turned out they were each thinking of a different
Peerless when they made the contract. One Peerless was sailing in October from
India, and the other in December.

Accordingly, the cotton arrived in England at a time when the buyer was not
prepared to receive it. The parties could not agree on what to do with the
cotton, and a lawsuit ensued. Someone has to get screwed here, and no one is
clearly wrong.

The court decided to screw the seller.

Another example. Three men go out hunting for birds. As they cross a field,
two of the men go to one side and the third goes to the other side of the
field. A bird flies up in the middle of the field. The first group of two men
fires on it. One of them gets the bird, and one gets the third hunter. This
was before the days of fancy ballistics tests. Both men swear they were the
one that got the bird, and there is no way to tell which actually got the
bird.

The third hunter sues. Each of the defendants raises the perfectly reasonable
defense that there's no proof that he caused any injury at all to the
plaintiff, and in fact insists it was the other defendant who missed the bird.

If plaintiff wins, one of the defendants is screwed because one of the
defendants in fact did not shoot the plaintiff. If the defendants win,
plaintiff is screwed.

I don't recall for sure, but I believe the plaintiff won. The reasoning, I
believe, was something like this. One of the defendants negligently shot the
plaintiff. The other did not, but he shot in the direction of the plaintiff at
the same time. That was negligent--he only didn't shoot the plaintiff because
the bird took the bullet. Furthermore, if he had not been negligently firing
his gun at the same time the other defendant was shooting the plaintiff, there
would be no ambiguity as to who shot the plaintiff and so this defendant's
actions are responsible for us not knowing who shot the plaintiff.
Accordingly, it is justifiable to hold them both responsible.

------
joebadmo
Certainly interesting, and I'm having trouble, as the author suggests I might,
imagining what he proposes.

It seems to me, though, that the state he describes--free market law--predates
(as he sort of points out) currently prevalent systems. So doesn't the fact
that all current major systems are ones of centralized legal authority suggest
that that actually works better?

~~~
rprospero
I think that the problem may be the other way around: it's hard to imagine his
system because it's exactly the system that we're living under. There's United
Nations lists 192 legal systems from which to choose. The only remaining
question is whether this market is free. There's certainly outside regulatory
pressure. Startups are a possibility (e.g. Tunsia, Libya), although there can
be high barriers to entry (just like trying to move into the cable market).
Not every country will grant you citizenship, but not every bank will loan you
money. Leaving your nation can be difficult, but termination clauses are
fairly common. Let me know if I'm missing something, but the market for legal
systems would seem to be the least regulated market in existence.

~~~
etherael
It is actually _insanely_ hard to change states, even if you take away all the
human choice factors and pick a robotic subject that simply optimises for
personal choice without regard to family, friends, ties to community etc.

All permanent migration is hard by design, some of it is harder than others,
but even in the optimal case it's not easy. Further, although there may be 192
legal systems from which to choose, they simply are not _that_ different at
the end of the day in most ways.

The reason governments can afford to be so terribly inefficient is because
they are the ultimate natural monopoly, and most people don't realise just how
locked down they really are. When you actually make the decision to leave the
nation of your birth and go some place else that suits you better it becomes
abundantly clear that this is nowhere near as simple as it sounds.

~~~
rprospero
I apologize if it came across unappreciative of the difficulties involved in
emigration. Instead, I simply see the difficulties of migration being just as
difficult under the author's proposed system. For the author's proposal, if we
don't have a meta-legal system to prevent the various legal systems from
trapping their customers, it seems that the new legal systems would use the
same tactics that the governments use right now. It's so much easier than
actually competing.

~~~
etherael
I guess it depends on the implementation details of the proposed system, the
author is a libertarian (he talks at length of this in his other publications)
so he may well have some very radical ideas on exactly how this could be
accomplished, seasteading is the first that springs to mind, but I'm sure
there are others.

It may also be simply an instance of order vendors so to speak, the government
as the party with monopoly of force maintains a wholesale on order so to
speak, but there are many many resellers within a market that expand on that
based on various values and require their adherents to hold to various
responsibilities in return for various rights, to greater or lesser extents.

If you could argue that this is a system which would extract more value from
the governed population than the current one, then it does seem to be
something of a self fulfilling prophecy that this ought eventually be
implemented in some fashion. Of course, that's in question at any rate.

------
jerrya
Article as told by a Jewish author:

"Readers of this column may have heard the Jewish joke about the rabbi who is
asked to settle a dispute. After listening to one side's argument, the rabbi
declares, "You're right!" After listening the other side's argument, the rabbi
nods and says, "You're right, too." His wife, who is listening, declares,
exasperated, "Rabbi, this is absurd! They can't both be right!" The rabbi
sighs and replies sadly, "You're also right!""

Article as told by a psychologist:

"Lots of couples who are in the habit of fighting with each other, are mostly
troubled by the eternal question: which one of us is right?

Often they will go to a therapist to find that out. Their hope is that in the
therapist’s clinic, their justice will finally come to light.

The good news are that it often does. The bad news are that in most cases, the
partner turns out to be right, too…"

Article as told by a professor:

<http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm>

------
comex
> If a provision as clearly drafted as [the First Amendment] may be subjected
> to political interpretation, what legal provision may not be?

It's not clearly drafted at all, nor "the clearest, most definite legal
language"; the term "freedom of speech" is quite vague (insofar as it isn't
interpreted _literally_ , voice only, no writing, which certainly wasn't the
intent), but there's no reason a law couldn't be written that specified in
great detail what sort of activity is protected and what is not. It's just
that we'd have to frequently amend such a law to account for changing mores,
which is currently done on a more case by case basis.

> The very notion of a free market in legal services conjures up the image of
> anarchic gang warfare or rule by organized crime.

Are they not examples of such a market?

> One advocates a free market not because of some moral imprimatur written
> across the heavens, but because it is impossible for human beings to amass
> the knowledge of local conditions and the predictive capacity necessary to
> effectively organize economic relationships among millions of individuals.

This kind of hand-waving is usually used to justify the idea that the free
market works best with as little regulation as possible. Unfortunately, the
prevalence of harmful monopolies in history suggests that this is not true;
state regulation is necessary.

> Although I am tempted to give this response, I never do.

You just did.

> This is because, although true, it never persuades. Instead, it is usually
> interpreted as an appeal for blind faith in the free market[...]

This is a somewhat disingenuous way of avoiding the point.

> A final example may be supplied by the many commercial enterprises that
> voluntarily opt out of the state judicial system by writing clauses in their
> contracts that require disputes to be settled through binding arbitration or
> mediation rather than through a lawsuit. In this vein, the variegated
> "legal" procedures that have recently been assigned the sobriquet of
> Alternative Dispute Resolution (ADR) do a good job of suggesting what a free
> market in legal service might be like.

It's a good time for this to come up, because AT&T and their contract
requiring each defrauded customer to negotiate individually is a pretty good
example of how private justice can be perverted. What if similar practices
were allowed in _criminal_ law?

> In disputes over consumer contracts, the parties might well be satisfied
> with the current system of litigation in which the parties present their
> cases to an impartial judge or jury who renders a verdict for one side or
> the other.

The consumers would be and the corporations would not. Guess who has more
bargaining power?

------
derleth
The medical hypothetical (the doctor who golfed) is nonsense on real world
grounds: The physician would have been on-call, and would have had a contract
_with the hospital_ stipulating the precise terms of her work and so on. If
she failed to take the call, she would be in violation of that contract and
the hospital would not be happy.

------
humanprogress
This is laughable libertarian trash. Without a central authority, humanity
would revert back to the animals that we are. The author of this piece should
go back to licking Ron Paul's boots.

~~~
reedlaw
I think you missed the point.

~~~
hugh3
Forget it, he's trolling.

~~~
jerrya
Boon!?

------
KaeseEs
He almost had me, until he quoted Oliver Wendell Holmes _favorably_

