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The Irrelevance of Legal Thought

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4 Responses

  1. Jeff Lipshaw says:

    Nate, I think what you’ve described is accurate, but I don’t find it either depressing or frustrating. Indeed, to push your allusion along, if I have a choice between a rock solid contract with a slimeball, and a loosey-goosey contract with a trustworthy partner, I’ll go with the latter any day.

    There are two balloons popping here. The first is the notion that law can be systematized into a rational, reductive scientific model, a la Langellian formalism or law and economics. The second is that the model, such as it is, maps well onto the complexities of the real world. There’s something to be said for the Luhmann-Teubner view of autopoietic law, in which those inside the balloon are operating under illusions, but illusions necessary to sustain the system. Or to try another analogy, there were a few discussions that made me think we were in a law professor version of The Truman Show – a lovely self-contained world.

  2. Dan Cole says:

    “The truth, however, is that the quality of institutions dwarfs the quality of substantive law in terms of explaining economic outcomes.”

    But substantive law is an intrinsic part of the institutional structure. If the quality of institutions matter, then by definition the quality of laws matter. That is a point made over and over again by Coase, North, Williamson and other economists.

  3. Jeff Lipshaw says:

    Dan, I think Nate is pointing out something slightly different. Stable institutions and respect for whatever it is we mean by the “rule of law,” it seems to me, reflects a social-cultural consensus. That is, human-created culture makes respect for institutions and law, and not the other way around (just look around the world). The rules intrinsically part of institutions are disproportionately (I think) constitutive (see Searle and Schauer) – they actually create the institutions and the processes within the institutions.

    Nate’s point goes to whether, once institutions exist, we can regulate or legislate our way to an ideal or just set of institutions. Those institutions are something more than the sum of the parts of the legal rules that make them, and merely fine tuning the rules without dealing in the social-cultural issues likely misses the point. Nevertheless, as I suggested in the earlier comment, it’s the nature of the lawyerly beast to think like a lawyer (or to use a cliche – when you have a hammer, every problem looks like a nail).

  4. Seems to me another way to read this is that those of us whose work focuses on procedure, or on law that shapes institutions (business associations, structural constitutional law, administrative law, many areas of regulation) ought to be real happy.