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> | Dear Eben,
Please disregard my previous second draft as it did not say what I meant. I have been thinking about and struggling with the ideas expressed here and it took me awhile to write something that I was satisfied with. Thank you for forgiving the lateness of this draft and I look forward to your comments. |
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< | A Locked Door |
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> | The Study of the Law |
| | -- By HollyStubbs - 26 Feb 2013 |
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< | There is no law |
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> | How to study the law |
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< | The study of law would be benefited by studying it more expansively and considering it as part of a series of systems (moral, legal, political, etc.) that influence current and future human behavior. Law is most powerfully studied when considering it as the changes of behavior that are influenced by beliefs (both collective and individual) about what the law actually is. |
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> | I have been struggling with law school. I find the casebook method to be pedagogically flawed and frustrating. I came to law school thinking we would start with a review of different theories regarding what is the law and then move on to specific areas of the law. Instead we read cases in what appears to be an attempt to teach what law is by looking at how previous courts have answered specific legal questions. There have been some essays about varying legal theories, but little overall categorization of the questions that confront the student of the law and how others through history and in other societies have answered these questions. |
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< | Law is a based upon belief: A Locked Door
If people (society as a collective whole) believe (or merely act as though they believe) in some legal principle then the legal principle exists, but only because people act as though it does. |
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> | The purpose of this paper is to determine a way for me to approach the study of the law. |
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< | Imagine a crowd of people in a room with one door. If they all believe that the door is locked and don't attempt to open the door then the impact is the same as if the door is actually locked. This is like the law. If people believe that the door is locked then they act as though it is locked. |
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> | What is the law? --> The law is what courts do.
“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” |
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< | When studying the law it is important to look at not just what a legal code says or even how courts interpret that legal code, but also to examine what people do. Legal principles cannot accurate predict or explain human behavior, although they shape it. That is not to say that what courts say is the meaning of a legal code has no impact, or that how a legal code is written does not or should not influence the how a court interprets that code. When a judge writes a decision that says that women have a right to an abortion and then health care professionals believe that the decision means that they can provide abortions and a woman comes to their clinic and gets an abortion then for that woman an abortion was available; for that woman an abortion was available. The way that a court read a legal code influenced the behavior of many actors that led to the outcome. |
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> | Holmes’ quote encapsulates a way of thinking about the law that seems sensible to me. Put another way, law is what courts do in fact, and the practice of law is predicting what courts will do. |
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< | There is the argument that belief is not what matters, actions are what matters, and I agree. But belief is convenient shorthand for the convictions (conscious and unconscious) that lead to action. People act for any number of reasons: they have a moral belief that they should follow the law, they are afraid of jail or a fine, they are conforming to social norms. It doesn't matter why they act. |
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> | Therefore, the study of the law is the empirical study of prior court behavior and then predicting future court behavior based on prior behavior. There are three related questions that must be answered. (1) What is a court? (2) How to determine how courts will behave? (3) What impact does the behavior of the courts have on society? The third question can be considered as a way to consider what courts should do. |
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< | If the law is how we act then the law is politics is economics is psychology is history is anthropology. It's all the study of the same thing: human behavior and human behavior is most effectively studied as the product of variables often that can be analyzed in systematic ways. |
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> | What is a court? --> A court is a means of dealing with conflicts in society through institutions. |
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< | Law is a series of systems: A Stop Sign
The written law is not the only, or often, the most powerful influence on human action. It is also helpful to consider the other factors that are traditionally overlooked in a legal education. |
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> | One way to look at this is that courts are a means of deciding conflicts between individuals in a systematic way through institutions staffed by people. This is a very broad definition of a court (I wish that I had learned in law school of different ways to answer this question, but alas, I have not). Different societies throughout history have had ‘courts’ in various ways: tribal elders, church leaders, formal legal organizations, etc. |
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< | Consider a stop sign. There are effectively two choices: stop or don't stop. Let's say there is a $50 fine for not stopping. If an individual runs a stop sign and no one sees her then the 'law' is transgressed, but there are no repercussions. |
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> | How do courts behave? --> Courts are made of people, thus court behavior is determined by human behavior. |
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< | In effect, for that individual there was no $50 fine. Another individual chooses to stop at the stop sign. Again, for her there was no $50 fine, no repercussions. If you are considering law as only impacts you could conclude from this that there is no law: that the law is only the enforcement of that law and if the law is followed or transgressed without punishment then the law does not exist, because there was no action. |
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> | Courts are staffed by people, thus court action is a product of human behavior, although they both influence each other. Courts do what people do and what people do is influenced by what courts do. Therefore, the current actions of courts impact the current and future actions of courts. In this respect law is somewhat like culture. We create culture, but culture also creates us. |
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< | Which might very well be true if you consider only the $50 fine as the law. But if you broaden your consideration and think of the law not as the words or the principle to be transgressed or not transgressed (the punishment avoided or punishment received), but as the decision (both individually and collectively) to stop or not stop then the $50 fine is not the end of the analysis, but the beginning. The question then becomes how does the overall legal code regarding stop signs impact whether people's behavior at a stop sign |
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> | This means that studying the behavior of courts requires both the study of human behavior in general and the behavior of courts in particular.
If the law is human behavior then how to understand human behavior? There is no definitive answer to this question. I think the study should focus on how humans behave, and not why they behave the way they do (even though the two are interconnected and speculation on the latter is helpful for predicting the former), because to a focus it is easier to empirically observe actions. |
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< | The power of a legal system and a written legal code is that it shapes human behavior. It doesn't determine whether an individual stops or doesn't stop, but it influences it. For instance, where the stop sign is places has an enormous impact on whether or not people stop. If it's hard to see, or blue instead of red, or on an abandoned country road then people are much less likely to stop. Thus, the shape of a stop sign is the law, or part of the law. It's part of the system that makes each individual stop or not stop. |
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> | Given the complicated nature of society (and thus nearly infinite numbers of variables that influence human behavior) and the unknown (and perhaps unknowable) workings of the mind it is difficult if not impossible to predict human actions exactly. However, predictions can be made at both the individual level and at the aggregate level. Understanding human behavior is similar to understanding the ripples of a rock thrown into a pond. It is impossible to predict the exact height, distance, and power of each ripple, but is possible to predict that there will be ripples. |
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< | The behavior of a single individual is aggregated thousands of times, millions, and thus you have stop signs (which in the US are mostly obeyed): a vast network of social, personal, political, economic and legal decisions that cause individuals to act in a certain way. |
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> | Definitive predictions cannot be made but a range of likely outcomes can be discerned. These outcomes can be roughly thought of as bell curves, some outcomes are more likely and some are less. Consider this overly simplistic example: the child of a janitor is much more likely to be a janitor than a banker and the child of a banker is much more likely to be a banker than a janitor. |
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> | The law both influences these determinations and is influenced by them. Continuing the example, the child of the banker is likely to remain a banker for many reasons, but some of them are created by the behavior of courts in enforcing laws such as those that allow for property taxes to pay for local schools, thus allowing wealthy families to have more money available to pay for education for their children. Furthermore, the banker child will have greater political and social capital to impact what laws are created and how courts behave than the janitor child, thus continuing the legal system that allowed the banker child to have wealth in the first place. |
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< | Impacts |
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> | How to study (and possibly change) the impact of courts on human behavior? --> Law should study the range of possible outcomes that can occur from court behavior. |
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< | To study the law and to just study how courts work and what judges say is to limit our understanding of the law, and in turn limit our ability to impact society. The law should be the study of how legal language, mechanisms, and institutions influence systems of human behavior. |
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> | Law is human behavior and human behavior leads to the creation of the law and human behavior is infinitely complex, but not entirely unpredictable. Since human behavior is based upon a series of bell curves of more or less likely outcomes the impact of courts can be studied by looking at what is the likely range of outcomes and if those outcomes are not ideal then considering ways to change the position of those bell curves to more socially ideal levels. |
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> | We stand on the cusp of a new wave of understanding of human behavior which is fueled by the greater understanding the neurology of the brain, the availability of big data, and computers powerful enough to analyze all this data. The law should be a part of this movement by focusing study on how legal language, mechanisms, and institutions influence systems of human behavior. |
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
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