Law in Contemporary Society

There are Two Laws

-- By LukeReilly - 30 May 2015

In a year of law school I have simultaneously been taught two different visions of the law. And I can't take it.

Law the Board Game

What is a Board Game?

A board game essentially consists of a system of rules and a goal. The rules dictate the acceptable behaviors and actions of the participants, telling them in what order certain events happen or choices are made. The goal gives the participants a guiding principle, telling them which of the allowable actions they should choose. Crucially, the methods of using the rules to achieve the goal is nonobvious; even if you understand all the rules of chess, checkmating an opponent's king is dependent on the choices you make within the confines of those rules.

Thus, each board game has a sort of "meta-game": learning how to manipulate the rules to produce the desired outcome. Certain choices are more or less likely to lead to the player achieving the goal, and so her meta-goal is to figure out the best system for winning. Depending on the game, this can range from trivially easy (Tic-Tac-Toe) to incredibly difficult (Go). The best players of a game are those that understand the most about the underlying system and how to exploit it to accomplish the goal.

So Why is Law a Board Game?

To most lay persons, and indeed to many 1Ls (including me to an extent), this is a perfect description of the legal system. Law is a set of (rather complicated) rules governing the interaction of its participants. It is slightly different in that there is no universal goal; each individual in the game has her own goal. But the principle of the meta-game is the same; the better players are those who have learned how to manipulate and exploit the rules of the system. If a client wants to divide property in a certain way, the lawyer must know the systems of estates and trusts and how to phrase a document that will produce the exactly correct division.

And the thing to realize is that, for much of our 1L year, this is how we were taught law. Or at least, it's how I was taught. Contracts, Property, Civil Procedure, and more were all merely lessons on the rules of the game. To be sure, the complexity of the legal system, taken as a whole, far outstrips any board game in existence.* But that is why we, as lawyers, devote our lives to understanding it. So that we may best manipulate it to achieve our ends, or those of our clients.

To be sure, we are given reasons for many of these rules, rooted in all sorts of philosophical concepts. But again, no board game consists of arbitrary systems either. If the player thinks hard enough she will understand why you collect $200 whenever you pass GO, and you can dig down into the history books to find the origins of the en passant rule. The important thing is that, in the moment of using the rules to achieve the goal, we do not care why the rule is what it is. We only care about the result.

And this is perfectly fine. It's what I expected coming into law school. But it's only partially what I got.

Law The Rhetorical Exercise

The problem with the board game analogy is simple: we are taught that law is more than a game. We assign value to it, because we as a society believe that it should embody certain ideals. Justice. Democracy. Personal Autonomy. And because we believe that law is so important, we are willing to ignore the rules.

Law is malleable. My first law professor impressed that upon me day one. The rules exist only insofar as we allow them to. Doctrine can be twisted or outright broken in service of a purpose. We need not take the rules as given, and they should carry no weight simply by being the rules.

Lawyers exist not to argue within the rules; they exist to argue what the rules are and should be.

And being taught both of these things at the same time is maddening.

The Question

This dichotomy is not new. Shades of it exist in the ever-present "Rules vs Standards" debate that has been pounded into our heads, and we've been talking about it here all semester.

But the question I have is what precisely do professor's believe they are teaching? Because I am not a cynic when it comes to my teachers. Even the worst teachers I've had, and I have had some atrocious ones in my life, had a goal in their teaching. In their heads, they believed that they were imparting a particular something onto their students. So what? We've spent a semester talking about what we believe law is and what professors are actually teaching, but what do they want to teach? What do they believe they are teaching? What's the goal here?

*Although The Campaign for North Africa might theoretically have it beat.

Some Notes (if you're interested)

The essay says that a conflict between metaphors is indicative of an equal conflict in the comparand. But all you've shown in fact is that your metaphors collide.

Law is the name we give to a loose collection of phenomena joined by lawyering, the effort to make things happen in society using words. It is less distinct from other processes of persuasion, like selling and swindling, than might at first appear. Law school is a collection of processes intended to educate people who do lawyering. What law professors intend is beyond me, after more than thirty years, so I'm not surprised it isn't clear to you. My answer now is the same as it was in law school: so what?


Webs Webs

r3 - 29 Jun 2015 - 21:46:40 - MarkDrake
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