A Locked Door

-- By HollyStubbs - 26 Feb 2013

There is no law

There is no law other than what people believe to be the law, or more precisely, law doesn't exist outside of the changes of behavior that are influenced by individuals' (both collectively and on a personal level) belief of what a law is.

I don't understand this statement. It seems not to take account of the State's monopoly of force.

What we think of as 'law' is a series of systems (moral, legal, political, etc.) that influence current and future human behavior.

Law is a based upon belief: A Locked Door

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.

Over what period of time? The door is only locked if, in the long run, when somebody finally tries to open it, it won't open. A question not actively being investigated has not been answered.

This is like the law. If people believe that the door is locked then they act as though it is locked. 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.

Certainly not. Everyone in Manhattan behaves as though the "don't walk" sign meant "don't walk unless you want to." This is not actually the law. Every merchant in Manhattan behaves as though all sales were final. This is not the law either. In most of the United States, speed limit signs are universally understood to apply only to other people. This is nowhere at all the law. Almost everyone in the English speaking world thinks "finders keepers." This is exactly opposite to the law almost everywhere.

Far more technically interesting and perfect examples could be given. More importantly, it could be shown convincingly that the opposite of your premise is an absolute requirement for the existence of any actual legal system.

Therefore, what a legal code says is not what dictates the law, nor even how courts interpret that legal code. What matters is what people do. Thus abortions are not legal or illegal they are available or unavailable, marijuana is smoked as medicine or burned by the police, people are put to death by the state or they are not. What we think of as the law is really the impact of millions of actions by individuals. 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 abortion was the law.

This isn't very helpfully expressed. Abortion for that woman was a choice. But in the course of the analysis you jumble several jural entities into the word "law," which is where the confusion comes from. A little Hohfeldian Analysis would probably help. In this case, the "right to an abortion" is a Hohfeldian immunity against state-imposed limitations that pose an "undue burden" on getting an abortion, but not a Hohfeldian power to impose a duty to provide abortions on any individual or corporate entity, and a Hohfeldian no-right to receive any form of state-provided health care insurance or benefit that would pay for abortion-related services. This can be determined on a purely formal basis, from the judicial decisions and statutory provisions, and requires no resort to behavioral data of any kind.

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. What matters is how they act.

Matters for which purpose?

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.

In multiple systematic ways, which will be at variance. That's the point of seeking consilience.

Law is a series of systems: A Stop Sign

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.

Not true if there are cameras, correct?

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.

Over what period of time? In the long run you would observe the consequences of enforcement, whatever they may be. You would then discover also the correlation between behavior at this STOP sign and behavior at the other STOP sign in this two-horse town. Over there, the cops park a couple hours a day, and bust everyone who runs. The cops, you see, noticed the same correlation, because cops are not stupid and they live on the street. They realized long ago that they didn't have to stake out both STOP signs to ensure perfect enforcement. Pretty soon you realize that what you observed back in your first hour at STOP sign #1 gave you a lousy understanding of the situation, and that—as William James put it—truth is what the investigators are fated to agree upon in the long run. Your graf above is at fault for trying to see the world in the blink of an eye.

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 a $50 impact whether or not people stop or don't stop.

My friend the econodwarf would here explain to you that you're at fault for talking about "$50." If you replace that with "$50 times the expected probability of apprehension," everything will work just fine. In this instance, the econodwarf can be tested empirically, with interesting results you might want to look for. The cops parked over at STOP sign #2 know very well that it isn't the $50: it's the points on the license. Anything that increases the probability of loss of driving privileges (which can mean loss of livelihood for a worker) is to be avoided far more than the monetary penalty.

You run the stop sign or you don't run the stop sign: the power of a legal system and a written legal code is that it shapes whether or not you run the stop sign. It doesn't determine whether an individual stops or doesn't stop, but it influences it. The written law is not the only, or often, the most powerful influence on human action. 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.

This whole paragraph could be summarized as: "Law is a comparatively weak form of social control." So?

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.

Impacts

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.

What sort of conclusion is this?

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I think the best way to strengthen the essay is to get absolutely clear and precise about the central idea. Let's put it in a sentence, and put that sentence at the top of the next draft. Let's use the rest of the first graf to show the reader why it's important. Development and illustration of the idea may well use material from the existing draft, but I have a hunch the context would feel rather different. The conclusion should give the reader a way of taking the idea further under her own steam. It's all in here, but you need to be more precise about quarrying it out.

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