#8: On the Empty Idea of Law
March 5, 2024
Cambridge
Fred again.. – Delilah (pull me out of this)
This week I’m going to start digesting the intellectual experience of law school. It’s kind of like the mirror of Erised from Harry Potter: you get from it whatever you’re looking for. I wanted to understand American law better. Our law makes some people rich; it lets some die; it creates and it kills. I wanted to take the law apart, figure out what it was, and put it back together. The most important thing that I’ve learned in my time here is that there’s no such thing as law.
Imagine there’s a local law that says, “It’s illegal to throw out your garbage in another person’s trash can.” You’re walking down the street, looking to get rid of an empty potato-chip bag. You see a trash can in front of someone else’s house and surreptitiously deposit your garbage. Some nosy, overeager tween has been following a few steps behind you without you realizing. He taps you. “You can’t put that there,” he says. “It’s the law.”
What does he mean? One of two things.
The first possibility: he’s telling you about rules. Not good rules or bad rules, just rules. Chess has rules; soccer has rules; swimming pools have rules. Our society has a lot of rules. So do the worst countries to live in (as do the best). But the simple fact that a rule exists doesn’t mean you ought to follow it. They’re arbitrary. There’s nothing wrong with a kid using a chess set to stage imaginary battles that flout the rules for how chess pieces can move or with a teacher educating girls in a society that prohibits it.
The second possibility: he’s telling you about morality. This law isn’t any old rule, it’s a special kind, one that you should follow if you want to be a good person. Even if there’s nothing inherently wrong with throwing out your trash in someone else’s can, even if you disagree with the rule and think you should be able to dispose of your trash in any receptacle, there’s something inherently wrong with ignoring rules of this special kind. For example, once you’ve agreed to play soccer without using your hands, it would be wrong to score a goal with your hand—even if you campaigned against the handball rule before you began to play. But for rules to become the special kind that morality requires a person to follow, they must come from a particular kind of process—and nobody bothers to ask whether our laws come from that process.
“Law” refers to both of these things—what a rule means, and whether we ought to follow it. But they’re really different from each other. As a result, law is an extremely slippery concept. In particular, it enables us—all of us—to slip freely back and forth between its two meanings, either willfully or subconsciously. Someone can say, as a neutral claim about the content of rules, “the law says x.” At the same time, someone can say, as a claim about how we ought to act, “the law must mean not x, because x is deeply wrong, and a law worth following could not mean something so wrong.” Because it can mean both x and not x at the same time, law as a concept is ephemeral, useless, fictitious.
Law doesn’t actually resolve disputes. When it favors the outcome that we want, we point to the neutral-rules conception of law. When the neutral-rules conception opposes the outcome that we want, we point to the moral-guidance conception. But everyone—the proponents and opponents alike—can honestly claim to be “doing law.” Doing this empty thing, rather than actually resolving what we disagree about, is confusing and unproductive.
More in a future week!