April 09, 2004
Law & _______
Posted by Gordon Smith

Nate Oman has a post on legal theory that is worth reading over at Tutissima Cassis. He tries to explain the success of law and economics in late 20th century legal thought and the relative lack of success of other law & ______ possibilities, specifically law & anthropology. Nate asserts that legal academics want a form of "Newtonian social physics" -- where they can "hold the world constant, change one law, and see what would happen" -- and they get something like that in economics.

But, as Nate observes, what legal academics get in economics is not really Newtonian, in the sense that one can reason deductively from a set of certain principles. Instead, it is Popperian in the sense that the focus is on falsifiability. Law & anthropology, by contrast, is not motivated by a desire to create falsifiable propositions, but rather meaningful interpretations of society.

One missing piece to all of this: why have law & _______ at all? Traditional legal reasoning and scholarship provided answers that were more-or-less determinate. The process was heavily inductive. Like a scientist observing the movements of the stars, legal scholars read judicial opinions and drew from those observations a set of general principles. These principles were tweaked and refined by treatise writes and code drafters to produce much of modern law.

This traditional scholarship has much the same flavor as law & anthropology, but the problem was not so much the absence of predictive power (after all, we could assert that future judges should follow the principles established by the past judges). Rather, the problem was the lack of normative bite. So, while law and economics provided useful tools for describing and evaluating the consistency of past decisions, its magnetic appeal derives from the sense that it offers normative hope.

By the way, as you undoubtedly know, over the past few decades, economics has become increasingly the domain of mathematicians. The following landed in my emailbox tonight at the hands of Stuart Macaulay: "In my youth it was said that what was too silly to be said may be sung. In modern economics it may be put into mathematics." R. H. Coase, The Firm, the Market, and the Law 185 (Univ. Chi. Press 1988).

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