Law as No-Bias Theatre

Why is there law?   Some say for social justice, others for economic efficiency.  I suspect that "law is theater"; i.e., law is there to make disputants shut up.  When one person is mad as hell at another, law wants an outcome where neither they nor their friends yell and complain, and make the law look bad.  To achieve this, hard to understand legal processes make it hard to know what exactly to complain about, a long expensive process saps the energy needed to complain, and the option of endless appeals makes it unclear when to complain.

A complaining loser’s best argument is often "it wasn’t fair"; there was bias.  So law-as-theater predicts law-as-no-bias-theater; law will bend over backwards to avoid any possible appearance of bias.   How far does our law go in this direction?   Consider what law would be like with unbiased jurors.

If we expected jurors (or judges) to try their best to achieve social justice or economic efficiency, without substantial bias, we would have law, but not laws.  That is, there would lots of law, i.e., activity in a system for settling disputes, but few laws, i.e., rules about how to settle disputes.   The legal system would be simple:  you bring your complaint to a jury, you and your opponent each tell your side, and then the jury makes any decision they think appropriate.  Think King Solomon. 

Juries (or judges) would thus have complete control over the legal process.   They would talk to anyone about anything they liked, hardly limited by any rules of procedure or evidence.  Their final judgment would be any outcome they chose, based on any consideration they liked, hardly limited by any laws or precedent.  In fact, of course, law is nothing like this. 

Most of the legal biases that concern people are not due to juror interests.   After all, we can pretty much eliminate strong interest biases by just preventing jurors (or judges) from extorting disputants, or from sharing any substantial interests with disputants   Thus the structure of our legal system is driven in large part by fears of non-interest-based biases in juror beliefs.   

While we have built elaborate legal structures to deal with these supposed biases, legal scholars have spent almost no effort to document that such biases are real.  Legal rules constraining jurors are thus seen biases, justified as responding to unseen biases.   If the law were about social justice or economic efficiency, you’d think the legal system would study biases a lot more.   But if law is more about no-bias-theatre, needing only to make it hard for disputants to complain of bias, what would be the point? 

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  • Perry E. Metzger

    I have to disagree on on one point here — I don’t think an ideal system would have “few laws” in the sense of having few rules. I suspect that there would be quite a lot of rules based on precedent for particular areas.

    There are many potential areas for dispute in which several economically efficient results are possible. If you have a river going through your land, do you have the right to take as much water as you like? Do the people upstream from you get to take as much water as they like? Possibly, possibly not. If you have a home with a good view, that view is part of the value of your building. If someone wants to build another building that blocks your view, do you have the right to stop them? You have a plot of land, and I have a helicopter. I wish to fly over your land. Clearly if I go at 10km I’m not causing you any damage, but if I go at 50m I am probably violating your right to be left alone in peace — where is the line?

    There are a myriad of instances where you need rules — sometimes arbitrary rules — for setting out people’s rights in a particular situation. Coase’s theorem tells us that in many instances several different sets of rules will all be efficient, but we need, as humans engaging in commerce, to have specific rules chosen from the set of all possible efficient rules so that we know how to conduct our affairs.

    I think there is little reason to believe that common law systems would be “simple” or have only a few simple rules. There might be simple overall principles, but the specific law of who is responsible for the damage done by your cow if it strays onto my land might get quite detailed. This is as it should be.

  • Perry, I didn’t mean to say that ordinary people would not perceive themselves as constrained by legal rules; I meant that judges and juries would perceive few rules constraining their choices. If judges thought that legal rules were a good idea, they would choose those, and if they thought that an exception should be made in a particular case, they would feel free to violate any related rules.


    I did not understand the logic of legalisms until I understood the logic of stare decisis. To a rationalist accustomed to steady scientific progress, stare decisis is about as counterintuitive as any procedure can get.

    But it is not enough merely that laws be right. It is not even enough that laws be unbiased. Laws must be predictable to their inhabitants, or you can’t run a complex civilization around them.

    Not I disagree with Hanson about the huge importance attached to *appearing* unbiased, and how it encourages regulation. An interesting book about this (exact) subject is “The Death of Common Sense” by Philip K. Howard.

  • The failure of legal scholars to communicate evidence of such biases to the public implies that the public isn’t doing much to demand justice or efficiency.
    But it leaves a fair amount of uncertainty about whether judges are creating rules in response to biases that they routinely observe but rarely articulate. Posner seems to have made some serious attempts to show that judges are doing that. I have only skimmed his arguments and suspect he exaggerates but that there’s some truth behind his claims.

  • Remember the controversy over jury nullification. This is the legal principle that a jury has the power to set aside the law if it views an outcome as unjust, and acquit a defendant even if he is legally guilty. (I don’t think there is a corresponding power for a jury to convict someone who is legally innocent.) Jury nullification is controversial and I read conflicting opinions about whether it is legal in various circumstances. But to the extent it exists, it would seem to be a step towards Robin’s ideal, unbiased legal system.

  • Perry E. Metzger

    Robin says, “Perry, I didn’t mean to say that ordinary people would not perceive themselves as constrained by legal rules; I meant that judges and juries would perceive few rules constraining their choices. If judges thought that legal rules were a good idea, they would choose those, and if they thought that an exception should be made in a particular case, they would feel free to violate any related rules.”

    Actually, I think that would not be good. The issue would be that, as I’ve said and others have said, it is not sufficient that laws be just, they must also be stable. Several sets of legal rules may be “fair”, but if people do not know from week to week which set they’re going to see applied they can’t plan reasonably. Given that judges and juries are humans with all the failings that humans have, I would not want a system in which they were encouraged to routinely ignore the rules, because most people will not understand the need for stability in the system even if educated.

    That said, of course, I also don’t want a system in which they apply the rules blindly regardless of how unfair the results may be.

  • Perry, you are suggesting that if jurors were not constrained, they would be biased toward decisions that were too unstable. Jurors could of course consider the issue of stability and take it into account in their decisions, but you think that even so they would neglect it.

  • Robin, I think Perry’s position on that point is pretty reasonable. Jurors in a system with no binding written rules will not be stable enough for businesspeople to build a civilization, even if jurors are explicitly asked to take stability into account. I’ll believe otherwise when I see it.

  • Perry E. Metzger

    Yes, I think they would neglect it, or at least would do so enough of the time to be a problem. They are humans, not angels. Legal systems have to be designed so they can be operated by real people who are not always logical, have bounded intelligence, and do not always have information sufficient to make good decisions anyway.

    One of the reasons stable/functional legal systems are stable/functional is that they are spots in the design space where, even operated by generally fallible people, enough of the time the decisions are good enough that we get net economic benefit from the operation of the legal system. I don’t know that the US system was “designed” for this per se, but if it had failed at it we would have an economy in even worse shape than we already do. I suspect that the constraints our system provides, including the perceived constraints on jurors, the common law “stare decisis” rule, and the general stability these elements provide economic players in predicting the outcome of court cases, are critical features of the system.

  • Paul Gowder

    This is a very unusual way to think about the legal system. Am I the only lawyer around at the moment? I’m not sure. Anyway, I’ll take up the cudgel to defend it the legal system from this sort-of critique.

    At least in democratic countries, very few people would claim that the aim of the legal system is to produce a perfectly efficient result, or a perfectly socially just result. Rather, the aim is to express the will of the people (loosely), subject to certain constraints. Indeed, in a democratic system, the will of the people is the perfectly socially just result (again, subject to side-constraints and with the recognition that I’m glossing over a huge amount of political philosophy).

    The point of having “laws” telling jurors what to do isn’t because we think jurors deciding alone, Solomon-like, would be subject to some kind of bias. It’s because jurors, deciding alone, Solomon-like don’t have the right to subject people to coercive authority. Only representatives elected by the people have that right. It’s about legitimacy of the rules constraining the behavior of free citizens, not about maximizing some kind of good.

    That answers the point in this post with respect to substantive law — the kind of law that you and I are obligated to obey in our daily lives (thou shalt not murder, etc.).

    But what about procedural law (the rules of evidence, civil procedure, etc.)? Those only constrain jurors, and participants in the legal system often understand them as constraining the truth-finding function of a jury to correct for some kind of biases. But that isn’t their only function. They also promote predictability. The more consistent the rules, the more predictable the results and the costs, and the more efficient the system as a whole. (And whatever your opinion is about juror bias away from stability or not, it’s clear that a system with set rules is more stable than a system without them even holding the proclivities of jurors equal.) There are also other social goals that the legitimate (i.e. not jurors) political representatives have chosen for procedural rules. Example: rape shield laws. That’s a democratic decision by legitimate representatives that people who say they’ve been raped shouldn’t have their sexual history aired in public, period.

  • I’m not saying that you all are wrong about juror bias against stability, just pointing out that your position fits my basic claim.

    Paul, lots of law does not come from elected representatives, so that apparently isn’t consider the only legitimate source.

  • Paul Gowder

    Robin, yes, but all law in democratic countries ultimately is in the control of elected representatives. If elected representatives don’t like the common law, they can (and do) change it. If they don’t like constitutional law, they can (and do) change the constitution. Once again, I’m glossing over a lot of theory here, but the point is that the substantive laws we have are tracable to elections in a way that pure jury decision making wouldn’t be.

  • Yan Li
  • Perry E. Metzger

    To Paul Gowder: you may find that a number of the participants in this discussion have very unusual views of law, the origins of law, the purposes of law, etc.

    To abuse an old joke, just because you’re a lawyer, why do you think you understand law? 🙂

    More to the point, a lot of people here have backgrounds that lead them to analyze law in terms not of “the will of the people” but rather in terms of evolutionary theory, economic theory, and other similar non-standard bases.

    I have to say that, in general, I find “the will of the people” an unsatisfying and uninteresting basis of analysis, not only because in general a democracy does not reflect the will of the people, and not only because if it did reflect the will of the people it would cause enormous harm given what the will of the people is usually like, but also because law evolves in numerous instances in which there is no such thing as democracy at all.

    Taking just one important example, most international commercial law has come not from the will of any nation of people but rather from evolved norms among those engaging in trade. The modern practice of jurisdictional shopping in selecting the choice of laws for contracts reflects not the “will of the people” but rather the will of the counterparties. All this tends to make the idea that the “will of the people” is important seem rather flawed. In your theory, the act of endorsing a check came about because of the great “will of the people” and elections, but in reality it has no such origin at all — it came about because of decisions in private merchant courts hundreds of years ago, courts that were operating entirely outside of governments let alone democracies. The fact that the UCC codifies such things is much more a product of the consensus of merchants wishing to maintain needed stable frameworks for trade than the “will of the people”.

    On other related topics, I suggest that you read Oliver Wendell Holmes book on Common Law some time, in which he not only explains that judges often make law in the guise of interpreting it but the fact that it is almost impossible to avoid a system in which judges make law this way. This activity of judges predates democracies by thousands of years.

    Anyway, enough on that for now.

  • Paul Gowder

    Perry: I’m familiar with the fact that judges make law. The point is, again, that all these things you identify are ultimately accountable to legitimate legislators, once again, in a way that jury fiat would not be.

  • Perry E. Metzger

    I’m far from sure that I believe in this “legitimate accountability” concept.

    First, there is the question of whether you think voting is a way of conveying legitimacy in the first place. If the majority votes to kill all the atheists, is this “legitimate” just because we think “democracy” is somehow more “legitimate” than other forms of statism? I would argue that at best you can argue that a strong government, be it a democracy or some other type, has the power (as a practical matter) to introduce and enforce laws. “Legitimacy” is a philosophical and moral question.

    Now, on the question of practical questions, can just “any” set of laws work? I would argue no. The US has a strong, generally enforceable legal system not because of “legitimacy” but because enforcement of the legal system as it is constructed is in the interests of most of the participants most of the time. If it ceased to be in the interest of most people to cooperate with the system most of the time, the system would disintegrate. That means the space of laws and legal mechanisms that are feasible is much smaller than the breadth of all possible laws.

    You say, “Perry: I’m familiar with the fact that judges make law. The point is, again, that all these things you identify are ultimately accountable to legitimate legislators, once again, in a way that jury fiat would not be.”

    I deny that the important accountability is to the legislature — the important accountability is to reality. Laws that ignore what can and can’t work either fail to be enforced or cause serious damage to society.

    Right now, lots of international contracts pick New York in their choice of laws, because New York’s laws happen to be particularly good for these purposes. Certainly the New York State legislature could “legitimately” (at least in some people’s eyes) screw up the legal system in New York, but then people would pick another jurisdiction on their contracts in their choice of laws, and those businesses based in New York itself would either be damaged or leave. Saying that the legislature can do what it wants is much like saying that anyone who wants to can choose to eat what they want. Certainly you can “choose” to eat either bread or rat poison, but if you eat rat poison, you won’t last for long. The legal systems that result in thriving economies and such are not arbitrary. The “choices” of the legislature are constrained, and when those constraints are violated, society suffers.

    So the question is not one of democracy, but one of economic analysis of law. “Legitimate accountability” is a matter of perception, but what functions is not merely a matter of perception. What is primary is what will lead to a thriving society, and that has little to do with the whims of an often irrational populace and legislature, and much more to do with what actually can work in the real world.

  • Paul Gowder

    Perry: I’m not going to try and defend the whole worth of democracy to you here. Nor am I going to get into a critique of the utilitarianism that motivates that comment. Both are way beyond the scope of this forum, and would be incredibly lengthy and time-consuming to boot. I’ll leave you with this. If you believe that — all else being equal — a democratic government with policy X is better than an undemocratic government with policy X, then it follows that legal decision X made by a legislature is better than legal decision X made by a jury. How much better, and whether that would make up for any overall loss of efficiency, and whether there’s even a coherent comparison to be made between the virtues of democracy and the virtues of efficiency — those are different questions.

  • Why on Earth would a democratic government with policy X be better than an undemocratic government with policy X? The whole point of democratic governments is that, though they don’t produce good policies, they produce better policies than autocracies, oligarchies, etc. If you fix the policy in place I don’t care whether the government is a giant green fire-breathing monkey.

    To the extent that you view democracy as divinely blessed, you will not be able to optimize it as a social technology judged on its real-world consequences.

  • Paul Gowder

    Eliezer: A democratic government policy X is superior to an autocratic government with policy X because a democratic government expresses the autonomy of its citizens. I don’t deny that, over all, democracies also produce better policies. Nor do I deny that the creation of better policies is a good reason to prefer democracies. Nor do I deny that a democracy with a better policy is superior to a democracy with a worse policy. My claim is simply that all else being equal, the fact of being a democracy has some value in itself.

  • Perry E. Metzger

    Paul says “A democratic government policy X is superior to an autocratic government with policy X because a democratic government expresses the autonomy of its citizens.”

    That assumes, implicitly, that “expressing the autonomy of the citizens” (whatever that means) is a primary value. I’m not sure why I should believe that. Indeed, I deny it.

    What people really want is good laws and legal systems. Democracy is a tool — nothing more or less. If it produces better results, good. If it does not produce better results, then defending it is mere religion rather than based in a rational consideration.

    Paul says that “My claim is simply that all else being equal, the fact of being a democracy has some value in itself.” I’m not sure I buy that. It is only true if you have some sort of mystical attachment to “The Collective Will Of The People”. I can’t see why one should care about “The Collective Will” — indeed, I think one often needs protection from said collective will.

    Paul also says that he “[doesn’t] deny that, over all, democracies also produce better policies”. I’m unsure about that, too. Sir John Cowperthwaite did wonderful things for Hong Kong as, effectively, its financial dictator. Perhaps democracies produce better policies, and perhaps they don’t — I would say that is an assumption rather than a proven hypothesis.

  • Paul Gowder

    Perry, can you suggest a better place to discuss this than here? I’m happy to discuss this with you, but not so much to veer about 100 miles off-topic here.

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