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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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.

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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.

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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.

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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.

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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.

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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.

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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.

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This is law in a poet's eyes ...http://users.crocker.com/~s...

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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