Ernest Svenson's Jurisprudence Challenge

"Ernie the Attorney" posted this quote and asked for comments. Here are my rough attempts at comments.

The quoted sentences are the work of Grant Gilmore, though I can't tell you where he said it, and I have to confess it took a bit of research on my part to track down who wrote it. From what I can tell, Prof. Gilmore was perhaps best known for his work on the Uniform Commercial Code. (A permutation of the syllables of his name yields the name "Gil Grantmore," a nom de plume for usually lighthearted writing by a small cadre of legal academics among whom I count a few friends.) Since I don't have access to more of the source material, I'm going to work on Gilmore's quote as Ernest quoted it, without any additional context.

I don't think that Gilmore's comments are very helpful from a jurisprudential standpoint. Perhaps his statments serve as a lament that people are not very adept at coordinating their social interactions without socially enforceable (and enforced) rules. Perhaps it's a complaint that there are lots of people who are (a) nasty, (b) stupid, and/or (c) careless, and that having these people in society means we need lots of laws. Perhaps it also laments that laws have collateral social costs. I'm not sure that it does much more, though, and I think it is so simplistic as to be misleading.

I find it hard to pigeonhole myself, but I guess one might say that I am generally a philosophical pragmatist; I believe that the good of any jurisprudential analysis lies in its ability coherently to explain what this "law" thing is that we work and live with and to advise us how we might best think about it, live with it, and work with it. I tend toward positivist modes of analysis, but I am not so naive as to think that the realists and crits don't have some good points to make. I think that any explanation of law must be rooted in carefully contemplated observations about the realities of human experience.

Gilmore appears to be saying at least two things at once. Part of the quote has to do with the values of a society being reflected in its laws. "The values of a reasonably just society will reflect themsleves in a reasonably just law. . . . The values of an unjust society will reflect themselves in an unjust law." These statements go to the quality of a society's laws, and are unremarkable. I'll just say that these statements are probably more likely to be true if a society is democratically organized than if it is not. They also fail to account for the rules that themselves establish law and organization. (Consider in this regard H.L.A. Hart, The Concept of Law.)

Gilmore also says, "The better the society, the less law there will be. . . . The worse the society, the more law there will be." These statements directly relate the quantity of law that a society has to the good nature of the society. This is a much more complex question.

Has the good society no use for governance? True, much law exists to counteract things that we affirmatively believe to be evil. If those evils could be removed by the inculcation of social values, or at least by social pressure based on those values rather than on the threat of punishment, then we would have no need for those laws. (One could still make a positivist argument that in that scenario, a different kind of rule of law has been imposed.)

However, even in that scenario we would still have a need for social coordination. One good example of this is the very sort of commercial law in which Gilmore himself specialized. Would we have no use for the UCC in a better society? Yes, a lot of what's in the UCC is there to deal with cheats and scoundrels; but a lot of it also serves to provide formal legal tools for people to transfer property and responsbility and to allocate risk of loss.

In imagining a hypothetical "good" (or at least "better") society, we can imagine away some of the evils; but we cannot imagine away mistakes and accidents. We cannot imagine that all costs are internalized. To hypothesize away all social costs and all risks perhaps does imagine away all need for law. However, that is not an imagined "good" human society, for it has been deprived of all of its humanity.

Gilmore's statements lose sight of the fact that a large amount of law exists to deal with social and technological complexity. I can only imagine that his vision of a good society would be a much simpler one than the one we live in. Or are we to imagine away all economic externalities, all transaction costs, and all failures of judgment? To what end?

Gilmore's comments are tinged with normative content in addition to [attempts at] descriptive content. Without context, I can't read more into the last sentence by Gilmore that Ernest quoted. Perhaps Gilmore is telling us that acts of governing and of enforcing laws themselves impose social costs and are often destructive. Laws restrict freedom of human action. Having to know all the complex laws that apply to a given situation is hard for a lawyer and even harder for the layperson -- at best this results in people anxious about whether they will overstep the bounds of law. A judicial system is expensive to run. "Correctional" systems spew social costs, not least upon their inhabitants. I can't tell if this is what Gilmore means.

If only I had the time, I'd love to take this further and to try to use Gilmore's statements as stepping-stones to describe the sorts of conceptual tools that I think are more useful in jurisprudential thought. For now, though, I have to stop, and I can only say I do not think that the quoted statements by Gilmore are especially helpful contributions to jurisprudence. They don't pay any attention to the wide variety of kinds of rules that we have, nor do they distinguish among the reasons that we have those kinds of rules.

In our world, people misjudge, people make erroneous assumptions, people have widely varying aptitudes, people hurt themselves, and people hurt each other -- intentionally, negligently, and accidentally. All transactions and activities have costs. Often, some of those costs get imposed on people other than the ones directly participating. We can try to imagine societies where this might not be so, but we wouldn't be imagining societies of people, and we wouldn't be making any progress towards addressing the problems that people face.