What Is the Law?
Contents
Introduction
When does a good man have a duty to obey the law? Oliver Wendell Holmes Jr. wrote an article in Harvard Law Review around 1890 famous for its "bad man theory of law". The article, titled "The Fact of the Law," was about the question of what law is. His answer was that for lawyers the question is what will happen to someone if they take a particular action--- say, to use a modern example, he drives 75 miles per hour on I-69 between Indianapolis and Evansville. If he would be stopped and fined, the law forbids driving that fast. If he would not, then the law says driving that fast is okay. It doesn't matter what the signs say, or what the Indiana Code says: what the law *really* is, is how the government treats you when drive that fast.
When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things.
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.
Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact.
Take again a notion which as popularly understood is the widest conception which the law contains—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. But what does it mean to a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. But from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing?
Holmes was from Massachusetts, a state which, though 1897 was dominated by rich Unitarians and poor Roman Catholics, was founded by Puritans, and he knew the principles of Christianity even if he may not have believed in them. He knew that Christians were freed from The Law and that all men are sinners. In particular, he was keenly aware of the difference between Law and Morality. He also knew that in reality there are no Good Men and Bad Men. Those characters are inventions for analytic convenience, like Homo Economicus in economics or the frictionless pulley in engineering or the Perfectly Elastic and Perfectly Inelastic billiard balls in physics. Each of us is motivated both by cold self interest and by a desire to do what's right, so each of us is both the Bad Man and the Good Man. Indeed, this idea is even older than Christianity or Judaism, since it is part of natural law. In one of his dialogs, Plato talks about inside each of us there is a team of two horses, the Good Horse and the Bad Horse, one pulling us to Platonic love, the other to unnatural lust. Law is for the Bad Man, Holmes says, Morality for the Good Man.
But even Holmes, I am sure, would modify his position if pushed. He is simplifying even further. Even the Bad Man needs to worry about social norms and about his own conscience, and a good lawyer will tell him not only about the Law, but about the extralegal consequences of his actions, including whether he will be able to sleep at night. Holmes's point is that the good lawyer will also make the difference utterly clear: here is what The Law will do to you, here is what else will happen. And even the Good Man needs The Law. He needs it not only because he is not perfectly good, so he needs threat of punishment to keep him on the straight and narrow so that he will not do things that displease God, but also because The Law is useful even if it does not punish.
John Calvin proposed “the three uses
of the law” in his 1536 Institutes of the Christian Religion.
Calvin’s first use of the law is to maintain order, to control the bad
man. The second is to convict men of sin— to reveal their inability to deal with the evil within them. The
third is to educate, to provide a guide to how to behave for someone sincerely wanting guidance.
I am prompted by confusion over face masks.
Obey the Ruling Authorities
The Bible.
Who Has Authority?
What if the statehouse and governor of Alaska pass a law saying that I, in Indiana, must wear a mask in stores?
What if the governor of Indiana says I must wear a mask in stores, without any law passed by the legislature?
What Does It Mean to Obey the Law?
Types of Laws
Statutes, regulations, divine law, natural law, caselaw, lawless commands.
"Creating and Enforcing Norms, with Special Reference to Sanctions," (with Richard Posner), International Review of Law and Economics, > 19(3): 369- 382 (September 1999). Two central puzzles about social norms are how they are enforced and how they are created or modified. The sanctions for violation of a norm can be categorized as automatic, guilt, shame, informational, bilateral- costly, and multilateral-costly. Problems in creating and enforcing norms are related to which sanctions are employed. We use our analysis of enforcement and creation of norms to analyze the scope of feasible government action either to promote desirable norms or to repress undesirable ones. http://rasmusen.org/published/Rasmusen_99.IRLE.norms.pdf
Speeding
Covid Masks
Expressive Law
Eric B. Rasmusen, "Law, Coercion, and Expression: A Review Essay on Frederick Schauer's The Force of Law and Richard McAdams's The Expressive Powers of Law." Journal of Economic Literature, 55 (3):1098-1121 (September 2017). What is law and why do people obey it? Frederick Schauer's The Force of Law and Richard McAdams's The Expressive Powers of Law, consider alternative motivations fo law. While coercion, either directly or in its support of internalized norms, seems to dominate law qua law (and not as a mere expression of morality), a considerable portion of law serves other uses such as coordination, information provision, expression, and reduction of transaction costs. http://www.rasmusen.org/papers/expressive-law-rasmusen.pdf
"An Economic Approach to Adultery Law," Chapter 5, pp. 70-91 of Marriage and Divorce: An Economic Perspective, edited by Antony Dnes and Robert Rowthorn, Cambridge: Cambridge University Press, 2002.A long- term relationship such as marriage will not operate efficiently without sanctions for misconduct, of which adultery is one example. Traditional legal sanctions can be seen as different combinations of various features, differing in who initiates punishment, whether punishment is just a transfer or has real costs, who gets the transfer or pays the costs, whether the penalty is determined ex ante or ex post, whether spousal rights are alienable, and who is punished. Three typical sanctions, criminal penalties for adultery, the tort of alienation of affections, and the self-help remedy of justification are formally modelled. The penalties are then discussed in a variety of specific applications to past and present Indiana law. http://rasmusen.org/published/Rasmusen_02.BOOK.adultery.pdf
