Natural Law view.

 

• Natural Law view.
• Positivist view.
• Historical view.
• Legal Realism view.

• 1. The Natural Law School emphasizes a moral theory of law.
• 2. The Historical School believes that changes in societal norms will be reflected in the law
• 3. The Analytical School emphasizes the application of logic to the facts in each case.
• 4. The Sociological School proponents are realists, believing that laws are a tool to shape social behavior and looking upon precedence with disfavor.
• 5. The Command School believes that, rather than being a reflection of current social norms, laws are enforced by the ruling party to maintain their power structure.
• 6. The Critical legal Studies School, which views laws as a barrier used by the powerful to maintain the status quo, rather than applying arbitrary rules of what is fair.
• 7. The Law and Economics School, which promotes market efficiency as the central goal of legal decisions

Once you have done this we will move to the second and more interesting part of this assignment, which is for you to begin to develop a perspective for thinking about the law. If for example someone asked me today what my perspective for thinking about the law is I would answer with something like what follows:

Voluntary exchange is the foundation of human progress. Douglas North was correct when he argued that a society that is supportive of impersonal trade will be wealthier, freer, and develop far more rapidly than a society that does not have institutions that are supportive of impersonal trade. The law should seek to enable impersonal trade.

Basic economics teaches us that externalities are real and markets can and do fail. However, in seeking to use the law as an instrument to remedy market failure one must be very cautious. As the Coase Theorem shows us in the absence of perfect competition in choosing between the market outcomes and government regulation we are often choosing between two flawed alternatives and government is not necessarily the less costly of these two imperfect choices. Therefore law is an imperfect instrument for enabling exchange.

The law is one institution that we have developed that enables us to engage in voluntary exchange with larger and larger groups of people, and thus by increasing the pool of people that we can trade with the wealth of society is increased. However, the experimental economists have shown us that the law is only one of the institutions that we have built that enables trade, we have also developed many informal mechanisms and institutions that enable trade. For this reason one should carefully consider the consequences of disrupting or challenging the spontaneous order with the law. This does not mean the law should never challenge or disrupt established institutions, it simply means that this sort of action should never be undertaken without considering whether the informal institution might not severe a useful purpose and accepting the possibility that legislation may bring about an even worse state of affairs. As F. A. Von Hayek has shown us unforeseen consequences can make legislation brought forward with the best of intentions a force for ill rather than good.

 

The law is subject to manipulation and can serve as an instrument to transfer wealth to those who while they may not be the most productive are the most adroit and manipulating the law. From public choice and agency theory we also learn that from within the law is subject to manipulation by attorneys who because of information asymmetries are at times able to use a case to serve their own ends rather than the ends of their clients, the law is subject to manipulation from without through regulatory capture and legislation that is proposed to further the good of society may in fact serve the interests of the regulated.

For these reasons the law is a limited instrument for achieving social justice and advancing the common good of society. While law is critical to economic development, too much law is detrimental and impoverishes society.

The second part of your assignment is to begin to develop a perspective like what you have seen above. However, before proceeding with the assignment there are three things that I would like you to keep in mind.

First, you do not need to agree with me. I can give you a list of individuals who are smarter than I, more accomplished than I, and whose work is of far more significance than mine who would tell you that I am wrong or partially mistake n. In class you will hear me mention at different times Vernon Smith, Gordon Tullock, Richard Posner, Douglas North, and Robert Frank. During various lectures I cite some piece of work they have done with approval and will use it to help us understand a point we are dealing with. Every one of these people mentioned above is a far better scholar than I and would tell you that my perspective is flawed in some way or another. Two of them have pointed these perceived flaws out to me in work I did for them as a student and two of them have told me I was mistaken in conversation. Thereason I mention this is to point out that the purpose of this assignment isn’t to agree with me, if you have other opinions you will probably be in good company. The point of this assignment is how you reach your conclusion not what conclusion you reach. I want to know what you think, not what you think I want you to think.

Second, I don’t expect your perspective for thinking about the law to be as developed as mine is. I have been thinking about this for over twenty years, you have had a month. When I was a junior in college my perspective on the law would have been far more passionately held and far less nuanced. I would not have conceded that markets could fail; I did not recognize the role that informal institutions play in providing order; and as I had recently discovered that there is indeed a linkage between economics freedom and property rights and individual liberty I would imagine that my perspective at the time would have been a relatively unsophisticated but heartfelt defense of property rights. I have grown over time as I continue to learn and I hope you will too.

Third, why are we doing this? Understanding the law by simply memorizing a series what seem to be arbitrary rules without considering them in the context of a greater perspective or purpose is of little value, and a difficult and tedious process. However, if you begin to think of the rules of the law as they relate to some overriding perspective of what the law should be, what the law is becomes clearer. By understanding rules in relationship to a perspective they become more coherent and easier to understand. From the vantage point of a perspective we may think the rule is correct, we may find it flawed, but we will be able to put it into some sort of coherent context, which will make it easier to remember and understand. It is difficult to know a good rule from a bad one, or right from wrong in the absence of some perspective or another. Doing business well, being good a business requires that one bring high level critical thinking skills to business problems. Assignments such as this help you develop the ability to bring this type of thought to bear on whatever problem you happen to be focused on.

 

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