Ordinary people are under the illusion that legal thinking is special. They shy away from it and put lawyers on a pedestal.
Laws are forms of knowledge. Nothing more and nothing less.
A Legal Rule Makes Things Happen
Legal rules are condition-action sequences, imprinted with a government stamp and held out to everyone in the jurisdiction.
- If you murder someone, you’re going to jail.
- If an official is corrupt, they lose the office.
People Make Legal Rules
Laws are ideas. Ideas are nowhere to be found until they are generated inside a person’s skull.
A legal rule makes things happen because people made the rule. In contrast, a rock crumbles over long spans of time not really because of what people do.
Laws Are Enforced Rules
For an idea to become a law, it must be enforced. That is done either through agreement or force.
But even the use of force requires agreement among the enforcers (police, judges, bureaucrats), political leaders (mayors, senators), and the taxpayers.
Legal ideas only work as rules so long as they are sufficiently similar to each other inside of the individual minds that enforce those ideas as rules. A legal rule only works, even when enforced via violence on the back-end, if enough good copies of it exist inside (in-)group members.
We Make Laws to Give Ourselves Options
Laws give options. Even to murderers.
A law is prescriptive, it is a type of claim evaluated for utility. In contrast, a legal theory or rationale is explanatory and it is evaluated for its truth.
A useful law is useful for reasons. A bad law is bad for reasons.
If the underlying legal reasons are bad, the law will be bad.
Rationality matters when it comes to lawmaking and legal analysis.
Laws Should Change
Any legal rule, more generally any prescription or any tool, will have some margin. It will have its day. Some range of reality, some set of physical objects, will respond to the rule.
A tool we think is useless now, like a rock as a weapon compared to a gun, will be useful in the future. Some ridiculous refuted theory might have some truth revealed to us in the future, revealed via criticism in dialogue.
We do not know how much of reality will falsify our current beliefs, because we do not know all of reality. And we cannot know it all because all our knowledge has relative value, as far as we know. As far as we have seen, every idea is comparable (and with enough time, compared) to rival ideas.
Ideas die out. And in open minds, they die out because a replacement came in for the kill. So every idea, including prescriptions, will run out their margins, their utility. All ideas are destined to become a cost structure that does not generate revenue. All tools are conditional, as are all forms of cooperation, including legal regimes.
This is why it is good to store past-generated theories. And legal rules. Because they offer options.
And when they are subsumed into grander theories, our storage needs go down. This is consilience.
Legal theorizing is subject to consilience as a process. We make legal rules and legal explanations. They accrue in a pile. And lawyers dig around and combine them in different ways. The pile is made smaller because of creative work, even as it is made bigger because of the same intelligence.
Laws then are a form of knowledge.
- Anyone can help make law.
- Anyone can understand a law.
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