Introduction
For over a hundred years, American law has been characterized by an explicit reliance on fields of learning outside of law to examine and criticize governing legal rules, and thereby bring about reform in those rules. Rejecting the notion that law is an independent, self-contained system, this external examination of law—leveraging a perspective from outside law to offer a critique of legal rules—has and continues to bring about salutary changes in law. Such an approach to law is neither only American nor particularly new.
Nevertheless, its explicit recognition and use since around 1900 in the United States,
and its gradual acceptance in other countries that for a time and for important reasons adhered to a view of law as a self-contained and unchanging system,
has been the dominant form of legal scholarship in the last century.
Not surprisingly, the criticisms of existing law and the proposals for reform derived from the use of outside fields have had their effect on lawmakers. Whether from the perspective of legislatures enacting statutes, administrative agencies drafting regulations, or, perhaps most dramatically, the courts, what outside fields have suggested the law should be has had and continues to have significant effect. And, by and large, outside fields are a good influence on law, as worn-out rules, based on past power relations and even plain incorrect judgments, have been overcome. Indeed, I have been a strong proponent and employer of one outside field, economics, as a basis for advocating for legal reform.
That said, looking at law from the standpoint of any given outside field—what I call a “Law and . . .” approach—is not without its perils. And it is on two of these that I would like to focus. The first derives from a confusion between the role of the legal scholars who develop these outside fields and the role of lawmakers. The second, which will be the principal topic of this Lecture, is the possibility that, attracted to outside fields as a cure for law’s ills, law forgets to question the validity of theories developed by outside fields. And, in doing so, law overlooks that much as it can use outside fields to question existing paradigms in law, law can and should also force outside fields to question their own underlying assumptions.
Let me address briefly the first of these perils. When scholars, of whatever field, write articles that seem to demonstrate that existing law is incorrect or even immoral, the answer of the lawmaker should often be: “Perhaps, but let’s move slowly.” You have heard it said that lawmakers should “let justice be done though the heavens fall.” But that is nonsense. A lawmaker, whether a judge, or legislator or an administrator, who caused the heavens to fall would be kicked out, and extremely quickly. Scholars, the developers of the “Law and . . .” theories I will be discussing, instead have the job of writing, the duty to say, what they believe to be true and to do so, “though the heavens fall.” They can and must do so, precisely because lawmakers may and usually read such scholarship with skepticism and caution. The heavens don’t fall, and the scholar can write what might cause the heavens to fall, because the lawmaker in the first instance says “it sounds good, but he never ran anything, or she never met a payroll.”
Law (and hence lawmakers) is and should in this sense be conservative—not in an ideological sense of the word—but in the sense of moving slowly.
The fact that major changes in law—even if correct, and so demonstrated to be by scholars of fields outside law—are deeply disruptive of people’s lives is a very good reason for law to react to what such scholars have written with caution. When lawmakers act too rapidly they may do egregious harm, even if in the long run radical change is warranted.
Scholars often don’t like the fact that wise lawmakers treat their work skeptically. They don’t realize that their freedom to write and propose radical change exists exactly because they are often, in the first instance, ignored. My own reaction—when some of my early writings in Law and Economics and Torts were accepted, and quickly, by courts—was the opposite. I thought then, and think now, that what I wrote was correct. But I worried that too early and quick adoption of what I proposed might do more harm than good.
This, then, is the first peril of the “Law and . . .” approach. Lawmakers, even if convinced that the outside field has correctly demonstrated errors in the law, must move to update the law slowly so that the heavens do not fall. Too often, lawmakers move too fast. Law must adapt and change in response to proper criticism, but it must do so always keeping in mind the disruptions that change—even in some sense ultimately just change—brings about.
My main focus in this Lecture, however, is on the second peril of law’s reliance on fields outside of law. That is, that law and lawmakers must always question the validity of the outside field’s theory. The fact that the law does not conform to the outside theory may be because the law is wrong. But it may also be because the outside theory is incomplete, limited, or insufficiently nuanced.
“Law and . . .” should operate as a two-way street, leaving no paradigm, whether in law or an outside field, unquestioned. This peril is the same, I think, regardless of whether the outside field is economics, philosophy, or history—to choose three particularly dominant “Law and . . .” approaches.
The manifestation and effect of this peril on legal rules—its “legal process” operation—differs according to the particular outside field employed.
The recognition of the peril, however, has not been as explicit as to all of these “Law and . . .” approaches.
In this Lecture, I will begin by discussing this second peril as it has manifested itself in Law and Economics. I do this as it is here that the peril has been most clearly criticized.
I then move on to examine what I believe to be the same, but perhaps less recognized, peril in Law and Philosophy, and Law and History.