The cost of law

Reading how Peter Williams was harrassed to death and Matthew Parris's account in the Times of his dealings with Leveson, the question arose: is the legal mindset a positive menace?

By this I don't mean that our laws are arbitrary and repressive, or that some lawyers are venal or incompetent. Instead, what I mean is the (over-)emphasis upon the idea that correct procedures, rules, must be followed - that what matters is due process or following codes of conduct.

This is costly. Not least is that due legal process is slow and expensive and thus imposes large costs even upon the just and innocent. Simon Singh might have won his case against the BCA eventually, but he suffered months of stress, expense and distraction. The fear of such costs leads people to avoid even the small risk of litigation, with the result that journalists are cowed by the mere threat of libel actions, missing children are not found, school trips cease, volunteering is discouraged and companies are paralysed by a fear of litigation.

It's not sufficient to point out that such fears are often based upon misunderstanding; it's entirely reasonable for people to want to avoid a small risk of the high cost of finding out.

Yet another cost is that, just as financial rewards can crowd out other motives, so law can crowd out ethical behaviour. Philippe Aghion and colleagues have shown how regulations can breed distrust, as companies behave to the letter of regulations rather than spirit.

Just as due legal process doesn't prevent guilty people being acquitted or innocent ones convicted, so regulations and codes of conduct don't necessarily guarantee that business will behave well. The highly regulated pensions industry, for example, continues to rip off savers, and journalists might be right to fear that a post-Leveson code of conduct will do little to promote good journalism.

Rules do not guarantee virtue or wisdom. The coalition's fiscal policy, for example, is lawful - but it is uninformed by evidence or rationality.

In light of all this, it shouldn't be surprising that there's some evidence that large numbers of lawyers can be bad for long-term growth (pdf).

What I'm saying here is that lawyers are not necessarily objective arbiters of trust or efficiency. They have their ideologies and blindspots just as any professionals do - a stress upon rules rather than virtues, and on processes rather than outcomes.

In saying all this I am not denying that there's a place for a legal mindset. There certainly is. But this mindset must not dominate society, any more than should the mindset of engineers, doctors and - yes - economists. To believe otherwise is to commit the fallacy of deformation professionelle. My concern is that the pomposity of the legal system - "the majesty of the law" - and politician's fetish for judicial inquiries prevents people seeing this.

Comments

[Metatone]

The two most common mindsets in our House of Commons is the legal mindset and the PPE mindset - indeed an Oxford PPE mindset. (The PPE mindset covers a lot of political journalism too.) This often feels like one of Britain's bigger problems.

As an aside (which we have covered before) do you have any thoughts on why the Oxford PPE seems to have created the particular mindset it has, with only rare exceptions?

[petermcl]

There are a number of metaphors that apply here - babies and bathwater, the best is the enemy of the good, Isaiah Berlin's conflicting ideals. My point is that the fundamental underpinning of democratic society is the rule of law. As absolute a conviction as I can express. Then we come to application, and things become messy for the reasons given. There is no answer save: reserve due process for serious matters - and we have an idea what serious matters are, like murder trials, or indeed civil cases where parties have a lot of money to spend. If they want to spend it on due process let them. I agree entirely on using common sense on lesser matters. So the system should be above, that is, it should contain its servants (the lawyers). In the every day, common sense rules - ie, less regulation rather than more, with, I guess, the option, if anyone feels seriously enough, to apply a bit more due process. The system works through transparency, common sense, and everyday vigilance - and we certainly need less officiousness and less regulation.

[rogerh]

Good point, the cost and uncertainty seem a major problem. Perhaps if all legislation were placed free on the WEB we might find that free 'apps' to clarify the more common problems will get developed. Perhaps some clever souls would automatically analyse the corpus of law for inconsistencies - and give parliament something useful to do.

Certainly if one segment of society spends a great effort creating rules and another segment spends great effort getting around those rules then not much has been achieved. Worse, when government drafts rules that ensure stated policies do not in fact get implemented (see social care etc) then distrust is generated. Cynicism seems rife.

In the end humans have a propensitiy to cheat and lie to get their way and the law goes some way to controlling this - but we must remember that those drafting and implementing the law have a propensity to cheat and lie too and this propensity seems an unbalnced advantage.

[chris]

@Petermcl - I agree. What I was calling for was less law. It's no accident that the strongest advocates of the rule of law (eg Hayek) have tended to want less of it.
@ Metatone - As a PPEist myself, I think I'm too close to the subject to see what a PPE mindset it; the in-group heterogeneity bias applies. This isn't to deny that there is one - just that someone else will have to point it out. (Clue: in my 3Y at Oxford - 1983-86 - I never heard mention of Hayek, tho' I'd read the Constitution of Liberty at school).

[Luke]

Chris, commenting on your comment, would less law lead to fewer lawyers and less lawyering/litigation? I'll take a guess that over 60% of litigation is debt collecting or injury claims, which aren't caused by regulation. And lots of litigation booms are caused by technical or commercial change - eg people sue surveyors when there's a property crash.

Completely agree that judicial inquiries aren't a universal solution- I'd tentatively suggest they're useful for finding out what happened, but useless for deciding what should happen.

I think you may miss a problem with a legal mindset - bias for precedent and against change.

[Anonymous]

Yeah, but if we did not have complex laws that only clever people can understand where would those clever people be employed?

Clearly not in wealth creation.

[botzarelli]

Rogerh - for practical purposes all English legislation is available free of charge online and there's a lot of online commentary available too.

The more that activities are regulated and rights and responsibilities in specific circumstances are sought to be brought under the control of the state, the greater the need for lawyers. Deregulate and lawyers are out of a job.

The alternative is to trust to those responsible for enforcing regulation to "do the right" thing and not to question their decisions. However, that is a recipe for arbitrariness which makes the regulations themselves less important than the extent to which we can trust decision-makers to make fair decisions.

It is tempting to first kill all the lawyers, but it risks accepting a different tyranny.

[Ian Preston]

Chris, I did PPE a year ahead of you. I remember covering Hayek under Political Theory. In particular, I recall reading John Gray's then recently published Hayek on Liberty. Hayek was very far from being central but he wasn't unmentioned.

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[Keith]

We could abolish private property. Then no one would need Law; no land law as it is common land, so no rent, no contracts, no copyright, or patents. No criminal Law as most of it is to protect property rights in various forms.
No state in fact. Any takers?

If you require state power to enforce these rights Law would seem unavoidable. But you could for example finance Scientific research and development by Taxation and give the results away free. Thus abolishing patents. You could try it with artistic creation and abolish copyright and pay artists a salary and award prises to them.

It strikes me that some of your points have been addressed in the legal system as many disputes can be resolved by arbitration and that is common in commercial Law. With resort to the courts on matters of Law rather than fact or specialist expertise. Also some oppressive Laws such as sodomy have been abolished in the uk at least reducing the scope of state oppression and restrictions on Liberty. Family Law is a mess as in reality you cannot patch up relationship breakdown between adults and the legal system does a poor job. In breach of contract money damages can be adequate remedy as the bargain is a commercial deal. A marriage is often called a contract but is not really any more but a sex/ emotional pairing that money cannot compensates for if it fails. Most Family disputes probably should be resolved by negotiated compromise with conciliation to avoid adversarial court proceedings. But some legal remedies are needed for violent and abusive behaviour of the adults and monitoring of child welfare when there are children. Neglect is not Liberty.

The idea Law can be made very simple so Lawyers can all be hung is a common delusion; factual disputes soon become complex and so does Law and applying the latter to the former is not open to simplification. The main problem with Law is access for people who are not rich. But there is no easy answer to that. How about a Legal NHS paid from general taxation? Any takers for that? Abolish court fees and charges too and substitute taxation? You can try to reduce "red tape" but every disaster, fraud, and mistake in the public or private sector leads to calls that "something must be done". And "something" always requires Laws rules administrative work by the civil service etc.
So dream on about removing the red tape. Or hanging the Lawyers; it will not happen.

[Sean]

The problem is Legalism, a religious doctrine of law brought into the secular world.

We are now trying to use the law to shape human behavior. The laws pursuit of the unfortunate Mr Williams was to set an example and deter others rather than deal with Mr Williams.

Technocrats see the world through rules rather than principles.

[shtove]

I heard Niall Ferguson say recently that the law had become for the benefit of lawyers.

My reaction? You haven't been in a UK court lately, mate.

Since the early '90s the involvement of lawyers in civil litigation has been seriously eroded through the legal services acts. Large solicitor firms have sucked up most remaining business and work their employees like battery hens (mostly women stuck in front of computer monitors).

Since the late '90s the formality of most legal proceedings, including reliance on precedent, has been ... diluted. Here's the relevant guidline from procedural rules - the "overriding objective":
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01

This has resulted in increased secrecy in the admin of justice - most proceedings are in chambers rather than open court - and a target-driven bureaucracy.

And the trend continues, with Ken Clarke saying that the system is too confrontational.

I say let there be more confrontation - it might have stopped the bankers if they had to answer to the courts rather than to the regulators. How expensive will that disaster prove?