In a post entitled, “Follow the rules or do the right thing?”, Paul Campos follows up on a post, “From the three branches of government to the bidirectional nature of legal reasoning in a way that is similar to how statistics works, and should work, in the real world,” in which I wrote,
The standard characterization of the legal system, as I understand it, is that it balances on three stools:
(1) Structural ideas (fairness, stability, and various conceptions of the public good);
(2) Rule-following or, more generally, a paper trail or justification for any ruling; and
(3) Consequentialism (that is, good outcomes).
Campos and I talked about different implications of this structure.
In my post, I talk about statistical model checking, a topic on which I’m an expert, and I also speculate about legal reasoning, a topic I know very little about. Indeed, I’m pretty sure that I’m as ignorant about legal reasoning as Cass Sunstein is about economic theory. Which means that I’m qualified to write books on the topic and go on NPR regularly and give Ted talks and advise the government, but that’s about it.
Since I am neither an expert on statistical model checking or the legal system, I am perfectly suited to comment on this. I’m not clear on what is being considered the “legal system” here. We usually think of it in terms of the 3 branches of government and that the courts are the legal system. But, of course, the legislative branch passes the laws and the executive branch both implements the law and creates its own rules which are legally binding (but subject to review by both legislatures and courts). So, to me, all 3 branches are part of the legal system. We presently see debates about the relative roles for each branch. I propose that there is no clear unambiguous lines that can be drawn between which branch should do what – in fact, the debate is frequently played out concerning exactly such a question. The Supreme Court, according to some, should strictly apply the Constitution to actions taken by the other 2 branches. But, as Campos points out (from my understanding), that is always a political act subject to interpretation. Whatever action the Court takes, there is an option for subsequent actions by the other 2 branches to modify or correct what they see as a mistake made by the Court.
I take Andrew’s description of the legal system to not be confined the one single branch of the US government – it is the function of all 3 branches. The 3 points in his characterization of the legal system are often (always?) in tension. If something gets out of whack (a rule seems unfair, or an outcome of applying a rule seems bad, or doing good requires violating a rule, etc.) there are myriad opportunities to right the ship.
Which leaves me wondering why the system has become so dysfunctional? Or has it always been this dysfunctional? I don’t think it is fair to say (as I have said a few times) that we no longer have 3 branches of government. There are still 3 and they still provide some checks on each other – but those checks and balances now seem dysfunctional when viewed by almost everyone (though in directly conflicting ways). Was it always this way and I never realized it? If this dysfunction is new, what caused it? I’m inclined (subject to my initial caveat) to think that when one party controls all 3 branches, the legal system fails. Since one party control has happened before, did it always fail under those circumstances? Personally, I think the only way out of this morass is to have more than 2 parties. I’ve never understood how our 2 party system got enshrined the way it has – the Constitution does not seem to have been built around the 2 party system (or am I mistaken?).
Too many questions, I guess no Ted talks for me after all.
In the earliest days of the Constitution, Many of the founders believed that there was no need for political parties and that may be why the Constitution does not touch on them. How quickly they learned they were wrong!
You say “they learned they were wrong.” Now I’m wondering if the Constitution was designed to work only in the absence of parties, and with the creation of parties (especially two of them), it only works by accident. And our luck has run out.
Thomas and Dale: The Founders’ blind spot around parties makes more sense when you think of the historical examples of breakdowns of constitutional order that would have been foremost in their minds: the fall of the Roman Republic and the English Civil War. Both examples, broadly speaking, pitted a legislature against centralized dictatorial/monarchical power. The founders sought to channel the seemingly natural rivalry between the branches of government (whose powers they endeavored to separate more strictly than had been tried on a large scale before) to productive ends. At least to my knowledge, they lacked historical examples of parties (they tended to call them factions) in themselves threatening great harm.
Radical reformers have a history of thinking political parties would be rendered unnecessary. Is there any model of socialism, as a system and not just a set of reforms, that incorporates competing parties? My guess is that when people envision a better world, they assume that “better” means the same thing for nearly everyone.
One question we have to ask ourselves is what is the purpose of liberal democracy.
Domenico Losurdo took on that question and wrote this book: https://www.versobooks.com/products/2188-liberalism
I haven’t yet read past chapter 1, but that chapter resonated with me. Perhaps you’d find it interesting.