Legal Research

The Unimportance of Law

By Simon Fodden

Is law important?

Clearly the print media don’t think so. Look at the way in which they carve up our world — and you’ll look in vain for a category or a main topic-head, let alone a section, for law or for its fuzzy cousin, justice.

The home page menus for the big newspapers offer you a collection of stories on politics, the economy, sports, style, arts, science, cars, weather, and sometimes education and health. But never law. To look at how six highly respected English language newspapers (the Globe and Mail, the National Post, the New York Times, the Wall St. Journal, Times Online, the Guardian) map importance, click here to pop up a composite image.

Is the press right? Maybe law and justice are insufficiently important in the scheme of things to rate a hotlinked rubric of their own. What follows is a longer than usual blog post in which I speculate in very broad terms about what might be going on with the lack of law as a label for things that matter.

One possibility for the absence is that law is an underpinning, a substructure in society the job of which is to fashion and support other features and thrust them into prominence. No one notices — or wants to have noticed — the humble chairs and tables of our lives, the belts and bras and braces that help us present our personas. In this, law might be like engineering. There’s no section in any newspaper on civil engineering, to say nothing of plumbing or carpentry; yet such things are essential.

But that isn’t quite right. After all, law, unlike engineering or medicine, is all about words, the meat and drink of newspapers. And, in spite of a tendency to jargon, law talks in a language that most of us use much of the time, particularly as it broadens out into the delta of justice. Yet, the underpinning notion leads to some following thoughts about practical efficacy.

I remember being startled early in my academic career by the title of an article by John Griffiths, “Is Law Important?” [54 N.Y.U. L.Rev. 339 (1979) PDF]. He makes some interesting points which might go some way to explaining these newspapers’ neglect of law. I won’t drag you through the piece, but the abstract will give you a sense of what he says. (If you’re tempted to pursue his ideas, you’ll find he helpfully outlines his argument in point form at the beginning of the article.)

Instrumentalism is the belief that legal rules are important because they cause social phenomena. It has come to dominate modem thought about law, especially in the United States. . . Professor Griffiths . . . concludes that the instrumental effects of law are probably of only marginal importance and interest. He proposes a new conception of the relationship of legal rules to social phenomena: a conception in which legal rules no longer stand in an essentially causal relation to those phenomena, but are rather seen as an inseparable aspect of them.

Because this is a blog post, after all, I want to dig my way back to the surface now and play with the idea that law can change things — that it is a form of social engineering. This was certainly a popular notion in the decades just before and after the Second World War. Don’t like the way things are? There ought’a be a law. Being a Star Trek fan, I think of Jean-Luc Picard pistoling his fingers and saying: “Make it so.” I suggest that although this notion that laws cause social change still persists — our government changes the Criminal Code to “get tough on crime,” for example — it’s force has been on the wane since the sixties. There’s now a general, though largely unarticulated, sense that the law isn’t effective in the way we might have wished. And the sister sense is, then, that therefore law is not important, or, as a newspaper might say, doesn’t merit our focal attention in a section of its own.

What does merit that, though, is something that wasn’t even considered a few years ago: technology. Look again at the menus I pictured above, and you’ll see that five of the six grant a seat at the high table to this relative upstart. One reason for that — and for the astonishing pace of IT development — is the apparent efficacy of technology. Everyone loves a winner, and technology is winning the day in the cause-and-effect stakes. Technology is changing our lives in a way that law apparently cannot.

Of course, the bulk of this change is a collection of “unintended side effects,” but even so, we are fascinated. There is an illusion of control: at the level of daily life “there’s an app for that”; and at the level of government, there are scanners and CCTV and tasers and packet sniffing . . . And if control is lacking, and it is lacking at all levels, it only serves to appeal to our irresponsible selves: technology appears and changes as if it had a mind of its own; there’s nothing we can do. Whereas, law and justice are clearly social artefacts: they only happen if people decide it; and though our same irresponsible selves pretend that we could have no impact on law and justice, we cannot get rid of the nagging fact that this is mistaken.

(It’s curious that for both law and technology there is a wish to be ignorant, the one based on esthetics, the other on inability: “No one should see how laws or sausages are made” (wrongly attributed to Bismark); “Any sufficiently advanced technology is indistinguishable from magic” (Arthur C. Clarke). We want our effects uncaused.)

The failing here, of course, is that we miss a real and serious importance of law and justice, one that technology cannot match no matter how whiz-bang. Griffiths points to law’s role as a producer of collective goods. What I see here is its function as an occasion for talk about how we should conduct ourselves, its function as a more-or-less continuous, thoughtful conversation about boundaries and aspirations. Words and thinking are the critical elements here, two things that law prides itself on providing in society. Law and justice are not alone in this, of course: science, education, and literature join the chorus. But law’s voices are important; they may not blind us with science; they do, however, bind us. No matter what you read in the newspapers.

Full post as published by Slaw.ca on December 09, 2009 (boomark / email).