About this blog: We’re conditioned to think of the law as
clear-cut: guilt or innocence, right or wrong, truth or lies. But as
Leo Katz shows in “Why the Law Is So Perverse,” recently released by University of Chicago Press, our legal system is full of shadows and riddles. Katz, the Frank Carano Professor of Law at the University of Pennsylvania Law School, sheds some light here on four perversities of the law.
Reality is gray, but the law is black and white.
It’s either a contract or it isn’t. It’s either self-defense or it isn’t. At least that’s how the law pretends it is. Whereas we all know that reality is full of cases that are not so clearly one or the other. Yet the law insists on being either/or.
It is tempting to think this must be so because the law has to draw sharp, bright lines so people know where they stand — whether what they are doing is legal or illegal. But the lines the law draws are sharp without being bright. In controversial cases, which are the only ones that come before a court, we only know that a decisive line has been crossed once the court so holds.
Everybody hates loopholes, yet the law abounds with them.
Arguably loophole exploitation is most of what lawyers do. Whenever a client comes to them because something he wants to do is either prohibited or too highly taxed or carries some other distasteful consequence and can the lawyer please do something about that, what the lawyer does for him is a form of loophole exploitation.
It is tempting to think that loopholes exist because rules are so hard to draft in a loophole-proof way. But that’s not likely to be the true reason. Conduct that smacks of loophole exploitation abounds elsewhere in life: Whenever we deceive indirectly rather than by lying outright, what we are doing smacks of loophole exploitation. But it makes no sense to say that the Big One Up There, who told us not to lie, did a poor job of drafting his commandment, and so we can get away with deceit so long as we don’t actually lie.
The law does not punish villainy, unless it happens to be a felony.
There is much that is harmful and which we strongly disapprove of, but would not dream of making illegal. Even if we condemn it much more harshly than stuff we do make illegal. Take the extreme ingrate, or the malicious gossip, or the parent who poisons his child against a divorced spouse. In fact take most of what outrages us about the villains of most fiction. We feel more strongly about such villainy than we do about many real felonies — like theft or even worse crimes.
It is tempting to think that ingratitude, malicious gossip and the like are just too vague to make illegal. But they are not any more vague than, say, the idea of a negligent injury, which is all the law requires for a doctor to be liable.
It may be a win-win transaction for everybody and his uncle, still the law often forbids it.
Kidney sales, the rental of a womb, gambling, indentured servitude, prostitution. Even when the parties fully know what they are doing; even when no third parties are hurt by it; even when there is no obvious exploitation involved.
It is tempting to think what libertarians argue, that the law gets it wrong here, but maybe not. Many paradoxical things would follow if we really did allow all win-win transactions. It would mean for instance that it would be all right to offer a prisoner the opportunity to be tortured in exchange for having his prison sentence shortened.
It is tempting to think with regard of all of these perversities that good laws should not have them. But as it turns out, trying to rid the law of them is as logically futile as trying to make all the children of Lake Woebegon above average.
Follow Steven Levington on Twitter @SteveLevingston