Studying how law emerges in society and what its details are at any moment in time is worthwhile. But too much of what goes on in modern American law schools is akin to too much of what goes on in modern American graduate programs of economics: society is portrayed as a sick patient in need of caring intervention by social physicians who’ll cure this or that ailment, or who will perform reconstructive surgery on the patient to make it better and more vigorous than ever.People respond to incentives. Complex adaptive systems tend to do what they darn well please.
To switch metaphors: far too many law students – even more, I suspect, than economics students – think of themselves as learning how to use the tools of the state to mold the inert clay of society into forms more appealing to their own aesthetic sense of ‘right.’ Each such student is an example of Adam Smith’s “man of system” who remains oblivious to the reality that there is always underway a natural, spontaneous, unplanned, and highly complex on-going process of social activity – a process that, if interfered with by social engineers, is quite likely to react in unexpected ways that make matters worse.
The law student sees words in statute and case books and thinks he sees ‘the law.’ He sees robed judges, camera-followed politicians, and titled bureaucrats and thinks he sees the principal sources of society’s momentum and direction. He sees the police prevent domestic disputes and thinks he sees the means for preventing all social disputes. In fact, he sees mirages. He is blind to what what really matters.
That is all.