The Core of American Law on a Single Page

Professor Michael DeBow, Cumberland School of Law, Samford University

Archilocus, an ancient Greek poet, famously said, "The fox knows many things, but the hedgehog knows one big thing."  I recommend taking the hedgehog's approach in studying law -- especially if you are a beginning student.

I would argue that the "one big thing" is that Americans live free and prosperous lives because our government and our legal system are based on the concepts of private property ownership, freedom of contract, and limits on government's power.  Historically, the United States has been more serious about preserving these ideals than other countries have been.  Although our allegiance to these principles has eroded terribly in the past 70 years or so, the U.S. still outperforms other societies in this way -- in a relative sense.  How long this will remain so is open to question.[1]

We can expand this "one big thing" into two sets of rules-of-thumb that law students can use to study and analyze every course in the curriculum!

*  Three rules to use when thinking about private law (property, contracts, business organizations, commercial law, etc.):
1.  People respond to incentives, and the most effective way to give people an incentive to work, save, invest, etc., is to allow for private property ownership.  Private property promotes development, growth, and prosperity to the maximum extent possible.
2.a.  All voluntary exchanges make both parties better off.  This win-win aspect means that there are always "gains from trade" from free contracting.
2.b.  Life is mostly composed of the search for these gains from trade.  People tend to use "cost-benefit analysis" in making decisions in this search.
3.a.  In private law areas, most of the legal rules are framed as "default rules" rather than as "mandatory rules."  A default rule is a rule that may be "contracted around" by parties who desire to do so.
3.b.  Default rules may as well track what most people would agree to do, if they considered the issue.  If law fails to track what most people want, then people will contract around the law (assuming the cost of such contract negotiation, etc., is not prohibitively high).  (This is "Coasean contracting.")

*  Three rules to use when thinking about public law (constitutional law, administrative law, government regulation of business, tax, etc.):
1.  Because no one's vote can determine the outcome of an election, almost everyone will choose to remain "rationally ignorant" about most of the details of Politics and Government.  As a result,
2.  American politics is mostly about private interest groups seeking favors from government.  (This is "rent-seeking.")
3.  Rules 1 and 2 help explain those who want no more than a "Nightwatchman state" -- one concerned only with national defense, domestic police, protection of private property rights.  Currently in America, we have a great deal more government than this.

* For more, see American Classical Liberalism and Its Eclipse, in 34 Quotations and A Hedgehog's Legal Glossary.

Copyright (c) 2007-13 Michael E. DeBow.
    [1]  Why should you care?  Consider this, from British journalist Walter Bagehot in 1876:  "The characteristic danger of great nations, like the Romans and the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions that they have created."