Why do you stop at red lights?

I recently asked a co-worker this question when we were talking about law.  It went something like:

Me:  Why do you stop at red lights?

Her:  Because it’s the law.

Me:  You mean the law as in the rules on the books?

Her:  Of course.

Me:  Do you drive the speed limit?

Her:  Well close to it.

Me: But over it, right?

Her:  Well, yeah, doesn’t everybody?

Me:  Okay. Are you still sure that you stop at red lights because it’s a rule that’s written down?  You just admitted that you don’t follow another written down rule.

Her:  Not really.  So, why do I stop at red lights?

Me:  I’m going to give you a choice.  I can give you the answer and the way you look at the world may change.  Or, I will not give you the answer and you can go on believing the world around you behaves in a way that it does not.

Her:  Okay, quit the Matrix b.s. and tell me for crying out loud.

Me:  Well.  There’s a couple reasons you stop at a red light.  One is your own safety.  You know that you don’t stop at green lights.  And you know that nobody else does either.  So, if you ran red lights, the direct consequences could be great and you could do you and others serious harm.  The main reason you stop at red lights is because it pays off well for you to do so.

Her:  Okay.

Me:  Another reason is that at some point in time, the color red became associated with stopping in traffic.  No central body sat around and said red lights will be the standard for that.  It emerged somewhere as a practice and stuck.  As far as I know, most traffic laws are passed by city and state governments.  Yet, somehow, without a centralized standards committee on traffic signaling, red emerged as the signal for stopping and green for go.  And it’s just not in the U.S.  It’s pretty much everywhere there’s traffic — other countries, railroads, airport runways, boats and so forth.  So, that’s why you stop at the color red.  (This website claims that the traffic signal was adapted from the railroad by an innovative officer in Michigan).

Her: Okay.  So what’s your point?

Me:  My point is that you, like most people, think you stop at red lights because “it’s the law”.  It is in a sense, but not the sense you are thinking.  You are thinking of legislation, or the law that some governing body has written down on paper.

However, if we investigated all legislation, we’d probably find many “laws” that we break.

You stop at red lights because “it’s the law” in the sense that it’s an evolved social norm.  This norm evolved to help keep us safe.  And it works.  Do you know how I know it works?

Her: I bet you’re going to tell me.

Me: Because we still practice it and it more or less keeps hundreds of millions, if not billions of people safe.  I’m guessing if we looked into history, we might find that there were other things tried, but they didn’t work as effectively.

Roundabouts and cloverleafs, for example, also seem to be effective ways to handle intersections in traffic, the real estate and additional construction cost probably doesn’t make them as cost effective as traffic signals.

Laws are really developed in the crucibles of human interactions and emerge as social norms, customs and practices.

They rarely emerge from legislators or judges, even though most people think that’s exactly where they come from.

Her:  Gee.

This conversation was inspired by this lecture from Don Boudreaux:

The video is worth your time.  If you don’t have that kind of time to sit at the computer, then you can also download an EconTalk podcast from 2006 that’s essentially the same material.

Listen to it if you want to escape the Matrix.

What is judicial activism?

What is judicial activism?  Thomas Sowell answers in his recent piece, The “Judicial Activism” Ploy.

“Judicial activism” is a term coined years ago by critics of judges who make rulings based on their own beliefs and preferences, rather than on the law as written. It is not a very complicated notion, but political rhetoric can confuse and distort anything.

In recent years, a brand-new definition of “judicial activism” has been created by the political left, so that they can turn the tables on critics of judicial activism.

The new definition of “judicial activism” defines it as declaring laws unconstitutional.

It is a simpler, easily quantifiable definition. You don’t need to ask whether Congress exceeded its authority under the Constitution. That key question can be sidestepped by simply calling the judge a “judicial activist.”

A judge who lets politicians do whatever they want to, whether or not it violates the Constitution, never has to worry about being called a judicial activist by the left or by most of the media. But the rest of us have to worry about what is going to happen to this country if politicians can get away with ignoring the Constitution.

He then provides a history lesson on how government began diverging from the Constitution about 50 years ago.

The Tenth Amendment to the Constitution says that the federal government can do only what it has been specifically authorized to do by the Constitution. Everything else is left to the states or to the people themselves.

Nevertheless, back in 1942, the Supreme Court said that because the federal government has the right to regulate interstate commerce, the Department of Agriculture could tell a farmer how much wheat he could grow, even if the wheat never left his farm and was consumed there by his family and their farm animals.

That case was a landmark, whose implications reached far beyond farming. If the meaning of “interstate commerce” could be stretched and twisted to cover things that never entered any commerce, then “interstate commerce” became just a magic phrase that could make the Tenth Amendment disappear into thin air.

For more than half a century, courts let Congress do whatever it wanted to do, so long as the politicians said that they were regulating interstate commerce.

Darwinian Common Law

Last week I had a discussion with Ed Darrel about law.   In response to the Supreme Court Justice Oliver Wendell Holmes’ quote that his job is not to do justice, but apply the law, Ed wrote:

…in western law, we have given judges the ability to apply justice where the law fails — which is, by the way, where we get common law.

I asked by whose judgment do we determine when the law fails.  Ed responded:

We use the judge’s judgement.

I should have pointed out that the parties in dispute determine when law fails.  When they cannot reach an agreement privately, they then may decide to bring their dispute to court to be settled by a judge.

I then confused the term ‘common law’ with law when I wrote that I believe ‘common law’ emerges from custom. Ed wrote:

Common law is judge-made law, not custom…

I agree that judges codify common law through their judgments in court cases.  However, I still contend the true source of common law is custom or evolved social norms.

The view that law, in general, emerges from evolved human interactions is that of economist F.A. Hayek and others.  Don Boudreaux (an economist with a law degree) does a great job of laying out his own Hayek-inspired emergent order view of law in the video I linked to in this post.  At the 20 minute mark, Boudreaux defines law as:

Law is socially imposed constraints on behavior, that emerge from everyday, ordinary human behaviors, and that become embedded in widespread expectations.

When deciding a case that will become a part of common law, judges try to make sensible decisions.  How do they do that?

They listen to the arguments from both sides, consider the judgments on similar prior cases, refer to social norms as a guide among other things.  But the key is that evolved social norms weigh heavily on judgments that will set precedents for future similar cases.

In this interview with Richard Posner, regarding his book How Judges Think, Posner said (emphasis added):

American judges operate in a setting of extreme uncertainty, which forces them to exercise an uncomfortably large amount of discretion, casting them often in the role of de facto legislators. They are reluctant to admit that they are (as I call them in the book) “occasional legislators,” and have been skillful in concealing the fact from the public, being abetted in this regard by the legal profession, which has an interest in depicting the law as a domain of sophisticated reasoning rather than, to a considerable extent, of politics, intuition, and emotion. The secrecy of judicial deliberations is an example of the tactics used by the judiciary to conceal the extent to which such deliberations resemble those of ordinary people attempting to resolve disputes in circumstances of uncertainty. The concealment feeds a mystique of professionalism that strengthens the judiciary in its competition for power with the executive and legislative branches of government, the branches that judges like to call “political” in asserted contradistinction to the judicial branch.

What do ordinary people do when attempting to resolve disputes?  They heavily consider what is customary.

It’s not always perfect.  None of us perfectly adhere to social norms.  Sometimes we modify existing norms which might result in a new norm.  That’s what makes it an evolutionary process.  And one of our evolved social norms is when we cannot settle a dispute on our own, we seek the help of a third party.  Sometimes those are judges.

Maybe a better way to make the point of norm-based common law would be to ask this question:

What do you think might happen if judges made arbitrary decisions that had no basis in social norms and customs?

I don’t think it’s a stretch to imagine that judges and the legal system would quickly lose credibility with the people.  We might even see the rise of alternative dispute resolution methods, like private arbitration (hmmm…).

All I can say is that I for one feel more comfortable with judges who agree with Oliver Wendell Holmes on the matter.  Especially in cases where codified law fails (or doesn’t exist), I’d much prefer a judge who thinks his role is to discover the existing non-codified law that is “embedded in widespread expectations” than the judge who thinks he can make it up as he goes.

Boudreaux on the Law

Don Boudreaux of Cafe Hayek linked to this video talk of his a few months ago at the Future of Freedom Foundation website.

Update: The above link no longer works, but the speech is posted on YouTube:

I linked to it then as well, but the post was on a different topic and I’ve had a hard time finding it so I thought I’d re-post to make it easier to find in the future and because I think it’s worth while.

It came up again in an enjoyable exchange I’ve been having with commenter and fellow blogger Ed Darrel on an earlier post (which is inspiring a new post).

In the video, Professor Boudreaux lectures on what he views as the source of law.

After watching it, you might better understand why you stop at red lights and drive above the speed limit.