The Optimal Complexity of Legal Rules

Richard A. Epstein
2004 Social Science Research Network  
Legal systems must deal not only with the cognitive limitations of ordinary individuals, but must also seek to curb the excesses of individual self-interest without conferring excessive powers on state individuals whose motives and cognitive powers are themselves not above question. Much modern law sees administrative expertise as the solution to these problems. But in fact the traditional and simpler rules of thumb that dominated natural law thinking often do a better job in overcoming these
more » ... overcoming these cognitive and motivational weaknesses. The optimal strategy involves the fragmentation of government power, and the limitation of public discretion. Three types of rules that help achieve this result are rules of absolute priority, rules that judge conduct by outcomes not inputs, and rules that use simple proration formulas to allocate benefits and burdens. COGNITION AND MOTIVATION There is both an evident disjunction and a strong relationship between the disciplines of psychology and law. Psychology seeks to isolate the mainsprings of human behavior. Thus, it requires a detailed understanding of both the emotions, positive and negative, that influence behavior and the peculiar sensory and intellectual processes that allow people to make sense of the external world in day-to-day affairs. Often the cognitive and emotional sides of human beings work in tandem: sometimes people work better under pressure when their emotions lead to a heightened responsiveness to danger.
doi:10.2139/ssrn.546103 fatcat:6sb6hq5vybfyvp4cvwlo6lqfba