Now Tom is up, describing the origins and nature of law. Tom says (correctly) that we get law from many different sources, and he suggests that we should to think of law as a service industry in which we can choose among service providers – much as we choose between Amtrak and American Airlines (Tom’s example).
What worries me about this approach (aside from the obvious fact, which Tom would never deny, that law is often imposed on us without our consent) is that it relies a bit too much on the model of contract law, in which the people making agreements agree on the rules in advance. The model of tort law, in which the paradigmatic example is an accident between strangers, highlights the difficulty: law, unlike other services, deals fundamentally with relations – often disputes – between two or more people. If they already have an association prior to the dispute, they can potentially agree on a means of resolution beforehand. But if not, they may choose different sources or conceptions of law. Resolution of the dispute after the fact requires choosing between them or reaching a compromise. One typical approach is to rely on hypothetical consent – what rules they would have agreed upon, if they’d had the chance to agree in advance (possibly in conjunction with all the other persons with whom they might have had a dispute like the present one). But as Tom clearly explained earlier in the lecture, hypothetical consent raises its own set of thorny problems.