Can a Society Be Too Focused on the Law?

Lawyers vs. Engineers. Infrastructure in America, China and Europe. Edmund Burke and the Revolutionary War.

This is related to the book review I posted yesterday, and in order to get the full context you may need to read it first.

I.

There are numerous metrics where Europe (and Japan) sit at the upper end. Less developed countries reside on the lower end, and the US comes in behind Europe, somewhere in the upper half. Examples of this distribution include things like:

• Infant mortality

• Social Spending

• Life expectancy

• Healthcare access

• Road traffic mortality

• Educational Outcomes

• Murders

Given the large number of metrics that all show this distribution, one is led to expect some overarching factor that ties them all together—something like civilization maturity. Certainly there’s long been a narrative where the US is the new, young, and vibrant country while Europe contains countries that are older and more sclerotic. At first glance this would seem to explain the differences I just mentioned. Older countries like their comforts, they’re more cautious, and less accepting of risk.

Based on the description I just presented, you might expect that the number of lawyers would follow a similar distribution. Mature civilizations would have developed more rules and regulations, they would be more intent on getting things done right. Their risk aversion would have spawned laws around risk, which lawyers needed to litigate or interpret, etc. But of course this is not the case. The US has far more lawyers per capita than most European countries.

Why would this be?¹

What are the consequences?

II.

Let’s start with the second question. We see many of the consequences in the book I reviewed yesterday: Breakneck: China’s Quest to Engineer the Future by Dan Wang. Wang’s central premise is that China is a nation of engineers while America is a nation of attorneys. And while America has around twice as many attorneys per capita as Europe, it has twenty times as many as China. And Wang argues that because of this China can build, and the US cannot.

He offers this startling example in the realm of high-speed rail:

The year 2008 offers a direct comparison between California’s speed and China’s speed. That year, California voters approved a state proposition to fund a high-speed rail link between San Francisco and Los Angeles; also that year, China began construction of its high-speed rail line between Beijing and Shanghai. Both lines would be around eight hundred miles long upon completion.

China opened the Beijing–Shanghai line in 2011 at a cost of $36 billion. In its first decade of operation, it completed 1.35 billion passenger trips. California has built, seventeen years after the ballot proposition, a small stretch of rail to connect two cities in the Central Valley, neither of which are close to San Francisco or Los Angeles.

The latest estimate for California’s rail line is $128 billion…The first segment of California’s train will start operating, according to official estimates, between 2030 and 2033. Which means that the margin of error for estimating when a partial leg of California’s high-speed rail will open is the same as the time it took China to build the entire Beijing–Shanghai line.

Does anyone want to bet that it doesn’t exceed $128 billion? And that it’s done by 2033? Does anyone want to bet that it even gets finished?

This comparison is an embarrassment. And in line with Wang’s basic thesis, you see the same embarrassing dichotomy when you compare our performance to Europe.

As one example, between 1999-2003 Madrid added ~75 km of rail (77% underground) at a cost of around $53M/km. In 2014 LA decided to extend one of their current lines by ~9 miles (14 km). They’re still working on it, but it’s scheduled to open over the next couple of years. It looks like it’s going to come in at a cost of around $660M/km. So an order of magnitude more expensive and taking three times as long. Spain has 300 lawyers per capita compared to the US’s 400, which is above average for Europe, so it’s not a perfect correlation, still the difference between outcomes on infrastructure is once again embarrassing.

III.

When I talk about the number of lawyers I’m using that as a proxy for legalistic process more broadly, since lawyers are easier to measure than “legalism”. I believe Wang is doing something similar. So when people point out that these vastly different outcomes are not mostly due to lawyers gumming up the works, I agree. There are issues of procurement choices, management capacity, labor/work rules, and low-ball bids that balloon. A lot of these issues seem downstream of legalistic thinking, but whatever the source there’s a lack of dynamism.

Other proxies for a culture of legalism include the number of politicians who are lawyers. (As an example Wang mentions that five of the last ten presidents were lawyers, and in any given year 50% of Congress is as well.)

So we’ve got a lot of attorneys and those attorneys might slow things down. But they don’t slow everything down. The US is very dynamic in other respects, how is it that we’re so bad in this one area? We started with a ranking of places where Europe outperforms us. But there are lots of rankings where the US does better, stuff related to dynamism. Things like:

• GDP per capita

• # of Large companies

• Productivity

• Venture capital intensity

• R&D intensity

And yet, we really suck at creating something that would benefit from dynamism like public infrastructure.

So let’s turn back to that first question: why would this be? How is it that in the area of infrastructure, attorneys, and legalism more broadly we’re so undynamic. So much worse than Europe, to say nothing of China. Why are we a nation of attorneys, with more per capita than just about anywhere else?

I have a theory…

IV.

From the very beginning the US has been a special country. The first country to be created based on a written, ideologically grounded constitution rather than being based on ethnicity or the remnants of some dynasty.² This “written, and ideologically grounded” part seems important. I suspect it made the US more rules-based out of the gate than all of the other countries we’ve been discussing. Much of the fervor that powered the Revolutionary War was based on rather finicky legal reasoning, like “no taxes without representation”. The great Edmund Burke noted as much in a speech he gave on the floor of the House of Commons during the Revolutionary War. Speaking of the colonies he said, “In no country perhaps in the world is the law so general a study.” And then he went on to say that the colonists had a “stubborn and litigious” spirit.

This reliance on rules has always been seen as a good thing, a major innovation which nearly all of the countries in Europe ended up adopting. But just because they adopted it doesn’t mean that it had the same force and valence that it does in the US. The US built a whole civic religion around it, while Europe layered it on top of pre-existing national culture.³ Also because these constitutions came later they could learn from the mistakes the US had already made, particularly in the post WWII reconfiguration.

My theory would be that the US has always had a large legalistic streak. It was baked into its founding and the way the world was understood to work. And it continues to influence everything from the enormous political energy devoted to deciding whether something is constitutional all the way through to the forest of rules controlling public infrastructure projects. We have so many lawyers and infrastructure projects are slow because fighting over exactly how something is supposed to proceed is baked into our country’s DNA.

If I’m correct (please post counterarguments in the comments) then some interesting implications follow:

1- This is not a quirk of US society that can easily be done away with. One of the current ideas for solving the problems I’ve mentioned is the idea of “Abundance”. But, in my limited reading on the subject, it doesn’t get at the legalistic root of the problem.

2- Many of the efforts to solve these problems involve bringing greater awareness to current issues. But perhaps awareness needs to start with the way our founding ideology is entwined with the rules that slow us down. Can a balance be struck?

3- There’s reason to believe that the trend is moving in the wrong direction. That we are growing more legalistic as time passes, more attached to rules.

4- If this theory is correct then we’ve always been a nation of lawyers. Despite that we’ve managed to do some pretty impressive things. How did we manage that? I think it was competition, mostly under the banner of big wars (Cold War included). Perhaps competition is required and we need more of that. If it wasn’t that we need to figure out what it was and get it back.

5- If I’m right on some level, then this may be yet another example of a good thing taken too far. I’m very fond of founding principles, and the rule of law, but after nearly 250 years of running with that idea, it’s worth considering whether this idea has become pathological.

All that said, this is just a theory, and it suggests some potential avenues for further research:

1- We do not have the most attorneys per capita. That honor appears to go to Israel. My first impression is that this strengthens the core thesis. Jews have had a culture of rules and have been debating those rules for far longer than we’ve been a country. But not every country is so easily explainable. Brazil also apparently has more attorneys than the US. Does that undermine the theory or is something else going on?

2- I’ve already mentioned that there have been times when the US was far better at infrastructure. What happens if we compare something from that period to the equivalent Chinese endeavor. One obvious candidate is to compare the cost per mile to build both countries’ freeway systems. I had ChatGPT take a run at it, and it came back with the answer that the per mile cost for China might be a little bit lower, but not by much. Does this falsify my theory or is it an apples to oranges comparison?

3- If we ever had a President willing to ignore rules, it’s Trump. Will this end up being a good thing as he breaks us out of our sclerosis, however inelegantly? Or will this “inelegance” provoke a massive backlash that puts us in an even worse position?

The world is definitely changing and I think the US achieved its hegemony in spite of being a nation of lawyers rather than because of it. In order to maintain our position, or at least carve out an acceptable space, we’re going to at least need to be smarter about our processes, and it may be that some of these processes need to be dispensed with all together. And yes, we probably could stand to have a lot more engineers as well.

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I should mention I come from a family of engineers. My father was an engineer and six of my siblings or siblings-in-law are also engineers. So I may not be an unbiased participant in this discussion. Though I could see that bias going either way. For more unbiased opinions check out the archives. Or if you haven’t already make sure to subscribe. I think my biases are only going to get more pronounced.

1. I had some people review this piece before publication, and a couple of them suggested that it might be factors like differing pay or prestige. Or that becoming a lawyer might be easier in the US, rather than the factors I lay out in this post. Further research leads me to believe that these differences explain little if any of the disparity. To take Denmark as an example: Pay for attorneys in Denmark is pretty close to the US particularly when you account for the lower cost of living. Difficulty wise it’s similar though Denmark has an apprentice system which means you’re actually practicing law sooner. In spite of these broad similarities Denmark has only one quarter as many lawyers per capita.

2. I understand that Swiss Cantons came first, and there were some loose confederations. That there were precedents. Also I realize that ethnicity is in there, but it was largely in the background.

3. I’m aware that the US Constitution was layered on top of English Common Law, but that seems like legalism on top of legalism. Also, they were rebelling against all the non-rules based elements like the monarchy.