Colloquial Law – Econlib

To make any scientific field accessible to the masses, effective communication is essential. My research delves into how experts convey their insights and the institutional frameworks that enhance this communication. Today, I pivot to another arena of expert opinion: the law.

In the realm of law, as in other scientific disciplines, it’s crucial to differentiate between a term of art and a colloquial term. A term of art carries a precise definition relevant to a specific field or profession, while a colloquial term is used informally in everyday conversation. Despite their potential similarities, these definitions can often diverge significantly.

Take the term “cost” in economics as an illustration. For economists, “cost” refers to “the best alternative you otherwise would have chosen. Cost is what you forgo” (Universal Economics, pg 33). In contrast, the colloquial understanding of cost typically relates to the monetary price paid or any negative outcome resulting from an action. For economists, cost is a forward-looking concept that occurs at the moment of decision-making, whereas in everyday language, it often reflects a backward-looking perspective.

Confusing these two meanings can lead to significant misunderstandings. A frequent misstep among my students is equating the two definitions of “cost,” which often results in a flawed assessment of marginal costs and benefits, ultimately leading to poor decision-making. For instance, students might argue that legislation against price-gouging is beneficial because it keeps costs low. This indicates a failure in the objective of economic education: enhancing decision-making skills, rather than distorting them (naturally, I encourage such explorations in class, providing students with the chance to recognize and correct these misconceptions).

A similar confusion arises within the legal field. Misinterpretations between terms of art and colloquial language can distort the law itself. The law’s primary aim is to establish and enforce general conduct rules that enhance societal well-being and maximize individual freedoms, given the limitations imposed by the freedoms of others. Regrettably, recent trends on both the American Left and Right indicate a concerning shift towards conflating law with mere power dynamics, treating it as synonymous with legislation and bureaucratic decrees. This authoritarian drift is particularly alarming.

A recent case illustrates this troubling trend: the term “invasion.” In legal parlance, “invasion” has a specific definition: “the incursion of an army for conquest or plunder” (Black’s Law Dictionary, 2nd ed).* However, in everyday language, it denotes “an incursion by a large number of people or things into a place or sphere of activity” (for example, the influx of football fans into New Orleans during the Super Bowl). The U.S. Constitution grants the national government the authority to repel any invasion (Art 1, Sec 8, Art 4, Sec 4). Should a state be under attack, it may also deploy its forces to counteract an invasion (Art 1, Sec 10). Historically, “invasion” in this context has referred strictly to armed incursions; force can only be met with force.

Recently, however, some political figures have begun to apply the term “invasion” in its colloquial sense, labeling illegal immigration as an “invasion” and using this rationale to justify deploying troops and employing extrajudicial measures against immigrants. This represents a blatant distortion of legal principles: rather than safeguarding public safety and personal freedoms, these actions undermine security and violate individuals’ rights to association, freedom of movement, and protection from government harassment. The legal system risks transforming from a protector of rights to an aggressor against them. Fortunately, courts in the U.S. have largely rejected this colloquial interpretation of “invasion” , but the shift towards such colloquialism—often accompanied by the justification of “they’re just enforcing the law!”—creates a pathway toward authoritarianism.

While the concept of a term of art can certainly be perplexing, there is merit in striving for clarity in legal language. Yet, clarity can be taken too far. Harvard legal scholar Lon L. Fuller provides a cautionary tale from Poland:

“During a visit to Poland in May of 1961 I had a conversation with a former Minister of Justice that is relevant here.  She recounted how, in the early days of the communist regime, a sincere effort was made to draft laws so clearly that they would be understandable to the worker and peasant.  However, it soon became apparent that achieving this level of clarity would compromise the systematic elements that create a cohesive legal framework, rendering judicial applications more capricious and unpredictable. In other words, simplifying laws for citizen comprehension carried a hidden cost, leading to less consistent enforcement by the courts” (The Morality of Law, Revised Ed.  Yale University Press, 1969.  Pg 45).

I have previously discussed the perils of arbitrary governance. Current events demonstrate that substituting systematic legal definitions with colloquial interpretations—like broadening “invasion” to encompass human migration and defining “violence” to include speech—opens the floodgates for arbitrary rule. The integrity of the law must remain intact.

*There exists a secondary definition: “An encroachment upon the rights of another,” but this definition is not pertinent to my argument, which should become clear shortly.