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What Critical Theory?

Oct 19, 2023 Paulo BarrozoAdd a Comment

The CLS Movement thematized domination, contradiction, instability, interpretation, distribution, personal empowerment, interpersonal connections, and the claims of reason. Attitudinally, it had a 70s contrarian and (American) left temperament. Like all movements, networking rather than consistency was its core. Aware of the centrality of legal discourse and actors to social arrangements and outcomes, the movement sought transformative impacts beyond the privileged walls of law schools. CLS lasted as much as any movement can expect to, and it had important (especially pedagogical and curricular) successes.

That was the movement. What about CLS Theory? In Reconstructing Critical Legal Studies, Samuel Moyn offers a fast-paced and yet penetrating inventory of theoretical problems and approaches in order to recommend the “social theory of law” variant of CLS theory.

Of course, a number of writings on CLS focus on the movement while others, like Moyn’s, focus on the theory. For those who study the movement, Princeton University’s Critical Legal Studies Records: 1977-1995 is a new resource, as well as some of the material generated in the 2020 conference that launched that special collection.

To fully credit Moyn’s theoretical intervention, consider two ideal-typical ways of relating to past theories. One is to center attention on collectives such as schools or movements as denser nodules in networks of theorists (see Randall Collins’ The Sociology of Philosophies for a comprehensive analysis of this kind of networking phenomenon). Examples of such schools and movements are many: ancient, medieval or modern natural law; glossators; sources or methods positivism; the historical school; idealism; jurisprudence of concepts; school of exegesis; jurisprudence of interests; sociological jurisprudence; realism(s); rationalism(s); CLS; CRT; feminism; TWAIL; LPE, and so on. Another way of relating to past theories is by identifying and isolating works that help move knowledge further regardless of where they are placed in terms of schools or movements. Moyn’s essay splits the difference between these ideal types: it focuses on works but approaches them as a project of school reconstruction.  The effort seems clear: transition CLS from movement to school of thought.

I suspect that the way anyone relates to past theory is less a matter of choice in a vacuum and more akin to the experience of surrendering—sometimes later than sooner—to one’s intellectual dispositions and loyalties. A case in point, I read Moyn’s previous work as historical, with theoretical insights. With this essay, I think he surrenders to theory, with historical insights.

Moyn’s essay is proselytist. With characteristic insight and erudition, he proposes that (all) scholars interested in the “radical” understanding of law elect a version of CLS theory as their framework.

Moyn looked at three early CLS theory variants—Morton Horwitz’s, Duncan Kennedy’s, and Roberto Unger’s—in light of two problematics: the level of determinacy of law by environmental social forces acting upon it and the level of determinacy of interpretation of formal sources of law.

Moyn’s argument is not only that Unger’s social theory of law is superior in addressing those problematics, but also that something like the path Unger charted between causal and interpretative necessity and contingency is unavoidable if jurisprudence is to succeed while being “radical,” explaining that “a radical theory would emphasize that legal orders and rules matter because they institute, legitimate, and reproduce domination and oppression.” (P. 2.)

Indeed, if law is to be able to do all those bad things, it has to be sufficiently functionally and interpretatively determinate. But sufficient determination need not, as a matter of fact about law, be complete determinacy, thus leaving room for resistance and freedom. The takeaway is that “it is simply not necessary to choose between a vision of law emphasizing prevalent determination and determinacy, on the one hand, and one making room for residual flexibility and plurality, on the other.” (P. 2.) Thus, oppression cum residual freedom.

The essay then surveys LPE, Feminism, CRT, and Marxism from the viewpoint of the explanatory burdens legal theory carries and measured against Unger’s social theory of law. They all come short, although in varying manners and degrees. And to the extent that they do not, it is because they already operate within a version of Unger’s midpath.

There is much more in Moyn’s essay as, for example, the important job he envisions for a theory of ideology. And there are points that I think Moyn doesn’t get right or quite right. For example, I think that he overestimates any gain the adjective “radical” offers beyond progress in knowledge about “why the world is the way it is.” (P. 25.) For knowledge, nothing hinges on whether Unger’s greatest book, Law in Modern Society, is labeled radical.

But to my mind the most important contribution of Moyn’s essay is the rejection of the intellectual minimalism of legal academia. “There is no avoiding theory forever,” he writes, adding (in reference to LPE but generalizable) the critique of “autumnal quietism after the ‘summer of theory,’ an aversion to abstract and systematic intellectualism […].” (P. 25.)

There are always ambitious theoretical works coming out legal academia. What I think Moyn correctly challenges is the view that jurists and their students can get away with not studying them, seeking cover under a chronic conflation of clarity with simplicity. Perhaps the continuous mixing of CLS movement (that in time expired) and theory (that stands or falls on movement-independent merit) helps explain why the cover is working for so long in the American academic context?

I end with this thought. The closer to the ground jurists fly, the more law appears as a messy, contingent, and unstable product of interest-guided legislation and class-conditioned adjudication. Jurists flying in mid-altitude, tend to see law as an amorphous blob that is unyielding to systematic theorization, thus only susceptible to localized speculation. Those are remediable altitude problems. For the higher jurists fly, the more law is revealed as a highly complex and formalized phenomenon fully comprehensible only through grand, systematizing theorization. Moyn’s essay is a fine reminder of this truth.

On Moral Impact and Legal Practice

Sep 21, 2023 Maris KöpckeAdd a Comment

Some recent debates in general jurisprudence concern so-called moral impact theories of law, chiefly in the version proposed by Mark Greenberg.¹ Greenberg’s theory has both staunch supporters and fierce critics. There are also a good number of scholars who look on these debates with perplexity and some dismay. Greenberg provocatively portrays law as the moral impact of institutional action. He presents his moral impact formula as the “legally correct” way to figure out the law’s content on the part of practitioners. His proposal has attracted some fine scholarship denouncing ambiguities within the account, and inconsistencies between the account and legal practice.

Watson’s piece takes these concerns a valuable step further. He argues that Greenberg’s theory distorts not only what practitioners count as law, but also how they reason to that effect. This is the kind of contribution from which one can learn, positively, about legal reasoning and practice, rather than just, negatively, where someone else goes wrong.

There are four aspects I wish to highlight about Watson’s contribution. Its first valuable aspect is that Watson spells out what he counts as a standard of success of the accounts under discussion. An account of what determines legal content, he says, “should be largely consistent with practitioners’ attitudes and behavior” (P. 71). It is useful that he spells this out because Greenberg himself is less than fully clear about whether his theory aims at consistency with legal practice. But whether the theory does, or should, is decisive to the kinds of considerations and arguments that can count against it. Watson would have done well to problematize and defend, rather than merely “assume” (P. 71), this standard of success, though it is helpful that he brings it in and appeals to it consistently.

The second valuable aspect is the first major critique that Watson addresses at Greenberg. In Watson’s words: “First, the theory is radically out of step with how lawyers and judges actually reason and argue about legal content: we do not observe practitioners reasoning or arguing about a moral impact in most cases” (Pp. 60-61).

Someone had to say it. Earlier criticisms of Greenberg’s theory had focused on problems in the account’s catch. They had focused on which legal duties, rights, powers, etc. Greenberg’s account misses, or on which duties, rights, powers, etc. the account counts as legal but legal practice doesn’t. They had focused, in short, on what Greenberg and legal practice count as legal content, but not on the way they go about discerning that content. As Watson puts it, “[i]f the [moral impact] theory is right, then practitioners are not merely mistaken about the legality of a few immoral norms, they are mistaken in how they practice law” (P. 73, emphasis original). Watson’s criticism is not simply negative. It is not simply a claim about what practitioners do not do (ie appeal to moral impact). Watson has some intriguing things to say about how practitioners do go about discerning the law. But the reader has to wait until the final part of the article; I refer to this below.

The third valuable aspect of Watson’s contribution is its second major critique of Greenberg: “Second, the theory cannot explain why practitioners agree on legal content as often as they do. If the theory were correct, much of what practitioners now agree upon would be open to reasonable dispute…” (P. 61).

Greenberg need not, indeed does not, deny that practitioners are in widespread agreement about legal propositions and some of their sources. But, on the moral impact theory, as Watson says, much of what they agree on is “open to reasonable dispute”. That is because, on Greenberg’s account, the law is the moral impact of institutional action. Moral impact assessment is an open-ended moral judgement. To be sure, such moral judgement might itself recommend – Greenberg sometimes notes – that certain decisions not be morally second-guessed. Moral impact assessment might itself tell against reopening what was settled and agreed upon, given (say) the moral need for certainty or fair warning. But even where that is so, moral judgement remains in the driver’s seat. Moral judgement – on Greenberg’s theory — is ultimately decisive, and can therefore, legally speaking, be brought back in at any time. As Watson points out, “[p]arties to a legal dispute have every incentive to disagree over legal content” (P. 75). It should therefore surprise Greenberg that they don’t so do more often. For, instead,

In practice, we observe pervasive agreement over most legal content. Consider how the vast majority of legal disputes are resolved: most never make it to court; of those that do, most settle; of those that proceed past discovery, many end in judgment as a matter of law; and of the few that are appealed, most are affirmed by unanimous panels. Think also of all the issues that parties to litigation rarely dispute (e.g., parties often take personal jurisdiction and venue for granted). Some issues are virtually never disputed (e.g., that a judge was properly appointed). Such pervasive agreement calls out for an explanation. (P. 74.)

This second critique is closely connected to the first one. It is perhaps more closely connected than Watson appreciates. The nature of the ultimate considerations to which practitioners appeal, in working out what the law is on some matter, is not a moral impact assessment but a baseline consensus. Of course, an incomplete and variable consensus. But a consensus nonetheless. A consensus about what? Not, primarily, about which duties, rights, powers, etc. make up the content of the law, but about the way to establish these. It is a consensus about fundamental methods of legal reasoning.

The fourth valuable aspect I wish to draw attention to feeds into the previous three. It emerges as Watson, in the final part of his article, sets out to “refin[e]” what both he and Greenberg call the “standard picture” (Pp. 76ff). Greenberg has coined the term “standard picture” to refer to what he takes to be an assumption or understanding underlying much philosophical and doctrinal thought about law. On the standard picture, as Greenberg portrays it, legislation – and law-making in general – is an instance of communication and shapes the law precisely in accord with its communicative content. Watson’s aim is to refine the standard picture by way of defending it – as his title suggests.

What is insightful about Watson’s refinement of the standard picture, in my view, goes to suggest that the standard picture must in fact be abandoned. Watson has some very reasonable remarks to make, for example, about how different legal sources or decisions “interact” with one another (Pp. 81-82). Legal rules on defences or inchoate liability, for example, qualify what would otherwise be the legal meaning of offence-creating provisions individually considered. It is the bread and butter of legal reasoning that different sources (legislative, judicial, constitutional…) must be read together to establish what the law is on some matter. Both Watson and Greenberg (and others) rightly favor talk of a text’s “contribution” to legal content. But Greenberg perhaps sees more clearly than Watson that such systemic dimension of legal reasoning tells against the plausibility of explaining law on the model of ordinary communication – which is an individual, not a multi-person, affair.

Watson’s elegant discussion of substantive canons of interpretation (Pp. 83ff), pace Watson, points in a similar direction. What are sometimes known as substantive canons of interpretation, such as the rule of lenity or the absurdity doctrine, are themselves legal provisions, deriving ultimately from some law-making conduct – what Watson calls “legal texts”. Watson is right that a statute’s legal meaning may be changed through the enactment of a further decision to that effect (he discusses Dale Smith’s example of the Human Rights Act 1998 altering the legal meaning of prior legislation).² He is right that the question of how later decisions bear on an earlier decision’s legal meaning is a matter of law. But just that diachronic dimension of legal meaning sits uneasily with the logic of ordinary communication, whose meaning or content is fixed at the time of speaking in light of language conventions in force then.

Nor can the logic of ordinary communication, in and of itself, tell “the directive that the text communicates” from the rest of its communicative content (P. 85). Watson distinguishes between the directive in a legal text and everything else the text communicates in order to forestall the objection that the standard picture overgenerates law. For not everything in, say, the text of a statute or a judicial opinion goes to shape the law’s content. That is right – but Watson neglects to say that the way one gets from the marks on the paper (or the sounds in the room) to a directive or legal rule is a matter of law. Stare decisis is a legal doctrine; so are basic methods of statutory or contractual construction.

I think Watson debars himself from fully seizing the constructive potential of his critique by excluding from his discussion the question of “what makes something a legal text” to begin with (P. 67). He also calls this question “the question of legal validity” (P. 67). Watson is overly charitable in justifying Greenberg’s silence on that question. As the core of Watson’s critique insinuates, law regulates how certain facts make law, and in so doing it regulates which facts do – indeed which acts do. The latter question cannot be detached from the former. Standards of legal reasoning are a matter of law, which self-regulates in a manner that escapes the logic of ordinary communication. It is proper to deny that law is the moral impact of institutional action. But one must not for that reason embrace the other horn of a dilemma which is likewise of Greenberg’s making.

A New Way to Rescue the Idea that Law Has a Foundational Convention

Aug 9, 2023 Barbara LevenbookAdd a Comment

Many readers are aware that arguments by Ronald Dworkin (in particular, his argument from theoretical disagreement) and by various persons claiming that social practices cannot be normative challenge the idea that law is founded on a social convention. More than forty years ago, Gerald Postema attempted to meet these objections with a Humean-Lewisian account of foundational legal convention.³ Marcin Matczak contends that another, virtually overlooked, and radically different account of conventions can surmount these objections. That account can be found in the works of Ruth Millikan. Millikan’s account, he argues, can ground a foundational-convention theory of law while avoiding the pitfalls of a Lewisian account of conventions.

Matczak’s first and most developed point is that, using Millikan, arguments from the contestability of conventions (i.e., from disagreement) do not undermine the claim that legal systems rest on a foundational convention for recognition of valid law. This conclusion follows from three surprising features of Millikan’s account of conventions: (a) neither universal nor general compliance is required for a type of convention suitable for law, (b) participants need not have mutual expectations, know others’ intentions and preferences, or be aware of the purpose of a convention, and (c) conventions do not set prescriptive rules governing future conduct. These three features fly in the face of a number of orthodoxies about conventions in general or legal conventions in particular. Nonetheless, I find them appealing.

To be clear, Millikan does hold that conventions require some (unspecified) amount of compliance. On Millikan’s view, conventions arise and are retained when certain behavioral patterns, reproduced by others, are effective in benefitting these persons or the group. Compliance is required in order to (a) form a pattern that can be followed and (b) be functional enough to generate “proliferation.” Proliferation occurs according to a kind of invisible hand mechanism (akin to biological selection) when the convention is useful, serving what Millikan calls its “proper function.” Proper function, it should be noted, need not have a moral dimension. Proper function has something to do, directly or indirectly, with “fitness” and putting “the participants in a better position vis-à-vis the world they are navigating.” (P. 167.)

Instead of prescriptive rules, conventions are lineages of copied behavior, where tokens of behavior take on the role of precedents (without the “intermediate step” of a postulated rule). Applying this conception of conventions to Hartian positivism, Matczak remarks that the so-called “rule of recognition” as a convention would then not be a prescriptive rule but rather “a series of acts of recognition [by officials of a valid rule of local law, e.g.] … copied one from another and forming a historical lineage.” (P. 155.) Strictly speaking, there is no foundational rule of recognition, save a descriptive one for the practice so far. There is rather a recognitional practice.

So from whence come disagreements? One of Matczak’s accounts of the source of disagreement is founded on his view of precedent-following, which in an “easy case” amounts to doing the same thing in “obviously similar” circumstances. There can be disagreement when the circumstances are not obviously similar about how similar they are and with respect to what “features” that similarity is to be judged.

To understand another source of disagreement, recall that a convention’s value in fulfilling a proper function need not be consciously apprehended by those who conform to it. However, the value might be; and there can be arguments for “defections” on the grounds of improving or retaining the conventions’ benefits (fulfilling the proper function). One result of applying this theory to the recognitional practice in law, Matczak suggests, is that that practice can be discursive. Another result, Matczak claims, is that the practice can and should include the “rules” or “canons” of interpretation that are disputed in a legal system.

Matczak further contends that Millikanian conventionalism can explain how conventions can be normative. For this, Matczak uses Millikan’s idea of proper function. The idea that the normativity of a convention for its participants stems from its effectiveness in achieving something of value or fulfilling a function is not new to Matczak, of course. But surprisingly, conventions are not instrumental in value on Millikan’s view; their value does not come from being a means to something good external to them. Their value is internal. Their proper function is constitutive of them, determining which behaviors in an ongoing practice are relevant or irrelevant.

The article is not perfect. Millikan’s account of the value of conventions is evolutionary at heart; ultimately, the value of conventions is survival value. Matczak does not make the link clear between recognitional legal conventions and survival value. His detailed discussion of the recognitional convention and his selection of its proper function and type of convention are difficult, if not impossible, to reconcile with common law legal systems in general (recognizing unlegislated common law doctrine) and the U.S. system, with its judicial review of legislation on constitutional grounds, in particular.

Nonetheless, Matczak’s article is both intriguing and important. Its importance does not lie solely in his demonstration of advantages of Millikan’s theory over the dominant Lewisian account in meeting challenges raised by Mark Greenberg, Leslie Green, Julie Dickson, Scott Shapiro and Joseph Raz. Matczak’s suggestion of a shift to Millikan’s account requires the rejection of well-established theories on which at least two legal philosophers base key elements of their accounts of law: David Lewis on convention (the Postscript H.L.A. Hart) and Michael Bratman’s planning theory (Shapiro).

In sum, Millikan’s account of conventions involves a rethinking that is worthwhile if the account has the advantages Matczak claims it has for a positivist theory of law. For this reason, this article is worthy of serious consideration.

Normative and Descriptive Legal Pluralism

Jul 27, 2023 Michael GreenAdd a Comment

Fernanda Pirie’s Beyond Pluralism: A Descriptive Approach to Non-State Law offers a nuanced and well-reasoned assessment of the movement — among those we can call legal pluralists — to expand the concept of law to include non-state forms of social ordering. Legal pluralists are a heterogenous group⁴ and it is dangerous to make any generalizations. But Pirie has certainly identified a theme among some legal pluralists. She has two main arguments, one critical and the other constructive.Her critical argument is that legal pluralists’ conceptual project is largely motivated by normative concerns — “to counter colonialism and its legacies, and to highlight ways in which states disregard the rights and interests of Indigenous people” — that are independent of the descriptive aims of legal theory, which is “simply to clarify what law is and does.” (P. 2.) Her constructive argument is to offer — as an alternative to the pluralists’ normative concept of law — her own descriptive concept, based on a sophisticated method of conceptual analysis. Like the pluralists’ concept, her concept encompasses non-state law, but in a more limited fashion.

Let me start by offering my own (admittedly lengthy) version of the critical argument, before adding her nuance. The law of the United States has done a bad job accommodating Native American forms of social ordering. But broadening the concept of law won’t change American law practices. All it will do is redescribe as law the forms of social ordering that American law practices ignore. Indeed, there is reason to believe that conceptual reform would frustrate the pluralists’ goals. To reform American law — or even to identify it as a set of standards to be ignored or resisted — one needs to focus on what is, in fact, American law. The pluralists’ broader concept of law interferes with that focus.

The heart of the error Pirie identifies is the assumption that a general concept of law (as used by philosophers or social scientists) is important to those engaged in law practices, in the sense that judges and other officials seek to enforce the standards that fall under the concept. If they did, then reform of the concept would alter their practices. But they don’t. Sure, officials generally enforce what is, in fact, law (according to a general concept of law). But they don’t enforce it because it’s law. To quote Raz:

Suppose we are discussing the putative law established by some government in exile over a country which it does not control, or where its control is minimal, and suppose that its judges discover that by the correct legal theory their system is not a legal system, for it lacks the necessary characteristics of control. This may make them decide to resign, or rebel, though I can see little reason why it should. The point is that their duty (under the system in whose courts they sit) is to judge in accordance with the rules of that system, and it matters not at all whether these rules are legal ones…⁵

To be sure, there is also a system-specific concept of law that would be used by the judges Raz describes. They would, for example, draw a distinction between the rules of their system, which are law, and facts that are relevant in applying those rules.⁶ But they would not regulate their adjudication to conform to some general concept of law, a concept that is intended to identify the law of various communities.

Legal pluralists are not the only ones to mistakenly think a general concept of law is relevant to law practices. The mistake pops up constantly in the philosophy of law. It stands behind Ronald Dworkin’s so-called semantic sting argument against H.L.A. Hart.⁷ (The quotation from Raz is taken from a discussion of Dworkin.) And positivists can make the mistake just as much as natural law theorists. Consider the criticism that legal positivism encouraged German jurists to enforce Nazi law.⁸ Let’s assume that the critics are right: German jurists reasoned (roughly) as follows: “The Führer’s will is law [according to positivism], therefore we ought to enforce it.” The critics argue that the solution is a different concept of law. But that simply repeats the German jurists’ error of treating a general concept of law as relevant to law practices. The truth is the German jurists’ legal inference is invalid even under a positivist theory of law. “X is law [according to a general concept of law], therefore we ought to enforce it” was not a correct inference under German law practices at the time. (Indeed, it is not a correct inference according to the law practices of any legal system that has ever existed.) It was not German law practices to enforce law (under a general concept of law) but to enforce the Führer’s will.⁹

There is one area (near and dear to my heart) where a general concept of law is somewhat relevant to law practices, namely choice of law — that is, choosing standards for cases that implicate foreign jurisdictions. Indeed, the term “choice of law” suggests that a general concept of law is essential to the enterprise. In many ways the term is misleading — it is often more accurate to say that a standard borrowed from a jurisdiction’s law is applied, and the choice-of-law inquiry is far more complicated than simply identifying and applying standards that fall under a general concept of law. But these (and other) qualifications aside, choice of law is indeed one area where a general concept of law is employed in law practices.

Nevertheless, this limited relevance of a general concept of law is a contingent fact about those practices. Jurisdictions could have choice-of-law (or, more accurately, choice-of-standard) rules that don’t use the concept at all. It is a state’s law practices, not a concept of law, that leads the state’s courts to choose state law over non-state forms of social ordering. Just as the problem in Nazi Germany was German law practices, not the positivists’ concept of law, so the problem that motivates the pluralists’ conceptual project is the law practices of current states, not a state-centric concept of law.

To repeat, choice of law aside, legal officials do not employ a general concept of law in their law practices. So who does use such concepts? Private citizens, sometimes. But, unsurprisingly, they are most relevant for those whose job it is to study the law of various communities — such as law professors, historians, sociologists, and anthropologists.

Now for Pirie’s nuance. She recognizes that there is a place for what the philosopher Sally Haslanger calls “ameliorative” conceptual projects, which aim to “enhance our conceptual resources to serve…critically examined purposes.”¹⁰ Concepts serve our needs, and an ameliorative approach offers a new stipulation of a concept’s content so it will better align with what our needs should be. (P. 8.) Assume states’ choice-of-law rules have been reformed to select non-state forms of social ordering just as often as they select state law. If so, the general concept of law used in choice of law might evolve to incorporate the non-state standards. That’s a charitable reading of the legal pluralists’ conceptual project: the concept of law they offer is one that would better serve these new law practices. But it is also possible that a general concept of law would be abandoned as irrelevant to conflicts cases. What were once called choice-of-law rules would now be called choice-of-standard rules. In any event, such an ameliorative project remains different from determining how general concepts of law are currently used.

One might think that once our minds are set on identifying the content of our current general concepts of law, the primacy of state law will once again rise to the fore. But now for the constructive part of Pirie’s argument. Defaulting to state law would uncover what Haslanger calls our manifest concepts — the concepts we think we are currently applying, relying on abstract intuitions. If we ask people what law is, they’ll start talking about state law. But such intuitions are unreliable. To determine our operative concepts of law, we need to use what Haslanger calls a “descriptive” approach.

Haslanger relies upon theories of semantic externalism that were originally used for natural kind terms — to explain how “water” can mean H₂O, even though our manifest concept might be something like potable, colorless, odorless liquid. She extends this semantic externalism to social kind terms like race. Those who dismiss social constructionist accounts of race as changing rather than capturing the concept of race, she argues, are relying upon the manifest concept of race.

Pirie uses the same method concerning law. Although capturing the social kind that is law will not involve the same methods as identifying natural kinds, it still proceeds through empirical engagement — through the application of the concept to concrete cases. Pirie is an anthropologist, and it is truly refreshing to see actual examples of non-state social ordering. Engaging with these examples, she argues that what helps identify an item’s status as law is not its function: to resolve disputes and maintain social order.¹¹ Law should instead be identified by its form. She calls this form legalism — the use of general and impersonal rules that are divorced from the concrete social relations within which the disputes arise. ¹² She points to sophisticated methods of dispute resolution in a Tibetan village that are not legalistic and other Tibetan tribesmen with highly legalistic standards that were oddly divorced from the practicalities of mediating conflict. And she argues that the motivations to adopt legalism can be independent of the goal of guiding behavior and resolving disagreements. In the Tibetan tribesmen’s case, the law arguably served as a symbol of tribal integrity.

Whether Pirie’s conceptual project has succeeded, according to the descriptive method she employs, is tied to whether her concept is supported, in a holistic manner, by concrete anthropological judgments. Although her focus on form over function seems to me to capture something important, I’m no anthropologist and so can make no credible assessment of whether she has captured the social scientific kind that is law. But if she has, her approach opens up fascinating questions concerning state legal orders, including which of their norms are law (in this social scientific sense) and what role states’ attachment to legality plays.

My positive response to her article is from a philosophical perspective. I think her critical argument against legal pluralists’ normative conceptual project is on the money. Same for her sophisticated approach to conceptual analysis. I also think greater exposure to a detailed social scientific concept of law is healthy for legal philosophers, for it can motivate them to clarify the relationship between the social scientific concept and the concept of law they investigate — the one that generates theories of law like positivism, Dworkinian interpretivism, the moral impact theory, and Kelsenian non-reductivism.

Thanks to Brian Bix, Fernanda Pirie, and Andrew Halpin for helpful comments.

On the Value of Distrusting Ourselves

Jun 9, 2023 Thomas BustamanteAdd a Comment

At the outset of The Proof, in a passage that grasps the spirit of the book, Frederick Schauer writes:

It would be nice if there were world peace and nonfat bacon, but wishing won’t make it so. … Leaving to others questions about how we or the government ought to act, this book is an attempt to provide some insight into how we do – and, yes, should – confront the factual questions and controversies that are all around us. (P. 4.)

Schauer’s intriguing book analyzes a vast range of subjects related to the practice of giving and evaluating evidence, covering topics such as probability analysis, burdens of proof, statistics, testimony, lie detection, expert evidence, and scientific evidence in criminal law. But only two of the topics covered in the book will occupy my attention now: his hybrid theory of evidence, and his concern about motivated reasoning.

Let us begin with the general account of evidence provided in chapters one and two. A central concern of the book is the need to distinguish between “empirical reality” and “what some or many people prefer or wish that empirical reality to be.” (P. 1.) Evidence matters only for those who want to make sense of this distinction, and who worry about getting the truth of some matter. Evidence is what provides “a justification, or warrant, as philosophers are prone to put it, for believing that something is true – or false.” (Pp. 4-5.) It is, therefore, the “prerequisite for judgments of truth (and falsity)” about anything. (P. 5.)

But how should we go about to discover the truth of some disputable fact? Schauer’s general answer is based on a Bayesian account of probability and inductive reasoning. “The very idea of evidence,” he argues, “is about inductive reasoning and thus about probability.” (P. 13.) Contrary to the hope of finding a direct and infallible way of grasping the factual reality, Schauer argues that “evidence comes in degrees.” He mentions a well-known adage from Dr. Theodore Woodward, a famous researcher in medical studies from the 1940’s: “When you hear hoofbeats, think horses, not zebras.” The point of the adage, Schauer argues, “is that horses are far more common than zebras, at least if we are not in a zoo or on the African savanna”. (P. 15.)

Schauer avoids spending much time on discussing the formal details of Bayes’s theorem, but he emphasizes its point that evidentiary reasoning is incremental: “Nonformally, Bayes’ theorem is about the way in which additional evidence incrementally (or serially) contributes to some conclusion.” (P. 24.) We begin with an estimate or some ordinary assumption about the likelihood of some conclusion, which on Bayesian terminology is called prior probability or, for short, the prior. (P. 24.) As people find or are given further evidence, “they consider each new piece of evidence and readjust the probability of their earlier conclusion upward or downward to produce the posterior probability.” (P. 25.) All evidence, “or at least almost all evidence” has, thus, a double aspect: “It is typically based on other evidence, and it is also evidence of something else.” (P. 24.)

One of the central ideas of this model, as Schauer emphasizes, is that that “beliefs come in degrees” (P. 28), and consequently we should think of evidence as being capable of being “stronger than” (or “weaker than”) other evidence with which it may happen to compete. At this point, Schauer’s Bayesian model faces an objection. “On a pure Bayesian approach, what we do when it is time to reach a conclusion is to see where we are at that stage in the process of Bayesian updating. Each incremental item of evidence adjusts the probabilities, and at the moment of decision…we make a decision based on the probabilities at that point.” (P. 31.) But one can argue that this approach is too narrow, as the supporters of the “inference to the best explanation” model suggest. According to this approach, developed by Gilbert Harman and further enhanced by Peter Lipton, “the evidence for (or against) some conclusion is not evaluated incrementally. Instead, all of the evidence is evaluated holistically, with the aim of seeing which explanation best explains what we have to that point obtained.” (P. 31.)

Schauer replies, however, that there is no inconsistency between the incremental approach defended by Bayes and the holistic approach defended by Harman and Lipton, and attempts to develop a hybrid model of evidence assessment that incorporates insights from both accounts. It conceives our reasoning process as comprising two stages: an incremental step, in which we assess the facts in order to gather evidence for or against a certain conclusion; and an inferential step, in which we synthesize the conclusions in the previous step to integrate our findings with the bulk of the evidence and our experience as a whole. (Pp. 32-33.)

Schauer’s solution enables us to see that there is something to learn from both approaches. While the first approach (incrementalism) does the work of collecting and gathering the inferences, the second approach (holism) does the work of processing them and making sense of the knowledge we accumulated, explaining the inferential relations between the evidence we collected and the body of experience we possess. It is only at this second stage that our assessment of evidence is complete, since it is only at this phase that we can make sense of how our perception and our inquiries fit in the body of knowledge we accumulated and in the whole body of experiences we have.

We can move now to the second issue that I want to discuss in Schauer’s book. The most persistent concern in Schauer’s book is the problem of constraining our own perception and preventing our cognitive mistakes. Schauer is worried about the destructive potential of what he described, following an influential literature on psychology and human behavior, as the problem of motivated reasoning. This problem emerges because “although most of the factual world successfully resists adapting to our preferences, often, and perhaps surprisingly, our perception of that factual world does conform to our preference” (P. 227), leading us to perceive only the reality that we would like to be.

The stronger the preferences of the observer and the greater the consequences of the assessment, the more serious this problem turns out to be. Motivated reasoning occurs not only when we are discussing moral judgments and controversial issues about thick ethical concepts. It appears also in every kind of disagreement about evidence and factual assessments, including our disagreement about “hard, plain facts” like the fact that Elvis is dead, or the fact that the Earth is round and revolves around the sun, or the fact that Biden won the American election of 2020, or the fact that vaccines are effective against COVID-19. (Pp. 226-28.) The basic idea of motivated reasoning, as Schauer explains, “is that the receipt and evaluation of evidence…is heavily influenced by normative preferences about what it would be good for the evidence to show.” (P. 228.)

Why do people look at reality, including when there is a vast amount of evidence for a simple fact, and see only what they want to see? Schauer has a specific chapter about this question, where he discusses at length the possibility of mistaken identification in the case of eyewitness or first-person participants in certain events. (Pp. 129-44.)

He gives reasons for skepticism about the distinction, which is widely accepted among lawyers in the civil law tradition, between “direct” and “indirect” (or “circumstantial”) evidence for a certain fact. In response to this claim for a special status for direct evidence, Schauer aptly demonstrates that “the law wisely knows no such category” like circumstantial evidence: “That a defendant with motive to kill a victim was in the vicinity at the time and place of the murder may be stronger evidence than an eyewitness identification by a witness with poor eyesight from a great distance on a foggy night, and stronger than a partial fingerprint taken by an inexperienced police investigator.” (P. 245.) He takes, however, a step further than this conclusion, revealing a deeper problem in the ordinary preference of lawyers and some legal scholars for “direct” evidence: the very attempt to distinguish between direct and indirect evidence is based on an unjustified preference for immediate sensorial perception over articulated inferences and an uncritical belief that a “first-person experience” provides a more reliable or better evidence for a certain fact. (P. 136.)

Outside legal discourse, for instance, it is “a tedious consistency” to find statements that claim some sort of special epistemic authority for the observers who bear some personal feature or special relationship to a set of facts. As Schauer reports in his readings of long series of letters to the editors of newspapers with wide circulation, ‘a remarkably high percentage of them begin in the same way, with an “As a…”: “‘As a retired firefighter,…”’ ‘As a college student,…’ As a recent immigrant,…’ ‘As a descendant of grandparents who died in the 1918 influenza epidemic,…’ And so on and on and on. (P. 136.)

The point about the “as a” condition, in these sentences, is to raise a claim that one’s assessment is “more reliable” or “better evidence” because of the letter writer’s “first-person experience.” (P. 136.) Nonetheless, this claim to some “special testimonial, and thus evidential, weight to participants solely because they were participants” is often undermined. “It is not clear that simply being a participant is necessarily a source of greater knowledge or greater insight. For one thing, being there can be distorting as well as enlightening.” (P. 137.) In Trump’s second impeachment trial, for instance, the allegation of some members of the US Congress who “saw little need for witness or other evidence,” because “they were there” and would be better off by delivering judgments based on their “own experience,” for instance, was described by Schauer as a particularly apt example. (P. 130.)

Schauer’s overall argument about evidence is based, in fact, on the opposite view. For his hybrid model of evidence assessment to work, one must be able to rely on a background system of assumptions, commitments, previous knowledge, data, and interpretations which allows us to trust in certain generalizations about how events can be causally related and how our experience can be ordinarily interpreted.

Our reliance on previous experience depends, therefore, on these generalizations, which play the role of grounding inferences in inductive reasoning, according to the same pattern of “ordinary” or “common inferences” like the inference that a noise from the hoofbeats near a farm comes from the neighbor’s horses, rather than from a large number of zebras escaping from a zoo that is dozens of miles away. Generalizations produce a ground for inferences from ordinary assumptions that constitute an “essential feature of our reasoning process.” They provide a focus for our evidence assessments, and establish the ways in which an alleged piece of evidence becomes relevant in any given case. (P. 30.)

Nonetheless, Schauer believes that our generalizations should not be based only on our own perception. While reliance on rules, past experiences, scientific discoveries, common sense assumptions, regularities, previous evidence and perhaps other materials that constitute our body of knowledge and experience is crucial, Schauer shows us in the last chapter of the book that there is some value in distrusting something that our “natural” or “initial” impulse would be to treat as infallible: our own perception.

Given the prominence of motivated reasoning, the mechanisms of which are the subject of detailed analysis in the final chapter of the book, Schauer is inviting us to distrust ourselves, to look for an external ground in our evidence assessments, one that reaches out for empirical evidence and verifiable inferences, instead of feelings, senses, perception, and intuition. Perhaps this warning against the failures of human perception, especially in the case of first-person reasoning about particular facts, is the greatest lesson we can take from the book. We need rules of evidence, just like we need science, legal process, and a vast range of procedures through which we test our own convictions in light of public assessment of others who have the power and the responsibility of judging them, in order to be able to trust ourselves.

The elucidation of this value (of distrusting ourselves) is a great achievement. The awareness of the possibility of motivated reasoning, including in the case of our own reasoning, and of the limits of human rationality, is a prerequisite for any kind of reasoning about a factual inquiry, whether this inquiry is performed in legal settings or in political ones; in fact, it is a prerequisite for rationality whether we are talking about sports, science, journalism, weather prediction, philosophy, history, or, like Schauer puts in the title of his fascinating book, “everything else.”

Hart Surgery

May 10, 2023 Andrew HalpinAdd a Comment

In his contribution to an academic event described as “Serious Fun: A conference with & around Schlegel!” Charles Barzun manages to meet all three expectations. Entitled The Tale of Two Harts; A Schlegelian Dialectic, Barzun’s article in the 2021 Buffalo Law Review delivers a number of serious reflections, combines them with some appropriate hilarity, and turns to the event’s honorand as an authoritative guide.

The serious stuff encompasses a comparative study of the influences of the two Harts (Henry and Herbert), an inquiry into the impact of prevailing intellectual culture on scholarship and how it is received, and an appraisal of disciplines (legal and other). It extends to a radical suggestion for legal education, observations on the CLS movement and legal historians, and constructing an academic profile. The fun is two-edged. Ultimately an invitation to have fun in one’s academic inquiries, it turns at times to poking fun at those who take themselves too seriously in their scholarly endeavours. That can easily be turned back as an injunction not to take oneself too seriously. Here too the honorand is taken to provide helpful guidance on striking the right balance.

The appeal of this article lies in the stimulating variety of topics covered and the way in which it weaves them together. The central idea to which much of the discussion returns is the “Essential Dilemma”. Barzun explains this as the problem of reconciling our “subjective” common-sense view of the world with an “objective” scientific view (P. 21). He considers that both Harts grapple with this dilemma. On one level, Henry Hart in The Legal Process is found to be pushing the objective scientific side in regarding “law as a ‘prudential’ or ‘judgmatical’ science” (P. 26), while Herbert Hart in The Concept of Law appears to be favouring the subjective side in advancing the “internal point of view” of the law (Pp. 15-16, 25).

Barzun’s analysis is, however, more subtle in two respects. First, he reveals that the philosophical approach adopted by each of the two Harts attempts not to resolve but to overcome the dilemma. Herbert’s ordinary language philosophy “dissolves” the Essential Dilemma by a careful explication of linguistic usage (Pp. 22-23). Henry’s pragmatism, on the other hand, embraces both horns of the dilemma by insisting that (objective) theoretical reasoning is “driven by [subjective] practical concerns”, which require an individual “decision about what to believe or what to do” (P. 23). So, it appears, “the dilemma just reflects a linguistic confusion, so neither horn need be (or ought to be) chosen.” Alternatively, “the dilemma is inescapable and yet irresolvable, so that, in some sense, both must be chosen.” (Pp. 23-24.)

Yet, secondly, he points out that neither attempt to dispose of the dilemma is credible, and this leads to its simply resurfacing as a conflict between “a theoretical problem about what to believe there is in the world or…a practical problem about what to do”. (P. 25.) Irrespective of how the dilemma is portrayed, the diagnosis that the dilemma has not gone away is convincing, as is Barzun’s insistence on the conflicting approaches adopted towards it by the two Harts. This brings us to another major theme developed in the article, the impact of a prevailing intellectual culture.

Barzun suggests that Herbert’s emphasis on an internal legal point of view became dominant and affected the reception of Henry’s understanding of law (Pp. 16-17), so as to lose sight of Henry’s ambition to provide “an ‘Olympian’ – one might even say a philosophical – perspective on law” (P. 18); and his insistence on treating law as a prudential science. (Pp. 26, 31.) This provokes Barzun to turn the tables and imagine how Herbert’s approach might have been received if it had been subjected to a prevailing view based on Henry’s priorities. (Pp. 20, 26.)

Having adopted Henry’s insistence on examining law’s capacity to provide practical guidance, the result of Barzun’s thought experiment is to conclude that Herbert’s work is shown to be “a work of profound ambivalence as to the power of law to compel obedience.” (P. 26.) In particular, Herbert is incapable of producing a sound account of legal obligation in normative terms. (Pp. 27-28.) And this is reinforced by Herbert’s own private doubts expressed in his notebooks. (P. 28.) However, Henry, judged by his own lights, fares little better, failing in his efforts “to accommodate both scientific and moral knowledge.” (P. 28.) Nevertheless, in Barzun’s judgement, Henry comes off the better for openly dealing with the problem, even to the point of making it integral to his pragmatist philosophy. (Pp. 28-29.)

At this point in the article, Barzun turns to Schlegel, and, in a nice vindication of his dominant intellectual culture thesis, Barzun illustrates how Schlegel’s viewpoint could be made compatible with Henry’s, despite the former’s recorded distaste for it. (Pp. 31-34, 41-42.) Barzun’s loose description for the culture he would prefer to dominate is humanist-pragmatist. (P. 42.) It is explained more through applications to the Essential Dilemma, enhanced by resources drawn from Schlegel. This expands the scope of the article to cover the nature of disciplines, and particularly the discipline of law (Pp. 29-33, 39); a reflection on what a good legal education might look like (Pp. 32-36); asides on the limitations of CLS scholarship (Pp. 35-36, 38-39); and a confrontation of the role of historians in legal history (Pp. 36-38). This opens up a broader profile of the academic as producing perspectives that are “partial and potentially distorted” while prone to mundane objectives in making a living (P. 38); yet capable of enjoying a kind of integrity within the “craft” of a discipline (P. 39), subject to admitting that academic pursuits “are all simultaneously decisions about what to do and what to believe.” (P. 40.)

From the pragmatist perspective he espouses, Barzun considers “the Essential Dilemma is just part of the human condition” but, as such, an opportunity for “productive and creative thought.” (P. 35.) However, confronting it in this way, according to Schlegel, can be disturbing for those who do, due to the dissonance between “deep moral convictions” and “equally deep doubts as to how they could ever rationally justify those convictions.” (Pp. 35-36.) Furthermore, any creative critique, given the implicit limitations on knowledge, is at best tentative: “the ground from which one launches the attack is always vulnerable to crumbling underneath.” (P. 38.)

So where is the fun in that? Clearly from the response of John Henry Schlegel at the same event, it lies in having the freedom to think in ways that might otherwise be prohibited by authorities with an interest in keeping established ways of thought unchallenged. Still, that might raise a secondary dilemma for those who have thus overcome the Great Dilemma. How can we be sure that our practice of this freedom of thought is creative and fruitful for others, rather than an exercise in mere self-indulgence? After benefitting from Barzun’s extensive discussion of the first dilemma in this article, it would be unfair to expect anything more on the second – but to regard that as a subject for further work might not be considered incompatible with the approach taken in the present article.