Feb 1, 2013 Robin West
In his accessible and thoroughly enjoyable book The Heuristic Debate, Mark Kelman demonstrates for the benefit, primarily, of legal scholars and policy makers, that there is not just one, but there are two challenges, or alternatives, to the economists’ rational choice model of decision making that has so influenced law and policy over the last few decades, both of which come to us from the discipline of cognitive psychology, with one of which — objections coming from the “heuristics and biases” school — lawyers are largely familiar, but the second of which – those coming from the group Kelman labels the “fast and frugal school” — we are not. But we should be. The second challenge, Kelman suggests, cuts quite a bit deeper than the first, and yields insights of relevance to both law and policy which are at right angles with those offered by rational choice theorists and the heuristics and biases school both. Mark first presents these two schools – heuristics and biases (hereinafter HB) and fast and frugal (hereinafter FF) — as participants in an intra-cognitive psychology debate, as that is how both schools originated, rather than as responses to the economists’ rational choice model of decision making, much less the latter’s deployment in law and policy. Nevertheless, and as Mark eventually argues, it’s also useful to understand both schools in their quite differing relations to the rational choice model of decision making with which they are both in conflict. (Mark calls the latter “rat choice” for purposes of brevity, but I won’t, I’ll call it RC instead.)
I’ll quickly summarize what I understand as the book’s most basic claims, then make a perhaps unwarranted inference, although I hope not, that will sharpen and recast the differences between them but also sharpen the differences of the fast and frugal school with both the heuristics and biases school and the rational choice school. My basic claim is that it is those differences, between FF on the one hand, and both RC and HB, that have the potential to reframe fundamentally the place of rational choice in our conception of law, and our understanding of alternatives to it. By contrast to those differences, and that challenge, the familiar challenges posed to RC by HB look much more like friendly amendments – provocative, thoughtful, and fun amendments, but amendments all the same. In my concluding remarks I will aim to cast somewhat differently what I take to be the most imaginative and interesting but also the weakest part of Mark’s book, to wit the discussion of Holmes and Langdell as exemplars of HB and the FF schools respectively and then finish up with some quick remarks about the role of these models of cognition in legal scholarship and legal policy debates quite generally.
For my purposes, best to start with rational choice, RC for short. RC is the economics-derived theory of decision making that has so permeated legal thought, some legal decision making, as well as some public policy and decision-making. According to RC we — humans — each rationally maximize the relative utilities of a decision, and then make the choice that increases our own net gain. RC consists of two major claims, or three if we expand the net to include its normative aspects. The first claim concerns our cognitive abilities: individuals making decisions are capable of more or less accurately assessing the probability, at least within the limits of the information they have rationally decided to compile relevant to that decision, of the various eventualities to which the prongs of a decision fork might lead, including the probability of their own future state of satisfaction or well-being with the chosen route. So if I want to buy a couch on credit with a particular interest rate for the loan, I know, better than anyone else, the probability that I will default, and the probability that I will enjoy the couch, and how much I will enjoy the couch, and how much I will suffer in the event of default. Same goes, if I am deciding, rather than to buy a couch or not, to vote on a constitutional amendment defining marriage, or on a traffic ordinance raising the speed limit, or on a term of probation, or on whether or not a letter mailed but not received constitutes acceptance of a contract. All of these decisions call on my abilities to calculate future probabilities and assess their utility. The second prong of the rational choice model, though, is motivational: once having calculated the net gains and losses of a decision, each of us then chooses in such a way as to maximize our own net utility, or if we represent others, the net utility of the group, by which is generally meant, by contemporary economists although notably not by Bentham or Mill themselves, the greatest satisfaction of felt desires. The third claim is the moral one: we should arrange our social life such as to satisfy as many of these felt desires as possible. Because people are best situated to decide for themselves the utility of possible decisions, and are motivated by and large to do so as well, we do this primarily through allowing the free flow of products through free markets, the free flow of information so that consumers can first rationally choose how much information they want and then make the most informed choices that it is rational for them to make, and through representative political systems that align the felt desires of legislators with those of constituents. Then we – meaning legislators, regulators, and judges – should get out of the way. The main normative principle that emerges from rational choice, in other words, is a strong anti-paternalism principle, particularly with respect to the utility of felt outcomes. Just about everything in normative law and economics of the 1970s and 1980s flows from this: antipaternalism in contract, Coasean analysis in tort and regulatory law, the skeptical rethinking of the logic of the antidiscrimination principle in constitutional law and so forth. All of it gets back to some form of consumer or individual sovereignty over one’s own pleasures and displeasures, all of which is in turn justified by the “I know what I like and furthermore I know how to get it” principle of what it means to be a grownup.
As most legal theorists are now aware, the group of psychologists that Kelman refers to as the heuristics and biases school have gone after the first of these three prongs – the cognitive one — with gusto; showing in now hundreds, perhaps thousands of experiments, that we’re not very good at calculating these probabilities, and regardless of how much information we’ve amassed. The problem is that we’re not good at inferential reasoning, be it Aristotelian formal logic or Bayesian probabilities. We think Sheila is more likely to be a feminist bank teller than a bank teller simply because she was a lefty in college, we think that Attila the Hun was born in whatever year most closely resembles the first three numbers of our social security number, we think that Cleveland is bigger than Columbus because we’ve heard more about the former than the latter (or, in my case, because it has an American league baseball team), we think that we won’t default on a disastrous consumer loan because our neighbors and relatives with the same loan agreement haven’t defaulted, and just as our parents to our everlasting discontent persisted in their delusional belief that because most heroin users also smoked marijuana that therefore marijuana is a gateway drug to heroin so too we apparently think that a straight man testing positive for HIV is overwhelmingly likely to have it because after all just about everyone who has HIV tests positive, and we think that whether it’s true that only the cards with odd numbers have black icons on the back can be settled by simply investigating the odd numbered cards and one or two of the evens rather than also checking out whether any of the cards with black icons have even numbers on the flip side, and so on. So if we make these logistical and inferential errors, and quite routinely, then we’re hardly going to be reliable actors in the coordinated effort to maximize social welfare by moving resources to their most highly valued users. The consequence, then, of assuming cognitive irrationality, for law and policy, is greater paternalism in markets, more use of experts in administration, less reliance on jurors, and perhaps the preferability of a republican rather than purely representative form of democracy that aims directly at human welfare or flourishing, rather than at simply satisfying as many of the people’s felt desires as possible. Consumers acting in their own interest, administrators trying to act in the interest of all, voters deciding between policies, legislators acting on the perceived policy preferences of constituents, and jurors ascertaining facts, none are reliable assessors of probabilities and therefore of the future state of the world that hinges on decision, and are therefore not good utility-maximizers. The resulting dilemma is what has generated a now familiar, if not yet traditional, debate in legal circles: the economist’s rational choice based anti-paternalism, in its various loci, is pitted against the psychologist’s purportedly more informed view that tends to favor some limited paternalism — not so as to question or readjudicate the desirability of anyone’s desired end state, but rather a soft or limited paternalism that might nudge us toward the decision we would reach, assuming the givenness of desires, but were we not beset by biases.
Fast and Frugal psychologists as Mark presents them agree that we use heuristics: We do indeed make decisions quickly, and on the basis of less than all the information we could have at our disposal to maximize the utility of competing outcomes between which we must decide. That’s the area of agreement with the bias school. But what we don’t do, according to FF, is look at all those factors, compensating, weighing, and balancing them, each against the others — we don’t do this either rationally or irrationally. We don’t take “all things into account.” We don’t calculate the relative utility of possible streams of consequences. We don’t assess, project and then weigh probabilities for what might happen if we do x, y or z, and then calculate, computer style, which yields highest utility, taking “all things into account,” and then take which ever path maximizes net gains. So it’s hardly fair to fault us for doing irrationally, that which we’re not trying to do at all – and furthermore, that which we shouldn’t try to do at all. Rather, what we do is leap to conclusions. We decide things, when we decide things, on the basis of one or two but at any rate a very few factors, or prompts, or cues used sequentially: we do what we’ve done in the past, or out of habit, or what our neighbors do, or what we’ve been taught to do, or what a legitimate authority tells us to do, or what we think we ought to do on the basis of deeply held values. We use these heuristics – community norm, habit, etc. – so that we can make decisions quickly: the heuristic blocks out, or obliterates, all those factors we don’t take into account. And finally, our use of those heuristics either today or at some prior time contributed to our own survival or that of our descendants. It helps our own odds of survival to obey those in authority, be they biological mothers or fathers on whom we rely for basic needs or political authorities on whom we come to rely for protection against aggressors, or gods in whom we come to believe. It’s not a bad strategy toward the same end likewise, to do as our neighbors do, or to ostracize others and outsiders, and so on. So, we rely on these cues – follow the community norm, follow habit — not so as to maximize utility, either rationally or irrationally, but in order to maximize our inclusive fitness. The decisions we make, then, even employing heuristics that are patently irrational, and look all the more so when viewed in laboratories that strip the environments of the ecological factors that would make them intelligible, are not as counterproductive as they seem, and their use far more often than not leads to acceptable outcomes.
That’s my summary. Now, Mark draws a number of contrasts between these two schools, and spells out implications from each for consumer protection, criminal punishment, discrimination law, and for formalism and realist theories of judicial decision making. There are two further and quite consequential inferences we can draw, though, from Mark’s account, that I’d like to highlight. The first is just this: the contrast between the fast and frugal school on the one hand, and both rational choice and the heuristic biases schools on the other, as Mark presents them, is so great as to dwarf the contrast between the HB and RC schools which has absorbed the attention of legal theorists for two decades now. In other words, against the backdrop of the fast and frugal school, the heuristics and biases tradition emerges from mark’s account as a friendly amendment to rational choice, with the fast and frugal school being by far the deeper critique. Put differently, we might have viewed the HB school as being such a deep critique of rational choice simply for lack of a third comparator, sort of like how I thought my two sons were just night and day different, until I had my third child, a girl. So, the result of Mark’s presentation of the three schools in this one book is that the debate is reconfigured, with the HB school – who might be relabeled as the irrational choice theorists — and the rational choice theorists on one side of the divide, with at least the fast and frugal theorists – and maybe others — on the other. This is an important finding, because the reconfiguration it suggests opens up a new question: what do the rational choice and the HB people share, in spite of all their differences, that the frugal school has put into doubt? And should the rest of us doubt it as well?
The answer is obvious once it’s stated that way and particularly if you will accept just for these purposes my relabeling: the rational choice school and their irrational choice critics converge on the centrality of “choice,” and what it means to make one, and even what it means to make one rationally. They differ on our abilities to carry it out. But what unites them is much greater, and it is that common ground that is thrown into relief by a theory of decision making that contrasts with both, and that is what mark’s book above all else shows. What unites them is twofold: they both, unlike the FFers, agree with what I identified as the second claim of the rational choice theory above, to wit, that individuals are motivated to maximize utility (whether their own or that of others). Second, they agree that what people do, when facing a decision, is choose, and in a calculated manner, that which does so. What unites them is their shared commitment to the joint proposition that we are and should be utility maximizers, first, and that the way we maximize utility is through choice. What divides them is simply how good we are at it. Because the gulf between the belief in rationality on the one hand and irrationality on the other seems so large, we have been relatively blind to the gigantic ground they share at the bottom of the gulf. The ground on which they both stand, although miles apart, is choice and utility.
The fast and frugal school puts both utility and choice in doubt, with respect to vast areas of decision making, including, most assuredly, legal and moral decision making, but also including decision making in parenting or childing, in military service, and in education. It puts utility in doubt, quite explicitly: we aim, at least sometimes, toward inclusive fitness, not utility, when making decisions. Mark notes this and repeatedly. But second, and here comes my perhaps unwarranted inference, it seems to me that if Mark’s description is correct, the FF school also puts choice in doubt, although he never quite says so. When we are faced with a decision, at least some of the time, according to the FF theorists, we don’t “choose” at all, whether rationally or not. Choice is the wrong verb. We don’t calculate, we don’t take all things into account, we don’t balance one sort of consideration over another, and we don’t choose among them seeking to maximize payoffs. Rather, what we do, according to FF, when making decisions at least much of the time, is follow. We follow habit. We follow the speed of the traffic. We follow a community norm. Sometimes, if there’s a relevant authoritative pronouncement, we follow that norm. More than “follow,” I would say, we obey, or we submit, or we comply, or we conform, or we go along to get along. Or, if there’s a relevant moral principle, we obey that. These are all different from choosing. Now again Mark doesn’t characterize it this way, so I assume the FF school doesn’t either, but it follows pretty directly on the heels of two things they do emphasize. The first is simply the scarcity of cues – if one must do something, and one only has one cue, then that cue becomes an imperative: do this. If that cue proves inadequate one moves on to the next, which then itself becomes imperative. But second, it follows from the nature of these cues the FF’ers identify, at least those that guide decisions about what to do rather than cues about what is true or false: community norms, habit, moral principle, authoritative directives. These cues are all, in some sense, imperatives.
One way, then, it seems to me, to characterize the difference between FF and both RC and HB, is that the cues that FF identifies for action guiding decisions are not only far fewer in number, and aimed at inclusive fit rather than utility, and used one at a time, but that they are very different in content and even in grammar from the “heuristics” of the HB school or the factors and probabilities of the RC approach. The “heuristics” identified by the FF school are, simply, imperatives of some sort: of a commander, of a policeman, of the state, of a moral principle, of a community, of a habit, of a father. If, in the face of one of these “cues,” we weigh it against other considerations, if we balance a moral principle or a parent’s directive or a military commander’s order against other considerations, we have done something that is not so much irrational, as non-compliant. Think of a promise: a promise is a reason-displacing imperative one makes to the promisee and ultimately to oneself. If we’ve made a promise we must keep it, when faced with the decision to do so, even if we regret having made it, full stop, so to speak. We don’t consider pros and cons. We must do as we promised. That’s typically how we speak of it. Sorry, I can’t meet with you, because I promised… There’s an imperative dimension to that promise that pushes aside other considerations, or it’s not what it appears to be. The promise becomes a command that displaces choice. The same is true of a duty. If we have a duty, we act in accordance with it, full stop. That is what it means to be under the sway of a duty. If we’re duty bound, we’re duty bound, the duty displaces choice. The command of Justice is just that, it’s an imperative, whatever else it is, it is that with which the lawgiver must comply. When we act in accord with law, with morality, with parental authority, with community norm or from habit, we act in accordance, we don’t choose.
In these cases, in these circumstances, which is obviously not all of the time, these decisions don’t feel like choices. When we keep the promise we regret having made, we feel that we do so because we must, that we don’t have any choice, as we might even say, we don’t keep it because we have calculated the dis-utility of relative social disharmony if we dispense with the institution in this case or generally and decided that it’s not worth it to contribute to that disharmony. We act in accord with the categorical imperative because it’s an imperative, we must. We act in accord with law, or with our parent’s or the sergeant’s directive because we must; these things displace choice, they don’t guide or frame it. Likewise the lawgiver or judge must act in accord with the command of Justice. The decision, then, is not what to choose to do, with relative utilities attached to each, it’s whether or not to obey. We feel compelled to act, and there might be a question whether we have the courage or imagination to buck that compulsion, but more often there’s not. We’re indeed making a decision, but there is an imperative pushing it. The value of the FF school, I believe, whatever one thinks of the evolutionary story on which it rests, is that it puts that contrast – between decision as choice, and decision as compliance, or habit, or community, or the imperative of principle – front and center.
If we attend to THIS contrast – between the sense of choice that the rational and irrational choice theorists focus on and the sense of compulsion which the frugalists highlight, the contrast between choosing and following, between descriptions of states of affairs with probabilities attached and descriptions of states of affairs that are laden with imperatives, as cues of action – then I would suggest that the accounts of decision-making that occur within some relationships – between parent and child, or sergeant and private, or even doctor and patient or teacher and student or in some contexts sovereign and subject and perhaps as well between moral principle and moral agent and certainly between habit and habitué – become more recognizable. These are relations of authority, in which one party issues a directive the point of which is that it must be obeyed, not construed as a factor with sanctions the utility of which must be assessed and weighed and so forth. Within these contexts, the FF account of decision-making seems far more compelling because it seems so much recognizable. Some decision-making contexts, it seems, give rise to the imperativist quality of FF thinking, some are structured around it. All structures of human authority, it seems to me, are such contexts, including legal authority. Moral principles though have the same quality – they too have an imperativism that displaces calculation. As we mature we may find in our adult lives that it is only moral principle, and then only some of the time, and law, and that again only some of the time, rather than any other human authority, that invites FF thought. You must, you shall, you will.
And finally, if we attend to this contrast – the contrast that is between factors that trigger individual choice in the rational choice or the HB way, and factors, or imperatives, that trigger compliance, obedience, submission, and so on – some recurrent debates in both law and morality also come into sharper relief. Deontological moral theorists basically pose moral questions as raising issues of right and wrong that require imperative resolutions; what’s being sought is the thing that must be done. The deontic moral rule famously displaces consequentialist analysis, it’s not weighed against it. More to my point though the categorical imperative is an imperative, moral rules are rules, not standards. Rights theories in international and to some degree in constitutional law as well do likewise; what’s sought is what must be done, not what all things considered should be done taking everything into account. If I have a constitutional right to something, then the state simply must respect it, it’s not one factor to weigh against others. Likewise, if FF thinking is deep seated, and if a promise is an example of a cue which displaces in the imperative way Mark attributes to them, then it’s obviously no wonder that the Holmes-ian account of a contractual promise – that it is a prediction that either an event will occur in the future or that damages will be paid – sounds like nonsense to so many people including many of our students; it is a deep grammatical mistake, both linguistic and moral at the same time, to characterize a promise in such a way, including a legal one. Similarly, if a duty is a cue that precludes calculation, it is again no wonder that the realist understanding of it as something which predicts an act in accordance with it or liability for damage seems just ludicrous. If a tort is a “wrong” it’s absurd to define it as a set of background norms that kick in where transactions are so high as to preclude bargaining but which mimic what those bargains would have been, assuming rational actors. More broadly still Mark might be right that Langdellian understandings of legal rules and principles construe both as the sort of thing which sets calculation aside, in which case he is right to regard Langdell as an interesting example of a fast and frugal-influenced thinker. But if he’s right in that, it’s because for Langdell, but not Holmes, law appeared as a context within which FF thinking felt fully appropriate. I suspect it did appear as such, and it did so precisely because of its authoritative, imperative dimension. You must, you shall, you will. Holmes just didn’t experience the commands of law as commands, nor did his bad man, that’s what makes him so bad.
Let me close with two quick normative suggestions. If we take the possibility of even occasional FF thinking seriously, we might want to quit so compulsively characterizing all decisions as decisions of choice. They’re not. Second, we might consider the possibility that by so doing — by framing all decision making, monochromatically, from decisions regarding purchases of toothpaste to votes on constitutional amendments to judicial reasoning as decisions calling upon us to choose — we are doing our students, and even the world, a disservice. Sometimes, even in law, a little bit of modularized, FF thinking, particularly with regard to legalistic moral principles, might be called for. Don’t torture. Don’t target citizens for assassination. Don’t execute the innocent. Don’t ruin the earth. Perhaps, were law schools to take seriously the idea that there exist some legalistic moral and imperative principles of justice – commitments to fairness, to process, to the protection of the vulnerable, to human dignity, or whatever those legalistic moral principles might be – that are worthy, we might wish to instill a modularized respect for them. A modularized respect for them, in turn, might, sometimes, such as the times we now inhabit, serve us better than the consequentialist balancing, the weighing of all factors, the calculating, the assessing, and the choosing, that we so relentlessly practice and seek to instill, and that we so relentlessly and insistently call reason.
Dec 10, 2012 W.A. Edmundson
Stephen R. Perry,
Political Authority and Political Obligation in 2
Oxford Studies In the Philosophy of Law (Leslie Green & Brian Leiter eds., forthcoming 2012) (Univ. of Pennsylvania School of Law, Public Law Reseach Paper No. 12-37, forthcoming) available at
SSRN.
A right to rule is the mark of a legitimate state or, put differently, of legitimate political authority. The correlate of this right to rule is a general duty, borne by all within a relevant territory, to obey the law laid down by the state – all of the laws, whatever their content. The right to rule excludes any right on the part of citizens to “pick and choose” which among the laws that apply to them to obey. The duty is a defeasible one, which must yield in case the duty-bearer is so circumstanced that a great evil could be avoided only by disobeying the law’s command. But, extraordinary cases aside, the general duty prevails. Such is the traditional view that this paper wants to reorient.
One problem with the traditional view is that it encourages the assumption that there is an acid test of state legitimacy: is there or is there not a general duty to obey? The legitimacy of political authority is thus tied to the existence of a general duty that there is good reason to doubt. The general duty dignifies silly regulations and fussy requirements that it seems morally innocent to ignore. Moreover, each of the theories that have traditionally been marshaled to justify such a general duty of obedience – gratitude, consent, tacit consent, hypothetical consent, fair play, necessity, expertise, association – come up short. On the traditional view, legitimacy can be established by establishing the general duty, and it can be rejected if the general duty lacks a persuasive ground.
In Perry’s view, the traditional view invites a mistake. Its fixation upon the general duty of obedience misleadingly suggests that this arguably necessary condition for recognizing a right to rule is also a sufficient condition of legitimate political authority. It ignores what Perry calls the “reverse entailment problem,” namely, that a general duty of obedience might prevail independently of the state’s possession and exercise of authority.
David Estlund’s example of the tyrant’s bossy child – whom one ought to obey, but only because if one does not the tyrant will be annoyed and do harm – shows that one might have a duty to obey one who is not in authority.
The traditional view goes wrong because it overlooks or underplays the fact that authority is a moral power. The state’s right to rule (where it exists) consists in a Hohfeldian power instantly to create moral duties, and the citizen’s correlative moral liability to become subject to these duties. The corrective, Perry argues, is to replace the traditional conception of legitimate authority with one that puts moral power (not to be confused with physical force) front and center. This adjustment imposes two, hitherto under-appreciated, constraints upon successful justifications. The first is an prospectivity condition: a successful justification will represent state authority as typically imposing duties instantly, rather than after further conditions are satisfied, such as sufficient compliance. The second is a value-of-intentionality condition: a successful justification will involve establishing the value of the state’s having a moral power to alter instantly the moral position of its citizens.
Perry argues that these conditions have two significant, further implications. The first is that any good argument justifying a state’s claim to legitimate authority must proceed directly rather than indirectly. A direct argument is one that right up front identifies the value that justifies the moral power – as opposed to an indirect one, routed through the general duty to obey. But this points to the second, graver, consequence: the traditional arguments used to establish legitimate political authority, because they are indirect, are misdirected. Even if successful, the traditional arguments can at most establish a general duty to obey, which tends to fudge the further, prospectivity condition that a genuine moral power must meet. These old arguments, and their hybrid variations, pursue an “aggregative” strategy that hopes to construct authority by adding up individuals’ several duties to obey. Aggregative strategies, being indirect, and focused on the authority relation individual by individual, forget to stock up the extra resources needed to meet the value-of-intentionality condition, and they ignore the prospectivity condition.
Perry makes a positive case for what he calls a value-based conception of moral powers generally:
one person A has a power to effect a certain kind of change in the normative situation of another person B if there is reason for regarding actions which A takes with the intention of effecting a change of the relevant kind as in fact effecting such a change, where the justification for so regarding A’s actions is the sufficiency of the value or desirability of enabling A to make this kind of normative change by means of this kind of act. (P.82.)
The value-based conception is designed to respect both the prospectivity and the value-of-intention conditions. Applied to the problem of specifically political/legal authority,
the value-based conception of a moral power is the conceptual core and, perhaps – depending on one’s views about descriptive versus normative jurisprudence – also the moral core both of jurisprudence and of law itself. (P.88.)
Despite the reference to “moral core,” Perry offers this as “a piece of normative-conceptual analysis” rather than a “substantive theory addressed to the justification problem”:
further moral argument is required to determine what kinds of value (if any) will justify A’s possession of such a power, as well as to determine the sufficiency of that value. (P.82.)
Perry does indicate the direction in which a successful substantive theory ought to go. That way is a “task-efficacy theory,” so described by Leslie Green, and pursued most notably by John Finnis. Such a theory will pursue this thought:
The most important function of the state is to accomplish particularly important moral goals that states are uniquely suited, or at least particularly well suited, to achieve on behalf of their subjects by means of the normative instrument of a capacity to impose obligations. (P.10.)
The working-out of a substantive theory of this type is a task the paper leaves for another day.
Perry’s paper is not only a joy to read, it imparts the kind of excitement that only a pathbreaking achievement can. He has, I think, turned an in important corner in a discussion that began with Plato’s Crito. I do have a few misgivings, though. A task-efficacy theory is supposed be capable of satisfying the value-of-intention and prospectivity conditions, but it is not immediately clear why such a theory has that fitness, and would not fall to the same lines of criticism that Perry deploys here to bring down Joseph Raz’s much-discussed “normal justification” thesis. (The normal justification thesis, in fact, looks to be a kind of task-efficacy thesis, where the relevant task is that of improving people’s conformity with reasons that bear on them anyway.)
A more basic worry has to do with Perry’s formulation of his own value-based conception. Presumably, the value of someone’s having a power is derivative from – and not merely “systematic[ally] link[ed to]” (35) – the value of what their exercise of it can be expected to achieve. It isn’t power for power’s sake. But Perry sees things otherwise:
the idea of “sufficient value” which is associated with the value-based conception is, strictly speaking, concerned with the value of the possession by the power-holder of the capacity to intentionally change the normative situation of others, and not with, say, the value of states of affairs that might result from the exercise of that capacity. (P.35.)
That a moral power might have intrinsic value is at least plausible in the case of promising, where there seems to be – as Raz has argued – an intrinsic value in being able to obligate oneself. Suggesting an analogy, Perry writes: “the capacity intentionally to impose obligations on others can also have intrinsic value” (36, n 50). My initial reaction to this surprising claim was a Seinfeldian “Really?”
Notice that the intrinsic value of being able to obligate others is not to be confused with the intrinsic value of having them do one’s bidding. The intrinsic value of having a moral power has got to involve something beyond the intrinsic value of having a power simpliciter. David Estlund describes a trait, which can be called “small-error tolerance,” that distinguishes obeying an authority from merely conforming with what an authority figure happens to demand (Democratic Authority: A Philosophical Framework, 125. Princeton UP, 2008).
If one is indeed subject to an authority possessing a moral power, then one must perform the duties it imposes even where one knows one might better (and harmlessly) serve the powerholder’s objective by doing something different. Of course, because such duties are defeasible, they are always subject to being overridden in case they rest on massive errors. But, according to Estlund, if we are talking about a genuine authority, that means that those genuinely subject to it are morally required to be tolerant of the smaller errors. A successful account of authority must include an account of why small errors must be tolerated even when greater overall value will be (harmlessly) achieved by deviating from what authority has commanded. There has to be some intrinsic value to being small-error-tolerant, and the question is: where might such a value lie? As I said, it seems unlikely that anything about the power-holder could serve: there’s just nothing intrinsically valuable about having or being a boss (pace David Owens, who writes “human beings have an interest in the possession of authority for its own sake, regardless of any further purpose this authority might serve” The Shaping of the Normative Landscape 146. Oxford UP, 2012).
But where else might the needed value lie? My suggestion is that we look to the duty-bearer as the locus of whatever is intrinsically valuable about obedience – or, more precisely, valuable about being small-error tolerant. It might be that such a disposition is valuable as an aspect of sociability, or then again, it may not (cf. my “Political Authority, Moral Powers, and the Intrinsic Value of Obedience,” Oxford Journal of Legal Studies 2010 30: 179-91). In his sketch of a task-efficacy theory, Perry cites the possibility of a variant that “would find intrinsic value in the fact that the possessor of this capacity was democratically elected” (86, italics original, and n 123, citing Thomas Christiano, The Constitution of Equality, 231-59. Oxford UP, 2008). Again–why look to facts about the possessor, rather than the conveyor, of the moral power as the locus of intrinsic value? Other values have to be accommodated as well, such as the moral equality of persons, which seems in tension with the value of having moral power over persons (cf. Bas van der Vossen, 2012, “The Asymmetry of Legitimacy,” Law and Philosophy 31: 565-92). And, as Perry acknowledges, it may turn out that no value is up to the task of underwriting moral powers over others. Hart, whose emphasis on power-conferring rules Perry invokes in his conclusion, thought that the very idea of a “moral legislature” is absurd. Hart’s skepticism presumably would extend to the idea of moral legislators as well. So, the kind of substantive discussion that Perry’s admirable account invites and demands will not be a quick one – but it is surely one that legal theorists need to be having.
Cite as: W.A. Edmundson,
Perry on Powers, JOTWELL
(December 10, 2012) (reviewing Stephen R. Perry,
Political Authority and Political Obligation in 2
Oxford Studies In the Philosophy of Law (Leslie Green & Brian Leiter eds., forthcoming 2012) (Univ. of Pennsylvania School of Law, Public Law Reseach Paper No. 12-37, forthcoming) available at SSRN),
https://juris.jotwell.com/perry-on-powers/.
Nov 14, 2012 Sean Coyle
“There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy. It is the object of this book to identify those goods and those requirements of practical reasonableness, and thus to show how and on what conditions such institutions are justified and the ways in which they can be (and often are) defective.” So wrote John Finnis at the outset of Natural Law and Natural Rights. We often think of Finnis as being distinctive among legal philosophers in the modern era in wishing to place this question at the very centre of jurisprudential inquiry. It is not an approach to the subject that we immediately connect, in our reflections, with the legal philosophy of that other prominent opponent of legal positivist understandings of the legal order, Lon Fuller. But as Kristen Rundle’s excellent book Forms Liberate reminds us, Fuller was unwavering in his insistence that there is something distinctive and important about legal forms, that there are aspects of the human condition, of incalculable importance to us, that can be “secured only through the institutions of human law.” At the same time, Fuller also connected this distinctiveness of form with the issue of practical deliberations, of the manifestation and respect of human agency.
The main purpose of Forms Liberate is to “reclaim” Fuller’s jurisprudential concerns from the periphery of present-day philosophical debates, and to return them to the centre of our inquiries so that they might interrogate the assumptions, both of method and of substance, that continue to structure the domain of inquiry. The title of the book comes from a working note of Fuller’s, written during the preparation of his “Reply to Critics,” in which all except those two words are scored out: “forms liberate.” Drawing heavily upon Fuller’s private papers, the book attempts to explain the significance of that image for Fuller’s project, to situate it in the context of Fuller’s thinking as a whole. Rundle suggests that Fuller never managed successfully to articulate his agenda within the much narrower context that Hart forced upon their famous exchanges, which often left Fuller bewildered: in particular, “Fuller losing himself and some of his best ideas to the challenge of understanding why Hart and others had dismissed him so harshly…” (P. 5.)
A great deal of Forms Liberate is devoted to uncovering the broader context of Fuller’s jurisprudential vision. It is informed above all by “eunomics,” the theory of good order. Previous studies of Fuller have explored the significance of this dimension of his thinking, but none have done so with as much sensitivity, patience and depth as is exhibited here. The extensive employment of Fuller’s unpublished papers reveal aspects both of Fuller’s work, its motivations, ambitions, concerns, and of Fuller as a thinker. The book aptly conveys how much we stand to gain by examining, as Fuller does, the meaning and import of the variety of legal forms: the distinctive forms of contract law, of property, or of adjudication itself. What marks these out, and what makes them significant, as forms of governance?
Everyone is familiar with Fuller’s enumeration of the eight fundamental principles of legality in The Morality of Law, and his insistence that taken together they amount to an “internal morality of law.” Rundle does more than previous interpreters of Fuller to show in detail how this question of “internal morality” is guided by a vision of “what it means for a lawgiver to treat the legal subject with respect as a responsible agent.” (P. 8.) The principles create not only a certain ethos on the part of the lawgiver as to the meaning of his role, not only a set of constraints upon the form in which power is exercised, but at the same time, a “particular conception of the legal subject as someone who must possess the necessary responsible agency to be able to interact with general rules, and the conditions through which they are communicated…” (P. 9-10.) Hart too gave consideration to this very question, at the beginning of Chapter VII of The Concept of Law, but unlike Hart, Fuller develops a perspective from which the distinctive form of law instantiates a relationship with responsible agents that demands “more than forbearances.” (P. 10.) The principles of legality are not simply constraints upon lawmaking (least of all intimations of efficient lawmaking), but hint at “an idea that is broader”: a conception of the relationship between law and human agency that is “reflected in the observance of the eight principles but which is not exhausted by them.” (P. 92.)
Previous encounters with Fuller’s jurisprudence have emphasized the law’s creation, when in accordance with the eight principles, of domains in which an individual is rendered free of the will of others, thus enjoying a domain of privacy and freedom in which to elaborate and pursue his own interests. But as Rundle points out, the implications that Fuller wished to draw out were considerably broader, amounting above all to a “commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.” (P. 97, quoting Dworkin.) The citizen is not one who is simply “acted upon,” whose only response to being governed by laws is obedience or disobedience. It is the situation of someone who has regard for how her conduct affects the position of others in society, who is capable of acting not only out of her own interests but as an active participant in the legal order. (Pp. 99-100.) Rundle connects this image with the Greek spoudaios, but it could equally be associated with the image of the person whose practical deliberations are properly centred upon the fostering, and perhaps even enhancement, of the common good: one who possesses, and comprehends, their duties in justice.
Reading Forms Liberate, I was struck by the many points at which Fuller’s attempts to understand the meaning and requirements of “good order,” and its connection to legal forms, connect with the questions of justice, order and community that lie at the heart of the inquiry in Natural Law and Natural Rights. Indeed the association of these concerns with the very manifestation of practical reasonableness is an abiding concern of both inquiries. There seems to me to be much room for fruitful engagement with this range of issues, not least because the specifically legal philosophy of NLNR is usually accorded less prominence than the considerations attaching to its political and social theory: as Rundle points out early on, “Fuller was a lawyer, not a philosopher. Thus, in his writings we do not find, as we do in Hobbes or Kant, a trajectory of inquiry that starts with the premise of human agency and moves from this to the necessity of law…” (P. 9.) It is therefore a matter for regret that Finnis is mentioned only twice in Forms Liberate, both times en passant. Rundle (in a sense understandably) wants above all to put Fuller in dialogue with Raz and Dworkin. To do so is to place Fuller’s concerns at the centre of current debates.
Raz undoubtedly demonstrates a concern with the significance of practical reasoning and agency, and in this sense promises to “open up a novel site of engagement with Fuller.” (P. 23.) But as Rundle observes, the distinctive nature of Raz’s concerns provides much less scope for connecting this inquiry, as Fuller would undoubtedly have wanted, with the question of the law’s relationship to morality. Similarly, Dworkin’s jurisprudential vision in bringing into question contested conceptions of the value of legality, has resulted in his “arriv[al] in territory that was Fuller’s primary turf. (Id.) But I wonder how far this is really the case. Dworkin has no abiding interest in the distinctive form of law. In Justice in Robes, he divides the concept of law into a “doctrinal” and a “sociological” concept. The former pertains to the identification of legal standards, specifically bringing into question the extent to which the law has a moral dimension; the latter pertains to the law’s status as a distinctive type of social institution (Justice in Robes, 1-5). Whereas the doctrinal concept represents (in Dworkin’s eyes) a question of huge practical and philosophical importance, the sociological concept is devoid of philosophical significance, deriving temporary significance from whatever purposes sociological inquiries are thought to fulfill (Id. at 2-3). There is no sense in which, therefore, legal order possesses importance as an object of moral contemplation in virtue of its distinctive form.
The important chapters, 6 and 7, of Forms Liberate certainly offer much food for thought, not only about Fuller’s body of work and its implications, but also about the way in which Raz’s and Dworkin’s outlooks should be understood. But there is a potential cost of distortion in allying Fuller’s concerns about legality to these projects, with their associated philosophical baggage. Is there (for example) more than a superficial similarity (perhaps a similarity of terminology) between Fuller’s and Dworkin’s concern for “responsible agency” as a central object of thought? (P. 173-74.) The meaning of “agency” is for Dworkin bound up with an avowedly Protestant understanding of community, (Law’s Empire, 190) and of the process of reasoning itself, which does not straightforwardly cohere with concerns about the nature of “good order.” More than anything, it generates concerns with the “guidance” and “constraint” of governmental power, and the manner in which these concepts demonstrate respect for individual rights (Id. at 93): a very different question to one focused upon the distinctive characteristics and concerns of the spoudaios, and the conditions for its emergence. Rather than “overstating” the points of difference between Fuller and Dworkin (Forms Liberate, 188), I wonder whether the book significantly understates them.
The book’s final chapter asks “what can be learned from the project of reclaiming and re-situating Fuller for the kinds of conversations we might now have about the animating themes of his jurisprudence…” (P. 191.) Specifically, the question is what we can learn about the way Fuller’s thinking “engages with, interrupts or gives content to the ideas of morality, instrumentalism and legality.” (Id.) Repeatedly, the sense gained from Fuller’s work, both published and unpublished, is that he regarded the dominant positivistic conceptions as “fundamentally incomplete”: that the difficulty with source-based conceptions of law “is their failure to qualify their instrumentalism with the legality of law.” (P. 197.) The overall image of Fuller is of a philosophically-minded lawyer thinking his way into, and amongst, these problems, seeking answers to them but at the same time seeking to foster an awareness of how complex and intractable they are. Forms Liberate presents a sympathetic picture of a thinker whose very lack of certainty formed part of a conception and method of philosophy: not as a distinctive kind of activity which might take as its object law, as a source of interesting puzzles that stand to be “solved”; but as a kind of reflection upon legal problems, and upon the implications of legal forms and doctrines, being prepared to extend the inquiry ever more broadly and deeply, perhaps without end.
To this end, one might ask for what purpose it is desirable to “reclaim” Fuller. Is it, as here, to put Fuller into more direct and fruitful dialogue with the dominant philosophical conversations of the day? Or should we be revisiting Fuller’s work as a source of insights into those conversations that we are not having, but ought to? Are Fuller’s ideas and concerns displayed in their best light, and their full significance, when in dialogue with philosophers such as Raz, Shapiro and Dworkin? Or when contemplated in the light of the philosophies and concerns of Aristotle, Plato, Kant, Aquinas? Forms Liberate elucidates Fuller’s thinking in a way that leaves the door invitingly open to such inquiries, even if it does not itself undertake them.
Rundle has produced a highly informative and thought-provoking book, rich in detail, sensitivity and rigour. It succeeds admirably in its aim to re-orientate our understandings of Fuller’s thinking, and leaves the reader with the desire to revisit and reflect anew on his central concerns.
Cite as: Sean Coyle,
Reclaiming Fuller, JOTWELL
(November 14, 2012) (reviewing Kristen Rundle,
Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford, Hart Publications, 2012)),
https://juris.jotwell.com/reclaiming-fuller/.
Oct 22, 2012 Daria Roithmayr
Yes, yes, I know this is the Journal of Things We Like. And I like, like, like Ian Haney Lopez’s essay, “Post Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama.” But to understand why I like it so much, I have to say a word about something I also liked, but not as much as I had wanted to.
A great deal of attention has been paid to Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The attention is well deserved; Alexander is a great writer with an eye for a compelling narrative. But truth be told, I was left feeling a bit dissatisfied when I finished reading. How does the New Jim Crow racism actually work, structurally speaking, when it comes to mass incarceration? Is subconscious bias (by police) and naked political gain (by the architects of the war on drugs) really the entire story? Isn’t there a deeper, more coherent structural story to tell here with regard to cause?
Happily, Ian Haney Lopez tells that story, in an essay published in the California Law Review. Written before Alexander’s book was released, Ian’s essay takes on the subject of mass incarceration in three parts. The first part describes the racial politics of mass incarceration. Here, Ian draws on research that traces the evolution of political rhetoric on crime control, from Southern politicians to Goldwater, LBJ and Nixon.
More importantly, Haney Lopez connects the anti-crime rhetoric to the anti-welfare rhetoric that developed during the same era. I say importantly because this double-targeting of anti-crime and anti-welfare helps to identify the structural force at work here: the move to shut down any possibility of significant redistribution of taxpayer dollars, in the form of help for communities that had been under the yoke of racial oppression.
Affirmative action was just a small part of what could have been a broader call for a Marshall-style program to aid communities (and cities) that had been the victims of racism. But anti-crime and anti-welfare rhetoric reframed the state as limited in scope, responsible for security but not for a social safety net. Whites got security, which is government’s job. (Never mind that crime rates were declining.) Black and brown citizens, and not government, were responsible for their own poverty-reduction.
In the second part, Haney Lopez animates this shift in rhetoric theoretically. In particular, he uses racial stratification theory (ala Charles Tilly and Doug Massey) to explain the shift away from welfare and towards incarceration. Mass incarceration of men of color works because it has justified white exploitation of non-white communities. Read “exploitation,” and think of things like slavery and Jim Crow sharecropping arrangements, or in modern era exploitation, low-wage labor from undocumented workers.
In this vein, Haney Lopez describes in detail the history of the convict lease system that flourished in the South after the Civil War. After the war, the proportion of blacks in the Southern prison population skyrocketed, driven by the practice of leasing out of convicts as laborers to industrialists and farmers. In the modern era, whites still profit less directly from prisons, which are a significant source of business in many states.
In addition, racial differences in criminal justice population serve to justify white hoarding of previously acquired resources. As an example, Ian rehearses the argument by Loic Wacquant that mass incarceration helps whites to hoard the profits of globalization. Mass incarceration is a way to manage the large number of unskilled black and brown workers left behind by globalization and the relocation offshore of industrial jobs. One can only imagine what Occupy protests might have looked like if the ranks had been swelled with those unemployed poor and working class blacks and Latinos, who were in prison at the time.
More generally, in the third part of his essay, Ian focuses on the way in which mass incarceration of black and brown men is part of a broader contest over resources. To hold onto their monopoly of profit, power and taxpayer resources, whites have needed the machinery of the criminal justice system and of law. Among other things, whites have needed legitimate tools of violence and coercion in order to enforce exclusion and exploitation. People often push back when they are excluded or exploited. Violence is needed to preserve white dominance.
Criminal justice works, for example, giving unskilled whites a competitive advantage when black and brown felons are taken out of the job market, or are essentially handicapped on the labor market with their criminal record. Mass incarceration also advantages whites in their competition for control of the levers of state power. In prison, black and brown felon populations are in no position to politically demand for their communities “an effective jobs programs, affordable day care, decent schools and after-school programs, markets offering employment or selling healthy products at fair prices, access to mainstream financial institutions, or efficient transportation links to the broader metropolis…” (p. 1058). Felon disenfranchisement extends the problem.
It is precisely this sort of structural analysis—focusing on a larger coherent structural narrative as opposed to subconscious bias or naked partisan gain—that we see too little of in Alexander’s book. Haney Lopez’s analysis is much more specific to mass incarceration and far more well developed.
Precisely because I am a structuralist, I would have liked to hear how politicians, voters and law enforcement produce and reproduce these structural processes. (Never too much structure for me…) Still, at the end of the day, I am very happy that Haney Lopez has pushed the inquiry about mass incarceration in a very structural direction. Alexander and others writing on the subject would do well to follow his lead.
Cite as: Daria Roithmayr,
Prisons, Poverty And Power, JOTWELL
(October 22, 2012) (reviewing Ian F. Haney Lopez,
Post Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98
Cal. L. Rev. 1023 (2010)),
https://juris.jotwell.com/prisons-poverty-and-power/.
Sep 24, 2012 Michael Green
Caleb Nelson,
A Critical Guide to Erie Railroad Co. v. Tompkins, 54
Wm. & Mary L. Rev. (forthcoming 2013)
available at SSRN.
Philosophy of law can get lonely. Most law professors, not to mention lawyers, don’t care whether legal positivism or some kind of anti-positivist alternative is correct. It is surprising, therefore, that philosophers of law so rarely discuss Erie Railroad Co. v. Tompkins, since Erie suggests that the philosophy of law can be relevant to legal practice.
Legal positivism is identified, in part, by the social fact thesis: the law of a jurisdiction is fundamentally a matter of social facts concerning officials (or the general population) within the jurisdiction. In his opinion in Erie, Justice Brandeis rejected the regime of Swift v. Tyson, in part, because he thought Swift was incompatible with this thesis. In Swift, Justice Story opined about the common law prevailing in New York without deferring to the decisions of New York state courts. That sounds anti-positivist. Story apparently understood the common law to be binding in New York independently of social facts about New York (or, indeed, any other jurisdiction’s) officials.
There is another reason that philosophers of law should be interested in Erie. If Brandeis’s reading of Swift is correct, it actually poses a threat to legal positivism. Legal positivism is supposed to be a general theory of law. It identifies the essential features of law wherever law occurs. If Swift really was anti-positivist, that suggests that positivism fails as a theory of law.
To be sure, the positivist might redescribe what went on in Swift in positivist terms. She could insist, for example, that Story was really applying federal common law – that is, common law that existed due to social facts about federal officials – even if Story did not understand the law he was applying in those terms. Indeed, that is precisely Brandeis’s strategy in Erie. Construed positivistically as federal common law, the law applied in Swift was unconstitutional, Brandeis argued, because federal courts lacked the requisite common lawmaking power.
But this strategy has its limits. I cannot claim, for example, that bachelors are essentially married males and that the rest of the world is conceptually confused. Although a theory of law can reject what some people say about the nature of law, it must by and large be compatible with people’s intuitions. Thus, the more people there are who are anti-positivist, the more questionable positivism is.
It is philosophically important, therefore, whether Story, as well as other advocates of Swift, really understood the common law in anti-positivist terms. Although philosophers of law have had little to say about the matter, this marvelous essay by Caleb Nelson shows that the common law was largely conceived of positivistically. I should emphasize that Nelson’s essay has many other virtues – indeed, it is the best assessment of all of Justice Brandeis’s arguments in Erie that I have read. But my goal here is to highlight only how Nelson deals with issue of positivism.
Following judicial practice at the time, Swift drew a distinction between the local and the general common law prevailing in a state. Concerning the content of local common law (as well as the content of state statutes) federal courts followed the decisions of the relevant state’s highest court. Federal courts came to their own conclusion, however, about the content of the general common law. As Nelson persuasively shows, however, this does not mean that the general common law was anti-positivist. It was largely understood to be state law.
But how could the general common law applied in Swift have been state law when Story ignored the decisions of the relevant state’s courts? We find this hard to understand because we tend to equate the content of a state’s common law with such decisions, as if common law rules were simply judicially written statutes. But at the time Swift was decided (and well afterward), people drew a distinction between the general common law prevailing in a state and state court decisions interpreting that law. New York courts themselves did not think that the general common law within their borders was what they said it was. In effect, Story was able to ignore the decisions of New York courts because New York courts let him. The law Story applied in Swift was positivist because its existence ultimately depended upon practices among New York officials.
Although Nelson prefers this state-law account of the general common law, he does identify a competing account that some may have held at the time, under which the general common law consisted of “a body of rules and principles separate from the law of any state” and “the conflict-of-laws rules applied in federal court sometimes told federal judges to draw rules of decision from this body of law rather than from state law.” (p. 5) Although under this account the general common law was not state law, Nelson argues that it was not federal law either “at least in the ordinary sense of the term,” for state courts were not bound to defer to federal courts concerning the content of this law. (p. 5) Here it appears that the general common law was conceived of anti-positivistically.
I think Nelson should have reconsidered the possibility that in these cases the general common law was considered to be federal law. (Much rests on what he means by the general common law not being federal law “in the ordinary sense of the term.”) The fact that people did not think federal decisions were binding on state courts is not enough to show that they didn’t think the general common law was federal law. They may have thought that federal decisions were not binding on state courts because federal courts themselves understood the general common law as transcending federal decisions. State courts could ignore federal decisions because federal courts let them.
But, more fundamentally, I would question whether an alternative to Nelson’s state-law account is necessary at all. If the general common law really was not understood as state law, a federal court could conceivably find this law to be binding in a state even if the state’s officials had not accepted a common law legal system. But no one thought this was so. The general common law was never held to apply in jurisdictions, such as Louisiana or Native American tribes, that had not adopted the common law. I would argue, therefore, that Nelson’s preferred reading is the only one we need. The general common law was, in fact, understood as state law.
In the interest of full disclosure, I should note that Professor Nelson’s essay was written in connection with a symposium I organized at William & Mary.
Aug 9, 2012 Brian Tamanaha
A number of prominent contemporary legal philosophers identify as their central task the search for the necessary features of the nature of law. Joseph Raz writes, “The general theory of law is universal for it consists of claims about the nature of law, and about all legal systems, and about the nature of adjudication, legislation, and legal reasoning, wherever they may be and whatever they might be. Moreover, its claims, if true, are necessarily true.”. Scott Shapiro’s Legality is an extended treatment of the nature of law: “When asking about the nature of law…we want to know which properties law necessarily possess in virtue of being an instance of law[.]”.
Along similar lines, Julie Dickson insists that a general theory of law must “consist of propositions about the law which are necessarily true, as opposed to merely contingently, true,” because “only necessarily true propositions about law will be capable of explaining the nature of law.”. This search for the nature of law is not limited to legal positivists. Anti-positivist Robert Alexy pursues the same project (though contesting their answers): “Thus, for the question, ‘What is the nature of law?’ one may substitute the question “What are the necessary properties of law?”….Essential or necessary properties of law are those properties without which law would not be law.”.
The most puzzling aspect of this project is not the answers these various theorists produce in the pursuit of their quest but the assumption upon which it hinges: that law has a nature. Prior to embarking on a search for the nature of law one would think that the first order of business is to set forth an argument establishing that law has a nature. Without such an account, it is unclear what is being sought or whether there is something to be found. Despite the apparent necessity to tackle this preliminary question, theorists who pursue this aim have heretofore largely assumed it..
As if called forth by a growing frustration with these claims, a series of challenges has emerged in recent months: Brian Leiter’s The Demarcation Problem in Jurisprudence: A New Case for Skepticism;, Dennis Patterson’s Alexy on Necessity in Law and Morals;, and Frederick Schauer’s On the Nature of the Nature of Law. [And I will mention my What is General Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law;. Brian Bix raised probing questions on these issues earlier..] Each of these pieces, approaching from different angles with different targets in mind, raise probing skeptical questions about the notion that law has a nature with essential and necessary elements. I include all three in this review because all are excellent, concise, and should be read together by anyone thinking about these issues.
Leiter’s piece is the most openly skeptical. The concept of law, he points out, is a human artifact. “Artifact concepts, even simple ones like ‘chair,’ are notoriously resistant to analyses in terms of their essential attributes, both because they are hostage to changing human ends and purposes, and because they cannot be individuated by their natural properties—unlike say natural phenomena like “water,” which just is H2O.”. Leiter reminds us that 20th century philosophy of science struggled, and ultimately failed, to identify the essential features that would distinguish science from non-science—just as legal philosophers have long struggled to distinguish law from non-law. Science, a human enterprise with a variety of characteristics that are not universally shared among all branches, has proven too messy (too human) to be pared down to essential and necessary qualities.
“If, in the history of philosophy,” Leiter asks, “there is not a single successful analysis of the ‘necessary’ or ‘essential’ properties of a human artifact, why should we think law will be different?”. Leiter recognizes that a history of failure is “not a conclusive refutation,”. but still, it does suggest that the quest merits profound skepticism. He suggests that legal philosophers are once again behind the curve on philosophical issues: “the jurisprudential Owls of Minerva, bringing considered philosophical opinion in its maturity (sometimes, alas, on its death bed) to bear on theoretical questions that arise distinctively in the legal realm.”. In searching for the essential features of the nature of law, jurisprudents are pursuing something previously abandoned by philosophers as unfruitful if not chimerical.
In contrast to Leiter’s more sweeping arguments, Patterson conducts a careful textual analysis to critically scrutinize Alexy’s assertions about the nature of law. Alexy denies that law is a “natural kind,” Patterson observes, so “what, then, is Alexy’s argument for ‘necessary’ features of law?” Breaking down a passage in which Alexy presents his case, Patterson argues that each step in the argument is either definitional, a restatement, a bald assertion, or question-begging..
Patterson then takes up the two features Alexy identifies as “essential” to the nature of law: coercion and rightness. Alexy writes, “Coercion is necessary if law is to be a social practice that fulfills its basic formal purposes as defined by the values of legal certainty and efficiency. This practical necessity is the reason why the conceptual necessity implicit in the use of language is based not merely on a convention but also on the nature of the thing to which the concept refers.”. Patterson makes two basic points in response. First, it is controversial whether coercion is a practical necessity of law; second, “practical necessity” is a softer form of necessity than “conceptual necessity,” both invoked by Alexy, and the relationship between the two is left obscure. It appears that for Alexy coercion is practically necessary but not conceptually necessary to law—or is the former somehow anchored in the latter?
Patterson closes with a discussion of Quine’s famous critique of the analytic-synthetic distinction, which rendered problematic arguments about necessity grounded in analytic statements. Since Alexy builds his argument about the nature of law on necessity, analyticity, and the a priori, Patterson observes, in it incumbent on him to address Quine’s criticisms. Patterson does not assert that arguments from necessity cannot be made about the nature of law, only that Alexy “owes us a complete account of what he means by ‘necessity.’”.
Schauer poses the central issue—what does it mean to assert “law has a nature”? “The question about the nature of a nature, and thus about the nature of the nature of law, invokes numerous subsidiary questions.”. Is there a uniquely philosophical sense to their talk about the “nature of law” or is it a commonsense claim that legal philosophers answer using philosophical tools? Must we answer this by identifying necessary (essential) and sufficient conditions for its existence or is it better explained through the identification of common characteristics? And so on.
At the very outset, Schauer has trouble pinning down the notion at issue because most legal theorists who make claims about the nature of law have yet to explain precisely what they mean by this.. As Schauer observes, Julie Dickson and Scott Shapiro appear to simply assert that the nature of law” just is, by definition, the set of individually necessary and jointly sufficient conditions for its existence.”. If that is their position, Schauer objects: “the soundness of that view must emerge from an inquiry, and cannot be right simply and solely because of how we define the word nature.”. Without knowing more about the possible technical philosophical meaning behind the assertion “law has a nature,” Schauer stipulates that “nature” is meant in the ordinary sense of the term, and proceeds to analyze it with this understanding.
He then offers a series of generalizations—e.g. birds have feathers—showing that while each is true, none is universally true. His point is that “general truths are different from necessary truths.”. Outside of natural kinds, it is not clear that there are necessary or essential properties of anything, particularly so in connection with social constructions (human artifacts) like law. Law typically has courts, lawyers, and coercion, Schauer notes, but that is not to say that these are essential or necessary for law. We can think of examples of law, like customary law, that lacks one or more of these features. (In response to Schauer, they would assert, I believe, that whatever lacks the essential features of law is not law, properly understood, regardless of whether people might think of it as law.)
Invoking Wittgenstein’s notion of family resemblance, and notions of essentially contested concepts and cluster concepts, Schauer suggests that the fundamental error in the search for the nature of law is the assumption that law is a single concept with essential features. “Maybe both the word ‘law’ and our concept of law consists of a series of intertwined properties, no one of which is necessary for the correct understanding and application of the concept or the word, and no one set of which is sufficient for their correct application and understanding.”. After listing a series of examples in which recognized forms of law lack one feature or another, Schauer suggests that “the radical diversity of legal experience provides evidence for the non-existence of a satisfactory definition of law, or even an understanding of the nature of law, in terms of essences, or necessary and sufficient conditions.”.
None of these three articles, individually or in combination, conclusively debunks the assertion that law has a nature, but the criticisms articulated in these pieces have cast substantial doubts on the coherence of this claim. One hopes that theorists who make assertions about the nature of law will rise to the challenge and more fully develop their own position. Until that occurs, talk about the nature of law will sound quaintly mysterious.
Cite as: Brian Tamanaha,
The Mounting Challenge to Assertions About “The Nature of Law”, JOTWELL (August 9, 2012) (reviewing Brian Leiter,
The Demarcation Problem in Jurisprudence: A New Case for Skepticism, 32
OJLS 1 (2011); Dennis Patterson,
Alexy on Necessity in Law and Morals, 25
Ratio Juris 47 (2012)
available at SSRN; and Frederick Schauer, On the Nature of the Nature of Law (2011)
available at SSRN),
https://juris.jotwell.com/the-mounting-challenge-to-assertions-about-the-nature-of-law/.
Jun 21, 2012 Cary Federman
The law, Stanley Fish has written, “wishes to have a formal existence.”. By formal, Fish meant self-contained, autonomous, and self-declaring. In other words, the law wants to deny license to the interpreters of the law to seek recourse outside the law, to the tenets of philosophy and psychology, and to the facts of social scientific research. Of course, the law does not, because it cannot, succeed in preventing lawyers, or those from other disciplines, from rendering judgments about psychological processes or behavior. Tort law relies on economics and economics relies either on moral philosophy or psychology to ground its understanding of human behavior. The same is true for criminal law, and it is especially true in insanity cases. What the law wants – if it is acceptable to speak of the law without subjects but with intent – is to control the production of legal meaning.
Janice Nadler and Mary Hunter-McDonnell have written a provocative and insightful essay that explores the limits of the law’s formalism by focusing on how non-lawyers actually perceive guilt and assign blame. They are less interested in saying that certain people, contrary to the law’s instructions in criminal trials, combine assessments of guilt with perceptions of bad character. Rather, they say that to be in a position of judgment over another requires that one’s mental processes leap over the law’s formalism and merge guilt with character assessment. Indeed, they go further and suggest that any character information that jurors have which they perceive to be negative influences the corresponding interpretation of the action under review. If these studies can be replicated over time (and Nadler and McDonnell cite other literature to this effect), then policymakers need to address the implications of this study.
The starting point of Nadler and McDonnell’s essay is the inability of the law to contain outside thought. Relying on their own empirical analysis and other research from social psychology, they write that blaming is “intuitive and automatic” (p. 257). For Nadler and McDonnell, research into social psychology validates Emile Durkheim’s idea that blaming people for moral or societal wrongs fosters a sense of social solidarity. Nadler and McDonnell do not pass judgment on this point or remark on the limits of Durkheimian sociology. They do not say, for example, whether or not lawyers understand this idea and use it to the law’s advantage. They accept the law’s formalism. But their value neutrality has its merits, which is to say that they approach this complex topic with keen insight into the literature regarding social psychology, responsibility, and blame and raise profound questions about the limits of the law’s ability to ask jurors to assess guilt without making value judgments about character.
Nadler and McDonnell conducted three (non-random) empirical studies that asked three different sets of participants to assess blame and responsibility with two or three sets of altered facts. In one experiment, a man has a trailer that contains either methamphetamines or some highly inflammable fertilizer. In putting out a fire that was caused by either the methamphetamines or the fertilizer, two firefighters, using helicopters, died (Nadler and McDonnell further complicate the issue by noting that the firefighters approached the fire from the wrong direction). In a second experiment, a man stores some oxygen tanks in a shed. He does so (1) because his daughter has a serious respiratory illness; (2) because he just started his own business; or (3) because he is a high school football coach and administers oxygen to his players, even though it is against the rules to do so. One night, some youths, who were hanging around the shed and unaware of its contents, accidentally started a fire, which ignited the shed. One of the youths died. Finally, in a third experiment, a woman lives with two dogs. In one version, she is a doting and giving aunt, has many friends, and takes good care of her dogs and herself. In a second incarnation, she ignores her nieces, watches trashy television shows, smokes cigarettes and eats junk food. In a third version, she lets her dogs run wild, causing trouble in the neighborhood. One day (and this applies to all versions), the dogs get loose and maul a boy, age 11, to death.
In each of these stories, the participants overwhelmingly either diminished or released from blame those who came across as honest or who had good intentions and blamed the least worthy characters. Nadler and McDonnell’s findings support other studies in social psychology regarding the connection between how people process information and how they assign blameworthiness. On a larger front, their findings crack the façade of the criminal law’s formalism regarding separating judgments about guilt from judgments about the character of the actor. Motive may not matter in criminal law, but “motivational forces can mold basic judgments of blame, responsibility, causation and intentionality” (p. 259), Nadler and McDonnell write. At an even deeper level, then, they force us to question the notion that responsibility is a moral concept, intrinsic to our existence. Indeed, it is not even a juridical concept, an assignation given to us by law for good behavior. In Nadler and McDonnell’s reading, responsibility is a psychological assessment used to favor those we like, agree with, or are unwilling to punish.
Nadler and McDonnell have constructed an interesting empirical study regarding blame and responsibility and combined it with keen insights into the problem of punishment. Their article raises many questions about the form and content of criminal trials that needs to be further analyzed and discussed by academics and policymakers. By examining and explaining how ordinary people approach the problem of guilt and punishment, an approach that differs markedly from the law’s understanding of human behavior, their empiricism informs legal theory. It therefore carries with it deep implications for jurisprudence.
May 18, 2012 Shubha Ghosh
Many readers are aware of the field of law and behavioral economics, which adopts insights from cognitive psychology to examine and critique prescriptions of rational choice theory for law and policy. For those seeking a wider understanding of the background, cognitive psychology scholarship has an excellent resource in Professor Mark Kelman’s new book. As its title suggests, the book synthesizes academic research on the use of heuristics in individual decision making. Here, I summarize the book, putting out tantalizing teasers to encourage you to read this important volume as well laying out some of its implications for jurisprudence and legal policy.
In addition to the book, I recommend the Stanford Law School symposium devoted to Professor Kelman’s book that you can watch on YouTube after a judicious search of “heuristics debate Stanford.” But it would be an error to take a short cut and not read the book as well.
Rational choice theory is at the center of the heuristics debate. One critical axis is known as the Heuristics & Bias approach, originated by Daniel Kahneman and Amos Tversky in the 1970’s. Their Nobel-prize winning work tested the predictions of rational choice theory through carefully designed laboratory experiments in which subjects would be asked to make choices under different scenarios. What these experiments showed is that people’s decisions were subject to cognitive deficiencies, such as over-optimism, framing effects, the conjunction fallacy, anchoring effects, and endowment effects. Discovering and recording the extent of these cognitive failures cast doubt on the bedrock principles of rational choice theory. If individuals do not behave as the axioms of the theory predicted, what good is rational choice theory as a predictive model and guide for policy-making?
But the debate that Professor Kelman recounts for us is not solely with rational choice theory. There is also an internal debate in the critique of rational choice. Gird Gigerenzer, like Kahneman and Tversky a cognitive psychologist, has made the case that the biases and heuristics identified in the experiments do not mean that individuals are irrational. Instead, he concluded that many of these so-called biases are rational short-cuts, arising from the evolutionary development of human psychology in response to environmental factors. If you and a companion were being chased by a rapacious predator, you would up your chances of survival by adopting quick-thinking cues while your colleague engaged in clunky and complicated rational-choice-type-like analysis.
According to Gigerenzer and his various acolytes, the subjects of Kahneman and Tversky’s experiments are acting rationally, albeit not in the complex way that rational choice theory would predict. This alternative axis of the debate is called the Fast & Frugal approach to reflect how its proponents view human psychology. Important evidence for Fast & Frugal comes from experiments identifying the recognition heuristic, which purports to show that human actors tend to choose identifiable and familiar choices even though they are wrong. For example, when asked to pick which of two cities is bigger in a list, experimental subjects tend to pick cities they are aware of rather than the correct answer. Professor Kelman’s book not only provides a good introduction to the Fast & Frugal school of cognitive psychology, but also presents his own experiments that question the recognition heuristic.
What is at stake in the heuristics debate? In a penultimate chapter, Professor Kelman maps the terms of the heuristics debate onto the familiar one between Langdellians and the Legal Realists. Kelman posits an affinity between the Fast & Frugal school with the Langdellians, and another between the Heuristics & Bias school with the Holmesian strand of the Realists. Very broadly, Langdellians favored discrete legal rules as cues for decision making while the Holmesian Realists emphasized human fallibility. I am not sure I fully buy this. At a superficial level, the derivation of rules from cases parallels the search for fast and frugal cues to manage various environments. But Langdellians ostensibly are searching for the right or true rule, a goal that is irrelevant for Fast & Frugal adherents. Furthermore, the Holmesian allegiance to majoritarianism seems more like a lexical cue rather than a heuristic or bias in legal decision-making. Nonetheless, there might be something in Professor Kelman’s homology to help us understand how legal education operates and how law students and professors think.
How about the implications for policy making? Scholars of sociology, of history, of literary criticism have all lent their criticism of rational choice theory with each providing alternatives that can enrich our understanding of legal policy. Within economics, rational choice theory has its most powerful critics from those working on information economics, which in some strands has been influenced by cognitive psychology. What is hoped is that the research in cognitive psychology allows us to identify cognitive fallacies in a systematic way and thereby reform the design of institutions, such as the jury or consumer and financial regulations. The heuristics debate is successful in that it expands the tool kit of policy makers. Rational choice based policy invariably lead to taxes and subsidies (whether explicit or implicit). If we believe people operate through heuristics, of whatever form, the instrumentalism of taxes and subsidies seems inadequate.
Contra rational choice theory, legal intervention is grounded not just simply in market failure (rational actors suffering from collective action problems) or government failure (rational actors being captured), but in broader questions of institutional design. Richard Thaler and Cass Sunstein have written on libertarian paternalism and the design of policy that nudges, rather than simply mandates or alters prices, in order to lead individuals to the right outcome. Professor Kelman provides some healthy skepticism about these prescriptions based on the existing academic literature. Neither school, Professor Kelman argues, has done much to help in our understanding of the concept of “error.” He asks: “When can we trust that we can help consumers correct their ‘errors’ and then make plural choices based on their inevitable diversity of circumstances and desires?” In other words, to use some vernacular, how do policy makers know when actors are subject to systematic biases or innate cues and when they are just plain weird?
Let me add another concern. Various sides in the heuristics debate suffer from the same poverty of understanding of human behavior and psychology as rational choice theory. Both schools are attempting to make human behavior more rational, either by curbing biases or by rationalizing them through evolutionary theory. What role does human emotion play? Are anger, fear, jealousy, and love biases and heuristics waiting to be catalogued or states of the human mind and body that have meaning separate from the concept of choice, yet integral to decision making? How to make sense of those who act out of a sense of compassion or empathy? Of course, emotions can misguide just as terribly as reason. But as I read The Heuristics Debate, and followed the academic work more broadly, Blaise Pascal’s quote played in my mind: “The heart has reasons that reason does not know.” We do need to understand and assess these other reasons before we take a leap of faith into policy.
To illustrate this point more analytically, let me end with an example from my academic field, intellectual property. Incentives are at the heart of intellectual property policy debate. From a rational choice perspective, the market exclusivity granted by intellectual property rights incentivizes individuals to channel their energies into creation and invention because of the promise of above market profits. A Fast & Frugal analysis might suggest that people are hardwired to create and invent regardless of these alleged monetary incentives because it is rational, in an evolutionary sense, to have some advantage over a competitor through a new creation or invention. The Heuristics & Bias approach, which actually has been applied by some legal scholars to intellectual property, suggests that the endowment effect is even greater for a created work than for a acquired work because of the excessive optimism the creator has in the work’s value.
My point here, and in my work, is that all of these approaches ignore the psychological pleasure and pain that come from creating and inventing. Law has a role in shaping the environment which fosters a human need to create and interact with other creative and engaged people. That need, hard to deny, is one of the reasons that reason, and the various schools of cognitive psychology, may not understand. I do not think I am simply revealing my own biases in making this last statement. Nor am I being overly optimistic in qualifying it with the word, yet.
Apr 4, 2012 Dennis Patterson
Jan Smits, "A Radical View of Legal Pluralism" in Leone Niglia, ed,
Pluralism and European Private Law (Oxford, 2012), available on
SSRN.
Legal Pluralism is both a phenomenon and a response to that phenomenon. We live in a world with a plurality of legal orders. There are municipal legal systems and international law. These are the most familiar forms of law, the most comfortable types of legal orders. Then there are international or “supranational” legal orders like the European Union. Finally, there are private and transnational legal orders that traverse the boundaries both of “law” and the very notion of a “system” (think of Lex Mercatoria or Sports law).
Jan Smits has been writing about legal pluralism for some time. His work is always interesting. This chapter is both intelligent and provocative because Smits takes legal pluralism to a new place and gives it a dimension no one has yet considered.
The heart of legal pluralism is the oft-seen fact of conflict among legal orders. Pluralism of legal orders manifests itself as a struggle between two or more legal orders, each of which claims authority over a legal matter (E.g., CJEU v Bundesverfassungsgericht). Much ink has been spilled try to make sense of these conflicts and to advance theories about how to respond to clashes between legal orders.
In this fascinating chapter, Smits asks two questions. The first question is the extent to which European private law is in fact characterized by pluralism. To this question, Smits answers that pluralism in European private law is not a new phenomenon but has in fact been there all along. What prevented anyone from seeing it was a lack of focus on norms being produced from a variety of sources as well as the work of private actors. In this regard, Smits writes:
The age-old lex mercatoria would have been joined by a lex sportiva and a codex alimentarius, by codes of conduct on social responsibility and by many other types of self-regulation. These economic and functional normative systems stand next to the customary and religious systems with which legal pluralism has always been associated. It is well known that this latter field is also the area where the most obvious conflicts between State law and non-official laws exist, such as in case of treatment of women, child marriage, arranged marriage, divorce rights, inheritance, and punishment based on religious norms. (P. 5.)
Smits’ makes his most interesting proposal at the normative level. As he sees it, responses to increased legal pluralism have not been sufficiently creative. We have not taken adequate advantage of the increase in the pluralism of legal norms. Here is Smits’ account of the current situation:
Different ‘solutions’ have been proposed to deal with this tension between State law and rules of other norm-generating communities. They range from establishing a ‘neutral’ State guaranteeing overlapping consensus to identification of group rights (consociationalism) and democratic liberalism.
Problematic, however, is that these theories, at least implicitly, assume that an individual is in principle ‘trapped’ in his or her own community and is not able to ‘escape’ it. Put differently: existing theories about pluralism do not problematise the capacity of an individual itself to act and make choices. I will show in the remainder of this section why this is wrong and that we are in need of a radical overhaul of prevailing views about legal pluralism. (PP. 6-7.)
Smits’ theoretical move is as simple as it is powerful. He wants legal pluralism radicalized. He starts from an empirical claim. He asserts:
Private actors, such as citizens and firms, are increasingly able to choose the applicable law and the court of their liking. The result is that law becomes more and more a matter of choice, leading to different laws being applicable on the territory of one State: Dutch law can today be found throughout the world, as we can find German, Swedish and Italian law within the Netherlands. There is no longer one law for one territory. (P. 8.)
Smits wants citizens to have the power to opt in and out of a variety (but not all) of legal regimes, just as multinational corporations and private actors now do (in some contexts). Once so-called “super mandatory law” is settled, citizens should have the right to opt for whatever legal regime suits their purposes. Smits wants to radicalize present international private law to allow citizens maximum choice. He writes:
In today’s globalising world, people increasingly travel across borders to obtain in another country the legal status they want to obtain. If they contract, marry or divorce in accordance with the laws of another State, the private international law of their State of residence will often accept the foreign law as valid: it is rare that this would be considered as a violation of the national public order of the State where the citizen resides. This is an anomaly that is increasingly disturbing in today’s globalising world because these same citizens cannot obtain the same legal status by staying at home. In other words: those who physically travel to another country and opt in to the norms of the other jurisdiction are treated differently from those who are not able or willing to do so. In my view, there is no longer a good reason for this distinction. (P. 9.)
One might wish that Smits had elaborated his points in more detail. He does provide some specific examples (e.g., religious attire, divorce and marriage) but his larger point is conceptual (in my opinion, this is where he makes real progress). Smits sees pluralism not only as an accurate descriptive account of the state of law (in the EU and elsewhere) but he radicalizes it in a way no one has previously. He urges us to take legal pluralism seriously and provides interesting arguments for just that view. In short, this chapter is worthy of serious attention.
Cite as: Dennis Patterson,
Pluralism Reimagined, JOTWELL
(April 4, 2012) (reviewing Jan Smits, "A Radical View of Legal Pluralism" in Leone Niglia, ed,
Pluralism and European Private Law (Oxford, 2012), available on SSRN),
https://juris.jotwell.com/pluralism-reimagined/.
Feb 22, 2012 Brian Bix
A number of prominent legal positivists in recent years (including Jules Coleman and Scott Shapiro) have taken it as an urgent project – and have taken it as their project – to “explain law’s normativity.” By that, they report that what needs to be explained is the way that law gives us reasons for action. There is always something a little ironic when legal positivists try to explain the normativity of law, for it is generally considered to be foundational to that approach to law that it denies any necessary moral content to legal systems in general or valid legal norms in particular.
In “Reason-Giving and the Law,” David Enoch has worked as much to “deflate” the problem of law’s reason-giving as to resolve it. His basic point is that there is nothing that remarkable about the giving of reasons for action.
Enoch grounds his work on clarifications of the different ways of giving reasons for action, and how distinguishing among types of ways of giving reasons for action can help our analysis of the legal case. First, someone may call our attention to a reason for action that already applies to us (what Enoch calls “epistemic” reason-giving). For example, before I do something rash, you might remind me of my obligation to be a good role model to my child or to my students. This reason was always present, and your reminding me did not in any way change the reasons for action that apply to me, but you effectively helped me to (re-)discover those already-existing reasons.
Second, certain changes in non-normative facts can trigger reasons that already apply to us. Thus, the rise in the cost of some product can warrant our buying less of it, where the changed price is a non-normative fact, triggering our existing (“conditional”) reason to put limits on how much we spend. It is not that the fact “created” the reason, in some way that violates the “is”/“ought” division; rather, the fact is just part of the premise, along with an “ought” premise (e.g., never spend so much that one does not have enough left to pay the rent) that was already there, but had not been invoked until the new fact was introduced.
Enoch contrasts those two forms of reason-giving, epistemic and triggering, with a possible third kind of reason-giving, which he calls “robust reason-giving.” Under this possible third kind, someone’s statements or actions do not simply remind us of existing reasons, or trigger the effect of existing reasons, but creates reasons that were not there before. Many people believe (or assume) that requests and commands are “robust reasons” of this sort, and others ascribe the same status to promises or plans.
However, when Enoch investigated likely examples of robust reason-giving — like a request or a divine command — they seemed to be merely examples of triggering existing conditional reasons people already had (e.g., “if a friend asks you to help her on a small task, you should do so”). Nonetheless, Enoch argued, robust reason-giving might yet be considered a special sub-category of triggering reasons, with the following characteristics: in an interaction between A & B, A must have specific intentions to create reasons for B, and B must recognize and be responding to those intentions. (Pp. 5-14.)
In the course of considering whether law gives us “robust reasons,” Enoch notes that we must distinguish normative reasons from motivating reasons. (P. 15.) Motivating reasons are part of a certain kind of causal explanation: it is explains why we decided to do what we did – a psychological or historical claim. Normative reasons are reasons that justify an action, that make it the right or rational thing to do. As noted earlier, when we are concerned philosophically with whether law gives us reasons for action, our focus is properly on the normative reasons, not motivating reasons.
After all this stage-setting, Enoch comes to a radically modest conclusion – “radically” modest, because it is in contrast to the stronger conclusions that many other theorists have reached, or even merely assumed. He sees no basis for assuming that law always (or “necessarily”) gives reasons for action (other than “legal reasons for action”). He views the notion that law would always give reasons for action as “clearly false.” (P. 20.) Indeed, such a view does seem contrary to most people’s basic intuitions. We do not think that legal rules always direct (the most) moral action, even if we constrict our focus to the legal rules of generally just legal systems. And most of us have no trouble coming up with examples of legal systems – even “generally just” legal systems – issuing rules that were in some way contrary to what morality required. At most, Enoch concludes, law sometimes gives reasons for action, as would be expected from normal triggering reasons – “the giving of the reason amounts to a manipulation of the non-normative circumstances in a way that triggers a preexisting conditional reason.” (P. 26.)
In summary, Enoch shows that there is no great mystery to law’s reason-giving. Law does not give us reasons in any special or robust way that requires additional explanation. Law gives us reasons the way that most of our reasons are given: as non-normative “triggers” to reasons for action that were always already there.
Cite as: Brian Bix,
On (Not) Explaining Law’s Reason-Giving Power, JOTWELL
(February 22, 2012) (reviewing David Enoch,
Reason-Giving and the Law in
Oxford Studies in Philosophy of Law, (Leslie Green & Brian Leiter, eds., Oxford University Press, 2011), also available at OUP Proofs),
https://juris.jotwell.com/on-not-explaining-laws-reason-giving-power/.
