Legal Theory Lexicon

Legal Theory Lexicon 059: The Law Is A Seamless Web

Introduction  F.W. Maitland, the famous legal historian wrote, “Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web.”  (A Prologue to a History of English Law, 14 L. Qtrly Rev. 13 (1898))  Maitland didn't actually say that the "law is a seamless web," but he is usually given credit for the idea that the law forms some kind of "organic unity" or is characterized by strong interconnections.  The idea that law is seamless web is ambiguous--the aphorism expresses different ideas on different occasions.  This post in the Legal Theory Lexicon series will the seamless web metaphor and its several implications for legal theory.

As always, the Lexicon is especially aimed at law students--especially first-year law students--with an interest in legal theory.

The Seamless Web and the Interconnectedness of Legal Doctrine  One idea expressed by the metaphor of the seamless web is the interconnectedness of legal doctrine.  If the law is a seamless web, then the categorization of legal doctrine into discrete fields (torts, property, contracts, and so forth) does not accurately capture the nature of the law.  A classic example of this idea can be found by examining the line between torts and contracts.  It might be thought that there is some "seam" or dividing line that sharply separates these two doctrinal fields.  For example, we might think that contracts is the law of voluntary transactions, whereas torts deals with involuntary (or unconsented-to) transactions.  Of course, there is something to this idea.  Face-to-face bargaining resulting in a written and signed agreement is the paradigm of a contract and also represents a paradigmantically voluntary transaction.  Battery--an unconsented-to, harmful touching--represents both a clear instance of tort law and clearly involuntary transaction.  But the thesis that the law is a seamless web is not inconsistent with their being paradigm cases of conceptually distinct doctrinal fields.  Rather, the idea is that these paradigm cases blend into one another through a series of small and barely noticeable steps--so that there is no sharp boundary, no "seam," between tort and contract.  For example, first year law students quickly learn that not all of contract law involves agreement or bargain.  "Quasi-contract" and reliance-based liability involve transactions that are involuntary or at least not fully voluntary, and this cluster of doctrine is neither clearly tort  nor clearly contract.  One interpretation of the seamless web metaphor is that it asserts that the law is always or almost always like that--the organizing principles of various rules fade gradually into one another, and hence, there are no sharp boundaries in the web of the law.  We might say that this first interpretation of the seamless web metaphor is ontological: "law is a seamless web" could be an assertion about the nature of doctrinal categories--they are interconnected and not isolated.

Epistemological Holism  A second interpretation of the seamless web metaphor is "epistemological" rather than "ontological."  What does that mean?  By epistemological, I mean that we might be talking about our knowledge of the law rather than the law itself.  Here the idea might be that understanding or comprehending any piece of legal doctrine requires knowledge of the surrounding areas of law and knowledge of those areas requires knowledge of yet more distant areas--so that a complete understanding of any one legal rule requires knowledge of the law as a whole.

An example may help.  Suppose we are trying to understanding a rule regarding consent in criminal law.  Understanding the legal concept of consent may require us to go beyond criminal law.  The criminal law concept of consent may borrow from tort concepts, contract concepts, and so forth.  Moreover, gaining knowledge of the criminal law doctrine of consent may require us to understand the relationship between the authority of the courts to shape the criminal law and the authority of legislatures to pass statutes that change common-law doctrines.  Understanding that relationship requires knowledge of the law of statutory interpretation (which is contained in opinions on many different statutes dealing with many distinct doctrinal areas) as well as constitutional law governing the separation of powers and the nature of judicial power and legislative power.  One might think that one could learn everything one needed to know in order to understand consent in the criminal law concept of consent from criminal law statutes and cases, but if the law is a seamless web, then knowledge from torts, contracts, constitutional law, and so forth may be required for a full understanding.

On the epistemological interpretation, the seamless web is a web of belief or knowledge.

The Seamless Web of Fit and Justification  Another use of the metaphor is found in the work of Ronald Dworkin.  In the Lexicon entry on Fit and Justification, we explored Dworkin's idea that judges decide cases in the way that best "fits" and "justifies the law.  Both "fit" and "justification" connect to the idea that the law is seamless web.  So when a judge decides a "hard case," the judge's decision must "fit" the existing legal landscape.  It must be coherent with the cases, statutes, constitutional provisions, and so forth.  This requirement of fit is holistic.  That is, the decision must fit all of the law--not just the law that is directly relevant to the case at hand.  So a rule of contract law is improper if that rule would violate the constitution or authorize violation of a statutory prohibition.

Dworkin contends that legal decisions must fit the legal landscape, but that is not the end of the matter.  There may be more than one ruling that would satisfy the criterion of fit.  Of example, an ambiguous statutory provisions may have more than one reading that is consistent with the precedents, statutes, and other authoritative legal materials.  In that case, Dworkin argues, the judge should decide the case in the way that coheres with the best justification for the law.  In other words, the judge should ask, "What is the best normative theory that can justify the law as whole?"  That normative theory is then used to guide the judge's decision in the particular case.  Like the criterion of fit, the criterion of justification is holistic.  Although judges may, as a practical matter, seek the justification for a particular area of legal doctrine, in theory the question is, "What justifies the whole of the law?"  This is another sense in which the law is a seamless web--it is the whole web and not a particular strand that is the object of normative justification.

Conclusion  The phrase, "the law is a seamless web," is one of those big ideas that students encounter early in their law school experience.  Almost every law student begins to think thoughts like, "What we are doing in contracts is connected to what we are doing in torts" or "It is all starting to fit together in one big picture."  And sooner or later, these thoughts will run into the seamless web metaphor.  This entry in the Lexicon is designed to give you the tools to think about the aphorism in a nuanced and rigorous way.

(This entry was last revised on October 21, 2007.)

Legal Theory Lexicon 053: It Takes A Theory To Beat A Theory

Introduction  "It takes a theory to beat a theory"--this is surely one of the top ten all-time comments uttered by law professors to one another in those ritual interactions that are called "faculty workshops" or "colloquia."  The first instance of the comment that I can find in the legal literature appears in an article by Richard Epstein [92 Yale Law Journal 1435 (1983)], and the some legal academics associate the comment with Professor Epstein, whose facility in workshops is legendary.

What does "It takes a theory to beat a theory" mean?  What is the point or purpose of making this comment in a debate about normative or positive legal theory?  Of course, the core idea is relatively straightforward.  One can't beat a theory just by nitpicking.  We go with the best theory we have, warts and all.  So if you want to beat a theory, you must show it is not the best theory we have, and the only way to do that is to produce a better theory.  Hence, it takes a theory to beat a theory.  Or to put it crudely, if we are playing "king of the hill," whoever is on top stays there until pushed off.

Most of the entries in the Legal Theory Lexicon series deal with some concept, theory, or idea that law students are likely to encounter in their first year of law school.  But this entry is a little different.  "It takes a theory to beat a theory" is not likely to be heard much in the classroom.  It's a "workshop comment" not a "class comment."  But in a way, that makes this idea all the important for law students, including first year law students, with an interest in legal theory.  And understanding this move and its counters is essential for anyone who plans a career in the legal academy.

The Aphorism and its Applications  Here is one of the most famous examples of the aphorism at work--although the exact words do not appear.  This is Justice Scalia, in his famous article, Originalism, the Lesser Evil:

Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that "You can't beat somebody with nobody."' It is not enough to demonstrate that the other fellow's candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote "non-Reagan,"' it is not very helpful to tell a judge to be a "non-originalist."' If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be.

Here is another version of the argument--this time from George Stigler's 1982 Nobel Prize Lecture:

Nevertheless the economic theory of regulation is achieving a substantial scientific prosperity. Its findings with respect to both the operation and the origins of regulatory policies directed to particular industries (such as the securities markets, transportation, and occupational licensing) command a substantial support. To be sure, the explanatory triumphs have not been overwhelming, and indeed the theory itself is still relatively primitive. The main reason for the considerable acceptance of the approach is that fundamental rule of scientific combat: it takes a theory to beat a theory. No amount of scepticism about the fertility of a theory can deter its use unless the sceptic can point to another route by which the scientific problem of regulation can be studied successfully.

Variations  If you've been paying close attention, you will have noticed that Scalia and Stigler were making very different arguments--relying on different premises and with only a surface level similarity.  "It takes a theory to beat a theory"--is not a single move.  It's several different moves, each of which can nonetheless be expressed via the same aphorism.  Let's quickly catalog some of the variations:

--"It takes a practice to replace a practice."  This variation is at the root of Scalia's point.  You can't vote against a candidate; you must vote for someone.  You can't just stop interpreting the constitution if you reject originalism; it takes some other interpretive practice to substitute for originalism.

--"It takes a better explanatory theory to substitute for a theory that has even limited success."  This variation is at the root of Stigler's point.  The economic theory has some success; so it will continue as the "dominant paradigm" until something better comes along.

--"It takes a better normative theory to substitute for a normative theory that has plausible support."  Thus, one might say that it takes a better theory of justice to displace Rawls's theory.

And I'm sure there are many other variations.

Counter Moves  What are the countermoves to "It takes a theory to beat a theory."  They are legion, and many are contextual, but here are a few typical countermoves:

--Expose the hidden "presumption."  It takes a theory to beat a theory may assume that the theory in question must be "beaten" or it stands.  But that assumption requires a justification.  It must be argued there is some "presumption" in favor of the theory's validity.  What is the source of that presumption?  Why does this theory enjoy the presumption rather than a rival theory?  Sometimes these questions can't be answered.  Other times there are answers, but once they are articulated, they can be contested.

--It doesn't take a theory to beat an argument.  Even if it does take a theory to beat a theory, it doesn't take a theory to beat an argument.  Arguments fail if they are invalid or unsound.  Arguments are invalid if the conclusions don't flow from the premises.  Arguments are unsound if their premises are false.  So when someone says, "It takes a theory to beat a theory," you can reply, "Oh, you thought I was trying to beat a theory, but what I actually did was to beat an argument."

--Recharacterize the Status Quo.  Frequently, "it takes a theory to beat a theory," assumes that the theory to be beaten is, in some sense, the status quo--the current king of the hill, the way we are doing or thinking now.  But this is not necessarily the case.  Take the "originalism" example.  One might argue that "originalism" isn't the "king of the hill."  Rather, the status quo is eclecticism--a little precedent, a little originalism, a little instrumentalism, etc.  So if the case for originalism is inadequate, the presumption is for the status quo--not originalism.  In other words, poking holes may be enough.  Once the theory in question is no longer the status quo, the question becomes is the new theory demonstrably better than what we've got now.

--Deny the Theory Assumption.  "It takes a theory to beat a theory" assumes that the issue at hand is one which is properly addressed by a theory.  Let's call that, "the theory assumption."  But the theory assumption can itself be contested.  Here's a marvelous example of "denying the theory assumption," from Dan Farber, himself famous for this move:

The last ditch defense of the rational choice theory is to insist that it takes a theory to beat a theory, and that the behavioralists have only assembled a collection of empirical regularities without any unifying theory. The behavioralists indignantly respond that they do have a theory, although an incomplete one. The assumption on both sides is apparently that the sine qua non of social science is having a unified predictive theory. But perhaps this is merely another symptom of economics' famous case of "physics envy." Physics presents a breathtaking example of mathematical elegance combined with fantastically accurate predictions. But taking physics as the paradigm of science may be a mistake. Today's great success story among the sciences may well be biology. Biology does have a central paradigm (evolution) and an understanding of its molecular basis. But organisms, because they are the products of evolution rather than design, are extremely complex, and no one seems to think that their features can be predicted in any detail on the basis of a deductive theory.

(Daniel A. Farber, Toward a New Legal Realism, 68 U. Chi. L. Rev. 279, 295 (2001))

There are lot's of ways of doing this.  Here's one way of making the move: "Hmm.  You seem to be assuming that we need a theory here.  I'm puzzled.  Why would you assume that?"  Stressing the words in italics.  This move puts the burden on the maker of the "It takes a theory to beat a theory" move to justify the theory assumption--and as a practical matter, it also buys you time.

--Go Pragmatic.  This is a variation of denying the theory assumption.  When someone asks for a theory, you can reply that the subject at hand requires a "contextualist" and "pragmatic" analysis.  As the scare quotes indicate, I'm not very fond of this move.

--Go Metatheoretical.  This move embraces the notion that it takes a theory to replace a theory, but denies that the way that happens is through direct confrontation.  The idea is that the way we replace theories is by accumulating the data points the theory can't handle.  Here's a nice example of this move from Tom Ulen:

One frequently hears it said that "it takes a theory to beat a theory." Those who invoke that view are typically doing so in order to justify maintaining the rational choice paradigm until some well-articulated theory comes along to replace it. That is not, however, how scientific advances typically occur. Rather, anomalies arise and are either explained within an amended paradigm or serve as observations that make a case for another paradigm (as yet undefined).

(Thomas S. Ulen, A NOBEL PRIZE IN LEGAL SCIENCE: THEORY, EMPIRICAL WORK, AND THE SCIENTIFIC METHOD IN THE STUDY OF LAW2002 U. Ill. L. Rev. 875, 887, n. 47)

--I've Got a Theory.  Of course, this move is especially impressive in the context of a workshop.  Your paper makes a critical or destructive point.  Someone in the audience goes "It takes a theory to beat a theory."  And you go, "Great point.  I've got a theory and here it is."  You then get 5 minutes of uninterrupted theory exposition, and, of course, no one at the workshop has heard your theory before, and hence, no one has had an opportunity to prepare objections.

--It Takes a Theory to Beat a Theory, but you have no Theory.  This is a variation of Lloyd Bentsen's famous, "Senator, you are no Jack Kennedy."  The idea is this: "It takes a theory to beat a theory," assumes that we have a theory of X on the table.  So one effective counter is an argument that there is no "theory of x" to replace.  One way to do this is to set out a list of criteria, C1, C2, C3 . . . Cn, that must be fulfilled if a given cluster of ideas (I1, I2, I3, . . . In) is to count as a theory, T, of a subject, X.  You then argue that the view on the table is not a true theory, because it fails one or more of the criteria.

A variation on this move is "It doesn't take a theory to beat a really bad theory."  If your objection to a theory makes it clear that the theory cannot be correct, then it doesn't take theory to beat a theory.  Or to continue the metaphor, "You don't have to become the king of the hill to knock someone down."

Undoubtedly, there are many other standard countermoves and numerous others that are relevant to particular contexts.  I hope this post gets you started.

Conclusion  "It takes a theory to beat a theory."  Or does it?  I hope this Lexicon installment has given you a taste of this famous move and some of the replies.  And I also hope that it has provided some of the flavor of the intellectual atmosphere of faculty workshops and colloquia.  As always, the Lexicon provides only a simplified (and all too often simplistic) treatment of a subject that deserves an extended discussion.

Links

Adam Kolber, Theory v. Theory (March 16, 2006)

James E. Ryan, Does It Take a Theory? Originalism, Active Liberty and Minimalism (January 27, 2006)

Lawrence Solum, It Takes a Theory to Beat a Theory (September 12, 2002)

(Last modified on September 9, 2007.)