The Download of the Week is Explanatory Power, Theory Formation and Legal Interpretation: Some Preliminaries by Nicholas Aroney. Here is the abstract:
This paper explores what it means to formulate and assess theories about law and the interpretation of authoritative sources of law. In particular, the paper looks closely at the idea of ‘explanatory power’ as a way of understanding the kinds of criteria by which legal theories are formulated and assessed. The intuition here is that when we formulate and assess theories within the discipline of law we routinely, though often only tacitly, appeal to standards of explanatory power which philosophers say are central to the norms of theory formation in all disciplines which seek to describe and explain phenomena. Indeed, as the paper shows, there are numerous instances where explanatory power has been explicitly appealed to in a wide range of fields of inquiry within the discipline of law. However, in almost all such analyses scholars do not explain what they mean by explanatory power, but rather use the term as if its meaning was somehow self-evident. The goal of this article is to make this meaning more explicit and precise, by exploring the role that the idea plays in philosophical discussions about theory formation in the natural and social sciences, and then discussing its application as a norm of theory formation within the discipline of law in particular. To do this, the article proceeds in three steps.
The first step is to identify and discuss what philosophers of the natural and social sciences have said about the nature and constituent features of a theory that has explanatory power. This part of the paper surveys and classifies the various philosophical approaches to explanatory power (logical, nomological, counter-factual and unificationist) and seeks to articulate an account which can help us understand the nature of explanation within the discipline of law. In particular it is argued that the explanatory power of a theory is a function of four paired qualities, these being (1) the simplicity and intricacy of the theory, (2) the range and complexity of the phenomena that the theory seeks to explain, (3) the specificity and generality of the theory’s explanations in relation to those phenomena, and (4) the capacity of the theory to be integrated with other theories or to unify the explanations provided by them.
The second part of the paper is concerned with the application of explanatory power within the discipline of law. This part addresses four important objections that can be made against the proposition that explanatory power has an application to the formation and assessment of legal theories. These objections have to do with four important qualities of human law, namely that (1) law is a social fact, (2) law is normative, (3) law is linguistic, and (4) law is complex. Each of these characteristics might suggest that the task of knowing or understanding the law cannot simply be a matter of explanation, analogous to the kind of explanations that are characteristically offered by the natural sciences. However, while these objections draw attention to very important qualities of law that must be taken fully into account, it is argued that it remains possible and indeed fruitful to think about theorisation within the discipline of law as involving in certain important respects a kind of explanation in which the explanatory power of our theories is a prime desideratum.
The third and final part of the article explores how explanatory power as a fundamental norm of theory formulation applies in practice, with particular attention being given to its potential application to a specific area of law: in this instance, constitutional law. The objective of this part of the paper is to identify the practical difference that a deliberately rigorous pursuit of explanatory power makes to the formation and assessment of theories of particular areas of law. This is pursued through a critical discussion of the influential theories of constitutional and legal interpretation advanced by Philip Bobbitt, Ronald Dworkin and Jules Coleman. Taking Bobbitt’s well-known six modalities of constitutional interpretation as a starting point, it is argued that maximising the explanatory power of one’s interpretation will involve a rigorous inquiry into the text and structure of the constitution, understood in the light of its history, illuminated by the prudential judgments and ethical goals that demonstrably shaped that text and structure. Contrary to Dworkin’s approach, which settles for a preliminary analysis of text and structure at a relatively high level of abstraction, leaving room for substantive normative assessment to do most of the decisive work, such an approach seeks to maximise our understanding of text and structure, using history, ethics and prudence to illuminate the document, down to its finest details and extending to its most fundamental principles and comprehensive structural ideas. Indeed, it is argued that there is an important relationship between text, structure and history such that when these three modalities of constitutional interpretation are pursued with as much rigour as the available evidence allows, they tend to shed light on the prudential judgments and ethical goals which actually shaped the constitution’s text and structure, thus reinforcing each other and helping us to maximise the explanatory power of our interpretations.
Highly recommended. Download it while its hot!