Legal Theory Blog

Mikail on Moral Grammar & Intuitive Jurisprudence

John Mikhail (Georgetown University - Law Center) has posted Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge (THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., Vol. 50, Academic Press, 2009 ) on SSRN.  Here is the abstract:

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

And from the paper:

[W]e have discovered how certain fundamental legal conceptions can be utilized in this endeavor to explain an interesting range of moral intuitions, which prior experimental studies have indicated may be universal, or nearly so. By postulating latent knowledge of these and other basic legal norms, we can accurately predict human moral intuitions in a huge number and variety of actual cases. How this knowledge is acquired and put to use in different cultural, social, and institutional contexts thus emerge as pressing questions for law, philosophy, the social sciences, and the cognitive and brain sciences, broadly construed. As difficult to accept as it may seem, there are grounds for thinking that much of this knowledge may be innate or rooted in universal human instincts, as many cognitive scientists, philosophers, and jurists have often assumed. The argument is not conclusive, however, and more crossdisciplinary research is needed to clarify the relevant conceptual and evidentiary issues.

Mikhail's work is important, and this paper contains both a statement of the general view and the most thorough development yet of the moral grammar hypothesis.  Highly recommended.  Download it while its hot!

Kerr and Volokh on the Nature of Constitutional Law and the Is-Ought Distinction

Orin Kerr & Sasha Volokh have an interesting exchange going on the is-ought distinction & the nature of (constitutional) law.  There are four posts:

Kerr-Confusing "Is" and "Ought" in Constitutional Law

Volokk-Is the "is"/"ought" distinction so clear in constitutional law?

Kerr-A Reply to Sasha on The "Is"/"Ought" Distinction

Volokh-Day of the Iguana

The exchange is well worth reading--and it points, I think, to the continued importance of mastering the core literature in the what-is-law debate, roughly the Hart-Dworkin-Raz-Coleman-Shapiro line of development.  If you read the exchange, you will see echos of Holmes's prediction theory of law and its critics and refracted versions of exclusive and inclusive legal positivism, with perhaps a dash of Dworkin.

Halpin on MacCormick on Conceptual Analysis & Methodology

Andrew Halpin (Swansea University School of Law) has posted Methodology and the Articulation of Insight: Some Lessons from MacCormick's 'Institutions of Law' (LAW AS INSTITUTIONAL NORMATIVE ORDER, Zenon Bankowski, Maksymilian Del Mar, eds., Ashgate, 2008) on SSRN. Here is the abstract:

This contribution to a collection on Neil MacCormick's INSTITUTIONS OF LAW explores the general relationship between theoretical methodology and analytical insight through exploring issues regarding the general enterprise of intellectual inquiry, the value of conceptual analysis, and the role of theoretical methodology. A broader portrayal of conceptual analysis is advanced than that allowed by Brian Leiter in his embrace of naturalism. It recognizes four distinct roles for conceptual analysis: (1) initial elucidatory expository analysis; (2) secondary expository analysis; (3) exploratory explanatory analysis; (4) normatively exploratory analysis. From this broader perspective, observations are made on epistemology, particular problems in conceptual anlaysis, and the possibility of theoretical disagreement.

Through linking sound methodology to an appropriate role for conceptual analysis, a number of interventions are made in the contemporary debate over methodology in jurisprudence, engaging with the views of Dworkin, Leiter and Dickson. Emphasis is laid on the significant part to be played by the particular experiential base relating to the subject matter under investigation in the articulation of valuable insight. The extent to which MacCormick's work illustrates and promotes this approach is considered in some detail.

Solum on the Indeterminacy Thesis

Lawrence B. Solum (University of Illinois - College of Law) has posted On the Intderminacy Crisis: Critiquing Critical Dogma (University of Chicago Law Review, Vol. 54, No. 462, 1987) on SSRN. Here is the abstract:

This essay investigates the indeterminacy thesis - roughly the claim that the content of authoritative legal materials (such as the texts of constitutions, statutes, cases, rules, and regulations) does not determine the outcome of particular legal disputes. The indeterminacy thesis can be formulated as either "strong" or weak." The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy.

The strong indeterminacy thesis is the claim that all cases are "hard" cases - or that in any case any conceivable result can be derived from existing legal doctrine. Strong indeterminacy does not hold if there are easy cases - cases in which some outcomes cannot be legally correct. For example, if it were the case that the first paragraph of this abstract did not slander Gore Vidal, then there would be at least one easy case, and strong indeterminacy would be false.

Weak versions of the indeterminacy thesis include the claim that important cases are indeterminate, that the law does not necessarily determine outcomes, or that every case could become indeterminate if political conditions supported indeterminacy. These weaker claims may be true, but they lack the critical bite associated with strong indeterminacy.

The essay also distinguishes between "determinacy," "indeterminacy," and "underdeterminacy." The law is "determinate" with respect to a given case if and only if the set of results that can be squared with the legal materials contains only one member. The law is "indeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is identical with the set of all imaginable results. The law is "underdeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is a nonidentical subset of the set of all imaginable results.

This was my first post-law-school publication.

Schauer on Vehicles in the Park

Frederick Schauer has posted A Critical Guide to Vehicles in the Park on SSRN.  Here is the abstract:

The 1958 debate in the pages of the Harvard Law Review between Lon Fuller and H.L.A. Hart is one of the landmarks of modern jurisprudence. And although much of the debate was about the relative merits of Hart's version of legal positivism and Fuller's brand of natural law theory, the debate also contained the memorable controversy about the fictional rule prohibiting vehicles from the park. By examining this debate, and by largely removing it from the surrounding controversy over positivism and natural law, we can still gain valuable insights about legal rules, legal interpretation, and the nature of legal language.

Schauer on Authority

Frederick Schauer (Harvard University - John F. Kennedy School of Government) has posted Authority and Authorities (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities - cases, statutes, constitutions, regulations, articles, and books, primarily - are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law's use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.

And from the text:

in reality the status of an authority as an authority is the product of an informal, evolving, and scalar process by which some sources become progressively more and more authoritative as they are increasingly used and accepted. It was formerly the practice in English courts, for example, to treat as impermissible the citation in an argument to (or, for a judge, in an opinion to refer to) a secondary source written by a still-living author. If the author of a treatise or (rarely) an article were dead, then citation was permissible, but not otherwise. The reasons for this practice remain somewhat obscure, but that is not important here. What is important is the fact that the prohibition gradually withered, a withering that commenced more or less with the citation by the House of Lords in 1945 to a work by the then-still-living Arthur Goodhart.85 Once the first citation to a living secondary author appeared, subsequent courts became slightly less hesitant to do the same thing, and over time the practice became somewhat more acceptable.

There is nothing unusual about this example. Although H.L.A. Hart made famous the idea of a rule of recognition,86 it is rare that formal rules determine what is to be recognized as law (or a legitimate citation or reference in a legal brief or argument or opinion). Rather, as Brian Simpson has insightfully described,87 the recognition and non-recognition of law and legal sources is better understood as a practice in the Wittgensteinian sense, a practice in which lawyers, judges, commentators, and other legal actors gradually and in diffuse and non-linear fashion determine what will count as a legitimate source and what will not, and thus will, in the same fashion, determine what will count as law and what will not.

Highly recommended.  Download it while its hot!

Spaak on Leiter on Naturalizing Jurisprudence

Torben Spaak (Uppsala University - Faculty of Law) has posted Book Review: Brian Leiter, Naturalizing Jurisprudence on SSRN.  Here is the abstract:

Ever since W. V. Quine published an essay entitled "Epistemology Naturalized," naturalism has been an important topic in core areas of philosophy, such as epistemology, the philosophy of language, and the philosophy of mind; and it has now, much thanks to the writings of Brian Leiter, reached jurisprudence (or legal philosophy). Accordingly, the task of gaining an understanding of the implications of a naturalist approach to the problems of jurisprudence, such as the place (in the jurisprudential landscape) and shape of empirical theories of legal reasoning, the nature of law's normativity, and the nature and viability of conceptual analysis as a central philosophical tool, is on the agenda of contemporary jurisprudence.

Leiter's new book Naturalizing Jurisprudence, a collection of essays published over the past ten years, deals with these and related issues, except the problem about the normativity of law. The first part of the book concerns the question whether the American Legal Realists ("the Realists," for short) are best understood as jurisprudential naturalists. The second part is concerned with the more general question of whether, and if so, how, jurisprudence should be naturalized. And the third part treats questions concerning naturalism, morality, and objectivity. Leiter's central aims, in keeping with this tripartite division of the book, are (i) to offer a reconstructive interpretation of the Realists as prescient naturalists; (ii) to make the case for a naturalized jurisprudence more generally; and (iii) to locate legal and moral norms in a world understood naturalistically.

Leiter's book is a well-written and substantial contribution to the field of jurisprudence, and I warmly recommend it to anyone with an interest in contemporary jurisprudence, or in the implications of a naturalist approach to philosophy. Leiter's ability to chart the implications of a naturalist research program in jurisprudence, and to pinpoint the weak spots in the writings of other philosophers in the process, together with the clarity of his reasoning, is impressive. But in spite of my appreciation of Leiter's book, I argue in this review (i) that Leiter is too generous in his reconstructive interpretation of the Realists, and point out that, from the standpoint of a naturalized jurisprudence, Scandinavian Legal Realists such as Alf Ross, and Karl Olivecrona are actually more interesting than the (American) Realists. In doing that, I focus on Leiter's account of different types of naturalism and their relation to one another, and the precise sense in which the Realists are said by Leiter to have naturalized jurisprudence. I also argue (ii) that Leiter's case for a naturalized jurisprudence cannot be accepted as it stands, because it includes exaggerated and quite implausible claims about conceptual analysis, viz. that it is a doomed enterprise because it is always vulnerable to the demands of empirical theories, and that instead of analyzing legal concepts jurisprudents should adopt the legal concepts that figure in successful empirical theories of law and legal institutions in (roughly) the shape they have there. I have very few objections to Leiter's analysis in the third part of the book, which I find interesting, illuminating, and quite persuasive.

I've added a link to Leiter's book.  I'm not as confident as the author about the value of the Scandinavian Realists, but share the view that Leiter is generous (or very selective) in his reconstruction of the American Realists.  An informative review, but my advice is to read the book itself.

Green on the Inseparability of Law & Morals

Leslie Green has posted Positivism and the Inseparability of Law and Morals (New York University Law Review, Forthcoming) on SSRN.  Here is the abstract:

This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review.
The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a `separation of law and morals.' The paper contends that Hart's `separability thesis should not be confused with the `social thesis,' with the `sources thesis,' or with a methodological thesis about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the `internal morality of law,' the `morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

Highly recommended.  Download it while its hot!

Tamanaha on the Lexicon on the Nature of Law

Brian Tamanaha comments on the latest Lexicon entry over at Balkinization.  His thoughtful reaction prompted the following addition to my post:

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

His piece can be found here.

Marmor on Pragmatics & Legal Language

Andrei Marmor (University of Southern California - Law School) has posted The Pragmatics of Legal Language on SSRN. Here is the abstract:

In most standard cases, the content of the law is tantamount to the content that is communicated by the relevant legal authority. It has been long noticed by linguists and philosophers of language, however, that the content of linguistic communication is not always fully determined by the meaning of the words and sentences uttered. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed is very often pragmatically enriched by other factors. My purpose in this essay is to explore some of the pragmatic aspects of understanding what the law communicates. I argue that in some respects the pragmatics of legal language is unique, sometimes uniquely problematic. Exploring those problems forms one of the aims of this essay. But I suggest that we can do more than that: by drawing on the distinctions between the various pragmatic aspects of language use, we should be able to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions.

And from the text:

The pragmatic aspect of language use is typically associated with two key ideas: one idea refers to the prevalent role that context plays in understanding the content of an act of communication. The second idea is related to the distinction between what has been said or asserted, and what has only been implied or implicated.3 It is important, however, not to conflate these two issues: context may play a crucial role in our ability to understand what has been asserted whether there is any further implicated content or not. And vice versa: though it is often the case that implied content is context dependent, this is not necessarily so; there are cases in which the content implied is not particularly context- sensitive.

And a bit more:

Abstractly, the idea is this: one might think that just as we draw conclusions about the maxims that apply to an ordinary conversation from the basic cooperative objective of ordinary conversations, we should be able to draw some conclusions about the maxims that would apply to legislative speeches from the nature and objective of such communicative interactions. As we noted earlier, the Gricean maxims of conversation are normative instantiations of the general purpose of a conversation seen as a cooperative exchange of information. Legislation is a different kind of conversation. Can we not simply observe the main objectives of such conversation and then draw some conclusions about the relevant conversational maxims that would instantiate those objectives? Perhaps we can think about it in a way which is very similar to a competitive game. The purpose of competitive games is not the cooperative exchange of information; games manifest certain forms of strategic behavior. However, the rules of the game typically determine what counts as the point of the game, what kind of skills and abilities one would need to exhibit in order to play the game and play it successfully.27 Typically we can draw some conclusions from the purpose of the game about different forms of conduct in it that would be deemed permissible, and others, which would not be permissible. Consider chess, for example. Since it is an intellectual kind of competition, we should be able to conclude that chess players are not allowed to use physical intimidation as part of their tactics in the game.28 In other games, however, such as boxing, and perhaps even football, physical intimidation might be perfectly acceptable. In other words, we can draw some normative conclusions about the kind of moves players should be allowed to make, simply from the nature of the game and its general purposes. Can we extend this analogy to legislation, and try to deduce some maxims of conversation that would basically instantiate our conception of what kind of “game” legislation is, so to speak?

This is the best work I've seen on this important topic, and it is highly recommended.