Legal Theory Blog

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.

Del Mar on Responsiveness

Maksymilian T. Del Mar (University of Edinburgh) has posted Responsiveness on SSRN. Here is the abstract:

This paper introduces the notion of responsiveness and the role it might play in moral, political and legal philosophy. The paper has four parts.

The first considers the meaning of the call for making room for responsiveness, and discusses three potential bearers of responsiveness: 1) individuals; 2) institutions; and 3) practices.

The second part of the paper discusses three possible objects of responsiveness (i.e., three possible answers to the question, `responsiveness to what?'): 1) the experience of moral emotions; 2) the perception of values; and 3) thicker concepts, such as needs, suffering, vulnerability and dignity.

The third part of the paper considers the inter-appropriateness of bearers and objects of responsiveness, i.e., it considers the relationship between the theoretical project of making room for responsiveness and the theoretical project of answering the 'what' question.

Finally, the fourth part briefly addresses an assumption made in the first part of the paper, namely, that there always and already exist constraints - an assumption that allows the philosophy of responsiveneness to avoid either presupposing a state of nature or aiming at an ideal theory (e.g., of the good life or of just institutions).

Apart from attempting to analyse the structure of the notion of responsiveness and what it may be capable of offering moral, political and legal philosophy, the paper argues that a philosophy of responsiveness can also help us imagine a responsive philosophy.

Leiter on Tamanaha on Realism

Brian Leiter comments on Brian Tamanaha's The Bogus Tale About the Legal Formalists.   As you will see, Leiter concedes an enormous amount of ground--but he has a very important point to make:

Tamanaha gives us no sense of what was distinctive about the arguments and claims of the Legal Realists, which makes it rather too easy for him to describe earlier views as examples of "the Realism of the Formalist age".  For example, Realists (as I have reconstructed them:  cf. my Naturalizing Jurisprudence) argued that:  (1) legal reasoning is indeterminate in cases that reach the stage of appellate review because of the existence of equally legitimate but conflicting canons of interpretation that can be applied to precedents and statutory materials; (2) in deciding cases, judges are responsive to 'situation-types'--recurring factual patterns that elicit a predictable normative response from most jurists, a response that is not, however, predictable based on existing paper rules and doctrines; and (3) in the commercial law context especially, judges look to the "normal" practices in the existing commercial culture in deciding what is the right outcome.  Tamanaha adduces no evidence that I saw that these actual theses of the Realists enjoyed any currency in the late 19th-century.

I am inclined to agree with Leiter that Tamanaha will eventually need to produce a careful theoretical analysis of both 19th Century jurisprudence and of American Legal Realism.  Leiter's work on the latter topic is essential--although I think Leiter's version is one of several possible reconstructions of the content of realism, which everyone should acknowledge was a loosely related family of theories and not the three theses that Leiter identifies (or any other collection of core content).

And I am also inclined to agree with Leiter that Tamanaha's presentation of his evidence would be more convincing if it were understated--which it isn't.

But this should not obscure the evidence that Tamanaha has produced both in The Bogus tale, and in the companion article Understanding Legal Realism.  With just a little luck, Tamanaha's work and the inevitable counter-reaction will give rise to a new and demythologized understanding of the realism and formalism.  In my opinion, Leiter is on to something truly important when he makes the following observation:

The strong version of Tamanaha's thesis--if it were true--would also render mysterious the strong reaction to Legal Realism in the 1930s and 1940s, and continuing to the present day.  After all, if it were true that there was no "formalist" age and that Legal Realism just continued earlier lines of thinking, then why did Roscoe Pound, John Dickinson, and Lon Fuller, among others, react so strongly to Realism? 

Leiter is right, we need an explanation for the critique of realism.  And that explanation will not be that the realists exposed the "mechanical jurisprudence" practiced by formalists.  That explanaiton will not lie in the cartoon version of the formalist age that Tamanaha effectively punctures.  The explanation will lie in the more ambitious claims of legal realism--the radical claims that realists sometimes endorsed and sometimes disclaimed.  These claims justified strong instrumentalism--an extravagent theory that overclaimed the implications of the role of practical judgment and interstitial lawmaking in adjudication.  Leiter's elegant reconstruction of American Legal Realism has the great virtue of identifying those portions of realis, that are defensible and that make significant contributions to legal thought.  But that isn't the end of the story!

Read Leiter and Tamanaha.

Tamanaha on Legal Realism

Brian Z. Tamanaha (St. John's University - School of Law) has posted Understanding Legal Realism on SSRN. Here is the abstract:

Legal realism is well known, but generally misunderstood. Through a close examination of the work of the legal realists and their predecessors, this article presents a complete reconstruction of legal realism. The most startling finding of this article is that all the key insights now identified with the realists were set forth by prominent jurists much earlier. The article shows that Pound, Cardozo, and the legal realists, and their entire (respective) legal generations, were exposed to so much realism that they could not help but see judging in realistic terms. It is often said today, "We are all realists now." Ample evidence will be presented in this article to show that at least three decades before the arrival of the legal realists, "They were all realists then too." What was said about judging at the time "a full century ago" sounds exactly like what is said about judging today.

The reconstruction completed in this article will simultaneously confirm the insights of realism about judging while dissolving the historical distinctiveness of the legal realists as a group. This finding is consistent with Llewellyn's own insistence (in the closing words of his essay defining legal realism) that "A group philosophy or program, a group credo of social welfare, these realists have not. They are not a group." Llewellyn also wrote that "Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say, Langdell." Modern accounts of legal realism, which typically present the legal realists as a distinctive group, have ignored these puzzling assertions, but they hold the key to understanding what legal realism was about.

The aim of this exploration is to rescue realistic views about judging from the clutches of the prevailing misunderstanding about legal realism. It is a follow-up to "The Bogus Tale About the Legal Formalists" (available on SSRN). The combined effect of these two pieces is to show that the formalist-realist divide is entirely false as a historical matter, and should be discarded. Modern debates about judging are structured by and remain trapped within this false antithesis.

And from the text:

Although Llewellyn gleefully exposed the manipulability of precedent and the openness of statutory interpretation, he consistently retracted the most radical implications of these observations, cautioning that “while it is possible to build a number of divergent logical ladders up out of the same cases and down again to the same dispute, there are not so many that can be built defensibly [Llewellyn’s emphasis]. And of these few there are some, or there is one, toward which the prior cases definitely press. Already you see the walls closing in around the judge.”189 A skilled lawyer asked to predict the fate of a case on appeal, Llewellyn conjectured, ought “to average correct prediction of outcome eight times out of ten, and better than that if he knows the appeal counsel on both sides or sees the briefs.”190 When identifying the sources of this high degree of reckonability, Llewellyn elaborated on several “steadying factors”: judges are indoctrinated into the legal tradition such that they “see things…through law spectacles;”191 much legal doctrine—including rules, principles, and statutes—is reasonably clear and well developed;192 judges follow accepted doctrinal techniques, strive to produce a just result, and strive to come up the right legal answer;193 judges sitting together on an appellate bench interact “to smooth the unevenness of individual temper;”194 and the judges’ desire and commitment to live up to the obligations of the judicial role, to earn the approval of their legal audience for appropriate judicial behavior, and their desire to avoid reversal by a higher court, prompts judges to engage in a good faith effort to conduct an unbiased search for the correct legal result.195

The realists, to be sure, harped on the various limitations of and room to maneuver allowed by legal rules, principles, statutory interpretation, stare decisis, and the finding and stating of facts in judicial decision making. But their position is easily misunderstood if their target is not kept in mind: They were attacking the notion that judging merely entailed the logical application of legal rules and principles. Their refutation of this view—a straw man, as it was196—did not mean that they embraced its polar opposite: the notion that legal rules and principles do not have a significant role in judges’ decisions.

This piece and its companion (see above) are absolutely essential.

Highly recommended. Download it while its hot!