In this great new paper, Joshua Knobe and Brian Leiter subject three philosophical approaches to moral psychology to empirical testing, in the sense that they evaluate the fit of each of the three philosophical models with what we currently know about how moral behavior really works. Confronted with empirical findings, the Aristotelian and the Kantian models of moral psychology don’t fare particularly well. There is little empirical support for the central role of upbringing in forming someone’s moral character, which is a cornerstone of Aristotelian virtue ethics. Similarly, there is little support for moral behavior being caused by conscious moral choices, which is a central tenet of Kantian moral psychology. Rather, what we perceive as conscious, principled moral choices is really more of a post hoc attempt to make sense of our past actions. (Not just the owl of Minerva first takes flight with twilight closing in.) That, of course, has been one of Nietzsche’s recurring criticisms of traditional morals, and so it comes as no surprise that Nietzsche’s account fits more comfortably with the empirical evidence of how moral behavior really works. Of course, Knobe and Leiter do not present their analysis as a normative account. Rather, their paper is an attempt to explore the empirical boundaries within which meaningful normative theories will have to evolve. Highly recommended.
Monthly Archive for September, 2005
Hanno has taken issue with my post, which posits a semantic nexus between first-order and second-order observation:
I don’t think that a decision must necessarily be unlawful from an internal point of view in order to be considered activist from an external point of view.
All right, then. Here is a system showing the claims of defective adjudication that can be made depending on the perspective of the speaker.
I will compare the claims to the way “judicial activism” is commonly used, by which I mean something like the following:
Test Claim of Judicial Activism: The court’s decision in Xyz is bad, because the court did not just apply the law. Rather it used its power to further the judges’ political Agenda. The court should enforce the constitution and the law, but should not rule the country from the bench.
Let’s see whether such a claim can sensibly be made from the observer’s perspective, the participant’s perspective, or whether it requires a combined view from the observer’s and participant’s perspective.
1. Observer’s Perspective [Second-Order Observation]
a) Judicial Activity
Claim: “The Rehnquist Court is the most activist court since it has invalidated more acts of Congress than any other court before it.”
Verdict: Not a Claim of Judicial Activism
Comment: Without information on the absolute number of acts of Congress or the number of unconstitutional acts of Congress it is impossible to tell whether the Court is “enforcing the constitution” or ruling the country from the bench.
b) Law As Politics
Claim: “Everything the courts do is politics. A ruling means what it does. There are no hard or easy cases.”
Verdict: Not a Claim of Judicial Activism
Comment: An old favorite. The radical position of realism. It is true, too: Everything is politics in the sense that every court ruling can be observed from the political system and in its terms. But from this perspective, there is no way to determine whether the court is “enforcing the constitution or the law,” since such categories don’t exist. It is impossible from this vantage point to say that the court is “just” applying the law, since no judge and no court is ever “just” applying law.
2. Participant’s Perspective [First-Order Observation]
a) Political-Question Argument
Claim: “I dissent with from the majority opinion since I believe that the question at bar is a political question not properly decided by the courts. This court should dismiss the claim and leave the plaintiff to seek to vindicate his interest through the political process.”
Verdict: Claim of Judicial Activism (Maybe)
Comment: I almost didn’t concede this one. The judge refusing to rule because the case raises a political question references explicitly the demarcation of the legal and the political systems. The argument is still a legal argument since the political-question doctrine is the means by which the law imports the issue into itself and subjects it to the lawful/unlawful distinction. This shouldn’t come as a surprise, of course, because the (legal) system itself determines its boundaries. But I have my doubts that this is a judicial-activism claim. The question turns on whether the court can stumble into a political question, or, put differently, whether the court can decide a political question without pursuing a political agenda. Misapplication of the political-question doctrine comes to mind. In that instance, the claim “the court thought it was deciding a ‘case or controversy’ but really it decided a political question’” doesn’t strike me as a judicial-activism claim. Perhaps. (These are just prolegomena, after all).
b) Judicial Error
Claim: “The court got it wrong. The constitution says “property” — full stop. There was no room for the court to introduce limitations or exceptions here.”
Verdict: Not a Claim of Judicial Activism
Comment: This is a straight-up doctrinal disagreement, an entirely immanent argument. It cannot be a charge of judicial activism (without further claims) because if it were, every wrongly-decided case would be an instance of judicial activism. Judicial activism entails the claim that the court has overstepped its bounds, has done more than apply the law and has ruled from the bench. Simple misapplication of the law or constitution is still application of the law or constitution and is not (necessarily) a usurpation of the role of the legislature.
3. Participant’s and Observer’s Perspective Combined
a) Judicial Activism
Claim: “The court decided the wrongly and “invented” a constitutional right that doesn’t exist. The court did so to further a specific political agenda.”
Verdict: Claim of Judicial Activism
Comment: This is the one, judicial activism in the strict sense. From an internal perspective (and accepting that the constitution and law do provide guidance), the claim is made that the decision was substantively wrong. The additional claim is then made that the court pursued a political agenda, and therefore violated its duty to only enforce constitution and law, and that the court attempts to rule the country. This claim mirrors the test case above. It shows how narrowly the category of judicial activism should be drawn to avoid mistaking simple substantive disagreement on the one hand and correct enforcement of the constitution and law (no matter whose political ends it serves) on the other for judicial activism.
b) Judicial Passivism
Claim: “The court is closing its eyes to the political reality and consequences of its decisions. Hiding behind the constitution and abstract doctrine, which it applies faithfully, the court refuses to make necessary changes to the law, thus preventing necessary political change.”
Verdict: Depends
Comment: Tough one. The claim recalls the Lochner era, and I have therefore affectionately called it “mechanical jurisprudence” in the graph in my previous post. During the Lochner era the courts resisted repeated attempts by the legislature to change the law (on political grounds, as is natural for the legislature). That is the basis for the obstruction element of the argument. I hesitate to call this sort of thing judicial activism, but am willing to concede that the difference I am drawing may be a nicety. Where the claim is slightly modified, and states that the court’s decision is correct and another (incorrect) decision would have been desirable for political reasons (that is, if the obstruction element is missing), the charge is not one of judicial activism. (I am indebted to Hanno Kaiser for the term “judicial passivism.”)
I hope this system of judicial-activism claims is useful to focus the discussion (in the sort of way a birthday present for the man-who-has-everything is useful). The serious core of my posts is this: If a charge of judicial activism is made, we should first demand to hear how the court got it wrong (and no political arguments allowed, only legal arguments). If little or nothing is forthcoming on that end, it will take a very strong additional argument to show why the court should have gotten it wrong, to support the claim of judicial activism.
We’ve made the point before that the distinction which systems theory draws between the observer’s perspective and the participant’s perspective relates to the distinction between realists and formalists. In system’s theory, the observer [or second-order observer] of a social system (such as law) understand the system by observing the participants [or first-order observers] as they apply the system’s defining dichotomy: in the case of law, this dichotomy is lawful/unlawful. Unlike the participants of the law (such as judges), the observer derives no guidance from the lawful/unlawful distinctions. Realism (at least in its most radical form) also posits that the judge derives no guidances from the law (but rather from socio-economic circumstance, politics, or breakfast). Formalism on the other hand maintains that rules give at least some guidance and that they do provide an answer to the judge’s question, “how should I rule?” That’s the participant’s perspective.
Here is how this distinction maps onto one of the favorite slurs of the day: judicial activism. The question is: how do we tell that a a decision is an instance of judicial activism?
First, judicial activism is sometimes taken as the court’s work of striking down legislation. In that sense, the Rehnquist court was the most activist court in history, invalidating more acts of congress than any court before it. But the court’s invalidation of federal statutes is only a problem when those statutes shouldn’t be invalidated: perhaps Congress, during the years of the Rehnquist court passed more unconstitutional statutes than any US Congress before it? Just by counting how many statutes were struck down, we can’t tell, one way or the other. This view of judicial activism (perhaps more properly called judicial activity) is a view strictly from the observer’s perspective. It is external to the law, and does not consider the lawfulness/unlawfulness (constitutionality/unconstitutionality) of either the invalidated statutes or the invalidating rulings of the Supreme Court.
Usually, of course, judicial activism is not used in this sense of “judicial activity” but entails a value-judgment: the charge that judges legislate from the bench, or become revolutionaries in robes, or otherwise exceed their judicial mandate by taking as reason for their decisions matters that they are barred from considering. Judges are to apply the Law, and not their political agendas (or other extra-legal criteria). (Kermit Roosevelt has related post on Judicial Activism Part One and Part Two) This view of judicial activism contains a two-fold claim: first, that the judges decided the case wrongly, and second, that they did so in order to achieve an extra-legal end or by applying extra-legal criteria (for convenience, I’ll call such criteria “political” from now on).
Consider this graph, which lays out the two prongs of judicial activism: First, the question whether the decision was correct as a matter of law or doctrine. This is an application of the internal perspective, the perspective of one who seeks guidance from the rules and principles of the law. Since the charge of judicial activism entails the charge of legislating from the bench or otherwise exceeding the proper role of the courts (which is, of course, to apply the lawful/unlawful distinction), a decision that is internally correct-that isn’t wrong as a matter of doctrine-can’t be an instance of judicial activism.
The second prong, called here “political agenda,” represents the external criteria. It represents not the lawful/unlawful distinction, but rather the distinction of the political system (or some other, non-legal system, such as religion or aesthetics). The political system’s fundamental dichotomy might be seen as “public welfare/public detriment.”
A charge of judicial activism is structured like this: (1) In Roe v. Wade, the court misapplied the Constitution (by, for example, subscribing to a “nonexistent right to privacy”) and (2) the judges imposed their views of public welfare upon society (that is, the balancing of the woman’s interest and the fetus’s interest according to stages of fetal development).
The interesting point is that the judge remains a first-order observer even when he or she applies a political criterion. Take Brown v. Board of Education. The court imported into the law a questions that had not been there before: the socio-psychological effect of segregation (represented in the opinion by the weight given to the studies with the dolls). The court was therefore activist, by leaving settled doctrine which controls which facts matter to the law and which don’t. But note that such extra-legal considerations became legal considerations in the process, and that the Brown-court still ultimately applied the lawful/unlawful distinction. The recent and much-maligned decision in Kelo on the other hand was not activist: It merely extended the definition of “public use” using the internal criteria of the law (not a radical extension either, to my mind, but that is beside the point).
Kelo and the reaction to it show that people who disagree with the political impact of a decision don’t hesitate to call the court’s decision (internally) wrong, often in a naked assertion. There is a contradiction in such an argument, if the argument reads “the court got it wrong, because I disagree with the political effect.” The critique should make explicit some way in which such political considerations are relevant or should have been relevant under “the law.” Otherwise the charge of judicial activism simultaneously demands and deprecates the political malleability of court decisions. Posing as an argument that “the court shouldn’t legislate from the bench,” the argument really says “the court should legislate from the bench, but my way not their way.” And here is an opportunity for a moments introspection: To what extent do we want the court to legislate from the bench? Lochner came before the backdrop of forty years of settled precedent and was probably represents the correct application of the internal lawful/unlawful criterion at the time. The charge of “mechanical jurisprudence” was the demand that the legal system should incorporate aspects of the political system: that some political or social considerations should be legally relevant.
It follows from the structure of judicial activism proposed here that the proper response to the charge of judicial activism is to show the defensibility of the decision as a matter of law, and not as a matter of politics. Whether the court in Brown, Roe v. Wade, or Kelo was activist or not turns on whether they got the law right, and not on whether the decision is right for society and our times.
I agree with Manfred that critical features of the formalism v. realism debate should be recast in terms of the distinction between first-order and second-order observations of the law, as previously explained in this post. But I don’t think that a decision must necessarily be unlawful from an internal point of view in order to be considered activist from an external point of view. There are no necessary semantic ties between the internal and the external perspective. Participant and observer are bound by their own choices of relevant binary codes (e.g., lawful/unlawful and power/opposition) but they are not bound to respect or to even take into account any other system’s codes. Moreover, not every observation of the legal system by the political system (or vice versa) is an instance of second order observation. Rather, an observation is of second order only if the object of the observation is another system’s blind spot, that is, it’s constitutive difference or its code.
Judicial activism, therefore, means something very different if viewed from an internal and an external perspective. For the participant in the legal system, judicial activism is a decision that makes new law by overruling precedent, or expands the reach of a doctrine (e.g., applying the equal protection clause to age discrimination), or declares a previously unrecognized set of facts as relevant to the legal system (e.g., decisions of foreign courts, economics textbooks, sociological findings). Whether such activism is defensible depends on criteria internal to the legal system. For the observer of the legal system, judicial activism is primarily a question of how much the legal system interferes with other systems, e.g., how often the court strikes down various laws. Whether such activism is defensible depends on criteria employed by the observing system. Both perspectives are logically independent. They represent two views from two different vantage points of two different, yet related events.
Over the past 50 years or so, legal theory has actively sought out and imported a host of new ideas and methodologies from related (and not so related) fields, such as philosophy, sociology, psychology, and, of course, economics. Why? Certainly, curiosity played a crucial role, and so did the quickly expanding reach of the law. But few disciplines are quite as obsessive as the law in their search for methodological alternatives, for external vantage points from which one can hope to make an attempt at “overcoming law.” There seems to be a certain unease with the scientific merits of doing plain vanilla law, of remaining “on the inside” and doing doctrinal work, which, in a Continental context, would be called dogmatics. And that unease may well be justified. As Brian Leiter remarked, much of jurisprudence (which includes dogmatics) “relies on two central argumentative devices – analyses of concepts and appeals to intuition – that are epistemologically bankrupt.” Many of those convinced by that analysis will try to leave the sinking ship. But some will be hampered in that effort by having staked their careers on the law. Leaving the law entirely for, say, economics, or whatever else might currently be en vogue, is an option only for the lucky (and/or particularly intense) few. The next best thing is to remain formally and institutionally within the law, but to attach oneself to an external discipline, preferably one with a more serious academic reputation. (Just wait for law & mathematics. That will be the one to end all arguments.) Of course, those who have already made it to the shore will quickly turn to doing two things: (i) create demand by promoting the field; and (ii) curtail supply by erecting barriers to entry. (It should come as no surprise that the law & economics crowd has excelled at both tasks.) And so, the refugees will turn away from the minefields of law & economics, from law & sociology, which also has become unpleasantly math-infested (gone are the days of Max Weber and Emile Durkheim!), towards seemingly safer shores ÇƒÏ such as philosophy! But not so fast, because there are formal hurdles as well. Without PhD training, says Brian Leiter, “almost no one, not even someone with an excellent JD, can do competent, cutting edge work in interdisciplinary areas like law and economics, or law and philosophy, or law and psychology.” (Emphasis added.) That hurts. While some, of course, refuse to go gently, others will accept their fate. And what of those? What of the brilliant, intellectually curious lawyers that are stuck and can’t leave the law? They will start a new formalism ÇƒÏ mark my words. They will rediscover Kelsen, they will want to purify the law. And then it will be deja vu all over again!
Believing, I suppose, that the best defense is an offense, Dennis Patterson replies to my observation about the current state of the discourse known as ǃÚanalytic jurisprudence’ by challenging me to provide an argument in favor of one alternative I suggested: social philosophy as informing theories about the concept of (and nature of) law. Unfortunately, my argument is book-length and not yet published, two factors that deem it inappropriate for the blogosphere. (Though I promise to send him a copy of the published work and would welcome a thoughtful review.) Following, however, is another blog-appropriate observation that I hope will advance the discussion I wished to engender with my original entry ÇƒÏ a para-academic discussion about what are the maladies of contemporary analytic jurisprudence and potential avenues for a productive discourse.
Larry Solum is unhopeful about the potential contribution of social philosophy some of which he finds to be ǃÚobscure’ and ǃÚfuzzy’. It is my suggestion, however, that analytic legal philosophy, is hyper-analytic. Specifically, it is my impression that analytic philosophers are uncomfortable with the fact that pre-theoretical insights inform grand theories of law. I suspect that all greatly innovative theorists first have a pre-theoretical insight. Then, they figure out what methodology to apply in order to put such insights to the test. Hart had a brilliant insight: law as a system of secondary and primary rules. Dworkin had a great insight: integrity has to be a central element of law and its theory. Raz, luckily for us, stumbled upon the notion that the concept of law is closely linked to, embedded in a net of concepts with, the concept of authority, and so forth. To some (probably those closer to the social sciences generally, and critique-of-ideology in particular), it may be trivial that this is the process of theorizing – a creative process. But most jurisprudes tend to resist this notion. Talking to jurispurdes, and reading much of the methodological debates in analytic legal philosophy, one gets the impression that most jurisprudes believe that methodology and substance are actually, as opposed to analytically, distinct. In other words, while the distinction has great instrumental value, there is not, in fact, a clear and crisp distinction between substance and method. The distinction should only be used as long as it clarifies more than it obscures, but one should always keep in the back of their minds its limitations.
The need to believe that purely analytic tools to the study of law and its concept exist and we just need to figure out what they are could be a result of a defensive desire to be associated with ǃÚexact’, ǃÚanalytic’ (ǃÚmasculine’) disciplines, such as general philosophy, rather than be associated with ǃÚfuzzy’, ǃÚimpressionist’ (ǃÚfeminine’) disciplines such as sociology and literature. This is akin to the historically-defensive mode of the social sciences vis-?Ü-vis the ǃÚexact’ sciences. But the fact remains that law is a social phenomenon ÇƒÏ fuzzy, slippery and obscure. Theorizing about law, in turn, is a creative process in which the (good) theorist is struck by a pre-theoretical insight and then submits it to the scrutiny of his or her chosen methodology.
My last entry on the subject of legal reasoning outlined the fundamental distinction between the external and the internal point of view. While the external point of view is of critical importance to parties and observers of the legal system, such as sociologists, philosophers, economists, and those involved in other “law & …” disciplines, the internal point of view is determinative for participants in the legal system, including judges and, in the last consequence, lawyers. As a result, lawyers make and judges consider doctrinal arguments. A claim is legally valid, if and only if it is backed by a statute, a regulation, or by precedent. Almost always, there will be competing claims to derive authority from these sources of law. Ultimately, the court’s opinion will validate certain of these claims and dismiss others.
Once again, I do not suggest that external considerations don’t influence a court’s decision. For example, a judge might be unfairly prejudiced. But he or she can’t openly base an opinion on external factors such as prejudice. The judge can’t say: “The state wins, because I’ve been a government person all my life, and if you are charged with a crime, then chances are that you’ve done at least something wrong.” (Of course, he or she could write just that. But that opinion would be appealed and reversed right away.) Because of the constraints imposed by the participant’s status, the biased judge would have to express his or her prejudice within the forms provided by the law. For example, the biased judge could write: “The defendant’s motion to suppress the evidence is denied, because the defendant consented to the warrantless search of his apartment when he failed to protest as the police broke through the front door. The fact that the defendant was asleep and somewhere else at the time is irrelevant.” Of course, that’s not a great legal argument, but it is a legal argument in form and content. So, in a sense, the hope and the promise of the legal system is that not all external reasons can be transformed into valid internal legal arguments.
In any event, the judge, the law clerk, and the lawyers, once they have assumed their roles as participants, are confined to making legal arguments. (For purposes of this entry, I don’t distinguish between law and equity.) Every complete legal argument has the same objective, to assign a binary value (lawful/unlawful) to a claim. Of course, there are subsidiary points along the way, mostly of definitional nature (e.g., is “a wink and a nod” an agreement?), but the complete argument is always about whether a claim is lawful (valid, backed by the law) or unlawful (invalid, not backed by the law). (A more detailed discussion of whether the distinction should be lawful/unlawful or lawful/not lawful can be found here.) The next entry in this series will address the craft of making a good legal argument.
Below is a comment from Dennis Patterson, the latest in the discussion about what (if anything) is wrong with jurisprudence, that Nico Artzi started with this post.
In Nico’s “earlier effort,ǃ? the following claim is central: “For reasons that have to do with the history and sociology of ideas ÇƒÏ not substantive reasons ÇƒÏ jurisprudes are infatuated with moral philosophy and are forever seeking the approval of moral philosophers.ǃ? I offered 2 counterexamples to this claim. The first was the work of HLA Hart; the second, that of Jules Coleman (as an exemplar of the sort of work I myself and my contemporaries engage in). Nico claims that his earlier “tongue-in-cheek entry addressed contemporary analytic legal philosophy (say, the past 15 years or so) only.ǃ? 2 points. First, nothing in the earlier entry limited the scope of the comment in the way he now describes it. Second, even if it did, Coleman is a counterexample and, interestingly, Nico never responds to the counterexample. Be that as it may, Nico seems to have shifted the object of his comments from a spurious claim about moral philosophy to the need to do sociology if one is to engage in philosophy (I am employing Davidsonian charity here). We get to the heart of the matter in the final paragraph of Nico’s second post, wherein he states that the kind of work he applauds (Habermas is given as an example) “can help explain not only what law is but also what the concept of law is as a concept different than the concept of “whiteǃ? or of “tableǃ? or of “goodness.ǃ? This is where the action is, but not in the way Nico imagines. Nico’s complaint seems to be that analytic legal philosophers don’t do philosophy in the manner of Habermas because they fail to incorporate sociology into their analysis. This is a claim that requires an argument. None is provided but one could be. How about it Nico: do you have an argument? How about an example of sociological/philosophical analysis that – owing to its sociological component – does a better job than a straightforward analytic legal philosopher might?
Larry Solum, commenting on the debate, writes that
most contemporary philosophers recognize the limitations of this approach, and it is fair to say that contemporary philosophy has entered a post-analytic phase. But I am much less convinced by Artzi’s claim that the remedy is a turn to “social philosophy,” with Habermas as an exemplar. I say this even though I am sympathetic to Habermas’s project. There is much to be said for clarity and analytic precision, and a good deal of social philosophy in the continental tradition is obscure and (in my opinion) fuzzy.
An earlier entry of mine in this blog ÇƒÏ meant to provoke a discussion rather than to “argueǃ? a point ÇƒÏ has resulted in some interesting responses. I wish particularly to address the opening remark in Dennis Patterson’s response who notes that:
Anyone familiar with, say, HLA Hart’s book *The Concept of Law* could hardly characterize the book as preoccupied with the methodology of moral philosophy.
Indeed, my tongue-in-cheek entry addressed contemporary analytic legal philosophy (say, the past 15 years or so) only. I agree that Hart was actually on the right track. Famously (or notoriously), he characterized The Concept of Law as a work of ǃÚdescriptive jurisprudence.’ Unfortunately, he never quite elaborated on what he meant. Among the critiques of Hart’s descriptive/sociological approach is Roger Cotterrell’s:
[Hart's theory] is, it must be said, not descriptive sociologyǃ? which should presumably be based in substantial empirical study. It is speculative philosophy not grounded in any consideration of actual social conditionsǃ? this should involve actually finding out how people talk and think and such an inquiry is not normative legal theory but sociology or social psychology.ǃ?
And Brian Leiter, who wrote that giving an account of any social fact that is the basis of the concept of law
would require jurisprudence to get up from the armchair and find out what anthropologists, sociologists, psychologists and others can tell us about the social practices in and around law.
However, it seems like attempts to do so are encountered by the group of ǃÚanalytic’ legal philosophers as doing something other than legal philosophy. Those engaged in such endeavours must attend different conferences, publish in different journals and volumes, and compete for different academic posts.
Of course, some of those engaged in “finding out how people talk and thinkǃ? about the law are engaged in something other than legal philosophy. But here is my pet peeve: social philosophy, the various abstract explanations of how social reality is constructed (e.g., Habermas’s Communicative Action theory (-the more sociological, rather than political-philosophical, aspect of his theory)), can help explain not only what law is but also what the concept of law is as a concept different than the concept of “whiteǃ? or of “tableǃ? or of “goodness.ǃ? To help think about the concept of the concept, if you will, in the context of law. This is analytic legal philosophy of the first order and an engagement with the empirical reality of law.
Consider the following problem, which was presented by Paul J. Ferraro and Laura O. Taylor of Georgia State University to about 200 Ph.D. economists at the 2005 annual meetings of the American Economic Association:
You won a free ticket to see an Eric Clapton concert (which has no resale value). Bob Dylan is performing on the same night and is your next-best alternative activity. Tickets to see Dylan cost $40. On any given day, you would be willing to pay up to $50 to see Dylan. Assume there are no other costs of seeing either performer. Based on this information, what is the opportunity cost of seeing Eric Clapton? (a) $0, (b) $10, (c) $40, or (d) $50.
The correct answer is (b). As with all problems involving opportunity costs, we first need to ascertain the value of the forgone alternative, here, the Dylan concert. I would have been willing to pay $50 for a Dylan ticket (reservation price). If the price of admission was $40, my benefit is $10. That’s what I’m giving up by going to the Clapton concert (or by staying home, etc.) Even though this isn’t a particularly tricky question, most of the respondents got the answer wrong.
[T]he most popular answer was $50, with 27.6% of respondents choosing this answer. The second most popular answer was $40, with 25.6% of respondents choosing this answer. The third most popular answer was $0, with 25.1% of respondents choosing this answer. The correct answer, $10, was the least popular, with only 21.6% of respondents choosing this answer.
Is this “a professional embarrassment?” Does it really warrant the conclusion that
[t]he inability of most PhD economists to answer a simple opportunity cost question implies that students at colleges and universities are unlikely to learn this crucial concept in a way that allows them to apply it in their daily lives.
I don’t know… If anything, the more or less random distribution suggests that the respondents weren’t paying attention. Had this test been administered in a classroom setting, I am certain that most respondents would have gotten the answer right. (And no, I am not making excuses! I wasn’t anywhere near that conference!) But will I sure take solace in the 78.3% error rate, next time that a professional economist makes me look stupid.
Ben Barros, Professor at Widener University Law School, posted his prepared remarks to the Pennsylvania House of Representatives State Government Committee on SSRN. His main point is that homes deserve special protection from government takings, because
homes are different from other types of property. People become personally attached to their homes. Homes tie people to their communities. Displacement of people from their homes can separate them from family, friends, schools and jobs.
Specifically, Barros recommends:
You [= the members of the House] could permit the taking of a home for any type of public use only after a finding, reviewable by a court, that there is no alternative course of action that would serve the same public goal at a reasonable cost
You could require governments to pay a premium (say 10% or 15%) over fair market value for a taken home, which would both provide an economic disincentive to take homes when other types of property are available and compensate the homeowners for some of the personal value they placed in their homes.
These approaches ÇƒÏ alone or in concert ÇƒÏ would help protect homes while maintaining flexibility for local governments to take other types of property.
Even jurisprudes (analytic legal philosophers), in addition to other legal theorists, are coming to the slow and painful realization that something has gone terribly wrong in legal philosophy. Anglo-American legal philosophy is littered with circular, repetitive and quite esoteric discussions. Things have gotten so bad that some recent articles have resorted to personal attacks. (For example, Ronald Dworkin’s “Thirty Years Onǃ? and Brian Leiter’s “The End Of Empire.ǃ?) One is reminded of Henry Kissinger’s statement that the battles in academia are so bitter because the stakes are so low. Or are they?
Battles in academia are battles about ideas. Actions, such as waging wars against other nations, are taken based on ideas. Inventions are possible because someone has a new idea. Friendships and personal animosities are fueled by similarities or dissimilarities of ideas. It is therefore a matter of general concern to legal theorists and practitioners alike when legal philosophy ÇƒÏ a branch of philosophy, the “queen of disciplinesǃ?ÇƒÏ becomes a profoundly misguided discourse.
Legal philosophers are starting to identify the maladies of their field. For example, Brian Leiter rightly points out that:
“The real worry about jurisprudence… [is] that it relies on two central argumentative devices – analyses of concepts and appeals to intuition – that are epistemologically bankrupt.ǃ?
The problem, I fear, is more extensive. As observations of the communicative action of any conference in legal philosophy betray, jurisprudes have been devoutly monotheistic, worshiping a single god: the god of moral philosophy. For reasons that have to do with the history and sociology of ideas ÇƒÏ not substantive reasons ÇƒÏ jurisprudes are infatuated with moral philosophy and are forever seeking the approval of moral philosophers. Many seem to be attached to the belief that legal philosophy ÇƒÏ a philosophy of a social phenomenon ÇƒÏ can be produced using the same ǃÚmethodologies’ as those of moral philosophy.
This inferiority complex has lead to a systematic exclusion of those relating questions about the nature and the concept of law to branches of philosophy other than moral philosophy. For example, while political philosophy is considered an acceptable, albeit vaguely inferior, mooring field other branches of philosophy are practically absent from the discourse. Most notably, social philosophy. Needless to say that non-philosophical theorizing is completely out of the question. While jurisprudes are increasingly recognizing the deficiencies and confusions of their so-called ǃÚmethodologies’ they are nonetheless united in their commitment to fight off any attempt to look to other disciplines for methodological, and substantive, guidance. Is it really so surprising that the incestuous in-breeding that characterizes the field begets little monsters?
Dworkin has observed that:
“[Positivists] teach courses limited to “legal philosophy” or analytic jurisprudence in which they distinguish and compare different contemporary versions of positivism, they attend conferences dedicated to those subjects, and they comment on each other’s orthodoxies and heresies in the most minute detail in their own dedicated journals.ǃ?
Dworkin fails to acknowledge that the problem is not unique to positivists, it is prevalent among most, if not all, of analytic jurisprudence. But Dworkin is right in making the point that the problem is with the scholars and their discursive practices not with jurisprudence as such. While it is becoming increasingly en vogue to bemoan the death of jurisprudence, the problem is with the communicative action, the pattered interactions of the field: the exclusion of those who engage in philosophy other than moral (or political) from the conferences, syllabi, journals and teaching posts, and the absolute abhorrence of interdisciplinarianism.
But philosophy has been around for millennia and legal philosophy will withstand the current exclusionary practices of the philosophers. The queen is dead. Long live the queen!
We are pleased to welcome a new member to the Law & Society Weblog, who will be blogging as Nico Artzi. Nico is (among other things) a young, successful law & philosophy scholar, writing about jurisprudential issues that are near and dear to our hearts, such as positivism, moral philosophy, and social philosophy.
For all practical purposes, law is a reason to do or to refrain from doing something. It is a reason for claiming payment under a contract, for invoking the Fifth Amendment right to remain silent, and for the corporate executive to terminate a program that would have increased profits but run afoul of the antitrust laws. There are two fundamentally different ways in which law serves as a reason. One is external, the other is internal. The internal perspective is that of a participant in the legal system. It is epitomized by the judge. The participant asks what is permitted and prohibited within the legal system. For example, the participant asks: “Is price fixing among competitors lawful?ǃ? The answer, within the legal system, is “no.ǃ? And that’s the end of the inquiry. For the participant, the legal system provides a sufficient answer to every legal question. (Whether the law determines that answer is a different question.) The external perspective, in contrast, is that of an observer of the legal system. He or she asks not what is right within the legal system, but rather how the legal system (operating internally on the lawful/unlawful distinction) will impact him or her or someone else. For example, suppose that the corporate executive, after learning that price fixing is illegal, asks: “How likely is it that we would get caught? And if we get caught, what’s the penalty? And even if we have to pay the penalty, would we still come out ahead?ǃ? He or she is not indifferent as to the lawfulness of the contemplated course of action. To the contrary, he or she explicitly takes the illegality into account. But for our (ethically challenged) hypothetical executive the classification lawful/unlawful is not the only relevant consideration. The risks of detection, enforcement, and punishment are also important. The observer’s inquiry, therefore, does not necessarily end with the determination that the conduct in question is lawful or unlawful. For the observer, the law (here, the expected reaction of the legal system) is one among many reasons, influencing his or her decision. For the participant, the law (here, what’s right or wrong within the legal system) is the only relevant reason to reach a decision.
The participant/observer distinction is of fundamental importance. Lawyers, for example, constantly oscillate between these two points of view. A lawyer advising a client who prematurely wants out of contract might say:
Realistically, the only legal right for you the get out of the contract is to give 6 months notice. That’s what the contract says. [Participant] But the other side might be willing to negotiate an immediate release with you, particularly if we raise questions about their performance. [Observer.] From a legal point of view, our arguments as to their lack of performance are rather weak. [Participant] But given that there is at least some risk for them that a court would be sympathetic to our non-performance argument [Observer], weak as it is from a legal point of view [Participant], and given that you have a long term relationship and that the other side still wants to do business with you in the future, they will probably let you off the hook. [Observer.]
In contrast, a judge, presiding over the case, would be confined to the participant’s perspective, at least in explaining his or her opinion. He or she would not be permitted to take observer considerations into account. For the judge, the only relevant question is whether there was a breach of contract, and if so, what the appropriate legal remedy would be. This is not to say that, from an external point of view, the judge’s non-legal value commitments are irrelevant. But those commitments must be expressed within the constraints imposed by the law (e.g., legal doctrine) and the forms provided for by the law (e.g., opinions).
While lawyers do oscillate between the participant’s and the observer’s view, they are, ultimately, participants, which explains their role as “officers of the court.ǃ? Lawyers may advise their clients as to the consequences of illegal behavior, but they must not advise their clients to violate the law. Thus, in the last consequence, at least from a normative point of view, the internal perspective trumps external considerations.
Ordinary people – myself emphatically included – have no way to determine the truth of all but the most simplistic factual claims, which does not keep anyone from having strong opinions. Let’s take the evolution v. creationism (or “intelligent design”) debate. Suppose that you argue in favor of creationism. I claim in response:
“The theory of evolution is among the most secure elements in all of human knowledge. It is on par with claims such as: matter is made of atoms, DNA transmits the blueprint of organisms from generation to generation, light is an electromagnetic wave, which, at times, also behaves like a particle, etc. Any form of creationism or intelligent design is hogwash.ǃ?
How do I know that? I have not conducted any experiments myself, nor have I spent any significant time studying the results of the experiments conducted by others. The answer is that I trust science as an institution. I trust that the adversarial process of promoting competing theories, of peer review, of organized research with its mixed rewards of academic recognition and authority within largely autonomous institutions, justifies my belief in the truth of a proposition endorsed by the scientific community. In other words, my trust in a particular social organization underwrites my truth claims. Trust is therefore epistemologically prior to truth.
The question is thus, whom do I trust? I trust whoever has been designated as trustworthy by the trusted institution (which, of course, is a reflexive definition). For starters, I trust experts with the right credentials, for example, a Ph.D. in evolutionary biology from a reputable university. The credentials are a proxy for the truth of the statements made by their bearer. In addition to verifying credentials, I will also make sure that the expert talks about his or her field of expertise, that his or her knowledge is current, and that he or she is an accepted (i.e., trusted) authority within the field, which is established primarily through reputation, publications, review articles, prizes, etc. Once the credentialing process has been completed to my satisfaction, I have validated my truth claim, in much the same manner as I validate the identity of an email recipient through the degree of trust placed in their public PGP key by others. The defensibility of truth claims thus rests almost solely on social webs of institutional and interpersonal trust relations. In a sense that improves our ability to critically assess the truth of a proposition, because it seems that ordinary people are much better equipped to make judgments as to whether someone is trustworthy compared to whether something is true.
Going back to the initial question, I believe that the theory of evolution is correct and any form of creationism is hogwash, because my web of trust, within which I can justify my beliefs, is broader, denser, and deeper than yours. The institutions that I rely on are in turn relied on by more reputable institutions than the ones that you base your trust on. The individuals whose assessment I trust are affiliated with more reliable institutions than the ones that you trust, and so on. I am right and you are wrong, because my claims are backed by a more relevant, reliable, and higher quality social consensus than yours. Once again, truth is a function of social arrangements and webs of trust.
Now suppose that, hypothetically, in response to my defense, you are able to drop disreputable institutions such as the “Discoveryǃ? Institute and a number of associated cranks as nodes from your relied-upon web of trust. Suppose that you point me to a group of people, who, by my own standards, are trustworthy. Suppose further that these people speak out in favor of creationism. What now? At this point I have to decide more specifically whom to trust, the members of my “team evolutionǃ? or those of your “team creationism.” On what basis will I be able to make that decision?
The theory of cultural cognition suggests that I will make that decision on the basis of basic cultural values. I will be inclined to place trust in people who share a comparable outlook on life with me in respect to two pairs of values: individualism – collectivism, and hierarchism – egalitarianism. All significant flavors of trust, or so the cultural theorists argue, are a result of these ingredients. As an egalitarian, I will tend to trust those who share these values. As an hierarchist, you will trust those who share your world-view. But how do I know whether “my” scientists are egalitarians, and how do you know that “yours” are hierarchists? By looking at who else trusts them. “My” team will be part of a larger network of trust, and within that network, I will be able to recognize cultural fit without great difficulty, simply because I am already part of that network. For example, if Brian Leiter speaks highly of Paul Myers, I will be inclined to take his views seriously. Conversely, you will probably be inclined to discount his views for precisely the same reason. So in the end, truth is matter of trust, and trust is a matter of cultural values. Or, as Dan Kahan and Donald Braman put it: “[C]ultural commitments are prior to factual beliefs.”
At this point, the critical question about the power of rational discourse arises, about our ability (or inability) to transcend our social network of trust in search for “truly” reliable authorities as proxies for truth. I am cautiously optimistic in that regard, but others disagree. For example, Kahan and Braman would probably hold that my example above is unrealistic. Cultural biases don’t politely wait their turn until I arrive at a point where I have to choose between two teams of equally well-credentialed and trusted experts. In reality, such predispositions are much more powerful and don’t just tip the scale in the case of equilibrium. Rather, they will let me hold on to factual claims that resonate with my value orientations even when faced with mountains of evidence to the contrary, or rather, even if confronted with an overwhelmingly large, dense, and deep web of trust underwriting a contrary factual position. The latter, of course, is true with respect to creationism and intelligent design. “Their” web of trust is thin and connected to nodes that discredit those who question the theory of evolution. The fact that truth is a social construct doesn’t mean that you can’t be wrong.
I remain hopeful that methodical critical thinking, actual or metaphorical cross examinations, and our (hopefully) increasing sophistication in evaluating the quality of competing webs of trust (Daubert style), will permit us to distinguish truth from falsehood. That search for truth, however, in most instances, will really be a search for trustworthiness.
[tags]philosophy, creationism, intelligent design, cultural cognition[/tags]
Here is a very brief, highly readable explanation of the critical insight underlying the Coase theorem, courtesy of Larry Solum.
