During the month of June, I attended a series of seminars in Paris on the theme of legal realism. The seminars were led by Brian Leiter, a professor of jurisprudence at the University of Chicago. One of the big ideas I learned from these seminars is that law is, in large part, a mental construct. To be more precise, according to mainstream legal realist/legal positivist theories of law, the law is a contingent phenomenon, contingent on the behavior and mental attitude of public officials. (Note: This idea of law as a mental construct is my formulation, not Professor Leiter’s.) By way of example, consider one of the most fundamental questions in legal philosophy (what Prof Leiter calls “the demarcation problem” in this excellent paper): what makes a norm a legal norm as opposed to a moral one? To take a concrete example, consider the doctrine of “bargained-for consideration” in Anglo-American contract law. (Legally speaking, consideration is the idea that a bare promise is not generally legally enforceable; a promise must be supported by something of value. Also, notice I say “generally” because there is an exception to this rule, the principle of promissory estoppel.)
According to the late H.L.A. Hart, an influential legal philosopher who taught at the University of Oxford, a norm such as the doctrine of consideration must satisfy two empirical conditions in order to be considered as a valid legal norm: (a) external convergence, i.e. legal officials must conform to the rule in actual practice, and (b) internal acceptance of the rule as obligatory, i.e. those same officials must perceive the rule in binding, not discretionary, terms. In other words, social conformity is not enough: judges must not only apply the rule in cases to which the rule applies; those same judges must also subjectively view the rule as obligatory on them. (Or in the terminology of H.L.A. Hart, the judges must accept the rule from an “internal point of view.”) But isn’t this ingenious mental construct view of law too broad or over-inclusive? After all, isn’t morality a mental construct too? Isn’t everything in the universe a mental construct to some degree or another? Also, even if the mental construct view of law is plausible, how could we test its truth value? I will address these all-important questions in my next few posts.