Rules about rules (part 3.2)

Alternative Title: Leiter’s Legal Pyramid

We identified three potential problems with H.L.A. Hart’s “rule of recognition” in my previous post. In summary, Problem #1 is that Hart’s rule of recognition is not really a “rule” in any conventional sense; problem #2 is that, regardless of the ontological status of the rule of recognition, it is a totally circular rule; and problem #3 is that the rule of recognition is self-defeating.

We were able to sidestep the first problem by introducing F. A. Hayek’s notion of “spontaneous order” and David Lewis’s work on “social conventions.” In other words, rules or norms can often emerge through a decentralized or invisible-hand process, if the conditions are right. But what about the other two objections to Hart’s theory of positive law? On the one hand, if “law” includes only those rules and norms that judges themselves recognize as law (via Hart’s rule of recognition and internal point of view), then there is something circular in Hart’s definition of law. On the other hand, if “law” is based on the internal acceptance of judges, there could in theory be as many valid legal systems as there are individual legal officials!

Here is where the work of my colleague and friend Brian Leiter (pictured below, bottom left) deserves special mention. According to Leiter, Hart’s rule of recognition really only comes into play when two conditions are met: “internal acceptance” and “massive agreement” among most lawyers and judges. (As an aside, I blogged about these two key conditions last year.) Although disagreements about the law usually receive the lion’s share of our attention (think, by way of example, of all those highly controversial cases that go up to the U.S. Supreme Court), Professor Leiter has often pointed out that such disagreements are, in fact, relatively rare and uncommon. Most of the time, most lawyers and most judges agree on the content of most primary and secondary rules and also on which rules are valid or not.

To prove his point, Professor Leiter has often compared the universe of all legal questions to a large lopsided pyramid, such as the one pictured below (bottom right). (As an aside, Leiter’s legal pyramid is the image that stood out for me the most from when I attended Professor Leiter’s lectures in Paris last summer.) For Leiter, the base of the pyramid includes all those myriad legal consultations and legal disputes that enter a lawyer’s office. Most such cases are simple and straightforward, or in Leiter’s own words (2009, p. 1227), “most cases that are presented to lawyers never go any further than the lawyer’s office; … most cases that lawyers take do not result in formal litigation; … most cases that result in litigation settle by the end of discovery; … most cases that go to trial and verdict do not get appealed; and … most cases that get appealed do not get appealed to the highest court …” (See Brian Leiter, “Explaining Theoretical Disagreement,” published in The University of Chicago Law Review, Vol. 76 (2009), pp. 1215-1250.)

But as Leiter himself concedes, the “law” becomes more fluid and unstable as we approach the pinnacle of the pyramid, especially the 80 or so cases that the U.S. Supreme Court agrees to review each year out of the billions of possible legal questions at the bottom of the pyramid. In other words, it is only as we approach the very top of Leiter’s legal pyramid that the “rule of recognition” collapses into an “every judge for himself” scenario, and even here, such legal doctrines as stare decisis and res judicata help to mitigate or reduce (at least somewhat) this level of legal uncertainty. For my part, one of the things I like the most about Leiter’s pyramidal lens is that it not only leaves some room open for legal uncertainty or what I like to call “probabilistic law”; this approach also makes possible a synthesis between Oliver Wendell Holmes’s famous prediction theory of law and H.L.A. Hart’s subjective lens or “internal point of view.” Stay tuned. I will present such a synthesis in the next day or two …

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About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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