Hans Kelsen’s critique of natural law

We’ve been reading the third edition of Introduction to Legal Theory (1979) by John D. Finch. (This little tome is pictured below, left.) At one point, Professor Finch sums up Hans Kelsen’s critique of natural law thus (emphasis added by us): “For Kelsen, natural law theories amount to theories of justice; and however they are described, he regards them as consisting for the most part of empty formulae. By the methods of natural law doctrine one can, says Kelsen, maintain and even apparently prove opposite postulates. A theory of natural law can be as conservative or as revolutionary as each writer cares to make it; they all consist of assertions which are not proved. Such theories are concerned with political and ideological tasks, not scientific ones ….” (See Finch, 1979, p. 110.) In other words, natural law theories are indeterminate and untestable; i.e. they are open ended and are unfalsifiable in the Popperian sense. Okay, fine, but can’t the same nasty things be said of any theory of law, including legal positivism?

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Europe 12, South America 9

Can you spot any mistakes on this map? (Hat tip: u/ytkn55, via Reddit.)

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Review of Finding Law (part 3)

We have been commenting on Professor Stephen Sachs’s scholarly paper “Finding Law.” In brief, we agree with Sachs that law does not have to written down to be “law.” But as we explained in our previous post, we disagree with his elitist discovery and demarcation criteria. Here, then, we will apply Oliver Wendell Holmes’s prediction theory of law to the sphere of unwritten law or natural law. Although Professor Sachs states (p. 34) “the prediction theory fails to say anything interesting about unwritten law,” we beg to differ. In truth, Holmes’s prediction theory applies not only to the domain of positive law; it can also help us illuminate the scope and strength of natural law principles.

So, what is Holmes’s prediction theory, and how can it illuminate unwritten law? To our mind, Holmes’s own statement of the prediction theory is still the best: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” (Holmes, 1897, p. 461, quoted in Sachs, 2018, p. 33.) In other words, according to Holmes, we don’t need to resort to a circular or quasi-mystical “internal point of view” to discover what the law is. Instead, if you want to know to what the law is, you just need figure out the probabilities of getting caught (the probability of detection), as well as the probability of getting punished (the probability of punishment), if you are caught.

Although Holmes’s put forth his famous (or infamous, depending on your point of view) prediction theory in the context of positive law (i.e. man-made law such as international treaties, domestic statutes, and judicial precedents), we can also extend this theory into the domain of natural law. As Sachs himself concedes (p. 34), we just want to whether courts and judges will treat unwritten law or natural law as binding on them. After all, since natural law can be just as contested (if not more so) as treaties, statutes, and precedents are, the prediction theory is useful because it is able to capture this inherent uncertainty in both scenarios, whether we are in the domain of positive law or natural law.

As an aside, although this formulation of law can be criticized as cynical, our response is: so what? For example, in The Concept of Law, H.L.A. Hart asks (1961, p. 39): “Why should not law be equally if not more concerned with the ‘puzzled man’ or ‘ignorant man’ who is willing to do what is required, if only he can be told what it is? Or with the ‘man who wishes to arrange his affairs’ if only he can be told how to do it?” But this is not valid objection to Holmes’s prediction theory. The prediction theory applies just as much to the puzzled man or the ignorant man as to the Holmesian bad man. At the end of the day, all three creatures are bogged down by the same legal problem: uncertainty as to what the law is, especially when the law is unclear or contested.

Furthermore, there is no reason in principle why the prediction theory should be limited to courts or judges. By way of example, if a sufficient number of people believe strongly enough that chattel slavery is wrong, it may not matter whether a court (even a nation’s highest court) declares a constitutional right to own slaves, as the U.S. Supreme Court did in the infamous Dred Scott case. The prediction theory will tell us to what extent people will accept a court’s reasoning or abide by its decision.

Finally, the prediction theory is consistent with the most fundamental aspect of natural law theory: the use of reason. For what is probability theory but the use of reason in human affairs?

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True or False?

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Breaking the Law (Bastille Day Edition)

On this day in 1789 residents of Paris stormed La Bastille, a fortress-prison on the eastern edge of the city, thus precipitating the French Revolution and forever changing the course of history.

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Review of Finding Law (part 2)

We began our review of Stephen A. Sachs’s paper “Finding Law” in our previous post. In brief, Professor Sach’s argues that “positive law” or man-made law is not the only source of law, for some laws are unwritten, much like the rules of language, the conventions of fashion, and the precepts of etiquette. In addition, Sachs states the source of this body of unwritten law is usage and social practice. We also made an additional observation in our previous post: whether by design or by accident, Sach’s unwritten law looks a lot like traditional natural law, except that Sach’s version of natural law can change over time as usages and social practices change. But Sachs’s unwritten natural law thesis poses two deeper problems: (1) discovery and (2) demarcation. That is, how do we go about discovering this body of law? And secondly, how do we distinguish this body of law from these other law-like domains, i.e. language, fashion, and etiquette?

According to Professor Sachs (p. 19), both the process of discovery and the line of demarcation revolve around “practice-plus-obligation.” (Again, all page references are to the version of the paper posted on SSRN.) Sachs cites two classic Blackstonian criteria in support of this practice-plus-obligation formulation (p. 15, quoting Sir William Blackstone (pictured below), the author of the treatise “Commentaries on the Laws of England”): “we might well identify unwritten legal rules largely as Blackstone did: by their ‘long and immemorial usage, and by their universal reception.’” But, in fact, Sachs’s rejects the “universal reception” requirement. What matters for Sachs is what such legal elites as trained lawyers and actual judges believe the law to be (p. 18): … legal customs of elites [are] the legal customs of their society. So long as we can pick out the experts, and the experts can pick out the rules, the rules still belong to us all.”

There are two potential problems with Professor Sachs’s practice-plus-obligation formulation, however. One weakness in Sachs’ argument is the problem of disagreement. Specifically, what happens when the relevant group of people disagree about what the relevant social practice is? By definition, if people agreed on the content of the law (i.e. on the content of the relevant social practice), they would not be in court arguing over the law! In reality, the scope and meaning of the law is often a contested domain, even when the law is written down.

But let’s put aside the problem of disagreement for the sake of argument. Let’s assume people actually agree on what the law is in any given case. There is still a more serious problem with Sachs’s practice-plus-obligation formulation: circularity. (As an aside, the circularity problem also bedevils the H.L.A. Hart’s “internal point of view” theory.) It is circular since a social practice would not exist unless people felt obligated to follow it! To see why, ask yourself the following question: why do people follow a social practice? If the answer is “because they feel obligated to follow the social practice”, now ask yourself the next logical follow-up question: why do people feel obligated to follow the social practice? If the answer is “because it is a social practice”, the circularity of the practice-plus-obligation formulation becomes obvious.

Nevertheless, although we are skeptical of Sachs’s discovery and demarcation criteria,  we do agree with Sachs’s thesis about the existence of an unwritten natural law. Without such a natural law, how could we criticize the old transatlantic slave trade (before it was made illegal) or the atrocities committed by Nazi Germany (before the Germans lost the war)? In our next post, we shall posit a different solution to the problems of disagreement and circularity: Oliver Wendell Holmes’s prediction theory of law. Just as we can use Holmes’s prediction theory to figure out which laws will be enforced, we can also apply this theory to the domain of natural law.

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Happy Bastille Day!


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Review of Finding Law (part 1)

Is the common law made or found? Are Anglo-American judges legislators or oracles (or both)? In short, when deciding a close case, does a judge make law–the standard positivist view of judging–or does he find law? For anyone who is fascinated by these perennial questions, Professor Stephen A. Sach has written a beautiful, erudite paper “Finding Law” addressing these deep questions.

Here is Professor Sachs’s provocative thesis in a nutshell (p. 10): unwritten law “might be like other normative systems, such as grammar, etiquette, or fashion, which are solidly rooted in social facts without having been formally adopted by anyone.” (All page references are to the version of the paper posted on SSRN.) In other words, unwritten law is a lot like language, fashion, and etiquette because all these disparate domains are governed by general rules and shared norms, and although these behavioral customs are not deliberately made or manufactured by any one entity or organization, they are nevertheless accessible and easy to discover.

Professor Sachs, perhaps unwittingly, thus makes a strong case for the existence of unwritten natural law. Although he rarely uses the old-fashioned words “natural law” in his paper (he prefers the terms “custom” and “customary law” instead), what other type of unwritten law is there? After all, mere customs aren’t binding on judges the same way as natural law purports to be. In any case, whichever terminology we use, Sachs makes a strong case that “law” does not consist purely of holdings or precedents or statutes; “law” (contra legal positivism) can consist of unwritten and (locally) universal set of law-like principles.

But where do these diverse rules and norms come from, and how do we discover them? Let’s address the first question first. According to Professor Sachs, the ultimate source of these social customs is “usage today” (p. 22), the “mass of practice” (p. 23), “widespread practice” (p. 24), “prevailing views” (p. 38), and the like. (You get the picture.) In short, whichever way we formulate the source of unwritten natural law, the general idea is the same: an uncodified custom is “law” when enough people (or legal experts, in the case of law) believe in the existence of said custom. (As an aside, this view of law opens up the peculiar possibility of competing customs or multiple natural laws (!), depending on how many adherents a particular custom or unwritten law may have.)

That leaves open Sachs’s second question: how do we go about discovering these norms? That is to say, it’s one thing to say that unwritten natural law is like language, fashion, and etiquette. How do we then distinguish between rules of law and these other unwritten normative systems? We will address this key question in our next post.

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Source: Kitime Eluid

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Final thoughts on the Wayfair case

As we have pointed out in previous posts (see below), the tax case of South Dakota v. Wayfair, which was decided last month, presents a number of fascinating constitutional, philosophical, and institutional questions. The constitutional issues revolve around the Supreme Court’s convoluted and esoteric dormant commerce clause doctrine. The philosophical questions revolve around the doctrine of stare decisis. Specifically, is this doctrine logically coherent, and under what conditions should a court vote to overturn an outdated precedent? And last but not least, the institutional issues include the Supreme Court’s voting rules. In particular, how many votes should be required to overturn a precedent? A simple majority or a super-majority? These are all hard questions. There is deep disagreement among judges and scholars about how to answer them. For our perspective on these questions, below is a compilation of our previous posts on this case:

  1. Is stare decisis dead? (6/22)
  2. Facts and issues presented (6/29)
  3. A Coasean critique of the Wayfair case (6/29)
  4. SCOTUS and super-majority voting (6/30)
  5. Final thoughts: see above (7/11)
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Credit: @gapingvoid

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