In praise of Libra, part 1

We turn now from jurisprudence to cyberspace. Did you know Facebook is developing a new cryptocurrency called Libra? Some critics, however, are not having it. For example, Matt Stoller, a fellow at the Open Markets Institute (oh, the irony!), recently wrote this op-ed bashing Facebook’s “undemocratic currency.” In summary, Mr Stoller presents five arguments against Facebook’s new cryptocurrency: (1) Libra is undemocratic, since it is being issued by a private company; (2) Libra will make it more difficult for governments to enforce economic sanctions against rogue actors; (3) Libra could be hacked by black hat hackers; (4) Libra will be plagued by conflicts of interest between its private backers and consumers; and (5) Libra will make it harder to detect money laundering and tax evasion and will make it easier for extremist groups to finance their operations. Is this the best Mr Stoller could do? All of these anti-Libra arguments are either weak or false or irrelevant.

Let’s begin with Mr Stoller’s most emotional argument first, his claim that Libra is undemocratic. My initial reply is, so what? Since when has “democracy,” however this vague term is defined, been the arbiter of a product’s moral legitimacy? Of course, one could object to my reply by noting that Libra is not just a product–it is a currency. But again, so what? Whether a currency is backed by a gold standard or by government fiat, there is no logical relationship between a currency’s soundness as a medium of exchange and the level of democracy of the government that is printing the currency. If anything, the reverse is true! That is probably why the most successful currencies of our times–like the U.S. Dollar, the British Pound, and the Euro–are now issued by independent institutions like central banks that are designed to be insulated from politics and the changing winds of popular will.

So, what about Mr Stoller’s remaining four concerns, i.e. hacking threats, conflicts of interest, national security, and illegal behavior? I will address these criticisms in my next post.

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PTL (winner by TKO), part 3

This is the last of our series of posts about the prediction theory of law (PTL), and we may now sum up our negative assessment of the prediction theory as follows: although we concede the prediction theory cannot explain the law from Hart’s internal point of view, at the same time we must concede that other major theories of law also do a bad descriptive job of explaining how judges decide cases. (More simply put: the prediction theory sucks, but so too does every other theory of law!) Given this theoretical stalemate, what is to be done?

There are two possibilities. We could either try to formulate an entirely new and improved theory of law à la Hart, Dworkin, or Posner, or we could just “satisfice” and move on, i.e. try to figure out which theory of law is “less wrong.” In the remainder of this post, I will explain why I believe the prediction theory to be less wrong. Now, if all we want to do is figure out which theory of law is less wrong, we still need to state up front what our criteria of theory choice are and how those criteria are going to be weighted. Here, I will follow Brian Leiter’s lead by using the following three criteria: simplicity, scope or “consilience,” and coherence. (Prof Leiter identifies these criteria in his thoughtful paper “Explaining Theoretical Disagreement.” Although Leiter himself does not explicitly assign any specific weights to these criteria, for simplicity we will weigh them equally.) Next, let’s evaluate the prediction theory of law and its competitors in light of these criteria:

  1. Simplicity. Leiter’s first criterion is simplicity, i.e. we usually prefer simpler explanations to more complex ones. Here, however, it’s hard to say which theory of law is the simplest one, since all of these theories can be summed up in a single sentence or phrase, such as Dworkin’s normative notion of law as integrity, Hart’s influential concept of law as the union of primary and secondary rules, or Holmes’s simple idea of law as a prediction of what courts will do, so let’s move on.
  2. Scope. As Leiter correctly notes, we usually prefer more comprehensive or “consilient” explanations–i.e. theories that explain different kinds of things–to explanations that are too narrowly tailored to one kind of datum. Here, the prediction theory wins hands down. Why? Because the prediction theory is based on probability theory, and probability theory can be used to make predictions in a wide variety of domains. Competing theories of law, by contrast, are limited to the domain of law. (In fact, competing theories of law are even more limited than that–limited to the behavior of appellate courts.)
  3. Coherence. Lastly, Leiter notes that we usually prefer explanations that leave more of our other well-confirmed beliefs and theories intact to those that do not. Again, the prediction theory of law wins hands down. After all, as we have already noted, the prediction theory is based on probability theory, and the axioms of probability theory are already well-established and beyond dispute. (Although there are some fundamental disputes at the margins of probability theory, such as the controversy between frequentists and Bayesians, these theoretical disputes pale in comparison to the disputes about the nature of law among legal philosophers.)

There is a fourth reason why I prefer PTL to other theories of law: the prediction theory is a purely descriptive or non-normative theory of law. Dworkin and Posner’s theories of law, by contrast, are normative ones, since their theories ultimately rest on a single master value–in Dworkin’s case it is integrity, while in Posner’s, it is some ill-defined form of pragmatism or consequentialism. For his part, although Hart’s theory of law purports to be a descriptive one, normative values can slip in through the back door of Hart’s theory. In short, the prediction theory wins by default–or in boxing terms, by technical knockout (TKO). Where have I gone wrong?

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PTL, part 2

In our previous post we acknowledged the main problem with Oliver Wendell Holmes’s prediction theory of law (PTL): its inability to explain how judges actually go about deciding cases–or in Hartian terms, its inability to explain the law from an internal point of view. That said, my initial reply to this critique is, so what? Yes, there is no denying the prediction theory’s limitation, but if what we want to know is how judges decide cases–i.e. if what we want to know is what the law is from an internal point of view–, then the other main theories of law do not fare much better, whether it be the legal realist’s “judicial hunch” theory, H.L.A. Hart’s legal positivist or “mental construct” theory, Ronald Dworkin’s “integrity” theory, or Richard Posner’s “pragmatist” (i.e. consequentialist) theory of judging. To see why, let’s take a look at each one of these competing theories of law:

  1. Judicial hunches. The judicial hunch theory of law is that judges decide cases based on their moral intuitions, or in the eloquent words of one realist judge, “the vital, motivating impulse for [a] decision is an intuitive sense of what is right or wrong for that cause.” (See Joseph C. Hutcheson, Jr., “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” Cornell Law Quarterly, Vol. 14 (1929), p. 285, available here, quoted in Brian Leiter, “Toward a Naturalized Jurisprudence,” Texas Law Review, Vol. 76 (1997), p. 276, available here.) This description of judging might be true as an empirical matter, but instead of solving the demarcation problem in law, this approach openly conflates law with morality.
  2. Hart’s legal positivism. H.L.A. Hart attempts to solve the demarcation problem in law by emphasizing convergence or regularity of judicial behavior. According to Hart, for a judicial decision to be a legally valid one, it is not enough for the decision to be based on the judge’s moral intuitions about right and wrong; the decision must also conform to what most judges in the legal system would do or are doing. Notice, however, that Hart’s theory does not remove the subjective or moral aspect of judging, so it is still open to the same objection as the hunch theory is: it still conflates law with morality.
  3. Dworkin’s Hercules. We need not exert much effort to dispatch Ronald Dworkin’s integrity theory of judging, for the main problem with his elaborate theory is that it does not even pretend to be descriptive. Dworkin may provide an attractive normative theory of what judges ought to do, but his integrity theory comes nowhere close to describing what judges actually do. Next!
  4. Posner’s pragmatist judge. Last but not least is Richard Posner’s legal-realist-inspired pragmatic theory of judging. Although I am a huge fan of Posner’s work, there are two big problems with Posner’s theory of judging. One problem is definitional: the precise meaning of “pragmatism” is hard to pin down. The other problem is the “conflational” one that all theories of judging seem to suffer from. It turns out that Posnerian pragmatism is just a fancy form of the hunch theory–judicial hunches in window dressing, so to speak. Pragmatism still conflates law with morality; it just substitutes a traditional Kantian view morality with a consequentialist view.

Given that all these main theories of law have a tough time describing what judges actually do without resorting to mental constructs or moral intuitions or other normative values (e.g. integrity, consequences), the prediction theory’s weakness on this ground should not come as shocking news to anyone. But why do I prefer Holmes’s prediction theory to these other theories of law. I will explain why in my next post.

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PTL, part 1

(Note: This blog turns six years old today. During these six years, we have posted over 2300 times–2309 to be exact–or an average of 385 posts per year.)

Thus far, we have explored H.L.A. Hart’s influential solution to the demarcation problem in law. (I also recently discovered this good overview of Hart’s contributions by Maryam Akram.) I now want to describe and defend an alternative approach, Oliver Wendell Holmes’s prediction theory of law (PTL). But before I do, I want to acknowledge at the outset that Holmes’s legal theory is, in the words of one contemporary legal philosopher, “nearly friendless.” (See Leslie Green, “Law and Obligations,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, p. 517, quoted in Stephen E. Sachs, “Finding Law,” p. 555, n. 190. Alas, Professor Green’s excellent essay is gated, but Professor Sach’s thoughtful paper is available here.)

To be fair (and intellectually honest), there is a good reason why Holmes’s prediction theory is so unpopular among legal scholars: it is unable to explain how the law works from an “internal point of view,” to borrow Hart’s memorable terminology. Simply put: the prediction theory is incomplete at best because it does not accurately describe or realistically depict how judges actually decide cases. Although Holmes’s theory might explain how lawyers see the law when they are advising clients, i.e. it might describe the law from an external point of view, it can’t explain how legal officials themselves look at the law. For example, a judge who must resolve a dispute or decide a point of law–or a legislator who must decide whether to vote yea or nay on a given bill–isn’t trying to predict his own actions. I will address this powerful criticism of the prediction theory of law in my next two posts.

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Image Credit: Maryam Akram

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Independence Day Counterfactual

We are interrupting our series of legal realism blog posts to wish our loyal readers a happy Fourth of July holiday.

prior probability

My favorite part of the Declaration of Independence is its concluding sentence: “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” But what would the world be like today if the original 13 colonies had not declared their independence from Great Britain or if the American Revolution had failed? (Fourth of July Fun Fact: The largest number of colonial delegates who signed the Declaration of Independence on 4 July 1776 were from the Commonwealth of Pennsylvania.)

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What is Hart’s internal point of view good for?

The internal point of view is a crucial aspect of H.L.A. Hart’s influential theory of law. As we have noted in our previous posts, for Hart a valid legal system requires external convergence and internal acceptance. It is simply not sufficient for public officials to conform to a set of rules in practice. In addition to regularity of behavior, those officials must also subjectively accept the rules as legitimate or perceive them as obligatory. Or in the words of one scholar (Perry, 2006, p. 1173), “the internal point of view is nothing more than an attitude that a standard is binding …” (See Stephen Perry, “Hart on social rules and the foundations of law,” Fordham Law Review, Vol. 75 (2006), pp. 1171-1209, available here.) So far, so good, but I now want to pose several questions to H.L.A. Hart and to legal positivists generally. To begin with, why is the internal point of view essential to their theory of law? That is, why is the mental attitude of legal officials worth caring about? By way of example, when football (soccer) players are playing the beautiful game, or when a linesman is officiating a match, does it really matter whether they perceive the Offside Rule as obligatory or legitimate? Isn’t it enough that they simply conform to the Offside Rule in practice?

My next question is a practical one: how does Hart’s internal point of view solve the demarcation problem in law, i.e. how does it really help us distinguish legal norms from moral ones? Consider our soccer example again. Let’s say it turns out that linesmen and players actually accept the Offside Rule from an internal point of view. Even if this were the case, the Offside Rule is still only a rule of an athletic contest, a game, and not a legally valid norm, so what work does the internal point of view do? How does this aspect of Hart’s theory enhance our understanding of legal systems as opposed to games or other activities? Consider, for example, the situation of a judge who must enforce a rule that she personally disagrees with. Maybe the judge thinks the “war on drugs” is bullshit and that our draconian drug laws are inhumane and counter-productive. Yet the judge nevertheless dutifully sends convicted drug offenders to prison as required by law. Is this judge really accepting the law from an internal point of view? The fact that we could potentially answer this question either way indicates that we could dispense with the internal point of view if all we are after is a descriptive theory of law.

Lastly–and to my Humean mind, most importantly–, how could we ever test the truth value of this subjective aspect of Hart’s theory? For starters, we could ask legal officials whether they accept x norm or y standard from an internal point of view, but such surveys and self-reports are notoriously unreliable. People lie. Or we could try to observe whether legal officials are conforming to a particular rule in practice. If they are, then we could take this convergence as evidence of their mental states. The problem with this method, however, is circularity. If regularity of behavior is evidence of collective mental states, then the internal point of view becomes viciously circular. So, why not dispense with this mental requirement altogether? Of course, it takes a theory to beat a theory, so in my next few posts, I will outline a competing theory of law, one based on Oliver Wendell Holmes’s prediction theory of law.

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The massive agreement thesis

We summed up H.L.A. Hart’s standard criteria of legal validity in our previous post as follows: (a) external convergence, and (b) internal acceptance. That is, a norm is a legal norm when two essential conditions are met: most public officials must actually comply with the norm or follow it in practice, and such officials must subjectively perceive the norm as obligatory, or what Hart himself used to refer to as “the internal point of view.” Since this realist or positivist definition of law requires regularity of behavior and a certain mental attitude or psychological state of affairs, I also asked at the end of my previous post, How could we ever begin to test the truth value of such a subjective concept of law?

According to Professor Brian Leiter, whose superb seminars on legal realism we attended last month, a key piece of evidence in support of Hart’s influential view of law is the fact that there is “massive agreement” among most lawyers and judges about what the law is. Put another way, 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 and that are decided by a 5 to 4 margin–, such disagreements are, in fact, relatively rare and uncommon. During his legal realist seminars, for example, Professor Leiter would often compare the universe of all legal questions to a lopsided pyramid in order to visualize this important point about the ubiquity of legal agreement.

In brief, the bottom level or base of the pyramid includes all those possible legal consultations and legal disputes that enter a lawyer’s office. As Prof Leiter correctly notes in his excellent essay “Explaining Theoretical Disagreement,” published in The University of Chicago Law Review, Vol. 76 (2009), pp. 1215-1250: “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 …” (p. 1227). So, why is legal agreement so pervasive and legal disagreement so rare? Precisely because of the regularity of the behavior of legal officials and (presumably) because of their internal acceptance of most legal norms, or in the words of Prof Leiter (p. 1228):

Legal professionals agree about what the law requires so often because, in a functioning legal system, what the law is is fixed by a discernible practice of officials who decide questions of legal validity by reference to criteria of legal validity on which they recognizably converge. Only as we approach the pinnacle of the pyramid do we approach those cases where the practice of officials breaks down, and the “law” is up for grabs.

For my part, I agree with Leiter that we should expect massive agreement about what the law is in a well-functioning legal system, and I also agree that such massive agreement is a direct result of the regularity of official behavior, but does the massive agreement thesis support the subjective part of Hart’s view of law? I am skeptical about that claim, and I will explain why in my next post.

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