prior probability

Happy Independence Day? My friend, colleague, and fellow intellectual saboteur Alex Tabarrok has brought to my attention this deleted paragraph from an early draft of the original Declaration of Independence. I have also cut-and-pasted Jefferson’s lost paragraph below:

[King George] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great Britain. Determined to keep open a market where Men should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded them: thus paying off former crimes committed again the Liberties of one people, with crimes which he urges them to commit against the lives of another.

Kevin Kallmes, a law student at Duke, explains here why this paragraph was deleted from the final version of the Declaration of Independence (or “DOI” for short). Regardless of why this remarkable anti-slavery passage was removed from the final draft, what should we make of this strategic deletion–a deletion all the more deplorable and dreadful since it reflects our nation’s “original sin” of slavery? After all, Jefferson’s beautiful preamble refers to “all men” and those words encompass persons of all races, genders, and immigration status, right? But what about children, illegal immigrants, and non-human animals, though? In many ways, we are still fighting over the meaning of this pivotal preamble!

In short, as I never tire of explaining to my students, all legal texts require some level of interpretation, and the DOI is no exception. Should we, for example, read the phrase “all men” in the preamble literally or metaphorically? Either way, one of the things I love the most about the DOI is that it is not just any ol’ legal text, i.e. one that only judges get to interpret. The Declaration of Independence–like the original Constitution and Bill of Rights–is a popular legal text, part of our legal scriptures. That means that all public officials (State and federal)–and even private citizens–get to decide what these words mean to us today. Don’t be fooled. The courts are not the sole guardians of our democracy; the people, acting through their elected officials, are!

Now available for the masses on Disney+. Aja Romano explains here why Hamilton is “impossible to pin down.” (Maybe this will help.) As an aside, my wife Sydjia and I had the honor of seeing the Hamilton musical on stage last year (2019), and we cannot recommend enough this stirring and unorthodox tribute to our founding fathers and mothers … Two cheers for Lin Manuel Miranda’s hip hop version of Hamilton! 

Via Quora: “Which two pictures, when compared, best capture the difference between Obama and Trump for you?” Me: How about these two? (Although in fairness to 45, there are plenty of pictures of 44 being selfish with his umbrella too. What can you expect, though, since both men are supreme narcissists!)

Hat tip: Javed Rezayee

Alternative title: Calling bullshit (Hans Kelsen edition)

We have been blogging about legal positivism all week, and we identified Hans Kelsen’s key contributions to legal theory in my previous post. In brief, one of Kelsen’s great insights is his structural or “systematic” approach to positive law. Andrei Marmor, one of the leading contemporary students of Kelsen’s work, summarizes Kelsen’s systems insight with the following two postulates: “1. Every two norms that ultimately derive their validity from one basic norm belong to the same legal system. 2. All legal norms of a given legal system ultimately derive their validity from one basic norm.” (See Marmor, 2016, available here.) In other words, every legal rule or norm belongs to a given legal system, and at the top of every legal system is a basic norm validating all the rules in that particular legal system. The “basic norm” is thus the key ingredient of Kelsen’s theory of law.

Alas, there is only one problem with Kelsen’s elegant theory: it’s total bullshit!

Kelsen’s “basic norm” is bullshit not because it is a fictional or hypothetical entity–the world of science is littered with plenty of unobservable entities like electrons and natural selection. No, the basic norm is bullshit because there is no way of testing or “falsifying” (in the parlance of Karl Popper) its existence. Specifically, I am thinking here of Karl Popper’s influential demarcation principle. What distinguishes science from politics, for example, or science from morality? According to Popper, for a theory to be considered “scientific” it must be able to be tested and refuted. Although Popper’s theory of science raises many questions (see, for example, the image below), at a minimum if we are going to construct a scientific theory of positive law (as Kelsen was purporting to do), we need to find a way of putting that theory to the test. Kelsen’s basic norm idea, however, is untestable. We must presuppose its existence wholesale instead of figuring out how to measure its truth-value. We will thus waste no further time on Kelsen …

We will proceed to H.L.A. Hart next week, starting on Monday, July 6. Unlike Kelsen, this Oxford don will attempt to present a testable theory of positive law, one that would revolutionize the world of legal theory forever …

Source: Paul Austin Murphy (via Blogger)

Now that we have described John Austin’s command theory of law, or Legal Positivism 1.0 (see here), let us turn our attention to Legal Positivism 2.0–Hans Kelsen’s self-described “scientific” or “pure theory” of law. (Here is a short bio of Kelsen’s life.) Kelsen (the fussy-looking Austrian jurist whose portrait is pictured below) formulated his positivist theory of law in his classic work “A General Theory of Law and State,” published in 1945. In summary, Kelsen made three important contributions to legal positivism:

1. First off, he recognized the conditional nature of commands or legal rules. For Kelsen, legal norms are conditional sanctions: they come into play only when they have been transgressed. (As an aside, a great example of this point are speed limits. The posted speed limit might be 55MPH, but if everyone around you is going 80MPH and no one is getting pulled over, then “the real speed limit” is much higher.)

2. Secondly, Kelsen noted another feature of legal norms: these commands or rules are not only conditional; they are also indirect in nature. To the point, the legal norms of a given locality are not directed at the populace per se; instead, they are directed at the law enforcement officials of the locality. Put another way, such norms don’t tell us what to do or not to do; they tell public officials like judges what to do or not to do. (Again, think of speed limit signs.)

3. Last but not least, Kelsen identified a third fundamental feature of legal norms as opposed to moral ones or other types of norms: every legal rule is part of a larger legal system, or in Kelsen’s own words (Kelsen, 1961 [1945], p. 3, quoted in Green & Thomas, 2019), “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system.” But this systems approach to law poses another deep question: what holds all the rules or norms of a given legal system together?

In the United States, by way of example, the Constitution is the “supreme law of the land.” (See Art. VI, Sec. 2 of the Const.) As a result, any piece of legislation enacted in conformity with the rules established in the Constitution is a legally-valid law, and any regulation or rule enacted in conformity with any such legislation is likewise legally valid, and any judicial decision made in conformity with any such law or regulation is also legally valid, as is any private action in conformity with any such judicial decision. In the alternative, we could also move from the bottom to the top. Green & Thomas (2019, available here), for example, discuss the validity of a humble corporate by-law: “a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution.”

Either way (bottom-up or top-down), why is the Constitution so special? Hint: It’s not! For Kelsen, a constitution or enabling act is just another law, and the glue holding any given legal system together is not another law but rather something he called “the basic norm”–a kind of master command or fictional presumption that the highest law of the locality must be obeyed. So far, so good, but rest assured we will poke some major holes in Kelsen’s pure theory of law in my next post.

Check out the 3D-printed T-Rex shower head pictured below, which is available for download for free from MakerBot’s Thingiverse. Hat tip: @pickover.

I am interrupting my series of blog posts on “legal positivism” to share my most recent work-in-progress, which is titled “Teaching Tiger King“–a rough draft of which is also available here via the Social Science Research Network (SSRN). I have added my teaching assistants Christy Champnella, Ben Mayo, Morgan Travers, and Antonella Vitulli as co-authors, since their work was instrumental to the success of the course. (As a further aside, here is a link to our syllabus.) In brief, our paper can be summed up as follows: when life gives you lemons (e.g. stay-at-home orders and all online college courses), add some water and sugar to make lemonade (e.g. find a way of using the majestic non-human animals as well as the crazy and colorful characters depicted in the hit Netflix show Tiger King to explore law and ethics). Or if you prefer the formal abstract of our paper, see below:

When our home institution moved all instruction online in response to the global pandemic, we began redesigning our business law survey course from scratch. Specifically, we decided to use the popular docuseries Tiger King: Murder, Mayhem, and Madness to explore the legal and ethical environments of business with our undergraduate students. We deliberately chose this surprise-hit TV show in order to make our online course as relevant, timely, and engaging as possible. The remainder of the paper will describe the contents of each module of the course, explore their relation to Tiger King, and explain the logic of our design choices.

What is “law”? And how can we distinguish law from morality? I identified three competing theories of legal positivism in a previous post. Here, I want to focus on the first of these theories, John Austin’s famous “command theory of law.” According to the legal theorist John Austin (the grumpy-looking Englishman pictured below), law consists of the commands of a sovereign–commands that are enforced by force or by the threat of force. Alas, the great H.L.A. Hart utterly demolished the command theory in his classic work “The Concept of Law” (2012, pp. 26-78). In brief, there are two flaws (one of them fatal!) with this particular positivist theory of law.

First off, the command theory is underspecified or incomplete because not all legal rules take the form of “commands” or are backed up by sanctions. Many legal rules generate new relations (like the law of marriage) or clarify existing rules of legal liability (e.g. the qualified immunity doctrine). The other problem with the command theory is this gaping hole: who commands the commander? Although the sovereign is the source of all law under this theory, he is not obligated to obey his own commands! This blind spot is a serious one because it undermines the idea of the rule of law–i.e. the fundamental notion that our rulers must comply with their own rules.

We will consider the other two major theories of positive law–Hans Kelsen’s “basic norm” and H.L.A. Hart’s “rule of recognition”–in the next day or two.

Image credit: blessan (via scribd).

One of my favorite blogs (View from the Back by Sheree) has a “Wordless Wednesday” category for photographs that need no further comment or elaboration. Sheree invited me to follow suit, but what if the object being photographed itself has a word? (I will resume my extended introduction to legal positivism in my next post.)