prior probability

In this post, I will conclude my extended review of Altwicker & Diggelmann’s helpful taxonomy of legal progress. The fourth and final method they identify is what they call “paradigm shift-talk,” which in turn is based on the influential work of the philosopher of science Thomas Kuhn (pictured below). According to Altwicker & Diggelmann (2014, p. 436), this method defines legal progress in terms of meta-ideals or overarching “paradigms,” i.e. ways of understanding or organizing a given area of law. They are critical of this method, however, because the concept of a paradigm is too vague or “undetermined.” By contrast, I find the paradigm theory of legal progress far more promising, for there is a deeper irony in Thomas Kuhn’s ideas. Kuhn himself created his theory of paradigms and paradigm shifts in order to debunk the notion of linear progress in the natural sciences! To simplify Kuhn’s theory: most scientists are engaged in “normal science” in which they make small or incremental improvements to our stock of knowledge. Over time, however, anomalies and unsolved problems begin to build up. According to Kuhn, progress occurs through scientific revolutions, when one paradigm–the old way of framing problems–is replaced by an entirely new way of seeing the world. (For a deeper summary of Kuhn’s ideas and his notion of progress, see the entry for Thomas Kuhn in the Stanford Encyclopedia of Philosophy (available here), and for an analysis of Kuhn’s ideas from a legal-theory perspective, see pp. 1-8 of my 2010 paper “Coase’s paradigm.”) In future posts (after the Christmas break), I will explain why Kuhn’s theory of paradigms might offer us a better way of conceptualizing legal progress (or the lack thereof!).

Let’s proceed with our extended review of Altwicker & Diggelmann’s taxonomy of legal progress–i.e. their systematic classification of the various ways in which legal scholars make up stories about legal progress, to be more precise. In addition to the use of historical labels (method #1) and the technique of value orientation (method #2), a third method of socially-constructing legal progress consists of “trend-talk.” In the able words of Altwicker & Diggelmann (2014, p. 435):

“The third technique can be called the ‘detection of positive trends’ technique. It creates progress narratives ‘out of the present’, out of current or very recent developments and events. Authors employing the technique treat the trends they detect as if they were reliable forerunners of important general developments. The technique employs a relatively modest vocabulary. ‘Trend-talk’ is not overly pretentious, it creates an atmosphere of the provisional and correctable, appears open to new developments, and avoids speculation about ultimate finalities and objective truths. ‘Trend-talk’ is a soft and elegant way of creating promising prospects of the future.”

Although the focus of Altwicker & Diggelmann’s taxonomy is on the field of international law, I would venture to say that this trend-talk method also appears in many other law-related academic disciplines, including empirical legal studies, the sociology of law (e.g. criminology), and the so-called “social sciences” more broadly (political science, macroeconomics, etc.), where all research results are supposed to be provisional and tentative. In summary, here is how trend-talk works: self-styled “data scientists” conduct surveys or collect data regarding some area of law (such as reported crimes rates in a given legal jurisdiction), conduct sophisticated statistical tests (such as regressions) or apply other quantitative methods to their assembled data, and then make informed conjectures about the future.

Suffice it to say this method is a feeble method of predicting progress. Why so frail and feeble? Because as the late great Ronald Coase reportedly said (and I paraphrase), if you torture your data long enough, they will confess to anything. By way of example, let’s consider the fate of modern democracy. Is the world making substantial progress on this front, or not? (Let’s assume that democratic systems of public governance are generally preferable to anarchy, monarchy, or other possible systems of governance.) Alas, the answer depends on who is doing the talking! According to Freedom House, current trends show that democracy is in retreat (see here), but according to the Pew Research Center the outlook for democracy is more rosy: “public support for democratic ideals remains strong, and by one measure, global democracy is at or near a modern-day high” (see here). And last but not least, according to the Brookings Institution current trends are pointing in different directions (see here).

To sum up, the main problem with trend-talk is that trends are easy to manipulate or misinterpret. Correlation rarely equals causation, or in the eloquent words of Neil Walker (quoted in Altwicker & Diggelmann, p. 436, footnote omitted), trend talk is “a manipulative rhetorical device which lends ‘additional gravitas’ to particular developments in order to dignify them and to authorize further advancement in the respective field.” Given the utter unreliability of trend-talk (method #3), the problem of competing and conflicting moral values (which plagues method #2), and the crudeness of historical labels (method #1), what is to be done? Is the social construction of legal progress a project that is doomed to fail? In my next post, I will conclude my initial review of Altwicker & Diggelmann’s taxonomy of legal progress with what I consider to be the most promising method of socially-constructing legal progress …

h/t: u/[deleted]

Merry Chrismukkah! As I mentioned in a previous post, Tilmann Altwicker (Basel) and Oliver Diggelmann (Zurich) have identified four ways in which the ideal of progress is “socially-constructed” in the field of international law, beginning with the crude method of “ascending periodization” (i.e. dividing some aspect of legal history into two or more periods and then assigning the most recent period a favorable label). In this post, I will review and restate a more sophisticated method by which progress is socially-constructed in law: the process of “proving increasing value-orientation,” such as the value of universal community. According to Altwicker & Diggelmann (2014, p. 434, footnote omitted):

“Authors [in the field of international law] employing this technique typically ‘scan’ documents of international law for indications which can be interpreted as expressions of shared ethical convictions. They are interested in value-sensitive legal materials of all kinds–law-making treaties, court decisions, customary law, soft law–and in treating them as indications of progress or as enabling future progress. The technique builds on the idea that value-oriented international law is ‘better’ law than a morally (seemingly) neutral law.”

Again, this more sophisticated method of measuring legal progress might also be generalizable to other areas of law. Consider any standard or traditional “casebook” from any field of law. (FYI: a casebook a type of textbook that is assigned to students in law schools.) When deciding what cases and materials to include in their law school casebooks, the venerable editors of these legal textbooks must choose from an almost infinite number of cases, hypothetical problems, and historical materials. For example, most areas of the common law can be traced back to the law of ancient Rome, so casebook editors have a wealth of cases and materials to choose from. Although the total number of cases, hypos, and materials are finite, this number is so large as to constitute a massive Borgesian library. Is there thus any good reason to believe that the cases and hypos that do make the final cut into a casebook somehow constitute a representative sample of the law (i.e. of the area of law that the casebook is designed to cover, to be more precise)?

Furthermore, even if the cases in a casebook do form a good or representative sample of the law, these cases will embody a wide variety of moral values, and there is no reason to believe that the values embodied in current cases and legal materials (e.g. legislation, treaties, custom, etc.) are “objectively” superior to the values of the law of ancient Rome or medieval England or the Victorian era. For a contrasting view, however, see Deirdre N. McCloskey’s excellent book on “The Bourgeois Virtues: Ethics for an Age of Commerce” (pictured below); full disclosure Professor McCloskey is one of my favorite economists of all time.

But the main problem with this method is that any area of law will generally embody several competing moral and ethical values (as opposed to one supreme über-value), and these values will often entail hard choices or difficult trade-offs. That is, even if the law now embodies progress-promoting “bourgeois virtues” (to borrow Professor McCloskey’s beautiful term of art), law is a messy enterprise, so one should not expect the law (or a given area of law) to perfectly correlate with bourgeois virtues or any other set of values, right? In any case (pun intended), I will continue my review of the social construction of legal progress in my next two posts …

It’s Sunday, so I am interrupting my series of blog posts on the “social construction of legal progress” to share this creative end-of-year “movie trailer mashup” (hat tip: Kottke). I will resume my review of progress in law on Monday …

In my previous post, I shared a wide variety of law review articles and scholarly papers on the theme of legal progress. The larger question I care about, however, is this: is it possible to objectively measure progress in any particular domain of the law, such as torts or property or whatever, or is legal progress a “socially-constructed” or subjective ideal? For their part, Tilmann Altwicker (University of Basel) and Oliver Diggelmann (University of Zurich) identify four ways in which progress is “socially-constructed” in the field of international law. I will thus review and restate these techniques in my next few posts, starting with a crude historical method that Altwicker & Diggelmann call “ascending periodization.” (You can read their excellent paper for yourself here.)

In summary, the “ascending periodization” method of measuring legal progress consists of dividing some aspect of legal history into two or more periods and then assigning the most recent period a positive or flattering label, or in the words of Altwicker & Diggelmann themselves (pp. 432-433, footnote omitted): “Progress narratives [in international law] can be created by cutting [history] into two or more periods and giving the most recent period the most favourable label. The technique sounds simple. The operation of interest here–the creation of a progress narrative – is not always made explicit. It often remains hidden, typically behind the use of ‘established’ periods which tend to appear as ‘objective’ units. Established periods seem to reflect the ‘reality’ of international law’s development. Periodizations such as ‘the era of the Westphalian state system’ or the ‘interwar-period’, for example, may serve as examples.”

This crude method of measuring legal progress in the field of international law might also be generalizable to other areas of law. Richard A. Epstein, by way of example, traces the history of strict liability and the fault principle in his classic casebook on Torts–now in its 11th edition and co-edited with Catherine Sharkey, pictured below along with Epstein. In chapter 2 of their casebook, Professors Epstein and Sharkey divide the history of tort law into four periods and assigns each period the following labels: (1) the formative cases, (2) the forms of action [at common law], (3) the second half of the Nineteenth Century, and (4) modern times. Although it is still an open question whether strict liability or the fault principle (i.e. negligence) is the more economically efficient or wealth-maximizing method of assigning tort liability (i.e. it is still an open question whether Anglo-American law has made progress in the area of tort law), one could argue that use of the favorable label “modern times” might implicitly pre-dispose students of Epstein’s casebook in favor of contemporary approaches to tort liability. Clearly, this crude method won’t do, so I will review additional methods of measuring legal progress in my next few posts …

One of the puzzles that has long captivated me is this: how should we measure “progress” in such normative or value-laden fields as law, art, and ethics? Aren’t such first-order values as justice, beauty, and right vs. wrong supposed to be timeless and universal? Along come Tyler Cowen and Patrick Collison, who propose a new interdisciplinary field of progress studies. (See Cowen & Collison, “We need a new science of progress.”) To this end, I recently conducted a preliminary literature review on the subject of “legal progress” in Google Scholar. (Along with business ethics, my professional training and scholarly area of expertise is the philosophy of law, with a special interest in natural law.) Here is a small sampling of what I found in reverse chronological order:

1. “How is progress constructed in international legal scholarship” by Tilmann Altwicker & Oliver Diggelmann (2014). This excellent paper shows how the ideal of progress is “socially constructed” in the area of human rights and international law.
2. “Legal progress through pragma-dialectics?” by Hendrik Kaptein (2006). This technical paper explores the meaning of progress in the domains of logic and legal reasoning.
3. “Legal transitions, rational expectations, and legal progress” by Kyle D. Logue (2003). This excellent paper examines legal progress (as well as legal regress) from a law-and-economics perspective.
4. “Tradition, change, and the idea of progress in feminist legal thought” by Katharine T. Bartlett (1995). This fascinating paper explores “feminists concepts of progress” and the tension between tradition and change in law.
5. “Margarine: 100 years of technological and legal progress” by Stanley C. Miksta (1971). This technical paper equates legal progress with the enactment and subsequent repeal or modification of laws regulating the margarine industry.

In other words, there are multiple perspectives and many different ways of studying legal progress: progress in how an industry is regulated by law, progress in women’s rights, progress in the protection of property rights, progress in how lawyers and judges reason about law, etc. These multiple conceptions of legal progress thus pose a larger question: how should legal progress be defined or measured? Stay tuned: I will explore that question in my next few posts …

“Lady Justice Awakens” by Odin

According to Coasian economic theory, “transaction costs” are supposed to determine whether people will work as individuals or collectively as firms. But does this insight apply to science research? Via Nature: “Between 2009 and 2013, 573 manuscripts listing 1,000 co-authors or more were published, according to a report released on 4 December by the Institute for Scientific Information …. But that figure has risen to 1,315 papers over the past 5 years.” (Hat tip: Marginal Revolution.)

Update (11:45am): Upon further reflection, to the extent scientific papers with hundreds or even thousands of co-authors are led by science labs such as CERN, maybe those types of projects can be compared to Coasian or centralized “firms.”

Check out this thoughtful essay/blog post by Jason Crawford, which is provocatively titled “Progress studies [is] a moral imperative.” Although I am generally skeptical of “moral imperatives” (after all, moral claims are hard, if not impossible, to test or falsify, and the time and resources devoted to studying progress–or any other subject, for that matter–could be devoted to any number of other socially-valuable and morally-salient projects), there are nevertheless many aspects of Jason’s short essay that I found useful and worth sharing. Among other things, Jason raises many important questions about the nature of progress and offers several specific yardsticks for measuring human progress (see chart below, for example). At the same time, this book review by Jessica Riskin contains a powerful critique of the chart pictured below. Enjoy!

Credit: Max Roser (hat tip: @jasoncrawford)

… or the primacy of methodology. One team of scientists (led by David Kroodsma) published a study in the journal Science that concluded 55 percent of the world’s oceans are affected by fishing. Another group (led by Ricardo Amoroso), using the same underlying data (!), reached a drastically different conclusion: the actual value is closer to 4 percent. Ed Yong thus poses the salient following question in this excellent essay in The Atlantic: “How could two groups [of data scientists] have produced such wildly different answers using the same set of data?” In a word: methodology.

Image Credit: Global Fishing Watch