prior probability

(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.

Image Credit: Maryam Akram

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.

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.

During the month of June, I attended a series of seminars in Paris on the theme of legal realism. The seminars were led by Brian Leiter, a professor of jurisprudence at the University of Chicago. One of the big ideas I learned from these seminars is that law is, in large part, a mental construct. To be more precise, according to mainstream legal realist/legal positivist theories of law, the law is a contingent phenomenon, contingent on the behavior and mental attitude of public officials. (Note: This idea of law as a mental construct is my formulation, not Professor Leiter’s.) By way of example, consider one of the most fundamental questions in legal philosophy (what Prof Leiter calls “the demarcation problem” in this excellent paper): what makes a norm a legal norm as opposed to a moral one? To take a concrete example, consider the doctrine of “bargained-for consideration” in Anglo-American contract law. (Legally speaking, consideration is the idea that a bare promise is not generally legally enforceable; a promise must be supported by something of value. Also, notice I say “generally” because there is an exception to this rule, the principle of promissory estoppel.)

According to the late H.L.A. Hart, an influential legal philosopher who taught at the University of Oxford, a norm such as the doctrine of consideration must satisfy two empirical conditions in order to be considered as a valid legal norm: (a) external convergence, i.e. legal officials must conform to the rule in actual practice, and (b) internal acceptance of the rule as obligatory, i.e. those same officials must perceive the rule in binding, not discretionary, terms. In other words, social conformity is not enough: judges must not only apply the rule in cases to which the rule applies; those same judges must also subjectively view the rule as obligatory on them. (Or in the terminology of H.L.A. Hart, the judges must accept the rule from an “internal point of view.”) But isn’t this ingenious mental construct view of law too broad or over-inclusive? After all, isn’t morality a mental construct too? Isn’t everything in the universe a mental construct to some degree or another? Also, even if the mental construct view of law is plausible, how could we test its truth value? I will address these all-important questions in my next few posts.

As our memorable sojourn in Paris comes to a close, we are reminded of these immortal words of Ernest Hemingway: “There is never any ending to Paris and the memory of each person who has lived in it differs from that of any other. We always returned to it no matter who we were or how it was changed or with what difficulties, or ease, it could be reached. Paris was always worth it and you received return for whatever you brought to it …”

The self-described “errant economist” Thomas Schelling once illustrated his idea of a “focal point” with the following coordination game: Tomorrow you have to meet some friends in New York City, but you have no way of communicating with them. Where and when would you meet your friends? In a coordination game, all the players are capable of winning (i.e. obtaining the highest payoff) only if they choose the same strategy. The problem with the NYC example is that any place and time in the City could work as an equilibrium solution. Yet, when Schelling presented his game scenario to a group of his students, he found the most common answer was noon at Grand Central Terminal. But what if we were to change the city in this Schelling game to Paris, where there are many possible focal points, such as the Eiffel Tower, Notre Dame Cathedral, la Place Vendome, the Louvre, and the Pont Neuf, just to name a few?

My wife Sydjia and I are back in the City of Love. Pictured below is one small section of the I Love You Wall, which is located in a small garden (the Square Jehan-Rictus) in the Montmartre neighborhood of Paris. The entire work is composed of 612 tiles and measures 40 square meters (430 square feet) and was created by the calligraphist Fédéric Baron and mural artist Claire Kito. Their love wall repeats the phrase “I love you” 311 times in 250 languages, including Navajo, Inuit, and Esperanto. (More details about this wonderful work of art are available here.)