prior probability

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.)

The Republic of Ghana is making her debut appearance in this year’s Venice Biennale. Lynette Yiadom-Boakye, one of our favorite contemporary artists, is also one of several artists representing the West African nation. Below is a sample of her work:

Following up on my previous post, it turns out that one of the earliest manuals on the practice of dueling–“Il Duello” by Girolamo Muzio, a.k.a. Mutio Iustinopolitano, b.1496—d.1576–was published in Venice in 1550. I am unable to locate an English translation of this 16th-century Venetian manual, nor am I able to find any reliable statistics about the number of duels in European history, so for now I have ordered Barbara Holland’s classic book on the history of dueling. Also, here are some bonus links for our loyal followers: (1) a vintage Marginal Revolution blog post about the economics of dueling; (2) this history of dueling in 16th-century Italy by David Quint; (3) this comparative study by Mehrdad Vahabi and Behrooz Hassani Mahmooei (review of dueling in England, France, and Germany); and (4) this formal paper by Douglas W. Allen and Clyde G. Reed (presenting a costly-signalling model of dueling).

The Republic of Venice lasted for over 1000 years (726-1797 A.D.). Three things about “Old Venezia” continue to fascinate me: (1) How common were duels in Venice? (2) Why did such a small city-state have so many chapels, churches, and other houses of worship? And (3) why did the Venetian Republic develop such a complicated and cumbersome multi-stage electoral system? We will explore all three of these features of Old Venezia (duels, religion, and voting rules) in future blog posts, but for now let’s focus on the third one. Among other things, Venice’s bygone voting system poses a difficult theoretical and practical puzzle: What is the optimal level of electoral complexity and randomness? Below is a brief survey of the literature:

1. Marji Lines, “Approval voting and strategy analysis: A Venetian example” (1986) (gated version).
2. Jay S. Coggins and C. Federico Perali, “64% Majority Rule in Ducal Venice: Voting for the Doge” (1998) (available here).
3. Miranda Mowbray and Dieter Gollmann, “Electing the Doge of Venice: Analysis of a 13th Century Protocol” (2007) (available here).
4. Dalibor Rohac, “Mechanism Design in the Venetian Republic” (2013) (available here).
5. Toby Walsh and Lirong Xia, “Venetian Elections and Lot-based Voting Rules” (not dated) (available here).