One of the most rewarding things I did this summer was listen to Scott Shapiro’s jurisprudence course podcast. He’s a great lecturer and now I sort of want to go to law school?
Here are my notes. I’ve been interested in legal philosophy since the political economy class where we discussed how the legal norms that economists take as given – namely property and contract law – are hardly the only way of organizing society, even a mostly capitalistic one. What makes these particular standards the law, do they fulfill their intended purpose, and why should we feel obligated to abide by them?
Below is a summary followed by some questions I had as an social scientist approaching legal philosophy.
The chicken-and-egg problem and Hume’s challenge
The chicken-and-egg or possibility puzzle refers to the idea that legal rules have to be issued by some entity, but for that entity to have legal authority, there needs to be a rule giving them authority. Any theory of law should address this problem, in addition to responding to Hume’s challenge about the impossibility of deriving a normative statement from a positive one (an “ought” from an “is”). Legal positivists, who believe law rests on social facts alone (as opposed to both moral and social facts, as advanced by natural law theorists), have a problem imbuing law with a notion of morality.
Austin and Hart
John Austin had a simple theory of law: all legal rules are commands, which are authoritative directives backed by a threat and issued by a sovereign who is habitually obeyed and who obeys nobody else.
There are several problems with this view, argued by H.L.A. Hart. One is that people usually take a more introspective view of the law; we follow the law because we think we should, not because of the threat of sanctions. Another is that legal sovereignty exhibits continuity – laws usually persist beyond the person or people who made them.
Hart moves beyond Austin’s reliance on habitual obedience of the sovereign and rests his theory on the internal point of view: the point of view of someone who has internalized the norms of a group, who takes the group’s standards as both the standards to guide their own conduct and the standards by which to judge others. Social rules are not just behavioral regularities, rather, they are behavioral regularities accepted from the internal point of view.
Hart posits a secondary rule, the rule of recognition, which is the supreme rule that identifies properties that make other rules authoritative. It is a social rule that must be accepted from the internal point of view, but only by legal officials.
So, for Hart, the legal system bottoms out at the rule of recognition, which he says is a social practice. And the “ought” in law comes from taking a particular normative attitude towards that social practice.
Hart’s theory falls short, too. One problem is that while some social practices might give rise to social rules, it seems like judges in the U.S., for example, follow the rule of recognition because they have allegiance to or respect for the Constitution, not because they have settled on this particular practice as an arbitrary equilibrium.
The Hart-Dworkin debate
Ronald Dworkin, a natural law theorist, criticizes Hart’s theory by arguing that positivists believe legal obligations consist exclusively of rules, and when rules run out, judges exercise discretion. But judges always act as if there is law to apply, which for Dworkin suggests that law consists of principles in addition to rules. This also means that legality must derive from content, not the institutional pedigree of a law, like the rule of recognition posits.
Exclusive legal positivists respond by saying that just because judges are obligated to apply moral principles when laws run out, that doesn’t make those principles laws. Inclusive legal positivists respond by saying that the law can indeed be picked out by moral principles, as long as it is ultimately social facts that tell judges to use those principles.
But Dworkin has another objection to legal positivism: he says that positivists can’t explain theoretical disagreements about the grounds of law, which are the facts considered to determine whether a proposition is true or false. For positivists, the grounds of law are determined by consensus, so disagreement about the grounds of law leads to incoherence.
Dworkin, then, says that judges look to morality in hard cases, and wants to adopt a methodology of constructive interpretation to determine what the law is. He says that the interpretation that makes the law the best it could be is one of law as integrity: acting according to a set of principles and policies that are consistent across all members of the community in all cases. Then, the principles used to determine the law should be the ones that put past political actions in their best light. The judge, for Dworkin, necessarily engages in moral and political philosophy, since legal issues pose philosophical ones.
The podcast expands on these topics and explores some further issues, such as an alternative positivistic theory of law as a planning organization with a moral aim. The idea here is that the function of the law should be to take some of the moral considerations that Dworkin thinks of as fundamental to legal reasoning off the table; the law should give us a way to avoid moral deliberation in our daily lives.
Questions for social scientists
One takeaway for economists should be to ponder how our conception of welfare connects to these formulations of legality. When we take the perspective of a social planner maximizing a sum of utilities, is that under a positivistic view that sees the property and contract law that make the framework of individual optimization possible as merely the product of social consensus? Or, if we understand laws as having moral content, then are legal norms endogenous to the optimization process (assuming we think that the maximand in our social welfare function has at least some normative content)? This runs into political philosophy pretty quickly – we can’t just be making laws out of the solutions to optimization problems – but the point is that our theory of the law shapes the set of regimes we consider. What would optimization over the space of alternative formulations of property law look like?
For example, if we take seriously the idea of law as integrity, then does the notion of “consistency” accord with a system of individual property rights that allows children to inherit wealth from their parents? Or does treating like cases alike fit better with a system that doesn’t permit intergenerational transmission of property? Shapiro mentions that “law as integrity” can be seen as the counterpart to Rawls’s theory of “justice as fairness”, and just as Rawls’s work makes me think about what it means to “maximize welfare,” studying jurisprudence makes me think about what it means to take legal institutions as exogenous when we make claims about optimal policy.