an unanticipated consequence of
Jack M. Balkin
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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
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Gerard Magliocca gmaglioc at iupui.edu
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Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Legal Philosophers, Alien Civilizations, Monism versus Pluralism (Reflections on Shapiro's Legality)
Scott Shapiro’s new book, Legality (2011), is a superb articulation and defense of exclusive legal positivism. Readers are treated to an insightful and supremely clear exposition of the core issues that occupy contemporary analytical jurisprudents, including the debate between legal positivists and natural lawyers, between legal positivists and Ronald Dworkin, and between inclusive and exclusive legal positivists. Shapiro’s novel idea in the book is that every single law is a “plan” (or “plan like”) and law in general is a planning system.
Rather than discuss the merits of Shapiro’s theory of law, I will instead use his book to offer a few reflections on the state of contemporary analytical jurisprudence. As Shapiro acknowledges, many outsiders are critical of legal philosophers for engaging in scholastic debates over arcane matters of interest only to fellow philosophers. Shapiro is determined to refute this common perception by showing that his theory of law delivers important lessons for legal practice.
Notwithstanding his avowed intention, Shapiro confirms that legal philosophers really are occupied with otherworldly matters. In a crucial passage early in the book (albeit in a footnote), Shapiro makes a startling claim:
Social science cannot tell us what the law is because it studies human society. Its deliverances have no relevance for the legal philosopher because it is a truism that nonhumans could have law. Science fiction, for example, is replete with stories involving alien civilizations with some form of legal system. These examples show that it is part of our concept of law that groups have legal systems provided that they are more or less rational agents and have the ability to follow rules. Social scientific theories are limited in this respect, being able to study only human groups, and hence cannot provide an account about all possible instances of law.
I laughed out loud when reading this passage (truisms about aliens?). But Shapiro is absolutely serious.
To expose the problematic implications of this attitude (which I will later describe as monist), I will give a quick response to Shapiro’s argument. His core contention, to repeat, is that legal philosophers are concerned with the nature of law in all possible worlds; insights from the social sciences about what law is are limited to humans and therefore are irrelevant to the philosophical task.
Shapiro builds his conceptual analysis by positing a series of what he claims are fundamental “truisms about law.” According to Shapiro, truisms “are not merely true, but self-evidently so”—“statements so unobjectionable that they hardly need mentioning.” (13,19)
But is it self-evident, as he declares, that nonhumans (aliens) could have law? After all, we don’t know whether aliens even exist, much less whether rule following aliens exist. It seems strange to confidently pronounce self-evident truths about beings whose existence has not been (and might never be) confirmed.
Shapiro would likely respond that what he means is this: If rule following aliens exist, then it is a truism that they could have law. Notice that, if this assertion is persuasive, it is so only because we know that humans have law, and law for us involves rule following. What we know about humans is doing all the rhetorical work for Shapiro’s supposed truism about aliens.
Shapiro’s reference to science fiction portrayals of alien civilizations draws the same response. Heinlein books and Star Trek episodes were, of course, written by humans. These were not portrayals of actual alien civilizations, needless to say, but familiar human practices clothed in cool costumes and make-up. We recognize examples of “law” in alien civilizations precisely because they are human practices in alien drag.
This point can be made clearer if we see that Shapiro actually understates the reach of his argument when referring only to alien civilizations. By the logic of his argument, it is a “truism that Gods could have laws.” We know this because as Greek mythology tells us—or if you prefer a modern bastardization, Percy Jackson & the Olympians books and movie—the Gods have laws too. (Like humans—it is no coincidence—the Gods, and aliens, also break laws, lust for power, indulge their desires, suffer from jealousy, pride, and rage, and wreak havoc.)
To state this proposition—“it is a truism that Gods could have laws”—is to expose its absurdity, and the emptiness of Shapiro’s argument. Although he purports to engage in conceptual analysis that rises above human existence, thereby telling us something about the nature of law with universal reach and validity, in fact his analysis is pure anthropomorphic projection grounded entirely in human social existence with nowhere else to go. Talk about alien civilizations amounts to verbal posturing—the philosopher telling the sociologist: “I’m not concerned with your real thing because my imaginary thing is bigger.”
In the end, Shapiro’s argument can be reduced to a virtual tautology: humans produce social institutions that we think of as “law”; any non-humans that produce similar institutions will also have something that resembles what we humans think of as law. Legal philosophers, notwithstanding their gesturing about alien civilizations and all possible worlds, rely entirely upon their knowledge and assumptions about human social existence to undergird their conceptual analysis of law. [In response to this post, Shapiro helpfully clarified that he does not deny that philosophers can benefit from the social sciences; rather, his point is that the social sciences cannot answer "What is law?" I agree with Shapiro about this inability, but for the reasons stated here, I believe legal philosophers also cannot provide a definitive answer to this question. Although Shapiro's clarification is a welcome one, the essential point remains that analytical jurisprudents in fact pay little attention to the social sciences.]
Why does Shapiro set out his argument in universalist terms? The answer lies in the quest embraced by many legal philosophers.
Isaiah Berlin highlighted a deep divide in philosophy between monism and pluralism. Monism has dominated Western philosophy since the Enlightenment (rooted in Plato), with three central tenets:
(a)That every genuine question has one true answer and one only; all the others being false. Unless this is so, the question cannot be a real question—there is a confusion in it somewhere. This position, which has been made explicit by modern empiricist philosophers, is entailed no less firmly by the views of their theological and metaphysical predecessors, against whom they have been engaged in long and uncompromising warfare. (b) The method which leads to correct solutions to all genuine problems is rational in character; and is, in essence, if not in detailed application, identical in all fields. (c) These solutions, whether or not they are discovered, are true universally, eternally and immutably: true for all times, places and men….(Berlin, The Proper Study of Mankind, 326-270.)
Philosophical monism captures the attitude of many analytical jurisprudents as well as their natural law opponents (some of the particulars in Berlin’s account, which apply to philosophy generally, don’t apply here). Dworkin’s Justice for Hedgehogs (2010) is a supreme example of the monist project.
The pluralist alternative, embraced by Berlin, eschews the unity and universality of knowledge, accepting instead the presence of a multiplicity of perspectives and forms of life, potentially conflicting values and goods, incommensurability, the limits of reason, the uniqueness and variety of social forms, and the unavailability of universal, eternal, immutable truths. The legal theory parallel of pluralist views would reject the quest for a singular, universal concept of law and instead pay close attention to social manifestations of law, working out their various elements and implications, accepting that law cannot be reduced without gross distortion to a tidy analytical scheme.
While the pluralist view has prominent voices in philosophy, only a diminishingly small number of analytical jurisprudents (all young) can be classed as having a pluralist mindset—including Keith Culver and Michael Giudice (Legality’s Border, 2010) and Emmaneul Melissaris (Ubiquitous Law, 2009).
Legal theorists who have paid close attention to social scientific deliverances on law are among the foremost exemplars of the pluralist attitude, the most accomplished being William Twining (General Jurisprudence, 2009)(My book on the topic is here, with an essay available for download here, and more concisely here.). It is telling, furthermore, that these works use empirical insights to challenge a number of the core “truisms” taken for granted by analytical jurisprudents.
While legal theorists of the pluralist persuasion take up many of the same legal debates and cover the same literature as monist inclined analytical jurisprudents, the respective discussions in these two approaches are markedly different. Pluralist legal theorists refer to actual manifestations of law, noting their variety and differences, tracing out their elements and interaction; pluralists acknowledge legal multiplicity, the social construction of law, and the provisional nature of the concepts and categories they use to capture and describe law. Monist legal theorists, in contrast, tend to build their complex, unified systematic analysis of law out of a relatively small number of basic propositions—abstracted and posited —and claim to produce certain (analytically necessary) conclusions that convey truths about law. The former-type theories tend to be empirically rich (hence messier, admittedly contingent), while the latter-type are empirically austere (hence tidier, purportedly non-contingent).
Monist theories pay a price for their aspiration to universality. This goal can be approximated only by making drastic abstractions (and erasures) and by reducing matters to a narrow focus, fudging exceptions and squeezing recalcitrant counter-examples into ill-fitting categories that exist mainly to preserve the theory. When articulating the implications of his planning theory of law, in a moment of admirable candor, Shapiro observes that “Like Ptolemaic astronomy, the Planning Theory must add epicycle upon epicycle to save the doctrine from incoherence.” (278) Ptolemy resorted to epicycles because his theory was wrong; monists need epicycles because law cannot be captured in a single all encompassing theory (planning or any other)—legal reality is pluralist all the way down.
In closing I must emphasize that Shapiro has written a truly impressive book. It is a rare work of legal philosophy that manages to be a compelling read—a treat that I devoured in three straight days of uninterrupted mental indulgence. It will be deservedly celebrated by fellow legal philosophers. My main lament about his redoubtable achievement is that fits entirely within the parameters of—and promises to provoke another round of—the half-century old debate between and among analytical jurists and Dworkin. This series of debates has gone on far too long. Hart established the terms of the debate around points that now seem obsolete or exhausted; the world and law have changed in pivotal ways (to wit, the growing multiplicity and intersecting of legality, the shift of standard legal functions from public to private hands, the de-centering of the state, the relative reduction of actual judging within the system, etc.).
If Shapiro, with his formidable analytical skills, had seriously considered the deliverances of the social sciences on law, and used his evident imagination to build on those insights, he might have made a genuine breakthrough, moving legal philosophy in a new more fruitful direction. Perhaps, though, legal philosophers with a monist mindset don’t aspire to achieve a fundamental change in the discussion, for they are chasing after eternal truths on timeless questions. Posted
by Brian Tamanaha [link]
I have not read the book you review, but your review stimulated some thoughts. It is interesting that you introduce your comments on this legal positivist with arguments in which he apparently espouses a natural law theory. The idea that laws are somehow inherent in nature (presumably including alien nature) is quite ancient, e.g., Ulpian:
“Natural law is that which nature teaches to all animals [living things], for it is not peculiar to the human race, but is common to all animals which are produced in the air, on the earth, or in the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and education of their young, for we see, in fact, that the other animals besides man act in conformity with this law as if they were acquainted with it.” Justinian. Institutes. Book I. Title ii. Of Natural Law, the Law of Nations, and the Civil Law.
The idea God (whether considered as singular or plural) is subject to laws has been the subject of much juristic thought, especially in the late middle ages as jurists tried to reconcile Christian dogma with Roman jurisprudence and Greek philosophy. If law is inherent in nature, then God is not sovereign; if God is sovereign, then there can be no [Aristotelian] essence, or law, in nature. Thus, juridical thought underlies our Enlightenment idea of science, in which nature has no essence.
And so a third point: apparently Shapiro in engaged in the business of elucidating a "science" of law in the same sense of Kelsen and others since the 18c. The intersection between analytic philosophy, naturalism, positivism and legal philosophy is interesting and complex, but i think the organizing idea is "science" or positivism. Although Shapiro eschews social science, his theory itself (or theories like his theory as you describe it), of a science of law, is as a historical matter identical with social science. The "science" part links them to the same fundamental propositions about nature. Well, they should, except that what you report about Shapiro may be a serious excursus into natural law. His dependence on the idea of “self-evident” statements recalls the same move made by John Finnis in his natural law theory; and they sound somewhat unscientific since science, positivism, values empirical “truisms.”
As I read your comments I wondered how these observations about monism, dualism and natural law would read through the historical school of jurisprudence. The idea laws arise through historical processes from “the life of man” can be consistent with scientific monism, natural law monism, and a natural pluralism, since there is no bar to the persistence of some norms through diverse, successive historical periods. There is a tendency towards the universal for some norms.
As I read this post, I was thinking of Robin Feldman's 2009 article "Historic Perspectives on Law & Science" that I just finished reading yesterday that addresses science but not the social sciences; that distinguishes legal philosophy from science; that law does not understand science. I may have to reread Feldman's article with this post in mind. Maybe science has something to say about aliens. Of course there was the Bush v. Gore decision that seemed alien to many.
One could pick an arbitrary point in time with respect to any mainstay philosophical dispute, such as the nature of free will, and we can say "it's gone on too long, these smart guys should be social scientists."
But that's part of the appeal of philosophy -- the questions are really hard, the terms of the debate often take decades to clarify. One measure of progress in philosophy should be how we get clear on the debates and in finding out where plausible-sounding arguments to these age-old disputes go wrong.
Shapiro has done an amazing job clarifying disputes and positing a plausible answer to the puzzles that have occupied decades of participants. I'm rather glad he didn't become a sociologist -- which is not to say philosophers couldn't benefit from exposure to more sociology.
While I share your doubts about the project of discovering metaphysically necessary truths about law (though not at all for your reasons, at least if I understand them), I am astonished to see Heather Gerken, in a post further up, imply that Scott's particular methodological commitments are somehow essential to doing philosophy. Nothing could be further from the truth, as Scott himself well knows. Methodology in philosophy is contested territory, and one advantage of Scott's book is that it is quite explicit early on about its methodological commitments, extravagant though they are (or so it seems to me).