Monday, October 12, 2015

Misunderstanding the Argument

A bit of history: I posted to SSRN a paper entitled “The Misguided Search for the Nature of Law.” Les Green dedicated the inaugural post of his blog to it. He didn’t like it. That’s okay (and not exactly unexpected). Unfortunately, he did not address any of the actual arguments in it.

To the extent that he does try to address my paper, he says this:
He seems to flirt with the idea that there is a sociological jurisprudence that is not only a sociology of law, but a sociology of the nature of law (to the extent that law has a nature).  In any event, we are all to stop ‘conceptual analysis’.  What we are to start is not clear, though it seems to have something to do with measuring and counting–but without any preliminary worries about what counts as what.
The best defense of this proposal would simply produce the goods.
This is a misunderstanding of my argument.

Green presents my argument as:
(1) Legal philosophers have been doing X, but they should be doing Z.
To which he replies, “Who stops you from doing Z?”

Or perhaps:
(1*) Legal philosophers have been doing X, but Z is better.
To which he replies: “We can’t know whether Z is better than X until we actually see Z.”

But neither (1) nor (1*) reflect my argument. Here is my argument:
(2) People have been doing X; X is a misguided enterprise, therefore people should not be doing X.
Or, more precisely but less succinctly, this:
(3) Under the banner of “analytic general jurisprudence” or “conceptual jurisprudence” people have been doing either X or Y; X is an empty, circular, enterprise, therefore people should not be doing X; Y makes sense, but is currently conducted using an indefensible methodology, therefore people who want to engage in Y and reach meaningful results, should adopt a wholly different methodology.
Three things are worth emphasizing: First, Green confuses my arguments against the “externalist” version of conceptual analysis (which I argue is empty) with my proposed alternative to the “internalist” version. (More on this in the future.) Second, though I suggest that the internalist, sociological version of conceptual analysis may be supplanted by a more rigorous empirical inquiry, neither in its shorter form (2) nor its longer form (3), does my argument depend on the existence of any alternative. If X and Y are a waste of time, that’s a good thing to know whether or not I propose an alternative Z, let alone whether I produce an alternative Z. In fact, if X and Y are a waste of time, it’s a good thing to know even if there is no Z.

You don’t need to take my word for it. Here is Les Green, writing in 2013: “polygraph analysis, homeopathy, and graphology are pseudo-sciences, and dangerous ones. Sailing under false colours, they mislead people about their cargo.”

Actually, polygraph analysis is not completely bogus, but Green’s general point is clearly right. There is value in exposing pseudosciences, or even as he did, just calling them out, even without proposing an alternative, or even (especially?) when there is no alternative. It is important to debunk astrology and palm reading, even if there is no way of telling the future. When Popper, along with many others, argued that psychoanalysis is a pseudoscience, they did not need to propose an alternative method to interpreting dreams. And since at the time they said this psychoanalysis still enjoyed considerable reputation, there was great value in their efforts.

I do not compare myself to Popper, or the influence of conceptual jurisprudence (which is non-existent) to that of psychoanalysis in its heyday. But my argument is of the same kind. General jurisprudence of the “externalist” type, the one that aims to tell us what law necessarily is regardless of people’s attitudes the matter, is a kind of pseudoscience. It claims to tell us some things—what law really is—which it cannot deliver. True, this enterprise is not perceived by its proponents as a science in the sense of yielding testable predictions, but it is thought as capable of yielding knowledge. Moreover, many legal philosophers accept a “progressive science” model of jurisprudence: they consider conceptual jurisprudence an enterprise in which true knowledge about the nature of law is generated by the cumulative efforts of different individuals. My argument, simply stated, is that the “externalist,” pre-sociological version of conceptual jurisprudence (the one to which Green seems to subscribe), fails to yield any knowledge, because all its claims are circular and irrefutable. If I am correct, this enterprise is misguided because there is no such thing as the nature of law as externalists understand the term.

Not much of real-world practical significance hangs on whether I am right or wrong, but if I am right, then, for example, Green is doing a disservice to his students when he teaches them conceptual jurisprudence. And he is doing them a disservice by teaching that, not because it is useless to their future career as lawyers (although this is the case), not because it is uninteresting (although many—including many philosophers—think that), but because this enterprise fails to deliver on what it purports to do. And that failure is not a temporary one, reflecting our current knowledge. It is a failure inherent in the way the enterprise is conceived and executed.

That this was the argument of the paper, did not require slogging through fifty two pages. It is stated in the first paragraph:
my target is what is sometimes called “conceptual jurisprudence,” an inquiry about law that purports to explicate, elucidate, or describe the “concept,” the “essence,” or the “nature” of law. In this essay I am trying to get a clearer sense of what is the thing being explicated, elucidated, or described. I consider various ways of answering this question. My conclusion is wholly negative: I hope to show that conceptual jurisprudence is a hopeless enterprise. If this is true, this requires some fundamental rethinking of what is still perceived as a fundamental aim of philosophical reflection about law.
Of course, I may be completely wrong about all this. I have no doubt that Green thinks that. But as he said nothing about my actual arguments, it’s unclear why.

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