Saturday, October 24, 2015

What Is the Argument Against Conceptual Jurisprudence, Part 4: Bad Sociology (cont.)

According to Marmor, “[l]egal instructions are meant to generate concrete results, providing people with particular reasons for action, thus aiming to affect our conduct in some specified ways.” That laws are “meant” to generate concrete results is not a claim about the “nature” of law, but an empirical claim about the attitudes of certain people about law, or perhaps (to tighten the comparison with art, discussed in the previous post) an empirical claim about the intentions of those who make them. Either way, Marmor does not provide any empirical evidence to support it.

If not meant as an empirical claim, then it must be understood as an interpretation of the practice, something like “based on what laws are created for, they are best understood as meant to generate concrete results.” These are normative claims, and, as it happens, they are not universally accepted. Legal scholars argued that there is sometimes value in laws not always generating concrete results, that there is value in laws that are purposely vague as they generate political debate, deter conduct, be flexible enough for dealing with changing circumstances, and so on.

Marmor might reply that these scholars are wrong, that they don’t understand the nature of law. Now, if they asked him on what basis he makes such claims, what would he point to? He could point to the way people talk about law, think about law, what they use law for, and so on. But these are all empirical claims. Is there anything else? If he insists that this is just intuitive or obvious that this is what law is, others can reply that their intuitions are different. If he says “just look at how we use law” (again, an empirical claim, or an interpretive one), they will reply with other examples in which laws are used differently.

When the empirical nature of these claims is made explicit, another question arises: why assume that as a conceptual matter (as opposed to a conclusion of a normative argument) all “legal instructions are meant to generate concrete results”? There is no difficulty in conceiving the possibility that some laws meant (and therefore designed) to “generate concrete results” while others that are meant (and therefore designed) for their multiplicity of meaning.

This challenge is not purely theoretical. There are some fairly known “legal instructions” included in familiar legal documents called constitutions. To say that that they are all “meant” to generate concrete results would be, to put it gently, controversial. Marmor may have noticed this, which is why he talks about what law is “generally speaking,” but the law is full of what Holmes called “moral phraseology” outside constitutional texts, which is anything but concrete. The law also employs additional terminology (for example, “foreseeability”) that does not have an immediate moral equivalent but is anything but concrete.

In any case, once this is not a claim about necessities but about empirical tendencies, we are in the world of empirical sociology.  To be clear, all this does not exclude such findings from the domain of jurisprudence, for there is no reason to think that jurisprudence is limited only to what is necessarily true about law. It does mean, however, that to show that these empirical tendencies are true requires more than mere speculation. 

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