What Is the Argument Against Conceptual Jurisprudence, Part 3: Bad Sociology

In my previous post I explained why the pre-sociological branch of jurisprudence (identifying the “category” that is law) is misguided. But there are also those who think that jurisprudence is a kind of sociological enterprise. Hart is best understood as belonging to this camp. It is not just that what he called his book “an essay in descriptive sociology.”  It is numerous comments he made throughout the book that suggest that he saw himself as someone who seeks to clarify the underpinnings of the views of the “educated people” (Concept of Law, p. 3). There are, as I show in my paper, many others holding this view. Here is one example, from Ken Himma: “Armchair sociology of the sort at which philosophers excel (usually without realizing that they are doing sociology) is sufficiently reliable as long as one belongs to the linguistic community under consideration.”

Against this view I advanced two simple but related arguments. First, that the methods used for gathering the data—specifically, sitting in one’s armchair—are  thoroughly unreliable; the second, that there is in fact a wide diversity of views among people. And we know this because even in the tiny sample of the population that comprises of legal philosophers we see different views on the nature of law. So any “sociological” account that presents one view about the concept of law is simply inaccurate. Hart, we know from his biography, was an acute observer. His book may perhaps be profitably read as a snapshot of the prevailing views of educated elites in 1950s England about law and politics. (More on this, perhaps, later.)  But there is no reason to think that these views are universally held.

The problematic move is when casual observations that appear natural or obvious to one are transformed into “conceptual” claims about the “nature” of something, perhaps because in other philosophical contexts intuitions enjoy an exalted epistemic status. At least in this context, it is not difficult to show that these intuitive judgments are nothing but empirical claims dressed in conceptual garb. Consider the following claims, all coming from Andrei Marmor’s 2011 book, Philosophy of Law. (My views on the book are here, although I did not discuss this passage there.)

Works of art are created with an intention to be subject to different possible, potentially conflicting, interpretations. It is part of the concept of art, at least in our culture, that works of art are meant to be cultural objects that people can understand differently—relate to them in different, possibly conflicting and incompatible, ways. A work of art is not intended to convey a determinate communicative content that can simply be understood (or misunderstood); it is created with an intention to be somewhat indeterminate in content, or ambiguous in various ways, open to various interpretations. None of this, however, applies to law. In fact, art and law could not be less similar in this respect. Legal instructions are meant to generate concrete results, providing people with particular reasons for action, thus aiming to affect our conduct in some specified ways.…[T]he more general the legal norm is, the more likely it is that circumstances will arise where interpretation is called for. But generally speaking, it is not in the nature of law, as it is in the nature of art, to become a cultural object that is detached from the specific communicative content it is meant to convey. Art is there to be interpreted; law is there to be acted upon. [All emphases added.]

Marmor offers here a series of seemingly conceptual claims about law and art and their differences. He starts by telling us that works of art are created with a particular intention, but these are empirical claims about artists. They may or may not be true, but it is hard to tell as they are not supported by any empirical evidence. Marmor then tells us that “works of art are meant to be cultural objects that people can understand differently,” which presumably means that they may be true even if that was not the intention of their creator, indeed even if their creator was, say, a monkey who did not have such intentions But then whose meanings are we talking about? Presumably it is meanings of members of “our culture” about what constitutes an object of art. This is a more qualified claim, but it too is an empirical claim, or perhaps an interpretive claim (an interpretation of “our culture”). Either way it is not a “conceptual” claim; either way it requires some evidence.

Part of the difficulty with assessing it is that it is entirely unclear what belongs to “our culture.” Does Kant and his ideas on aesthetics belong to our culture? What about Oscar Wilde who said that “all art is quite useless”? What about the Dadaists? Do the many people who look bewildered (not to say contemptuous) at what they see in contemporary art galleries belong to “our culture”? And is there a basis for the idea, which is implicit in talk about “our culture” that all those who belong to it “mean” the same when “we” talk of art? It seems highly unlikely that one will find much that is similar on the concept of art between contributors to Artforum and Roger Scruton, although both are alive today and (one would think) belong to “our” culture. If some views are to be discounted or ignored for a description of the “nature” of art, then we would need some account on whose views are to count (and why).

“Art is there to be interpreted.” Is this true as a conceptual matter? I can think of many things that throughout history art was “there to be.” There were those who thought that art was to educate, to morally improve, to entertain, to provide aesthetic pleasure, to stir emotions, to move to political action. To suggest that art in general is “there to be interpreted” and it be meant to be “subject to different possible, potentially conflicting” is to anachronistically apply contemporary ideas about art (even today not necessarily universally accepted) as part of the “nature” of art. Those who wanted their art to educate or morally improve would not have liked the idea that their work is meant to be interpreted in different ways.

All this, I suppose, is pretty uncontroversial as far as art goes. You should think the same about law. Or so I will suggest in my next post.