Tag: philosophy of law

Wednesday’s Child: The New vs The True

Les Green6 Comments

A paper by a junior scholar greatly impressed me. I thought it should be published. A distinguished philosopher did not share my view: ‘It’s warmed-over Rawls,’ he wrote, in a curt letter of rejection.

Now, I could see for myself that the central claim of the paper wasn’t completely new. But it was, I thought, completely true. And its case for a familiar truth was different from—though not inconsistent with—other arguments to the same conclusion.  So why the obsession with the new?

This misery has company elsewhere, including in the social sciences.   I do not only mean that, when others try to replicate famous ‘findings’, they cannot get the same results. I mean that hardly anyone tries to replicate anything.   You can see why. Replication is expensive and unoriginal. Editors do not fight over a paper that argues that the findings of an earlier paper are all correct. Hence, there is a high prior probability that a lot of what finds its way into print is rubbish. (And then that rubbish is cited, and the citations re-cited, by philosophers who want their work to be ‘continuous with’ the advanced social sciences.)

In the humanities we do not have the excuse that originality is cheaper than replication. Admittedly, some of our work is not truth-apt, and some that is truth-apt is not truth-oriented (for instance, because it is bullshit). But I imagine that most of us hope that our claims about things like justice or law are, if not true, then true-ish.   Yet our collective behaviour reveals a strong preference for the new over the (merely) true.

In my own fields, the pursuit of novelty has bad effects: one can be pretty sure that the next general theory of law will be more daft than the last one. And in moral and political philosophy writers continually ‘discover’ principles that no one in the history of humanity ever heard of.

The novelty-fetish has further  knock-on effects.   It isn’t enough for ideas to be new; others need to acknowledge that they are new, so small novelties get over-emphasised, and the errors of past writers exaggerated. No longer are others merely mistaken, misguided, or muddled—their claims must be ‘ridiculous’, ‘disgraceful’, or ‘ludicrous’. These epithets have various meanings, but they have a common use. They are all ways of pleading, ‘Don’t read him! Read me, me, ME!’

Though not excusable, this is understandable. Most of us write for a serious audience of a few hundred, of whom maybe a couple of dozen actually engage our work. (Legal and political theorists who imagine they have ‘impact’ in the halls of power, or even literature, mostly live in a hall of mirrors.) To lose a few precious readers to the judgment that our work is warmed-over Rawls (or Mill, or Marx…) feels like an amputation without anaesthetic.

We need to get over that.   David Hume exaggerated when he wrote of political philosophy that, ‘New discoveries are not to be expected in these matters.’ But he was not ridiculously, ludicrously, or disgracefully mistaken.   Here as elsewhere, Hume was mostly right—though with some one-sided over-emphasis.   And there was nothing new in that either.

Gender and the Analytical Jurisprudential Mind

Les Green3 Comments

Nietzsche said that when ‘marching against the enemy’ both bad music and bad reasons sound good.

Joanne Conaghan’s book, Law and Gender, marches against several enemies, one of which is ‘the analytical jurisprudential mind’. I am offered as a case study of that psychopathology. Her discussion of my work on marriage reveals the ‘methodological limitations which characterize [such] jurisprudential analysis,’ namely:

“the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features… over others…, evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value-neutral account; the overlooking, or at least unexplained disregard, of contra-indicative evidence…. “(Law and Gender 176)

Conaghan says that it is because of such ‘limitations’ that books of analytical jurisprudence—books like The Concept of Law, The Pure Theory of Law, The Authority of Law—fail to see the pervasive relevance of gender to theories of the nature of law.

Her arguments are embarrassingly weak, for reasons I explain in this new paper.  Her errors would matter little were it not for the possibility that law students might think that to be feminists they need to join in the march, singing along to bad music and repeating bad reasons. My paper concludes:

“In the end, jibes about the ‘analytical jurisprudential mind’, like jibes about ‘the criminal mind’—or for that matter the ‘female mind’—express little more than prejudice.   As vices go, an intellectual prejudice is a minor thing. Still, it will have victims. Its main casualties will be beginning students, especially young lawyers curious about things like the social construction of gender, the evaluative character of jurisprudence, the subordination and silencing of women, or social inclusion and legal equality. Will they learn that some of the best contemporary thinking on these themes includes work by analytic philosophers, and even analytic legal philosophers? Will they discover that this work is sensitive to context where relevant, that it is alert to the ways values enter analysis, and that it is literate about social facts? Not if they accept Conaghan’s caricature. Students taught what the ‘analytical jurisprudential mind’ must think about some issue may not feel inclined to spend time discovering what any particular writer actually does think. They are as likely to set about building separation walls, to guard against intrusions by gender-excluding abstractions, smuggled-in values, and empirical biases—unlawful migrants to the empire of law and gender, disguised in nit-picking arguments.“

Feminist philosophy has long since given up the idea that ‘analytical’ methods are alien or hostile to feminism. The excellent work of philosophers like Elizabeth Anderson, Sally Haslanger, Rae Langton, or Mary Kate McGowan demonstrate the power of these methods and their importance to feminism. Why is feminist legal scholarship of Conaghan’s sort stuck in a time-warp of the 1980s,  repeating the old jingles of post-modernism and chanting the dull chorus of ‘social context’?

It is time for feminists in law to reconsider their need for an enemy, or at least find a new one. They will be astonished at how bad was the music they used to march to, how poor the reasons.

Wednesday’s Child: Academic Over-production

Les Green2 Comments

Today’s woe is scholarly over-production.

No one keeps up with the literature. There is too much. Some of the causes are well known. In addition to an over-supply of people (which increases the number becoming academics), there is institutional pressure to publish almost anything. We end up with what my former colleague Harry Arthurs calls a ‘production-driven research culture‘. Enabling this, there are also too many journals—especially in the US, where student-run law reviews proliferate, pumping out oceans of poorly chosen work that is then often edited so as to make bad writing even worse.

Less well understood are two internal factors.   Young academics seem increasingly keen to adopt  a ‘line’: an outlook capable of generating an article on almost any subject. In addition, the Facebook generation seems addicted to ‘likes’: watching their SSRN or Google Scholar hits rack up, never mind whether anyone is reading or engaging with their work. A word of woe about each of these.

The ‘Line’

I don’t blame rookies for working a ‘line’. I have seen promising young scholars fail to get appointments because they were thought to lack one—‘She seems smart; but I don’t see what her line is’.   Or, ‘He wasn’t very responsive. I asked him what his view implied for my work on inter-state trucking law and he had nothing to say.’

Law and economics is a famously productive defence against such stupid criticisms; so too are the utilitarian and neo-Kantian machines that clank and chug along in their charming, steampunk, ways. Whatever their demerits, they have the merit of never leaving one without an opinion, and of leaving no doubt in others’ minds about what one’s ‘line’ is.

But there is a downside. Probably, no such ‘line’ could be faithful to the law we have, or to the law we ought to have. And if you have a ‘line’ you will need self-restraint in knowing when it isn’t worth pursuing. I imagine people thinking, ‘But I’m sure you are all wondering what my theory has to say about the Roman law of dogs.’ Actually, no; we aren’t. We know what your theory has to say about things of general interest: that is why it is a ‘line’. And what matters—to those who care—about the Roman law of dogs is the doctrinal lore. We already know that if dogs’ happiness is happiness then we should count it, and if dogs matter because they make people happy, then we should optimize the distribution of dogs.   And we already know that, outside a public order of Right no one really owns a dog. They may have dogs, yes (and the dogs may make them happy)–but they do not have their own dogs.   Like tic-tac-toe, these games are fun to play, but only with a child.

Working a ‘line’ also tends to generate long articles. Before you’ve spun your story, you can have twenty pages on the history of the ‘line’ and, after you’ve done it, you can consider twenty pages of objections, including those that would only occur, as Bernard Williams once put it, to the malicious or the clinically literal-minded.   Best of all are objections coming from a different ‘line’. ‘Lines’ live off each other, symbiotically. This produces still more writing.

The ‘likes’

Followers, views and downloads are the new academic’s equivalent to ‘likes’.   They live in hope of the SSRN message that tells them the paper they posted last week, in the dead of the summer, scores a top-ten download. Or that academia.edu shows they have had viewers, or even followers, in Bhutan.

Now, no one can ‘like’ what you don’t write. And once written, you need to get it out anywhere and everywhere.   The otherwise admirable SSRN enables bad behaviour here. It is like taking whisky to an AA meeting. Since there is no substance editing in its journals, people need to rely on their internal editors to exercise restraint.  Few manage.

Often, there is often no editing of any kind. For example, In current number of the Philosophy of Law Ejournal (Vol. 8, No. 125: Aug 18, 2015) there are 12 papers, only two of which are even about the philosophy of law. The Social and Political Philosophy eJournal is as bad, or worse. Now, I do not really think that their authors imagine that the following papers are any kind of philosophy: ‘‘It’s Not for a Grade: The Rewards and Risks of Low-Risk Formative Assessment in the High-Stakes Law School Classroom’, or ‘What leads to Homeless Shelter Re-Entry: An Exploration of the Psychosocial, Health and Contextual Demographic Factors’. More likely, they were unable to resist ticking every conceivable box on the upload form, hoping for one more ‘like’ from someone, somewhere.

I am not sure how to cope with the pressures of the ‘line’ and the ‘like’.  And I don’t think it is always blameworthy to yield to them.  But in addition to external pressures to over-production it is certainly producing a tragedy of the intellectual commons.

Jurisprudence: stop that right now!

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The reader who slogs through the 52 pages of Dan Priel’s latest critique of legal philosophy will get a good survey of some of the (fairly casual) remarks its practitioners have made about the ‘methodology’ of jurisprudence.  Spoiler alert:  but they won’t learn anything about how the subject might be done.

Once again, Priel tells everyone else their subject is empty or question-begging.  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. We should be given access to Priel’s  measures, data, models, and calculations that explain what law is.  We can then check the validity of his measures, replicate his analyses, verify his calculations, and so on.  (It has been a long time since I calculated a chi-square, but give me an afternoon and I’m sure I can get back up to speed.)

But while scolding analytical jurisprudence for not following the lead of the ‘many philosophers’ who find illumination in things like cognitive science and psychology, Priel coyly keeps whatever findings he has to himself.  Or is his work–and its demand for empirical evidence–a failure by its own standards?

Perhaps not.  When we arrive, finally, at p 52 we discover that it has all been an introduction to a prolegomenon to a preliminary to a research programme.  Its only positive offering is that we should stop reading HLA Hart’s book The Concept of Law 

‘A good first step would be to stop the unprofessional practice of reading with veneration, and perhaps at all, the book most responsible for the misguided conceptualist orientation that dominates contemporary jurisprudence.’

I admit to having hoped for more than a ‘first step’ in fifty pages. In any case, Priel’s step has been taken many times over.

Many academic lawyers, and most legal sociologists, show no signs of having read Hart’s book at all  (or of having understood it if they have).  The first step has been taken. So what’s holding up progress?  It isn’t as if there is a  licensing board in Oxford’s High Street, or in New York’s Washington Square, that must approve all research in legal sociology.  Just do it!

There is a good piece of sociology of knowledge waiting to be written about why some academic lawyers feel so strongly that the only thing stopping them from doing what needs to be done is that other people are doing something else.  I’m not sure what explains this, though I do have some conjectures.