Negotiating the Jurisprudential Terrain: a Model Theoretic Approach to Legal Theory
| Publication year | 2003 |
Jurisprudence addresses the questions about law that an intelligent layperson of speculative bent-not a lawyer-might think particularly interesting. What is law? . . . Where does it come from? ... Is law an autonomous discipline? . . . What is the purpose of law? ... Is law a science, a humanity, or neither? ... A practising lawyer or judge is apt to think questions of this sort at best irrelevant to what he does, at worst naive, impractical, even childlike (how high is up?).
-Richard Posner(fn1)
Conceptual claims, conceptual theories and conceptual questions are assertions or inquiries about labels. . . . Conceptual claims are claims that cannot be directly verified or rebutted by empirical observation. . . .
Brian Bix(fn2)
Jurisprudence is a ragbag. Into it are cast all kinds of general speculations about the law.
-J.W. HARRIS(fn3)
I. Introduction
This paper explores borrowing a meta-theoretical approach to theory from the natural and social sciences in order to provide a framework within which to situate and evaluate the various theories one encounters in the field of law and jurisprudence.(fn4) Within the standard jurisprudence textbook, chapters often correspond to schools or traditions. Within those schools, there is often a range of views or theoretical positions that are more or less compatible with each other. The chapters on either side are often so placed because those schools come earlier or later on some view of the history of ideas or because they are the schools or traditions that generate the most amount of, or most interesting types of, debates. Of course, there is often a good deal of overlap between these two ways of organizing a jurisprudence text. Within the given schools, it is often easier to see how the claims are competing than it is between the schools. But, even here, there are many cases in which the different theories do not clearly engage each other. For example, natural law materials often appear this way. In many cases, the various schools of thought, like their chapters, simply sit next to each other with no clear connection. Of course, in some cases, the theories are set off against each other in debates, or as rivals for the "true" concept of law. However, outside of the debate, it is often hard to see how or if they really relate to anything else in the field. Often it is the case that students of jurisprudence go from one school or theory to another with one of three responses: (1) this makes no sense to me; (2) this makes some sense, but what is the point or relevance; or (3) this makes sense and seems true, but so do many of the schools, theories, and theorists we have studied.
How do we make sense of this feeling that many of the theories we encounter seem true? Is it that we really do not understand them, or is it because we are dealing with them too superficially? Is there a sense in which many, if not most, of the theories in jurisprudence are true?(fn5) If so, how do we distinguish those cases in which more than one theory can be true or provide true answers to legal questions and those in which more than one theory cannot be true? Can one meaningfully and usefully create a theory or model of legal theory or jurisprudence that helps us answer these questions, or is jurisprudence really just a ragbag or set of conceptual claims about labels? Is the search for something called "truth" in law a mistaken enterprise?
Let us examine the pull of some of these questions by looking at the famous hypothetical case of the "Speluncean Explorers" developed by Lon L. Fuller in 1949.(fn6) The hypothetical case involved a trapped group of cave explorers who killed and ate one of their group members in order to survive. The survivors were prosecuted for murder under a statute prescribing that: "Whoever shall willfully take the life of another shall be punished by death N. C. S. A. (n. s.) § 12-A."(fn7) A guilty verdict was rendered in the hypothetical court of first instance. Thus, the case came to Fuller's five-member appellate bench with the facts determined. Fuller's judges, each with a relatively clear theoretical approach to the law, then set out to determine whether the survivors were guilty of murder under the statute. On the one side of the court are judges holding mild(fn8) and strong(fn9) versions of plain meaning positivism, both of whom defer to the executive and to the legislature in their roles as executive pardoner and legislative lawmaker.(fn10) On the other side of the court are a natural law theorist and a realist-pragmatist who both, in different ways, look behind the text of the law to the context; the natural law theorist looking to enduring principles,(fn11) and the pragmatist looking to whatever is necessary for achieving the common sense result of an acquittal.(fn12) Then there is Justice Tatting who, while critical of the natural law approach, cannot bring himself to decide that the survivors are guilty.(fn13) He appears as a deer frozen in the headlights, stuck between what is right and what the "law" seems to require. He is not clearly convinced that "law" requires a guilty verdict, simply cannot decide, and thus withdraws under a cloud of indeterminate confusion.(fn14)
One might want to know which decision in this case was the best, or most true. Was Fuller's point in creating this equally divided court that the decisions were all equally true or that there simply is no truth to the matter? Is the truest position that of Justice Tatting? Is truth merely relative to the given theory used?(fn15) Is this just for fun? Fuller does not say. Some 25 additional judgments were made on Fuller's hypothetical between 1949 and 1999.(fn16) It is hard to imagine that all of these judgments could be correct or true. Several of the 30 judgments are far-fetched and unpersuasive. Many, however, are persuasive and will seem true to the student who reads them. With this in mind, can it be that only one of these 30 judgments is true? One might hope or expect that the latter judgments will have improved on those written in 1949; however it is in no way clear that all, or even most, of the subsequent judgments are better, more persuasive, or truer.(fn17)
If law were like the "hard" sciences of chemistry or physics, one might expect that our theories over time would, with perhaps some exceptions, improve. As time goes by, we expect our theories to improve our knowledge, improving our ability to explain the world and predict what will happen within the given aspect of the world that a theory covers. Rather than a simple proliferation of theories, we expect that theories with more truth content surpass and replace earlier theories. This phenomenon is not completely uncommon within some schools of jurisprudence. For instance, in moving from a view of law as a set of commands to a view of law as a set of primary and secondary rules, the history of legal positivist thought has perhaps developed in this way.(fn18) However, as will be demonstrated below, this is not always the case. Further, the multiplication of theories does not necessarily mean a lack of development, confusion, or a greater degree of indeterminacy. Significant gains in knowledge and understanding may also be taking place with the multiplication of theoretical approaches to the law. Whether one is talking of the natural sciences, the social sciences, or the law, it is important to distinguish those cases and senses in which multiple theories may be true, and those in which the theories conflict such that only one can be true.(fn19)
In everyday parlance, truth is immensely important to us. Most of us are raised to think that there is something to telling the truth, to speaking the truth, and to not telling lies. As we all know, if there is no truth there can be no lie. Jews, Christians and Muslims alike are raised with the injunction not to bear false witness against one's neighbor and I suspect most every other creed has some analogous injunction. Over the last 20 years or so, there has been a proliferation of "truth commissions" that have documented the gross violations of the "law" of human rights. It is probably safe to say that every legal system in the world punishes certain untruths in one way or another and every system relies on the notion. One of the goals of a modern legal system is to establish the truth of "facts" and to never convict unless the "facts" are certain. But our bedrock faith in truths that are self evident is often less secure when we talk about legal statements or propositions of "law" as opposed to statements regarding what we commonly refer to as "the facts." Nonetheless, even here there is a strong urge or need to think of there being answers to our legal questions that are true or false. We want there to be a distinction between facts and fictions when it comes to statements about the law. For instance, we want to be able to say, in no uncertain terms, that there is something called genocide, that it has occurred, and that it is both morally wrong and illegal. We want there to be no question about these "facts." The philosophical literature on truth is much more complex then our naive realist views about lying and truth telling. When one puts on the philosopher's cap, the...
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