16 August 2015

Finding the nature of law?

'The Misguided Search for the Nature of Law'  (Osgoode Legal Studies Research Paper No. 34, 2015) by  Dan Priel comments
Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence is not conceptual, since if these arguments are true, they imply that critiques of conceptual jurisprudence are misguided. I argue that such arguments involve a terminological change more than a challenge or a substantive alternative to conceptual jurisprudence. I then turn to examining conceptual jurisprudence itself. I distinguish between two families of views on concepts, “externalism,” which conceives of concepts as abstract entities, and “internalism,” which conceives of concepts as basic units of thought. Because of this difference, these two views lead to two quite different characterizations of conceptual jurisprudence, each calling for different response. Nevertheless, I argue that both are unsuccessful. I offer a series of arguments against each view: the main argument against the externalist position is that it is viciously circular (as it necessarily assumes the view of law it defends); the main argument against the internalist view is a bad form of sociology. I conclude with brief hints as to what a non-conceptual jurisprudence would look like.
Priel states
The question I want to examine in this article looks deceptively simple: What is the object of jurisprudence? What is it about? For many legal philosophers the answer to this question is obvious: Jurisprudence is about law. Stated in a bit more detail, jurisprudence is, first and foremost, a value-neutral description of the nature of law. What I hope to show is that this seemingly obvious answer hides more than it reveals. Presented slightly differently, 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 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.  
To many defenders of this enterprise, the search for the nature or concept of law calls for clarifying and defending “conceptual analysis,” a traditional philosophical practice aimed at identifying the true nature of things. Much of the work on the aims of jurisprudence thus focused on the viability of conceptual analysis in general. Among those, Brian Leiter has probably been the most persistent critic of conceptual jurisprudence. He did so mainly by relying on general criticisms of conceptual analysis, which he then applied to the domain of jurisprudence. At times he drew on W.V.O. Quine’s work against the analytic/synthetic distinction. Quine’s argument, in a nutshell, was that conceptual analysis seeks to discover analytic truths, i.e. truth in virtue of the meaning of terms alone. If (as Quine argued) there are no analytic truths, then there is no such thing as conceptual analysis, of law as much as of anything else. A second line of argument in Leiter’s criticism of conceptual jurisprudence, again following more general critiques of conceptual analysis, has been to argue that philosophers’ failure to provide an adequate analysis of even one concept strongly suggest (even if they do not prove) that the entire enterprise is misguided.  While I do think defenders of conceptual jurisprudence have done little (even in response to Leiter’s work) to acknowledge, let alone address, the many works challenging conceptual analysis in general philosophical literature, I think Leiter’s strategy is inadequate for two reasons. First, in some of his writings Leiter seems to suggest that there is universal agreement outside legal philosophy that conceptual analysis is dead. He writes, for example, “post-Quine, we know (don’t we?) that the analytic-synthetic distinction does not mark an epistemic difference but a socio-historical one.” No doubt, if conceptual analysis in general is indefensible, the same must be true of any special case of it. But the philosophical terrain is not as clear as Leiter presents it, and Quine’s arguments are not nowadays universally accepted. The second, and to my mine more important, shortcoming of Leiter’s approach, is its inattention to the details of conceptual jurisprudence. Different writers mean different, sometimes inconsistent, things when they refer to “conceptual jurisprudence,” when they say they seek to identify “the concept/essence/nature of law,” or when they say they are answering the question “what is law?” Until these different senses are disentangled, a defender of conceptual jurisprudence may reply that what she means by conceptual jurisprudence is not affected by Quine’s (and by implication, Leiter’s) critique. My approach therefore takes on the particular arguments found in jurisprudential literature and assesses each of them individually.  This makes for a longer, and perhaps more arduous, discussion, but given the comprehensiveness of my case against conceptual jurisprudence, this approach is inescapable.  
To illustrate this last point about the need to take individual arguments on their own, I will begin with a view that at first blush may appear to be entirely congruent with Leiter’s. Cognizant perhaps of the bad reputation of conceptual analysis in contemporary philosophy, several legal philosophers have argued that it is a mistake to think that jurisprudence has much to do with conceptual analysis at all. I have no doubt Leiter intended his critique to capture the work of these scholars, but so long as they claim that jurisprudence has little or nothing to do with conceptual analysis, they can declare criticisms of conceptual analysis, however sound, as having no bearing on jurisprudence. It is therefore important to examine these arguments closely and show why their arguments fail, why what are being presented as arguments dismissing conceptual jurisprudence are actually affirmation of it.  
That is the task of Part I. Following that I turn to discussing the various senses of conceptual jurisprudence. I begin by distinguishing between two families of views, which I call “externalism” and “internalism.” Roughly speaking, externalists think of concepts as entities that in some way exist outside (and regardless) of human minds, internalists treat concepts as building blocks of thought. Matters get even more complicated because there are different variants of each view. Parts II and III are dedicated to distinguishing among these different views, which are often confused in existing literature, and pointing out what I think are their weaknesses. After concluding with that discussion I turn in Part IV to several residual issues that may explain both the attraction of conceptual theories of law and their enduring popularity. Part V concludes by hinting at possible alternatives to the currently dominant conceptual jurisprudence.  
It goes without saying that I hope to convince readers that conceptual jurisprudence is not a viable enterprise, but I recognize that I am unlikely to convince everyone. I hope that even those who remain unconvinced will benefit from recognizing the need for greater clarity on what it is that they are doing when they engage in conceptual jurisprudence.
Asking "Is Jurisprudence Conceptual?" Priel goes on to state
Several writers have recently criticized the suggestion that jurisprudence is conceptual. Jurisprudence is, rather, about explaining “law itself,” not the concept of law. John Gardner, for example, wrote that “[t]he label ‘conceptual’ may give the unhappy impression that the object of study is the concept, rather than the thing of which the concept is the concept, in this case law.” Michael Moore argued that “[g]eneral jurisprudence should eschew…conceptual analysis in favour of studying the phenomenon itself, law.” And Andrei Marmor claimed that analytic jurisprudence “is not an exercise in conceptual analysis.” Instead, he stated, “an explanation of law is an explanation of observable phenomena, even if the phenomena are of a social kind.” Plainly, if these views are correct, my targeting contemporary analytic jurisprudence for its commitment to conceptual analysis is an attack on a straw man.  
Marmor’s suggestion is the most comprehensively argued, so I will start with it. It is a mistake to think that jurisprudence is concerned with conceptual analysis, he says, because the “the main methodological thrust of legal positivism is reductionism, not conceptual analysis.” The reduction in question involves “offer[ing] an explanation of law in terms of something more foundational in nature, that is, in terms of social facts, which, in turn, can be explained by reference to people’s actual conduct, beliefs, and attitudes.”  
As a description of the jurisprudential terrain this claim is revisionist in two senses. First, it flies in the face of much evidence that shows that many legal philosophers see themselves as engaged in conceptual jurisprudence: The most famous book in twentieth century jurisprudence is entitled The Concept of Law. When its author, H.L.A. Hart, reflected of his philosophical outlook he detailed his commitment to what he called “linguistic philosophy” and more specifically his indebtedness, above all others, to J.L. Austin, whose work focused on careful analysis of words and concepts. Marmor’s claim also ignores Joseph Raz’s statement in the opening pages of Practical Reason and Norms that the book was “primarily an essay in conceptual analysis,” and to the numerous defenses (some of them discussed below) of conceptual analysis within jurisprudence. To defend his view Marmor must say that not only have critics of conceptual jurisprudence misunderstood jurisprudential debates, but that all these legal philosophers (many of whose substantive views Marmor actually endorses) did not understand what they were doing. Second, to say that the methodological thrust of legal positivism is reductionism of obligations in terms of individual attitudes implies that both two of the most prominent legal positivists of the last century, Hans Kelsen and Joseph Raz, are nonpositivists. Marmor is of course entitled to redefine the boundaries between positivism and non-positivism in any he wishes, but that suggests that the argument is revisionary rather than accounting for what one finds in jurisprudential literature itself. Moreover, there is a high price for this revision: By presenting the debate between positivists and non-positivists as a debate about legal reduction, Marmor implies that the fighting camps agree on what things count as laws and only disagree on the right way to explain those things, namely on whether one can explain them reductively or not. As is well-known, however, one of the things that positivist and non-positivists disagree about is which things count as laws (for example, the status of unjust laws).  
On closer inspection it appears that Marmor’s claims involve more a redefining of terms than a challenge to conceptual jurisprudence. When he says that jurisprudence is not concerned with conceptual analysis, it is because he gives the latter a rather unusual understanding, saying it is “not distinguishable from the meaning of words in a given setting.” But that is just not how most people writing on concepts and conceptual analysis understand the term. When Raz recently said (repeating views he had expressed decades ago) that jurisprudence is not concerned with word meanings, he did not do so for the sake of distinguishing his work from conceptual analysis, for only a page later he went on to explain what concepts were (not word meanings) and explain the role of conceptual analysis within jurisprudence. Similarly, when Hart said that he was not seeking the meaning of words, he said this not in order to show that he was not doing conceptual analysis, but in order to distinguish what he was doing—conceptual analysis— from lexicography. Once again, Marmor could attribute massive confusion to all those defenders of conceptual jurisprudence, because they did not really do what they thought they were doing. I will suggest, however, they are not confused; or rather, not on this point. When we examine what defenders of conceptual jurisprudence mean by the term, it turns out that they do (or attempt to do) what they say they are doing. The surprising finding is a different one: Marmor’s views on what legal philosophy is about, presented (in the same essay) as an alternative for conceptual analysis, turn out to be a defense of conceptual jurisprudence.  
To make the case for the alternative, supposedly non-conceptual, understanding of jurisprudence, Marmor argues that legal positivism is primarily a theory about reduction. In saying that ,however, he confuses a general methodological commitment with a substantive view about law. Right at the beginning of The Concept of Law Hart stated that “neither law nor any other form of social structure can be understood without an appreciation of certain crucial distinctions between two different kinds of statement,”20 namely internal and external statements. As these words make clear, Hart did not think this was a thesis about law; he took this to be a general claim about all social practices (“social structures” in his words). But Hart’s book was not a book in the philosophy of social science. If it had been, it would not have had any claim to fame, for the distinction between internal and external points of view and the explanation of social practices in terms of individual attitudes was largely assumed in the book rather than argued for, and is in any case far from original to Hart. Whatever value The Concept of Law may have lies in its contribution to the understanding of a particular social practice. The central theses in the book are not claims about the right way to explain social phenomena, they are an explanation of a particular social phenomenon. Claims such as that law is a “union of primary and secondary rules,” or that “[t]here are…two minimum conditions necessary and sufficient for the existence of a legal system,” are not methodological claims about reduction in the explanation of social phenomena (in general), and even if they presuppose certain ideas about the explanation of social phenomena, they themselves are presented as conceptual claims about law.  
Moreover, many of the debates in jurisprudence have little or nothing to do with the question of reduction. For example, the debate between inclusive and exclusive legal positivists (to which Marmor contributed) cannot be about reduction, because much of it is conducted between scholars who share roughly the same views about reduction. Thus, even if one were to accept the claim that the main dividing line between positivism and non-positivism touches on the question of reduction, it leaves much of the jurisprudential terrain untouched. That terrain, I will argue, is conceptual.  
Finally, Marmor presents reductionism as a methodological position that is somehow to be contrasted with conceptual analysis, but it is not immediately obvious that the two are in conflict. Frank Jackson’s defense of “modest” conceptual analysis is offered as a necessary ingredient in the reductive project of defending physicalism. This is particularly important in this context, because as will be discussed in more detail below, in the very same essay Marmor defends a view that is in important respects similar to Jackson’s. Like Jackson, Marmor ends up defending a version of conceptual analysis (albeit of a very different from Jackson’s) as a preliminary step in a reductive account.  
We can set aside, then, the question of reduction as an irrelevant distraction. This does not yet answer the main line of argument of the scholars who say that jurisprudence is not conceptual. Jurisprudence, they say, is about describing or explaining the law itself, and not any “concept” of law. That was what both Gardner and Moore stated. Strictly speaking, however, these claims are clearly false. First, because any description of “law itself” would have to study a myriad of events, the behaviors and attitudes of a large number of individuals, and certain social and institutional structures. This is not at all what legal philosophers are interested in. For if legal philosophers, studying “the thing of which the concept is the concept,” then their methods would have been plainly inadequate for the task at hand. Law, the “thing,” is something that exists in the world, and so investigating it requires an empirical inquiry of things in the world, not the examination of abstract entities.
What philosophers are seeking is an account of all the properties those things in the world have in virtue of which they count as law. That is a wholly different inquiry from the search for “law itself.” Only a page after Gardner’s remark just quoted he says that “[t]he question of what it takes to qualify [as law], Hart’s main question, is a classificatory one.” Marmor too, after dismissing conceptual jurisprudence, argues that substantive analytic jurisprudence (as opposed to its methodological assumptions) is concerned with identifying the “essential features” of law. All this is quite different from explaining actual “social phenomena.” It is, at most, an articulation of what something must be for the sake of explaining that social phenomena.  
Furthermore, when one looks at how proponents of this view aim to do that, what we find is the familiar conceptual inquiry, conducted in the very same way as conceptual analysis, namely by examining our intuitions regarding certain thought experiments. Marmor, for example, specifies the method of discovering the essential features of law in the following way: “A feature of a social practice is essential to it if without it the practice would either not have existed at all or would have been radically different from what it is.” And this, he tells us, is to be discovered by “ask[ing] whether a practice that is similar in all other respects [to law], but lacks [feature] F, is still close enough to what we recognize as law in our society.”  
This is where the challenge to the conceptualist understanding of jurisprudence collapses. To see this, one needs to notice two kinds of philosophical thought experiments. One kind, exemplified by some famous thought experiments in the philosophy of mind—what is like to be a bat, the Chinese room, Mary and her red rose, the zombies, and so on—are designed to act as reductios, showing the possibility or impossibility of certain claims about what things are in the world. They aim to do that by showing that a view must be wrong, because it entails an absurd outcome. Thus, such claims are intended to tell us what things in the world must or cannot be. To examine the question of consciousness, for example, we are asked to imagine whether “philosophical zombies” are possible—whether creatures that are in every respect indistinguishable from humans but have no consciousness can exist.  
Besides the vigorous debates on these questions themselves, there is a lively debate within philosophy on whether (or when) we can trust arguments based on such thought experiments. These, however, are not at all the kind of thought experiments Marmor and other legal philosophers have in mind. Here, the aim is to tell us what something is. The best known examples of thought experiments of this kind are the so-called Gettier cases in epistemology. In these thought experiments we are asked to imagine a scenario and decide whether we should still call it an instance of “knowledge,” or—if it any different—whether it is an instance of knowledge. That is conceptual (or analytic) epistemology, and it is its exactly legal counterpart that Marmor proposes is the primary task of jurisprudence. The thought experiments proposed by Marmor do not aim to ask whether a slightly-changed social practice he imagines (law without a certain feature we find in law in the real world) is impossible. The practices we are asked to imagine in order to examine the essential features of law is clearly conceivable, possible and not absurd. The only question the imagined social practice is supposed to help us answer is whether we should still call it “law,” or—if it is any different—whether it is law. (Presumably if it is law, it is also correct to call it “law”.) This is what most people within legal philosophy call “conceptual jurisprudence,” and this is the target of this essay. Thus, both what Marmor presents as an alternative to conceptual analysis and the method he proposes to answer his question are identical to those of conceptual legal philosophers. But since my debate is not over terminology, if one does not wish to call this inquiry “conceptual analysis,” so be it: Call it “the search for the nature (or essence) of law.” That is what Marmor, Gardner, and Moore think is a fundamental task of jurisprudence, and that (too) is the target of this essay. 
'Metaphor of the Living Dead: Or, the Effect of the Zombie Apocalypse on Public Policy Discourse' by Daniel W. Drezner in (2014) 81(4) Social Research: An International Quarterly 825-849 comments
Whether one looks at films, songs, games, or books, the zombie genre is clearly on the rise. According to conservative estimates, well more than one-third of all zombie films have been released since the September 11, 2001, terrorist attacks (Bishop 2008). By any observable metric, the living dead have become the hottest paranormal pop culture phenomenon of this century. As the pace of zombie movie production has accelerated, the 2013 film version of World War Z has grossed more than half a billion dollars worldwide. Robert Kirkwood’s AMC series The Walking Dead has become a ratings powerhouse. Pundits, corporations, interest groups, and even government agencies have embraced the living dead as a tool for developing and advancing their own ideas and interests. 
Why do zombies continue to ride so high in the cultural sky? And, frankly, is this good for the humans? The spread of the living dead reflects a variety of anxieties in an American body politic buffeted by asymmetric threats and economic uncertainty. Surfing the cultural zeitgeist, a number of actors have adopted the zombie trope to advance their own political message. There are clear advantages in using the living dead as a pop culture hook for promoting political and policy ideas. The superficial homogeneity of the zombie canon, however,  also poses some drawbacks for its use going forward. Simply put, zombies are unique in genre literature in emphasizing the breakdown of modern society in the wake of an external threat. In propagating this narrative, constant references to the zombie canon can reinforce an apocalyptic perception about the future of modern society. As interest groups also appropriate and exploit the zombie narrative to pursue their own political agendas, their millenarian rhetoric helps to lay the groundwork for the societal breakdown that they claim to fear. The best solution to this conundrum lies in an embrace of more heterogeneous zombie narratives.
Robert Smith (ed) Mathematical Modelling of Zombies (University of Ottawa Press, 2014) - in building on the famous 2009 'When zombies attack!: Mathematical modelling of an outbreak of zombie infection' by Munz, Hudea, Imad and Smith - features several chapters of interest to scholars of personhood and emergencies, including
What Can Zombies Teach Us About Mathematics by Robert Smith 
Viral Spread of a Zombie Media Story by Robert Smith 
The Undead: A Plague on Humanity of a Powerful New Tool for Epidemiological Research by  Jane M. Heffernan and Derek J. Wilson 
When Zombies Attack! Alternate Ending by Phil Munz 
When Humans Strike Back! Adaptive Strategies for Zombie Attacks by Bard Ermentrout and Kyle Ermentrout 
Increasing Survivability in a Zombie Epidemic by Ben Tippett 
How Long Can We Survive? by Thomas E. Woolley, Ruth E. Baker, Eamonn A. Gaffney and Philip K. Maini 
Demographics of Zombies in the United States by Daniel Zelterman 
Is It Safe to Go Out Yet? Statistical Inference in a Zombie Outbreak Model by Ben Calderhead, Mark Girolami and Desmond J. Higham 
Is There a Zombicidal Maniac Near You? You'd Better Hope So! by Nick Beeton, Alex Hoare and Brody Walker 
An Evolvable Linear Representation for Simulating Government Policy in Zombie Outbreaks by Daniel Ashlock, Joseph Alexander Brown and Clinton Innes