'On Legal Expertise' by Felipe Jiménez in (2024) The American Journal of Jurisprudence comments
Legal experts can reliably ascertain which legal norms are valid, and therefore which legal propositions are true. Legal experts are in this position because they have a grasp of the deep cognitive structure of law: the habits, commitments, and values that characterize the practice of legal argument in a specific jurisdiction. Legal expertise, thus understood, determines the content of the law, which is therefore not reducible to an aggregation of authoritative legal texts. Because social facts about legal experts’ values and commitments can determine the content of the law, references to moral considerations and principles of justice as valid legal reasons, in legal argument, are not a problem for (at least some forms of) legal positivism. Legal expertise thus shows that non-positivists might be right about (as they would put it) the irreducibility of legal content to communicative content without being right about the claims that moral facts determine the content of the law or that the validity of legal norms turns on moral considerations. Legal expertise also plays an important causal role in legal decision-making and is not, as some of the literature on judicial decision-making might suggest, epiphenomenal. From a moral perspective, while the existence of a class of legal experts is not necessarily valuable, it does have certain benefits, particularly in conditions of moral disagreement.
People routinely make claims about the legal status of behaviors. Some of the propositions expressed by these claims are true; others are false; and some are just plausible. One of the questions that legal philosophers focus on is, precisely, what types of facts make it the case that a legal proposition is true or at least plausible. This is the question about what some legal philosophers call “the grounds of law”—about the facts that provide the explanation for the validity of legal norms, and therefore for the truth (or plausibility) of true (or plausible) legal propositions. Some theorists believe that one can explain why legal norms exist or are valid simply by alluding to social facts alone, while others think the full explanation must allude to moral propositions. This is the basic divide between legal positivism and its critics.
Despite this divide, legal theorists generally agree that the actions and practices of individuals and groups, and particularly those of legal officials, play an important role in explaining the validity of legal norms. Hart, for instance, answered the question about the grounds of law by reference to what he called the “rule of recognition.” The rule of recognition summarizes the complex practice of legal officials that determines what normative standards are legally binding in each legal system (or, at least, what facts count as valid sources for such standards) and allows agents to identify those standards (or sources), by setting out a master test of legal validity. But the fact that what makes legal norms valid and legal propositions true depends—at least partly—on the practices of people acting within legal institutions is widely recognized. Dworkin, for instance, insisted on the legal and theoretical significance of the historical record of the enactments and decisions of legal officials.
The number and complexity of these practices, enactments and decisions in contemporary legal systems raises the question of who has the ability to ascertain, on their basis, which legal norms are valid, and which legal propositions are true or plausible. One intuitive answer alludes to legal experts. This paper offers an account of the nature and value of legal expertise.
As far as I am aware, there is no body of legal philosophical work attempting to elucidate the notion of legal expertise or to systematically discuss its nature, impact, and value. In this aspect, the paper’s indirect aim is to persuade readers that there is something important, and worth exploring, in this notion—not directly, but by offering an account that hopefully illuminates its significance for important jurisprudential debates. On this account, legal expertise is a grasp of the deep cognitive structure of law: the habits, commitments, and values that characterize the practice of legal argument in a specific jurisdiction. Understood in this way, legal expertise is one of the set of social phenomena that explain the content of the law, which is therefore not reducible to an aggregation of authoritative legal texts.
There are multiple issues in legal theory that might be impacted by an adequate understanding of legal expertise. Five implications are particularly salient in this paper. First, the account has an impact on the debate about the grounds of law—specifically, it shows how legal experts’ activities are amongst the facts that explain the content of valid law. In this regard, the account expands the agents’ whose practices count for grounding valid legal norms: not just lawyers and judges acting as legal officials, but also other legal experts without any formal authority, but whose activities contribute to determine the content of the law. In the context of this debate, legal expertise also shows why references to moral considerations, principles of justice, and even to anti-positivist claims in legal argument need not be particularly problematic for a positivist view about the nature of law. Second, the account shows that, in contemporary legal systems, some minimal degree of juristocracy is not a pathology but a central aspect of legal governance. An important part of law is, in fact, made by lawyers. Third, the contribution of legal experts’ cultural practices and shared understandings to the content of the law provides additional fodder against, or at least complicates, some aspects of what Greenberg calls the “standard picture,” according to which legal content is reducible to, and directly explained by, the communicative content of legal texts. All of these implications are the subject of Part I. The fourth implication, addressed by Part II, is the following: legal expertise complicates familiar pictures about the distinction between legal and extra-legal considerations—particularly in the empirical study of judicial decision-making. Finally, the fifth salient implication of the argument—the focus of Part III—is that legal expertise is morally valuable, even if it comes with certain costs. Highlighting the value of legal expertise is relevant in light of recent arguments that deemphasize its significance.
Here is a brief roadmap. Part I explicates the notion of legal expertise, identifies its content, and elucidates its significance for jurisprudential debates. Part II discusses the relevance of legal expertise as an empirical matter—and argues against the idea that legal expertise plays no causal role in judicial decision-making and (more broadly) legal reasoning. Part III explores questions about the value of legal expertise. While whether legal expertise is all things considered valuable is a contextual question, I will suggest two benefits—what I call practical learning and the channeling of disagreement—that must be part of the evaluation in specific cases.
