Thursday, May 26, 2016

The Life Cycle of Prescriptive (Legal) Theories

Caspar David Friedrich - The Stages of Life

Legal officials have to make decisions. Take the judge as an example. He or she is confronted with legal disputes everyday, some involving private legal disputes (e.g. breach of contract), some involving purported criminal acts (e.g. alleged murder), some involving the infringement of constitutional rights (e.g. limitations on the right to free speech). When confronted with these decisions the judge must decide whose case will prevail, which interests to prioritise, what can and cannot be done as a matter of law. Oftentimes these disputes involve contentious matters of political morality. For example, the judge may be asked: can the legislature of the country ban controversial forms of speech on the grounds that they offend the interests of minority groups, or does the right to free speech trump any such offensiveness?

Judges might try to decide these cases by directly engaging with the moral and political issues they raise. But oftentimes they are reluctant to do so. There is a worry that the judge is not politically empowered to use such criteria in making decisions. They simply apply the law, whatever it is. It is for others, usually directly elected assemblies, to weigh the values inherent in these controversial political matters. And what’s true for the judge is true for other legal officials. Bureaucrats and regulators are also granted decision-making authority and there are occasions on which this authority brings them face to face with controversial questions of political morality. They too are often reluctant to directly engage with these matters as they feel it is contrary to their political-legal role.

Worries about the legitimacy of such decision-making authority has often led legal scholars to propose apolitical prescriptive legal theories. These are theories that propose decision-making procedures that are shorn of any concern for the controversial political content at the heart of legal disputes, and allow legal officials to make their decisions in an objective, neutral fashion. Or so, at least, these theories often claim, but anyone who has read up about these theories will know that they often fail to be objective and neutral.

Indeed, there is a common life-cycle to many prescriptive legal theories. They start off strong, purporting to provide an apolitical solution to the legal official’s problem, only to become attenuated and weakened over time. They then either persist in the attenuated form or die off. This life-cycle is articulated in a recent paper by David Pozen and Jeremy Kessler. I want to describe their proposed model of the life-cycle in this post. I do so because I think it is an interesting idea, and because once you know about it you will start to spot the pattern elsewhere. I’ll give an example of one prominent contemporary debate in applied ethics that shares this pattern at the end of this post.

1. The General Idea
Pozen and Kessler’s life-cycle consists of six major stages. They don’t give these stages names, but I will since I like giving names to things in order to make them more memorable:

T1 - Birth: A decision procedure is introduced that purports to allow legal officials to resolve highly politicised legal conflicts in a way that does not appeal directly to the political values at stake in those conflicts. In other words, a decision procedure is introduced that depoliticises a decision-making function.
T2 - Critique: The proposed decision procedure is batted about for a while and critics start to spot flaws in it. Some of these are quite academic and technical, some of them are more value-laden. The most common, in legal contexts, is to point out how the procedure fails to yield the ‘right’ decision on some matter that is subject to universal (or near-universal) approval.
T3 - Response: Proponents of the theory respond to the critiques by modifying the decision procedure it in such a way as to avoid the technical and political objections.
T4 - Iteration: This process of critique and response cycles back and forth for some period of time. At each stage the theory adapts to accommodate a critique by incorporating commitments or assumptions that bring it back closer to the original highly politicised conflict.
T5 - Maturity: The theory reaches a point where it becomes so adulterated and attenuated that it essentially starts to reflect the ‘conflict-ridden field it had promised to transcend’. In other words, we arrive back at the same state we were in at around the time of the theory’s birth. At this point in time one of two things will happen:
T6(a) - Death: The theory falls out of favour and (possibly) something new is proposed in its stead.
T6(b) - Persistence: The theory persists, albeit in the highly adulterated and attenuated form. There are several reasons why this may happen (discussed in Pozen and Kessler’s paper), the main one is simply that the language and structure of the theory has certain side benefits for those who continue to couch their arguments in its terms.

Pozen and Kessler's Life Cycle of Legal Theories

The net result is that the prescriptive theories tend to ‘work themselves impure’ over time. This model will probably seem a little abstract right now. Pozen and Kessler illustrate it with several examples in their paper. I’ll go through one of them below. Before that, however, I want to note a couple of things. First, as the authors themselves point out, there is nothing particularly novel about this model. Similar life cycle models have been proposed in other fields. A notable example would be the model of scientific theories proposed in Thomas Kuhn’s famous book The Structure of Scientific Revolutions. Kuhn argued that scientific theories are originally proposed to explain some set of observations. Over time, new observations are made that seem to conflict with the theory. The theory is forced to accommodate these observations by adding auxiliary hypotheses or sub-theories to account for the anomalies. This results in some adulteration and attenuation of the theory, until eventually there is some ‘paradigm shift’ to a new theory.

Nevertheless, there is something unique about prescriptive legal theories that makes them particularly susceptible to the life cycle proposed by Pozen and Kessler. Apolitical prescriptive theories tell legal officials how they ought to resolve controversial moral-political debates. But they do so by encouraging them to avoid direct engagement with the values that are at stake. The problem is that those values are what ultimately matter and they consequently have a way of re-surfacing over time. There is a sense then in which the theories can never really do what they purport to do (these are my words, not Pozen and Kessler’s): they are always forced to encompass the moral contestation that sparked their formulation. To be clear, this is not true for all prescriptive legal theories — some are more honest and upfront about their attempt to accommodate core political values — but it is true for those that go down the apolitical route.

2. The Life-Cycle of Constitutional Originalism
One of the examples used in Pozen and Kessler’s article is that of originalist theories of constitutional interpretation. I’ll set out this example here because it is the one I am most familiar with and provides a very clear illustration of the life cycle (for those who don’t know, I’ve written two academic articles that are critical of the more philosophical versions of this theory). There are some very detailed and interesting histories of originalism out there. The gist of that history is as follows.

The US Supreme Court under Earl Warren (and, in the early years, under Warren Burger) was renowned for making a series of progressive and significant constitutional decisions. Some of these were widely celebrated (e.g. Brown vs Board of Education about the desegregation of schools) while others were more hotly contested (e.g. Roe v Wade on the right to abortion). The more hotly contested decisions provoked a backlash among conservative lawyers and legal scholars. They felt that decisions like Roe v Wade involved judges stepping beyond their constitutional authority and making judgments of political morality that were the proper preserve of the legislature or executive.

This backlash led to originalism. In its initial form, originalism promised to provide judges with a simple decision procedure that allowed them to reach determinate outcomes in controversial cases without implicating controversial political values. It thus prevented them from overstepping their constitutional authority. The decision procedure required them to interpret the provisions of the constitution in accordance with their originally intended meaning. That is to say, the meaning that the drafters and ratifiers of those constitutional provisions would have intended them to have. This would reduce the judicial task to one of factual and historical analysis; not normative or moral theorising.

In its original (!) form, originalism was simple and (to a certain mindset) appealing. It soon ran into difficulties. Critics pointed out that there was not always good evidence for the intentions of the original framers and ratifiers; and that the whole concept of a single original intent was philosophically and factually problematic. What’s more, critics argued that if you followed the originalist decision procedure to the hilt, you would have to overturn widely-accepted precedents like Brown v Board of Education. The challenge was to modify the theory so as to accommodate these critiques and enable consistency with widely-accepted precedents.

This led to several cycles of modification and elaboration. Originalists dropped their commitment to intent and switched instead to the originally understood public meaning. They acknowledged that certain provisions within the constitution might be vague or ambiguous and hence that there was room for moral or political creativity when it came to applying those provisions. They also started to draw distinctions between the normative and semantic versions of the theory, and between the interpretive and constructive tasks of the judge. Taking this more sophisticated theoretical structure onboard, scholars engaged in more detailed historical inquiries that allowed them to account for decisions like Brown v Board of Education. Indeed, so modified and elaborated did the theory become that one prominent liberal living constitutionalist (Jack Balkin) argued that it was possible to reconcile originalism and living constitutional theories of interpretation. The consequence was that originalism became so weak a theory that virtually anyone could embrace it and apply it in a way that accommodates different political values. We got back to where we started.

And yet, as Pozen and Kessler note, originalism is one of those theories that seems to persist in its attenuated state rather than dying off. They argue that this is because the language and structure of the theory has side benefits for those who endorse. In particular, with its complex structure and refined reasoning, it may tend to ‘enhance the power and prestige of lawyers as a privileged expert class, while raising barriers to entry for nonlegal actors’ (Pozen and Kessler 2016, 51).

3. Conclusion - Is Effective Altruism Working itself Impure?
I don’t have too much to say in response to this. I haven’t collected systematic evidence on the life cycle of all prescriptive legal theories, but the model proposed by Pozen and Kessler seems intuitively right to me. Furthermore, I think I see it in operation in other fields. One example which springs to mind is the ongoing debate about effective altruism (EA). I’ve been writing a series of posts about this theory so it is to forefront of my thinking at the moment.

As noted in that series, when it originally burst onto the scene, EA seemed to provide an attractive, rational and evidentially robust procedure for making decisions about charitable donation. This is a hotly contested field, with many different causes competing for our attention, often seeming to be equally worthy of our money. EA promised to cut through some of the noise. It adopted simple, appealing metrics of effectiveness, highlighted underappreciated causes, and allowed its followers to feel good about their charitable decision-making by convincing them that by prioritising certain charities they were doing the most good with their limited resources. But critics have started to identify flaws in this initially appealing theory. They argue that it ignores important moral goods, prioritises biased or incomplete metrics of effectiveness, and is not quite as rational or effective as its proponents would have you believe. Fans of EA have typically responded by trying to accommodate some of these criticisms, and by expanding the range of metrics and considerations that can go into the assessment of charitable donations.

We are at the early stages in this process of critique and response so it’s not entirely clear where things will end up. But I suspect it may end up following the life cycle outlined by Pozen and Kessler. In other words, I think that as the theory of EA grows to encompass the anomalies and omissions highlighted by its critics, it may become so attenuated as to leave us largely where we started. Where once EA provided clear guidance on which charities to support; it will eventually end up endorsing many, mutually inconsistent ones. It will thus fail to provide the clarity and simplicity it once provided. Where things will go from there is anyone’s guess. Will EA die out, or will the language and structure of EA have side benefits that enable its persistence?

Of course, this is all somewhat speculative but it will be interesting to see whether EA does indeed follow this life cycle.

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