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Thursday, March 16, 2006

Theory v. Theory

The maxim "It takes a theory to beat a theory," is frequently heard in legal academic circles.  (See, e.g., Justice Scalia's assertion of the maxim discussed here and here.)  The maxim is motivated by the idea that merely poking holes in some Theory X (be it scientific, legal, philosophical, etc.) is not enough to destroy it.  All or virtually all theories have weak spots.  Rather, one must construct an affirmative theory that is superior to Theory X in order to supplant it.  Thus, one might say, even if the Newtonian worldview failed to explain all of our observations, it was appropriate to adopt that worldview until a new theory (e.g., relativity) came along.  The new theory may be as elegant as the old theory, but it replaces it with some additional virtues, like improved comprehensivness or explanatory adequacy.

But does it take a theory to beat a theory?  As a general matter, the answer is "no".  We may decide that no extant theory warrants our belief.  Suppose I travel in a foreign country and discover that all ten people I spoke to on a given day were wearing the color green.  Several explanations may come to mind: (1) People in this country like to wear green; (2) People in this country who work in the tourism industry (or speak English) like to wear green; (3) it was a coincidence, etc.  Surely, I might determine that none of these explanations warrants my belief.  (Perhaps I should be more precise in distinguishing between a theory and an explanation derived from a theory, but I think I've illustrated the basic point.)

The same may be true of constitutional interpretation, though I think the matter is more complicated.  As a random citizen, one need not have a theory of constitutional interpretation and can withhold belief.  Federal judges, however, are often called upon to interpret the Constitution and, unless all plausible interpretations give the same result, federal judges must have at least a partial theory of constitutional interpretation (and, at least, a partial theory of interpretation more generally).  If, however, we can only infer a judge's theory implicitly from the judge's behavior (because the opinion is undertheorized), it is not at all clear that the judge has adopted some theory rather than none at all.  In the case of Theory v. Theory, I suspect that there are sometimes no winners.

Posted by Adam Kolber on March 16, 2006 at 01:43 PM in Legal Theory | Permalink


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Tracked on Mar 17, 2006 5:36:02 PM


Take a look at Ian Shapiro's (Yale Political Science plus J.D.) "The Flight from Reality in the Human Sciences" for a critique of the "it takes a theory..." theory. Prof. Shapiro criticizes the attempts to articulate unified human science theories of behavior, and particularly rational theorists who contend that if you have not stated a better unified "scientific" theory of behavior, then you have not refuted the rational choice claim. All of which is problematic if you don't think there is a scientific unified theory (i.e. that there is something helpful in moral philosophy).

Posted by: Jeff Lipshaw | Mar 16, 2006 5:12:36 PM

I think you're confusing two separate issues. It does take a theory to beat a theory, but that isn't to say - as you seem to suggest in your concluding paragraph - that one HAS to have a theory. The point of the saying isn't that a judge who can't offer an alternative to originalism must therefore be an originalist (they can choose to simply not have a theory) but rather, that it is intellectually indefensible for him or her not to be.

Posted by: Simon | Mar 16, 2006 5:25:08 PM

Jeff, thanks for the pointer.

Simon, I think I'm challenging the notion that it is intellectually indefensible to not have a theory. In many contexts, not having a theory is the right epistemic attitude to adopt. I reserve judgment, however, whether, in the particular context of judicial decisionmaking, judges must choose some theory of constitutional interpretation over none at all.

Posted by: Adam Kolber | Mar 16, 2006 5:35:21 PM

Judge Easterbrook points out that theories of legal intepretation depend upon, and implicate, premises about political legitimacy. In a liberal society, the question of legitimacy cannot justly be ignored. (That's a key difference between the "green clothing" example and judging.) When citizens ask why the courts should be obeyed even when they contravene the popular will, the courts are obliged to provide a reasoned answer.

In order to do this, a judge must say something concrete about the institutional role she conceives the judiciary to play in our political order. Various roles are conceivable. The role-conception that a given judge chooses then limits her discretion in characteristic ways when she interprets statutes and constitutional provisions.

For these reasons, a judge is indeed obligated to have a theory of judicial decisionmaking. (In principle this is true not only of judges, but also of lawyers, scholars, and citizens in general. In a democracy, it is supposed to be everyone's business whether power is being exercised legitimately.)

Posted by: Plainsman | Mar 16, 2006 7:39:49 PM

The role-conception that a given judge chooses then limits her discretion in characteristic ways when she interprets statutes and constitutional provisions

... assuming she is a good judge, is the unspoken qualifier.

Posted by: Plainsman | Mar 16, 2006 7:47:09 PM

Theories of legal interpretation and scientific theories are two very different things. Theories of legal interpretation are better understood as methods of legal interpretation, and I think they are more analogous to the scientific method than they are to any scientific theory. We can't evaluate competing scientific theories unless we have a pre-established method of doing so, and we can't derive that method from observed data. We have to simply decide on one a priori.

It's impossible to decide cases without having some sort of methodology. The method may not be evident in the decision and the judge may not be able to articulate his methodology, but it has to exist. Decisions can't simply be pulled out of thin air.

The idea that judges should decide cases without a clear and consistent theory is what I like to call the Col. Kurtz theory of legal interpretation. Even if it were logically possible, we shouldn't idealize a judge who don't have a method. That's even worse than a judge whose methods are unsound.

Posted by: FXKLM | Mar 16, 2006 8:42:32 PM

It's impossible to decide cases without having some sort of methodology.Does working out what you think is the "best" result, and backfilling from there, qualify as a legal methodology at all, let alone a valid one?

Posted by: Simon | Mar 17, 2006 11:28:48 AM

I can't speak about scientific theories, but I can give a good example of a legal theory that should supplant a theory. Goes like this:

1. Traditional theory, after a complaint is filed in a federal civil suit, the defendant can file a "responsive pleading" by electing to file one of the authorized motions under Rule 12, or an Answer.

2. The better theory that supplants the traditional theory, is after one files an admiralty salvage complaint, due to Supplemental Admiralty Rules A (more specific admiralty rules prevail over conficting gederal Federal Rules of Civil Procedure) and C(6)(b), a defendant does not get to file a "responsive pleading," but instead "must file an Answer within 20 days after filing a VErified Claim," hence one who files a Rule 12(b)(6) motion to dismiss in this instance in lieu of the required Answer, defaults.

Posted by: Mary K. Day-Petrano | Mar 17, 2006 1:56:45 PM

Fascinating post. Here are two follow-ups on "physics envy" based on Alasdair MacIntyre on the nature of generalizations in social science:

1) From Michael Froomkin's jurisprudence course (examining whether law is a science)

2) from some notes on MacIntyre backing up the difference between natural and social sciences:

Four elements make human life radically unpredictable and not amenable to theories:

a) Radical conceptual innovation
b) Unpredictability based upon not knowing the future events.
c) Game theory forgets the difference between prospective and retrospective knowledge.
d) Pure contingency (99)

And some eloquent resulting reflections:

"It is necessary, if life is to be meaningful, for us to be able to engage in long-term projects, and this requires predictability; it is necessary, if life is to be meaningful, for us to be in possession of ourselves and not merely to be the creations of other people's projects, intentions and desires, and this requires unpredictability. We are thus involved in a world in which we are simultaneously trying to render the rest of society predictable and ourselves unpredictable, to devise generalizations which will capture the behavior of others and to cast our own behavior into forms which will elude the generalizations which others frame. If these are general features of social life, what will be the characteristics of the best possible available stock of generalizations about social life?" (104)

My answer-in-a-nutshell: generalizations that balance an objective observation of human behavior with a subjective, hermeneutic, interpretive sense of what that behavior means to its doers and those around them.

Posted by: Frank | Aug 21, 2006 2:36:51 PM

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