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Thursday, July 17, 2014

Kolber on Dichotomies in Law ... And Just Another Few Words on the (False) Dichotomy of Theory and Practice

Apropos of my comments about "dichotomy skepticism," frequent Prawfs guest Adam Kolber (Brooklyn, below left) dropped me a nice note about his recently published California Law Review article Smooth and Bumpy Laws on the same topic. Here's the abstract: 

Adam_kolberModest differences in conduct can lead to wildly different legal outcomes. A person deemed slightly negligent when harming another may owe millions of dollars. Had the person been just a bit more cautious, he would owe nothing. Similarly, when self-defense is deemed slightly negligent, a person may spend several years in prison. Had the person been just a bit more cautious, he would have no criminal liability at all. Though the law must draw difficult lines, the lines need not have such startling effects. We can adjust damage awards and the severity of prison sentences anywhere along a spectrum.
A legal input and output have a “smooth” relationship when a gradual change to the input leads to a gradual change to the output. The prior examples are not smooth but “bumpy”: a gradual change to the input sometimes dramatically affects the output and sometimes has no effect at all. The law is full of these bumpy relationships that create hard-to-justify discontinuities.
In this Essay, I discuss the relative advantages of smooth and bumpy legal relationships and explain how the choice of an input-output relationship differs from the choice between rules and standards. I argue that smooth relationships will often create less “rounding error” than bumpy relationships by more closely approximating our underlying moral norms.

Adam's approach to this issue is infinitely more practical than my own - the goal of the article is to set forth a template for creating law that does a better job of not being binary where the consequences of actions are not themselve binary but fall on a continuum of harm or fault.  It's a terrific piece (with over 400 downloads on SSRN); I'd see Larry Solum's "Highly Recommended," and raise him one "Download It While  It's Hot!

Perhaps to beat a dead horse, but below the break I want to return to theorizing about the false dichotomy between practice and theory (NB: it's a horse that doesn't want to die, seeing as how in 1793 Kant published his essay "On the Old Saw 'That May Be Right in Theory But It Won't Work in Practice'", and we're still debating it here).

Adam's piece invokes the modern turn to legal positivism, seeing legal and moral norms as distinct.  ("Legal versus moral" is a particular dichotomy in that debate.)  He's saying (as I read it, and so I apologize), "Look, the law as a social artifact often requires these bright line distinctions that don't really necessarily map well on moral norms.  So within our discipline, let's think about that and do a better job being binary where we need to be, and not so binary where we don't."  As I said, great stuff.

But I want to see Adam's intuition about false dichotomies within the law and raise him one on positive law itself as dichotomously distinct from other norms and disciplines.  There's a wonderful paradox here.  I do think there's a continuum at one end of which there are norms clearly of positive law, regardless of their morality, and at the other end of which there are norms that simply do not constitute law.   That is, Kelsen's or Hart's articulation of positive law divorced from morality clearly has explanatory "oomph."  But to treat the difference as a dichotomy?  I think it's an illusion that as lawyers and law professors we can practice and teach as though what we do within our discipline is bounded off and hermetically sealed (pace Luhmann, Teubner, and theories of autopoiesis).  Maybe if you are in some segments of the judicial system, but not in my world!

I mentioned in the last post on theory and practice that I presented a paper on Hans Kelsen's theory of legal positivism at a conference last month.  Terrific conference, but I am holding off posting the paper on SSRN as the organizers are discussing the publication of the papers in a book.  The title is "Cognition and Reason: Rethinking Kelsen in the Context of Contract and Business Law."  (Send me a note if you'd like to see it.)  Here's a sampling from the end of the paper:

Perhaps as the result of a long career in doing law “purely” as a law firm lawyer and “not-so-purely” as an interdisciplinary law-and-business practitioner, I am far more inclined to think of law in the context of lawyering, and thus doing, rather to think of it as an object of demarcation and classification. This is the conundrum at the heart of the positivist project as least as it appears in the law of contracts: that cognition of the “law” on the books or the physical reality of contracts is each trivial from an epistemological standpoint, and the whole game is in the theories, sometimes descriptive and sometimes normative, that constitute the systematic application of rules to circumstances, whether before or after the fact. No single label serves us particularly well. To call what we are doing mere practical reason, for example, suggests that our only goal is to decide what to do, and fails to acknowledge the descriptive theorizing we often need to do about what actually happened in the creation of the legal norms. “Formalism,” for example, in the sense of a presumption that the parties are best served by a derivation of their rights and obligations from the text of the document, is simply a practical guide to the exercise of both practical and theoretical reason in resolving the issue. Even after Hart’s overshadowing of Kelsen, the Pure Theory and the Basic Norm open the door to an assessment of what it means to do law that is, to me, more satisfying than Hart’s approach, even if I wonder from time to time about the aridness of the entire philosophical project of distilling legal norms from all the other “oughts” by which we live.
My pluralism as to exploration of the objective and the subjective knows few bounds. Reason may well be the slave of the passions in employment of legal doctrine (and I do teach it that way because we live in a passionate world), but long experience at the intersection of law and business inclines me to think we are free and autonomous moral agents when we make the choice in the first instance to turn to law rather than all the other possible norms that inform relationships. That is, the reasoning we happen to do as lawyers is not particularly privileged, notwithstanding the efforts of Kelsen and others to distill and fence off law as an academic or professional discipline. Kant wanted to deny knowledge of that which is not knowable to make legitimate room for faith; I prefer to deny the law (at least for the business lawyer) is something we know as a matter of a priori cognition so as to make room for theoretical and practical reason that takes account of law, morality, principle, compromise, civility, and pragmatism. Even more radically, I see Kant’s account of reason itself as merely one of a number of cognitive processes – among them, for example, the kind of metaphoric thinking and cognitive blending proposed by George Lakoff, Mark Turner, Gilles Fauconnier, Mark Johnson, Steven Pinker and others – that mediate between our cognition of the world around us and acting in response to it.

In short, even the defining of a discipline creates a dichotomy, and if it's not false, then at a minimum it's unhelpful when it comes to practical exercise of that ineffable thing we call wisdom.  And I continue to think it's our job not just to impart technical skills, but also to impart wisdom - even if they don't test wisdom on the bar.  And there the lines between theory and practice once again blur.

Posted by Jeff Lipshaw on July 17, 2014 at 03:25 PM | Permalink


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