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Wednesday, September 30, 2009

Law and Intuitions

Laypeople's intuitions about what the law should be sometimes factor into scholarly arguments about what the law should be.  There are two principal ways in which such arguments are made.  In the "predictive" mode, we seek to understand lay intuitions because we think that laypeople will be more compliant with laws that match their intuitions.  Laypeople may better understand and respect laws that match their own personal views.  When making such arguments in a scholarly context, there is no suggestion that laypeople have special ways of knowing what laws are morally right.  These arguments are merely predictive.  We use them when we try to manipulate behavior in order to encourage compliance with the law. 

In the "justificatory" mode, we treat intuitions as capturing some sort of moral beliefs or sentiments.  If our considered intuitions line up in certain ways that cohere with a general principle, we might think that our intuitions help justify the underlying principle.  There is quite a bit of dispute about precisely how our intuitions should factor into normative arguments, but widely-shared intuitions are nevertheless frequently used to buttress normative legal and ethical claims.

By staying in the predictive mode, we can avoid some difficult conceptual problems about the relationship between intuitions and moral justification.  I take this to be a central task of those, like Paul Robinson, who argue that the criminal law should generally try to match laypeople's intuitions.  By so doing, it is hoped, people will recognize the law's moral authority and be more likely to comply with its commands.  Robinson does not claim that laypeople's intuitions are justified but rather that we can use their intuitions as tools to promote compliance with the criminal law.

I view Robinson's project, a kind of consequentialism which he calls "empirical desert," as an important one.  Criminal law scholars have paid too little attention to the ways in which laypeople understand the law (an interesting psychological question in its own right) and how, if at all, lay views should affect both consequentialist and retributivist theories of punishment. 

But I do think that empirical desert advocates still have their work cut out for them.  It is difficult to demonstrate that laypeople will comply more with laws that match their intuitions.  It is harder still to estimate the amount of compliance that can be induced by changing the law to better match lay intuitions.  Since changing the law will have many different effects (in terms of cost and levels of incapacitation, for example), it is difficult to know whether to change the law unless we can estimate the amount of compliance we can plausibly expect to gain.  Until then, empirical desert might be helpful only in limited situations (for example, when we are on the fence about which policy to choose and empirical desert pushes us in one direction).  I describe this challenge to empirical desert in more detail (along with some others), in this draft article, How to Improve Empirical Desert.

Posted by Adam Kolber on September 30, 2009 at 11:16 AM | Permalink


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I think that's a very interesting application of our intuitions to the law. It is also interesting to compare the approach you describe to the strain of law and economics that seeks to explain why some common law rules that do not seem intuitive actually make sense from a law and economics perspective.

In any event, though, I would consider both of your uses above to be predictive (in the way that I use the terms) because stability is not serving to justify the policy directly. It is simply a consequence of the policy that you might find beneficial given pre-existing commitments. For example, anti-same-sex marriage laws may promote stability in the law but I don't think such stability figures into a non-consequentialist justification for those laws.

(Of course, if you're a consequentialist, things like stability and compliance-friendliness do factor into all-things-considered moral justification.)

Posted by: Adam Kolber | Sep 30, 2009 4:01:30 PM

There is a third way in which intuitions shape laws. Judges and lawyers are people, too, and if law is to diverge significantly from their own intuitions (of the sort they had before they went to law school or learned a particular area), it will require a continue investment of effort. The greater the divergence, the greater the intellectual energy that must expended in maintaining doctrine against intuition's gravitational pull. This effect is both predictive and justificatory. It predicts that unintuitive laws will face continual challenge from within the bar, and it justifies intuitive laws on the grounds that they're more stable.

Posted by: James Grimmelmann | Sep 30, 2009 11:57:38 AM

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