Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Thursday, July 31, 2003
Bertram on Cohen Chris Bertram has an impressive post on Gerald Cohen's Facts and Principles (download requires subscription). Chris makes this observation about the main point of Cohen's piece:
Update: Another impressive post on Crooked Timber by Jon Mandle can be found here. Mandle argues in a different way for the conclusion that Rawls is not Cohen's real target.
Simons on the Precautionary Principle Kenneth Simons, the distinguished tort scholar from Boston University, writes with some comments about the precautionary principle. For my post, go here. Ken's comments are an excerpt (which was only very slightly revised in the published article) from Kenneth W. Simons, Negligence, 16 Social Philosophy & Policy 52 (1999):
2. Gregory Keating, ³Pressing Precaution Beyond the Point of Cost-Justification² 56 Vanderbilt Law Review 653 (April 2003), forthcoming, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=424609.
Eden on Arneson About a week ago, I posted a link to a new paper by Richard Arneson, entitled Democracy is Not Intrinsically Just. John Eden writes with some interesting comments which you can read on the Legal Theory Annex.
Pryor Cloture Vote Fails Courtesy of the incredible Howard Bash, the AP report is here.
Marston on Judicial Self-Understanding Brett Marston has a very thoughtful and nuanced post on legal realism, legal formalism, and how judges understand themselves. Recommended.
The Precautionary Principle
Defining the Precautionary Principle What is the precautionary principle? Honestly, I am not sure I know. I've poked about a bit, hither and yon, and I'm not sure there is a clearly-formulated, well-accepted definition. Last time, I used this definition:
My conclusion is that Adam Kessel's criticism was entirely fair. Although I spent a bit of time searching for versions of the precautionary principle; I really can't say that I found the best, most defensible version. And it turns out that the most authoritative versions are also vague. So let's take a deeper look at the issues the underlie the difficulties in formulating the precautionary principle.
Untangling the Definition: Burdens of Proof, Persuasion, and Production & Standards of Proof The precautionary principle is concerned with the burden of proof, but in order to get straight about the principle, we need to disentangle what "burden of proof" means. Here one useful way to analyze the notion of a burden of proof:
--The burden of persuasion is correlative with the risk of nonpersuasion. The party (or social actor) with the burden of persuasion must be convincing (by some standard of proof) with respect to an issue. In criminal trials, the burden of persuasion (like the burden of production) rests with the prosecution. Although the burdens of production and persuasion can be joined together--they can also be pried apart. For example, once a party has raised an issue, the burden or persuasion could then rest elsewhere.
--The standard of proof is the quantum (not necessarily numerical) of evidence required to meet a burden of production or persuasion. Thus, in criminal trials the burden of production and persuasion is on the prosecution to establish guilt beyond reasonable doubt. In civil cases, the burden of persuasion is on the plaintiff to carry the elements of her case by a preponderance of the evidence. Another standard of proof commonly used in the law is clear and convincing evidence. Decision theorists and policy analysts usually substitute probabilities for the qualitative standards used by lawyers. So an event that is certain to occur has a probability of 1.0. We might might translate the perponderance of the evidence standard as p < 0.5.
Decision Theory My discussion of burdens and standards was only the first step towards clarifying debates over the precautionary principle. A second step is necessary. We need to clarify what we mean when we talk about uncertain consequences or risks. Lot's of work on these issues has been done in the discipline (crossing lines between philosophy, economics, mathematics, and policy science) which is usually called "decision theory." We need to distinguish between decision under conditions of perfect information and decisions under conditions of uncertainty:
Decision Under Uncertainty therefore, let's consider the possibility that we lack certainty about the consequences of the alternative actions or policies we are evaluating. This next bit is crucial: there are two different kinds of uncertainty. I will call these two forms of uncertainty risk and ignorance--but pay close attention to my definitions, because different theorists use these terms in different ways.
Uncertainty as Ignorance Uncertainty as ignorance exists when we cannot assign probabilities (or ranges of probabilities) to the various possible consequences of our actions. Thus, if we believe it is possible that a genetically modified crop will cause a particular harm (e.g. kill some Monarch butterflies), but we cannot say whether that outcome is 100% likely or 50% likely or 0% likely, we are in a condition of ignorance.
Second, there is the case where the probabilities have not yet been assessed, but they could be, by an investment of resources into research. Perhaps, the precautionary principle is telling us that in such cases, the advocate of allowing a new technology should have the burden of establishing the level of risk, before going forward. But there is an interesting problem here. Research is itself costly. But when we decide whether to expend resources on research, we don't know what the result will be. If we invest in costly research and it yields no useful information, we've wasted or money. But it is in the nature of research that one doesn't know the outcome until after the research is done. If the precautionary principle is telling us to do the research before we make the decision, then the question arises: how much should we invest in research? Unless the precautionary principle can answer this question, it cannot provide meaningful guidance in the case at hand.
This bit is crucial: In cases of uncertainty as ignorance, allocating the burden of persuasion makes the decision. Why? Because in cases of ignorance, it is simply impossible to meet the burden of persuasion by any standard of proof.
And this point leads to another: Once we are in the realm of ignorance, the possible gains and losses cut both for and against any given action. This is because the realm of possible good and bad consequences for any action is vast. There is a possible world in which a new GMO causes cascading extinctions that result in the the end of all human life, and there is a possible world in which the same GMO prevents these extinctions. By definiton, we have absolutely no knowledge of the likelihood of these scenarios under conditions of ignorance. If the precautionary principle is interpreted to forbid the introduction of new technologies on the basis of possible harms with unknown probabilities, it is irrational. Here is a statement of this argument from Consumeralert.org:
--Another version of the principle might say that the advocates of new technology ought to come forward with information about risks and/or reasonable investments in research about risks. As a rule of thumb, this seems quite sensible.
--Another version of the principle might say that the advocates of a new technology have the burden to demonstrate that the technology is safe (or cost-beneficial) preponderance of the evidence. This version makes some sense if we are dealing with quantifiable risks, but is irrational as applied to cases of risk as ignorance.
--Another version of the principle might say that the advocates of new technology have the burden to demonstrate that the technology is safe (whether cost-beneficial or not) and that this showing must be made beyond reasonable doubt. This version of the principle is just plain nutty. In all likelihood, it would have the consequence of increasing environmental harms and preventing the adoption of new technologies that would have great benefits to the environment.
--And there are undoubtedly, many other ways to formulate a "precautionary principle."
Wednesday, July 30, 2003
Weatherson on Naturalist Ethics What a joy Crooked Timber has been! Surf over to philosopher blogger Brian Weatherson's post entitled Ethical Naturalism reredux Here is a taste:
The Crooked Timber of Monkeykind If you are interested in programming and especially if you have ever worked on a database project, you will want to gread Tom Runnacles post here. This is the line I love:
Hasen on the Recall Rick Hasen (Election Law Blog) has an editorial entitled Horse before cart in recall challenges on the California recall election in the Sacramento Bee. Here is a taste:
Bertram on Cohen I posted yesterday (Natural Goodness: From Facts to Values) on Gerald Cohen's very recent article Facts and Principles, in the Summer 2003 issue of Philosophy and Public Affairs. Chris Betram makes a very interesting observation about Cohen's argument:
More on Facts and Values T.J. Lynn writes with a very keen comment on the use of functionalist explanation by Richard Dawkins, posted here at the Legal Theory Annex.
No Nukes Courtesy of Rick Hasen and Howard Bashman, Geoff Earle has a story entitled ‘Nuclear option’ out, on The Hill. Here's the beef:
Call for Papers
Domain Name Policy Anupam Chander (UC Davis) post The New, New Property, forthcoming in the Texas Law Review on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
David Hirshleifer (Ohio State University - Fisher College of Business), Avanidhar Subrahmanyam (University of California, Los Angeles - Anderson School of Management) and Sheridan Titman (University of Texas at Austin - Red McCombs School of Business) post Feedback and the Success of Irrational Investors.
Zwolinksi on Ethical Naturalism Comments continue to roll in on my trilogy of posts on naturalist ethics [(1) Naturalist Ethics, (2) Metaethical Prejudice: More Remarks on Ethical Naturalism, and (3) Natural Goodness: From Facts to Values]. Here is the latest. Matt Zwolinksi (University of San Diego, Philosophy) writes on naturalism in ethics:
Tuesday, July 29, 2003
Natural Goodness: From Facts to Values
Matt Evans's Most Recent Reply I should begin with the most recent reply by Matt Evans, who has been extraordinarily patient with my somewhat sharp remarks. Here is an excerpt from his intelligent and gracious post:
Other Reactions from Hither and Yon
You will also want to read Timothy Sandefur who relates (in wonderful) style, a conversation with a Borkian positivist on ethics, nature, and theism.
The Curmudgeonly Clerk has an excellent post with the bonus of even more links.
The author of the Technical Work blog, wrote in regarding the teleological explanation and "purpose" in biology. Go to the legal theory annex for his thoughtful and well-informed remarks, with a wonderful biography from recent work in the philosophy of biology. This post emphasizes that I was not as precise as I should have been on the relationship between Foot's use of function and purpose and the way these terms are (mis)understood by biologists. Importantly, Dawkins does not think that evolution itself has a purpose or function, but the kind of naturalism in ethics that I am discussing does not in any way on there being a purpose to nature itself or to evolution.
Matthew Bass emailed with a wonderful anecdote about the mating habits of Sea Lions. Do not miss his witty and thoughtful remarks, which I've made available on the Annex.
And thank you to The Epsitemopolitan and CaffMonster for the nice links.
Context Here is a bit from near the start of Cohen's article that puts his argument in context:
A Fuller Description of Cohen's Position But let's get back to Cohen's argument. His formulation of his thesis is intended to be precise, but it is a bit tricky. Some clarity is added by the following passage:
Three Premises Cohen's main argument has three premises. Here they are:
Premise Two: "The second premise of my argument is that the explanation whose existence is afﬁrmed by the ﬁrst premise invokes or implies a more ultimate principle, commitment to which would survive denial of F, a more ultimate principle that explains why F supports P : for that premise my defense is simply to challenge anyone who disagrees to provide an example in which a credible explanation of why some F supports some P invokes or implies no such more ultimate principle."
Premise Three: "Armed with these premises, we may ask anyone who afﬁrms a principle on the basis of a fact what further and more ultimate principle explains why that fact grounds that principle and, once that more ultimate principle has been stated, whether it, in turn, is based on any fact, and so on, reiteratively, as many times as may be required until she comes to rest with a principle that reﬂects no fact, unless the sequence of interrogation proceeds indeﬁnitely. But the third premise of my argument is, simply, a denial that it will so proceed. The case for that premise is threefold."
"Second, such an indeﬁnitely continuing sequence would require something like an inﬁnite nesting of principles, and few will think that there exist a relevantly inﬁnite number of principles."
"Finally, an unending sequence of justiﬁcations would run against the requirement (laid down in section D above) that she who afﬁrms P has a clear grasp of what her principles are and of why she holds them: for we can surely say that a person who cannot complete the indicated sequence, because she has to go on forever, does not know why she holds the principles she does."
Cohen's Argument and Hume on Moving from Is to Ought Now you might think that Cohen's argument is a version of the argument attributed to Hume--that one cannot move from is to ought. But Cohen denies this. Why?
Is Cohen's Argument a Threat to Naturalism in Ethics? To tell the truth, I'm not entirely sure. Cohen's target is not Aristotle or Foot, it is constructivism, especially Rawlsian constructivism. So Cohen's arguments are not formulated so as to be responsive to arguments for natural goodness. At one level, this is obvious. As I've presented the argument for natural goodness, it depends on premises about what is good for humans, what constitutes human excellence. It isn't about moral principles, per se. Cohen might argue that principles of action that refer to natural goodness must ultimately depend on principles which are not fact sensitive. Let's assume there is natural goodness. We then could add a principle like: Human's ought to aim at that which is good for them. And this principle might turn out to be conceptual in the sense that Cohen indicates in the block quote on Hume, above. That is, it might turn out that the moral principle that says "Go for the good!," is true as a consequence of the meaning of "good" and "ought," and therefore is fact insensitive. But this would not, in any way, threaten the kind of ethical naturalism that I have been explicating. Indeed, such a move seems to me quite cogenial to the Wittgensteinian, Neoaristotelian sort of ethical naturalism that I associate with Foot. (On this point, I am quite ready to be corrected if others know better.)
Non-Volokh on Pryor Juan Non-Volokh has a very thoughtful post on the Pryor nomination & the question whether Pryor's opponents are guilty of anti-Catholic bigotry (he says no). If you are interested in judicial seleciton, be sure to read the whole post. Here is an taste:
Second, so far as I know, Church teachings do not require devout Catholics who serve as judges to either disqualify themselves or to engage in judicial civil disobedience on the issue of abortion. [I am not sure about the very rare case in which a judge might be required by law to order that an abortion be performed.] Although the Church does affirm a generally natural-law theory of the nature and role of law, this does not preclude a Church member from acting as a judge in a system which does not confirm to natural law as understood by the Church.
Third, in a pluralist, democratic society, the virtues of civility and tolerance require that we respect our fellow citizens' moral and religious beliefs, even when we strongly disagree with them. Litmus tests that coincide with deeply held religious beliefs are likely to be devisive, and this fact should be considered thoughtfully, before such tests are imposed.
Fourth, although it is true that a Court of Appeals judge can shape--to a limited degree--the contours of the constitutional right to choice/abortion, that ability is constrained in several ways: 1) by the doctrine of vertical stare decisis, which requires Pryor to respect the Supreme Court's abortion decisions (including Roe and Casey; 2) by the doctrine of horizontal stare decisis, which requires Pryoer to respect prior circuit opinion on abortion issues (unless Pryor is serving on an en banc sitting of the whole Circuit); 3) by the functional constraints imposed by the three judge panels and en-banc courts, meaning that Pryor's views will not prevail unless others agree with him.
Severability & McCain-Feingold Mike Shumsky has posted Severability, Inseverability, and the Rule of Law, forthcoming in the Harvard Journal on Legislation. Has been posted on SSRN. Here is the abstract:
Bogart on Hume Lawyer and philosopher John Bogart writes with respect to Hume on the move from is to ought:
New Papers on the Net Here is today's roundup:
Weatherson on the Transatlantic Philosophical Divide & Some Comments About the Legal Academy Brian Weatherson, over at Crooked Timber, has an interesting post reacting to an article in the Chronicle of Higher Education on the differences between academic philosophy in the U.S. and the U.K. The Chronical article mentions interdisciplinary work (more in the U.S.) and participation in public life (more in the U.K.), but I have an entirely different set of observations. I begin with the following premise: mainstream academic philosophy in most of the English speaking world (especially including Australia, New Zealand, and Canada--in addition to the U.S., U.K., and Ireland) is strikingly similar--as I think would be expected. But here are some differences that I percieve (whether real or based on sampling error). First, the philosophical community in the U.S. is much larger and more diverse than in other Anglophone countries. In the U.S., there are actually quite a few Thomist and Continentally-oriented departments--not my experience elsewhere. Second, because the U.S. is just plain big, philosophers (even those working in the same field) tend not to know one another if they reside in different regions (excepting those who work in nationally prominent departments). Third, there is nothing comparable in the United States to the role that Oxford plays in the United Kingdom. Oxford's faculty is huge by comparison to any other UK university. No place in the United States plays the same role. All of these differences add up to subtle differences in the sociology of philosophy. I am very tentative about the following observation, but here goes: I think there is greater rigidity of opinion among philosophers in the U.K. that in the U.S. This is, I'm sure, untrue in many respects. There are, I am sure, lots of U.K. philosophers who are, as individuals, more flexible than most American philosophers. And it would not surprise me if there were particular issues or subfields upon which my generalization does not hold. But the antipathy to melding philosophy with empirical work that the Chronicle story notes might actually be some evidence for the phenomenon that I think I've detected. Let me hasten to add that this point about flexibility is not intended as part of a brief in favor of the superiority of philosphy in the U.S. There would be no point in such a silly contention. My observation is just that--an observation. And one more thing. Here is another comparison: I do most of my academic work in the legal academy, but most of my professional contacts in the UK and the rest of the Anglophone world are in philosophy or political science. And I strongly suspect that this reflects the following. Just as the Chronicle story suggests that U.S. philosophers are more open to interdisciplinary work than are philosophers in the U.K., I suspect that legal academics in the U.S. are both more interdisciplinary and more international in orientation than their U.K. colleagues. This "international" bit needs to be qualified in an important way. I'm quite sure that U.K. legal academics are extenisvely involved in European Union law and EU-related international academic exchange. There is, of course, nothing comparable in the U.S. Please do not be too cross with me for my impressions--they are offered only for what they are worth.
Conference on David Hume The 30th Annual Hume Society Conference will be held today through August 2 at the University of Nevada at Las Vegas. Here is the conference website and the schedule. The papers include:
Lorne Falkenstein (University of Western Ontario) presents Hume and Reid on the Nature of Consciousness.
Mark Collier (Stanford) presents A new look at Hume’s theory of probabilistic inference.
Claudia Schmidt (Marquette University) presents Hume, Kant, and Hegel on the Use of Teleological Principles in Historical Narrative.
Peter Fosl (Transylvania University) presents Hume’s Skeptical Naturalism.
Dmitri Kuryshkin (Moscow State University) presents Searching for Objective Social Foundations: David Hume’s Analysis of the Origin of Law and Government.
Gerald Lang (Oxford University) presents Hume’s Remedy for Instrumentalism.
Arthur L. Morton (University of Cincinnati) presents Intelligibility and Error in Hume’s Theory of the Understanding.
Elisa Hurley (Georgetown University) presents Sentimentalism and the Moral Point of View in Hume’s Moral Theory.
Peter Millican (University of Leeds) presents Hume, Miracles, and Probabilities: Meeting Earman’s Challenge.
Saul Traiger (Occidental College) presents Prior Fictions.
Abraham S. Roth (University of Illinois, Chicago) presents The necessity of necessity: The Significance for Hume of the Idea of Necessary Connection.
Session on Imagination in Hobbes and Hume:
Jani Hakkarainen (University of Tampere) presents Imagination in Hobbes and Hume.
Martin Bertman (University of Helsinki)presents Imagination: Hobbes and Hume.
Coherence and the Loose Idea: Brandon Watson (University of Toronto) presents Mental Impulse in Hume’s Theory of the External World.
Session on Hume and the Monkish Virtues:
Will Davie (University of Oregon) presents Revisiting Monkish Virtues.
Jean-Pierre Schachter (Huron University College) presents Hume’s Principles of World Construction.
Joseph Filonowicz (Long Island University/Brooklyn Campus) presents Are Ethical Propositions Statistical? C.D. Broad’s Critique - and Defense - of Hume’s Subjective Theory of Moral Judgments.
Bethany Hoffman (Harvard University) presents Hume’s Theories of Belief.
Session on Chas. Hendel’s Studies in the Philosophy of David Hume:
Craig Walton (University of Nevada, Las Vegas) presents Comments on Charles W. Hendel’s Studies in the Philosophy of David Hume (1925; 1962).
Peter Loptson (University of Guelph) presents Charles W. Hendel and Hume: A Review and Reconsideration.
Anne Jaap Jacobson (University of Houston) presents Hume and Representation: Understanding Duration and Abstraction.
Rachel Cohon (SUNY Albany) presents Why Hume Thinks Reason is Not a Motive to the Will.
Kevin Meeker (University of South Alabama) presents Hume on Certainty, Knowledge, and Probability: Anticipating the Disintegration of the Analytic/Synthetic Divide?.
Don Baxter (University of Connecticut) presents The Criterion of Identity and the Principium Individuationis.
Session on H. H. Price’s Hume's Theory of the External World:
Peter Thielke (Pomona College) presents The Price of Gap-Indifference: Hume, Kant, and Objective Successions.
Fred Wilson (University of Toronto) presents Price’s “Hume’s Theory of the External World”: An Appreciation.
Monday, July 28, 2003
Metaethical Prejudice: More Remarks on Ethical Naturalism
Naturalism and Theism Evans's first line of response is based on the notion that Foot's line of reasoning, which moves from the notion of natural goodness for plants and animals to natural goodness for humans rests on the notion of intelligent design. Here is the relevant passage from Evans's post:
Noncognitivist Metaethics and Naturalism Evans makes another assumption about my defense of naturalist ethics that it is somehow "logical positivist" or "emotivist." "Emotivism" is a form of noncognivist metaethics. Emotivists assert that moral claims (such as "Courage is good for humans") do not have truth values but instead express emotions. (Noncognitivist in this context simply means does not have a truth value.) Here is what Evans writes in his most recent post:
Conclusion And this brings me round to the reason that I responded to Evans in the first place. Evans is a thoughtful and articulate writer. I read The Buck Stops Here on a regular basis, and I very much enjoy the thoughtful commentary by Stuart Buck and Matt Evans. But Evans simply has no idea what he is talking about when it comes to metaethics. He is sincerely convinced that an atheist evolutionary biologist like Dawkins couldn't possibly have a respectable philosophical foundation for his belief that ethics is grounded in nature. And maybe Dawkins himself doesn't. I don't know. But he could have such a foundation. Ethical naturalism that does not depend on theist premises is a perfectly respectable postion in metaethics. That someone as well-educated and thoughtful as Evans could believe otherwise and confuse Foot's views with the argument for the existence of God from intelligent design or with emotivism is suggestive of the deep philosophical prejudices and misunderstandings that are pervasive among well-educated, sophisticated Europeans and North Americans. And this is a shame, because these metaethical prejudices are pernicious. They suggest that political and moral battle lines must be drawn in certain ways. Crudely put, it is part of our cultural mythology that liberals, atheists, and the left are on the side of moral subjectivism and relativism, whereas conservatives, theists, and the right are on the side of moral objectivism and universalism. I know: very crudely put. But I hope you get my point. Dawkins or someone like him can be a moral objectivist and universalist, and by so placing himself, he will be within a great traditon of Western ethical thought (e.g. Aristotelianism) and within the mainstream of the most sophisticated moral philosophy (e.g. Foot). This is not to say that I am sure that in the end ethical naturalism will be vindicated. Who could be sure of that? But it will take a powerful argument to knock out ethical naturalism. Evans hasn't produced such an argument. He hasn't even come remotely close.
In addition to this post, I commend Brian Weatherson's post on Crooked Timber, which you can find here, with many interesting comments appended.
I should mention that I have edited Evans's post to correct a spelling error in my name and to correctly identify Philippa Foot (and not Elizabeth Anscombe) as the source of the quote to which Evans refers.