The question I want to consider today is: Must one do anthropology before one does philosophy?
One of the fields of legal scholarship that would benefit from an answer is the now-hip field of the Transnational Legal Theory. The question could be specified as: If one wants to propose a theory explaining the phenomenon of the transnational law, must one first empirically examine the phenomenon in question?
And a tempting answer is: (hopefully) not. Hopefully, for philosophers don’t like to get their hands dirty with empirical research. And a compelling argument could be offered in defence of that answer: none of Kelsen, Hart, Dworkin, or Raz ever did any anthropology, and that their theories seem to do just fine without it. And even if the theories themselves aren’t fine, the objection is not “it seems like you guys didn’t do enough anthropology.”
Let me moot two claims.
- The answer to the first question is it depends: sometimes one needs to do anthropology before one does philosophy, sometimes not. In particular, it depends on a) existence of ‘folk’ intuitions about the phenomenon to be theorized; b) these intuitions actually being true (corresponding to facts).
- The answer to the second question is yes: to provide a theory of transnational law, one first needs to engage in some anthropology (or at least base the theory on the work of others who have). That is because theoreticians and/or their audience still lack sufficiently developed intuitions about the phenomenon of transnational law. Worse, the intuitions they do have often happen not to be true. The context therefore departs significantly from the intellectual milieu in which Kelsen and Hart did their theorizing about ‘traditional’ national and international law.
Let me take a moment to clear up some terminology. ‘Anthropology’ here means, very roughly, empirical research on reality (talking to people, observing phenomena, reading texts) i.e. the any collection of the data that can’t be generated just by sitting in armchair and thinking. ‘Transnational law’ means norms generated and executed by entities that are neither national nor international, ranging from the EU and the WTO, to FIFA and UEFA.
Example 1: Information vs. BitCoin
Start by considering an example of two research questions, with superficially similar structures: what is information? And: what is a cryptocurrency, like BitCoin?
One can easily imagine providing an answer to the first question via armchair philosophy. A researcher would sketch some working ontology, differentiating a piece of information as either: 1) a feature of an object (e.g. a fact of me being a Polish citizen); or 2) an expression of that fact (Filipe saying: ‘Przemek is a Polish citizen’); 3) a fixation of that expression in some context (EUI officer writing in the database ‘Przemek is a Polish citizen’) etc. He or she might then theorize the differences between these types, suggest an ontological explanation, and potentially arrive at some definitions. All this is possible because the researcher ‘knows enough facts.’
What is BitCoin, however, will be harder. For before one can offer a philosophical explanation of its existence and functioning, one needs to know what BitCoin actually is. One needs to obtain the facts. If, for example, one starts by assuming that BitCoin is a private currency, ‘an alternative mode of payment provided by a private company’, and theorizes that, one is simply wrong. For there is no company, and one would completely miss the ‘decentralized’ structure of a crypto-currency. Researcher needs the facts first.
Example two: Philosophy of the Mind
Take another question: what is the relation between a brain (body) and a mind? One could attempt to answer this controversial question solely through ‘armchair philosophy’; in the end, we have quite good intuitions about what brain and mind are. But in doing so, one could simply be wrong about the facts. The booming career of neuroscience shows that our intuitions about how brain functions had often been mistaken. Now, to be clear, I am not saying that neuroscience will ever replace philosophy of mind. I am saying that neuroscience informs it. It provides facts about which we can theorize. It’s the anthropology necessary before philosophy.
Legal theory vs. Theory of transnational law
Now let us apply these findings to legal theory and theory of transnational law.
‘Hart and Dworkin never did any anthropology’. Well, didn’t they? They both studied law and worked as lawyers before they undertook their philosophical projects. They were intimately familiar with phenomenon of ‘law’ that they were addressing, from both a theoretical and a practical perspective. And their audience was people who shared that intimate knowledge as well. They had the facts right.
Imagine someone who had never studied law trying to provide a new, descriptive theory explaining how law functions. There is a chance it would be brilliant and original, granted. But there is a much higher chance that would be wrong, because ‘that is not what actually’s going on here, pal’.
With transnational law, most scholars are in just such a position. We hardly study the phenomena at school. Many of those engaged in legal practices never deal with transnational law directly. We know about some of the relevant institutions, like UE or FIFA, but there are many others we may have never heard about. And we might be just mistaken in our intuitions about them.
A successful theory of transnational law needs to be based on observed facts. Otherwise, theorization will provide an insight not into its desired object, but into the mistaken idea that the researchers have of that object. And so the anthropology needs to come first.
2 thoughts on “Anthropology before philosophy (?)”
The context for my original comment was the introduction to Greg Shaffer’s new book on transnational legal theory. In that text, Shaffer claims that one cannot do legal theory outside the confines of particular transnational legal practices (e.g., sports law, commercial law, and economic law). What i denied was that one needed to do transnational legal theory in a particular context. Like Hart, Dworkin and Kelsen, one only needed to know the phenomena in question in a general way to make abstract points about transnational law. As i further pointed out, all of the phenomena Shaffer identified could be theorized at the same level: there is nothing special about commercial law vis-a-vis the theory of transnational law that requires one to motivate a theory using the particulars of commercial law. Second, you say that Hart and Dworkin “did anthropology” because they were lawyers. Of course, this means that all legal philosophers are anthropologists. But this claim is untrue, because anthropology concerns the details of practices. Legal philosophy is not concerned with the intricacies of legal practice. As i often say, legal philosophers never disagree about whether or not someone is “doing law.” They disagree in their characterizations of what is “law.” And this debate, of course, is philosophical and not anthropological. I could say more but i will leave it at this and entreat you to listen more carefully to your professors.
New York 8 September 2015
I agree that a general theory does not need to be motivated by characteristics of any particular field; but I disagree that we can just assume that for all these phenomena one theory will suffice. That needs to be demonstrated first, before philosophising. And that can only be demonstrated by engaging in the detail.
The key claim in the comment above is:
“there is nothing special about commercial law vis-a-vis the theory of transnational law that requires one to motivate a theory using the particulars of commercial law”.
This needs to be demonstrated too.
For it goes against intuitions that phenomena so different in origin, ‘legitimisation’, scope of application, sanctions and modes of adjudication etc. like UE law (backed up by MS); lex mercatoria (bottom-up co-shaped rules) and FIFA regulations (private association’s views) can be theorised on the same level.
This might be true, but cannot be just assumed.
Otherwise the theory might miss the critical details and ultimately fail the test via a counterexample, by one showing an example of a phenomenon the theory claimed to explain but has not.
On ‘anthropology’ – I didn’t say that all legal philosophers are anthropologists; I said that Hart and Dworkin, having studied law and worked in practice before they started their philosophical projects, knew enough of the detail to safely assume their general intuitions were true.
And I don’t think that many theorists are in such position against the transnational law.