Problems with normative/descriptive claims about law; vol. 1

A basic distinction in legal scholarship lies between descriptive claims (what is the law?) and normative claims (what should be the law?). In this post I argue that one can easily fall into the trap of making one instead of another, due to: 1) law’s normative character; 2) law’s hierarchical (or heterarchical) structure; and 3) often argumentative style of legal reasoning.

Initial claims:
1. Since law itself is normative, a descriptive claim about law will be a normative claim about sth else;
2. A descriptive claim about a higher order provision (in Kelsen’s sense or some heterarchical sense, e.g. about the EU law) will be a normative claim about a lower order provision;
3. When law is ambiguous, a seemingly descriptive, ‘interpretative’ claim might actually include extra-legal normative components.

Examples:
Assume a hypothetical state, the Republic of Silesia, where the Traffic Regulation Act sets the default speed limit at 60 km/h in the towns.

Descriptive question: what is the default speed limit in the towns in the Republic of Silesia? is pretty straightforward, and the answer: ‘the speed limit is 60 km/h’ is a correct, descriptive claim.
But this claim already includes a normative statement: ‘people should not drive faster than 60 km/h in Silesia’.

However, a normative question: what should be the default speed limit in towns in Silesia? invites different possible types of answers:
#1: The speed limit should be lower, because I’m afraid of cars driving so fast;
#2: The speed limit should be higher, so that people can be more efficient, move faster and so have more time to work, due to saving time on transportation;
#3: The speed limit should be higher, because the art. X of the Constitution of the Republic of Silesia states ‘The Republic ensures the citizens’ right to move around quickly’.

Higher/lower limit is insignificant here, what matters is the reasons behind the normative claims.
In #1, this is just an opinion;
in #2 a higher-level normative claim: ‘law should maximise the efficiency’ is assumed, though this claim is external to the legal system;
in #3 a descriptive claim about higher level law (constitution) is made, together with a normative claim: ‘lower level norms should comply with higher level norms’, which is internal to the legal system, and could be summarised as an internal normative claim: ‘law should make sure that citizens can move around quickly’.

Note that #2’s normativity comes from outside of the legal system, while #3’s from the inside.
Why does it matter?
Because one could claim that a statement: ‘The speed limit in towns in Silesia must be higher, because the current one is unconstitutional’ is actually a descriptive claim about the law.
In other words: seemingly normative statements about the law (due to the lingual side and usage of the modal verbs like ‘should’, ‘ought to’ or ‘must’) can be considered descriptive statements by some scholars.

One should bare in mind that when making any claim about the law, one sees at least 3 levels:
1. Reality;
2. Legal provisions in statutes;
3. Constitutional/human rights provisions.

When making a descriptive claim about a higher level, one makes a normative claim about the lower level; when saying what the law is, one says how the reality should be; when saying what the constitutional norms are, one says how the lower level law should be. All these normative statements are internal to legal system.

However, there is a space for ‘cheating’ here. For example, it is not obvious that the speeding limit must be higher, maybe it is sufficient. This is already an argumentative exercise.

Now, the picture gets more complicated when one makes a normative claim based on reasons external to the legal system. These claims, again, can be directed at different levels:
1. People should be moving around quickly to be efficient;
2. Law should protect safety of the citizens, because human life is the highest value.
3. The silly provision about the right to move around quickly should be taken out of the Constitution, because it only causes confusion.

The importance of the distinction is high, because one can argue that executing a normative proposition internal to the law is a legal action, while executing one external to the law is just political action.

Now, this gets even more complicated when legal provisions are not straightforward.
Assume the Constitution states: ‘The Parliament of Silesia elects the Justices of the Constitutional Court and President of the Republic accepts the vow from them’ and assume that the Parliament has elected 4 justices, but the President refused to accept the vow.
The question begging a descriptive answer: ‘Is the President allowed not to accept a vow from the justices?’ needs an argumentative argument actually; and the reasons invoked might be internal, but might just as well be external to the legal system.
One can imagine both an affirmative and a negative answer, about which it is hard to state whether they describe the law, or just state as it should be.

In consequence, a rigid scholar should be always be explicit about the internality or externality of the source of normative claims he or she is making; and about the level about which a claim is made. Otherwise, falsity of the theories might hide to deep in the argument to be detected.

Anthropology before philosophy (?)

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.

Must legal provisions be textual?

It will take you 3,5 minutes to read this post

Is textuality a necessary feature of legal provisions?

A while has passed, but my excitement still keeps high, since the InfoSoc Workshop on Contract Visualisation, paired with Legal Design Jam, offered by wonderful Stefania Passera, Concept Designer & Visualizer, PhD Researcher at the Aalto Univeristy. In this short post I won’t be summarising her argument, but share the thoughts that have buzzed in my head for a week now.

The problem is: contracts are long, people don’t get them (in B2C) or think they agreed are later realise they didn’t (in B2B). Text as a tool is good, but far from perfect. To quote Passera here: ‘contracts often fail not due to legal mistakes, but communication mistakes‘. Proposed solution: let’s put pictures inside, and more generally: pay more attention to visualisation and design.

Example: passage of risk in shipping contracts (from Stefania Passera):

Question that bothers me: must contract (and actually law as well) be textual, or could it be more varied in form? In other words: is textuality a necessary feature of legal provisions; or are they embodied in text because that’s the form we historically got used to? A different set of questions, which I will not consider but state here, is on the very bottom of the post.

It is worth realising that in many instances practices of supplementing, though not yet replacing, text with pictures, in order to facilitate communication, already take place. Let me here point just to two: Creative Commons licenses and App Licences in Google Play:

However, there is a significant difference between representation of existing and textual law in a different form, and creating independent non-textual legal provisions. About a year ago, during GRIM Winter School in Stockholm, prof. Peter Dahlgren, speaking about visualisation of legal material, claimed that trade-off here is between clarity of communication and precision, with pictures being clear but imprecise, logical formulas precise but unclear, and text somewhere in the middle. So it’s best to use all to represent.

But could we use all those forms to make law?

In Polish legal theory we cherish the distinction between a legal provision (a textual unit) and a legal norm (a non-textual sollen, derived from a legal text, often from many provisions, and needing language to be stated, but not being a lingual statement in itself).
If one accepts this distinction as ontologically possible, the conclusion that follows is: law as statutory law must not necessarily be textual; if there is better form, form better realising meta objectives of stating the law, then the better norm should be chosen.

The obvious examples that come to my mind here are traffic signs or non-smoking or no dogs signs (a crossed cigarette or a dog), first being examples of post-statutory regulation, second of either communication of public law, or of contract law (if the owner of a cafe decides not to allow dogs inside). The first, however, are first explained by text in the statue.

Could one imagine a judge interpreting a picture contract clause on passing of risk (like in the first figure above) or a crossed car at the entrance to the park (to use Hart’s classical non-vehicles example?). I could. But would this interpretation be text-free, or would judge first need to textualise the picture as well? But even if so, does this mean that law needs to be text?

To my mind, statutory law or ‘written’ contract do not necessarily need to be represented in text. But I’m happy to hear any criticism of this view.

Other questions here are:
1) When to replace text by pictures, when to pair one with another, and when to draft contracts in technical jargon and then separately create info-graphics to just visualise them?
2) When could it be useful to add pictures to a contract?;
3) Should it be obligatory for entrepreneurs to do so in consumer contracts? (like it is now, in some places, to e.g. draw sugar cubes on Coca-Cola cans);
4) Could using pictures help contract drafters in realising agreement’s weak points? Is there a parallel between conversion to a picture and conversion to XML, when need to clarify meaning of provisions and pictures are concerned?

All these seem like good questions for a paper to me. Feel free to take them!