This is the third in a series of posts about the epistemological foundations of legal theory in the Information Age. In the first post I suggested that analytic jurisprudence does not serve well in this period because it is coherentist in its epistemology. The chief problem that I see with this is that coherentist theories of law, like Brian Leiter’s adoption of Quine’s coherentism, cannot explain the stabilities in law over time and do not quite explain how quantitative approaches to legal analysis and prediction actually work. A second post suggested that sociological theories work better than analytic philosophy because they are grounded in an epistemological realism that views the law as describing and defining social relations that actually exist among the relations that law touches. Brian Tamanaha’s analysis of Malinowski and Erlich are prime examples of this.
Here, I want to begin to suggest how the philosophers of law should respond by asserting a realist epistemology that can renew legal philosophy. I have suggested (here) that structural realism is the way ahead, and that legal philosophers adopt an informational structural realism as the foundational epistemology. The implications of this are quite broad, which I try to point out in an overly ambitious essay (here). But, nonetheless, I am confident that if legal philosophy has a future, if it isn’t displaced entirely by sociology, then that future lies with the philosophy of information.
So, what is the philosophy of information? It is the attempt to understand the significance of the new understandings of information for philosophical questions. In the mid-twentieth century, the concept of information was transformed into its contemporary state. In the past, “information” referred to a family of loosely defined concepts about phenomena that were useful for the faculties of human intellection. Human minds have the power to transform information into useful ratiocination. But, in the works of Claude Shannon and Alan Turing, information and computation were successfully described as natural phenomena that occur in many types of natural processes. Information and computation are no long human-centered. And, this has led to a revolution in the conceptualization of information that now recognizes many types of information, some more tightly defined than others. Luciano Floridi is credited with developing this shift in conceptualizations of information into a sophisticated analysis of philosophy, which he calls the philosophy of information. Applied to law, the philosophy of legal information should be tasked with investigating the informational nature of law. This involves understanding how information about social structures is related to the semantic information that encodes and represents the law.
A method that Floridi uses for investigating informational structures is the analysis of levels of abstraction (LoA). He takes this from a formal verification language (used by computer engineers to verify the results of computational systems) known as Z (after a logician named Zermeldo). The analysis of levels of abstraction allows for clarity in thinking about the structure of information in various systems. An insightful essay by Ugo Pagallo and Massimo Durante, “Philosophy of Law in an Information Society” in Luciano Floridi (ed.) The Routledge Handbook of Philosophy of Information, applies the Levels of Abstraction analysis to law. A significant contribution that they make is the description of three levels of information. Where the article takes a more continental approach, a common law analysis can be developed from Hart’s description of law. In my reading, the levels of abstraction should be:
- Information as reality: This refers to those aspects of law that are constitutive of a social relationship. This often is the case in commercial law, where legally binding commitments are constitutive of social relations. Think here of contracts and fiduciary relations.
- Information about reality: This refers to law that is descriptive of fundamental social norms. For Hart these would be laws that implement secondary rules and the Rules of Recognition.
- Information for reality.. This refers to the primary rules. Most laws are for reality, in the sense that they seek to regulate social relationships.
An example of LoA analysis is useful here. Consider the analysis of the epistemic value of precedent in Debra Hellman’s article, “Social Epistemic Value of Precedent.” When I first read this well-written and probing article, I mistakenly thought Hellman was developing a social epistemology of law. I was corrected by a tweet from Laurence Slolum, who suggested that it was a realist epistemology. Upon closer reading, I realized that I had mistaken the ambiguity in the description of legal epistemology for social relativism. In reality, it is just vagueness, which is clarified by considering the levels of abstraction that Pagallo and Durante developed (and I refined). Viewed this way, the critical question is analyzing this essay is this: “When Hellman speaks of epistemic value, to which level of knowledge does she refer?”
This is where the ambiguity arises. Hellman develops two related epistemological claims about the value of precedent: a procedural epistemic value and a substantive epistemic value. She explains that in examining the epistemic value of precedent, one should ask “Will the decisions of present-day judges be improved or worsened by a judicial practice of according some weight to precedent?” She explores this question procedurally, which means where precedent is viewed as a procedure for “getting it right.” And substantively, where the focus is on the law “working itself pure,” a phrase she takes from Mansfield. Both analyses of precedent view the practice of stare decisis as useful for getting to the truth, but what is truth? Hellman gives us no idea other than the rightness or goodness of the law. But, what do these strongly normative claims mean? In what sense does she mean getting the law right? Or making it pure? Does that mean making it morally “good” and “just”? And on what description of goodness and justice?
An LoA analysis is useful here. Stare decisis is a rule of recognition, in Hart’s sense of telling us when a law has been properly made. As such, it is—in my analysis—a law about reality in the sense of capturing the social relations of the governed. Viewed this way, the epistemic value of precedent is derived from the social norms that legitimate the law. Precedent is valuable because it functions to enhance the neutrality and equality of cases because neutrality and equality are fundamental social norms and expectations for the law. Therefore, precedent should be followed when it accords with these values. And, it should be ignored when it does not. Precedent exists for a purpose, and that purpose is to capture and implement the values of neutrality and equality in administering the primary tules. With this foundation, Hellman’s ideas about the epistemic value of precedent can be evaluated.
Legal philosophers should be investigating the philosophical presuppositions of sociologists, exploring the nature of various types of information relevant to law, and the information structures that are involved in creating, authorizing, and implementing the law. Information analysis holds the keys to better understanding of legal reason and legal prediction. More on this theme next time.