How relevant is Human Nature to descriptive legal theory?
Lucas Miotto – lucasmiottol@gmail.com
Abstract:
In this paper I claim that using human nature as a reason to abandon traditional legal theory
and move to a more empirically-bound legal theory is mistaken. My argument is that a legal
theory which purports to give a descriptive account of law needs not to constrain itself to the
most salient psychological and biological properties human beings possess known through
empirical analysis, as that would considerably, and without proper reasons, diminish legal
theories´ range. One of the main examples within legal philosophy, to which I use to illustrate
this point, is the Hartian defense of the possibility of a non-coercive legal system through the
introduction of puzzled men: citizens disposed to follow the law regardless of being
motivated by coercion. This example help us to show that the project of making a more
general and detached descriptive legal theory is valuable and yields knowledge that cannot be
obtained by descriptive theories of law that rely solely on empirical analysis and, thus, claim
to depend heavily on human nature.
Keywords: Legal Theory, Conceptual Analysis, Human Nature, Coercion.
How relevant is Human Nature to descriptive legal theory?1
Lucas Miotto2
Introduction
It is common using human nature constraints in both political and ethical theories in order to
restrict what these theories can require from subjects. A famous objection to utilitarianism, for
instance, is that it is too demanding, for it turns into a moral obligation acts that humans,
given their nature, are not able to do. Another example is Rawls´ claim that there are some
factors associated with human beings that determine the choices available in the original
position, such as “limited altruism”, and “vulnerability to attack”. These factors – to which he
called “circumstances of justice” – are “conditions under which human cooperation is both
possible and necessary”3.
The rationale for using human nature as a constraint to these theories is that they are
normative theories that purport to tell us what we ought to do. If it is the case that we cannot
do – meaning that we are not able – what a theory requires, then that seems to be a strong
reason to abandon the theory because it does not fit the facts to which it should apply to.
But things go different in legal philosophy. Some legal philosophers – especially legal
positivists – tend to consider their theories both descriptive and general, and, therefore, not
only do not constrain their theories with human nature requirements but go even further
imagining scenarios without any human beings at all, such as a community of angels 4. This is
not surprising, given that their purpose in elaborating a descriptive and general theory of law
is to provide an explanation of law and its properties in all circumstances it might exist.
Still, with the rising wave of naturalism and experimental philosophy, some legal
philosophers unsatisfied with the unrealistic and abstract tone of traditional legal theories are
starting to use empirical studies imported from neuroscience and cognitive psychology in
order to embody their philosophical descriptive theories of law. They are preoccupied in
elaborating a descriptive theory of actual law that focuses on its salient properties which,
1
This is a work in progress. Please do no quote without the author´s authorization.
Masters candidate at PUC-Rio. Contact: lucasmiottol<at>gmail<dot>com
3
Rawls, 1999, p. 109.
4
Raz, Joseph, 1990, pp. 155-62.
2
arguably, are influenced by human biology and psychology and therefore are “real world”
theories of law and not descriptions of angelic legal systems. Some go even further arguing
that the project of elaborating descriptive and general theories of law is deeply flawed and
cannot be plausibly pursued5.
I argue that these theorists go in the wrong direction and that the use of human nature
constraints offers any help if their project is still understood as philosophical and descriptive.
What happens is that by making the human nature constraint so determinative to the content
of their philosophical theories, they take the risk of unnecessarily reducing the scope of
application of their theories leaving some phenomena unexplained, or at best ill-explained.
Besides, by insisting on a descriptive theory empirically based, they take the further risk of
going too far away from the threshold of philosophy and thus producing philosophically
sterile theories with philosophical labels. To illustrate these points I give one example from
within legal philosophy: the controversies on the possibility of non-coercive legal systems.
Before that, I try to clarify the scope of my argument by distinguishing different kinds of legal
theories and the influence of human nature on them.
1. Varieties of Legal Theories
Having an institutional character seems to be a truism about law. Then, a theory of law would
inevitably be a sort of institutional theory. But there is a variety of institutional, and hence,
legal theories that one can draw: theories that only describe the institutions as they currently
work, theories that purport to establish general principles that should guide an institution,
theories about ideal institutions, theories about institutions that ought to be implemented,
theories about the most general aspects of institutions, and so forth. As one would imagine,
the relevance of human nature also varies according to the kind of theory one intends to
elaborate.
These theories are normally split into two groups:
(1) Descriptive Theories
(2) Normative Theories
Advocates of the first group are worried in providing a reliable description of what is at stake.
This group fits both factual institutional theories and conceptual institutional theories. The
descriptive character of the former theories is pretty clear, as this kind of theory purports to
5
See Priel (2010a), Priel (2010b) and Leiter (2011).
describe what actually is going on with an existing institution: how it works, whether it is
effective or not, what are the features generally recognized as the central aspects of the
institution, and other related issues. This sort of theory is heavily, if not totally, dependent on
empirical analysis, for armchair speculation is not a reliable method for investigating, for
instance, whether a given institution is effective or not, or the main reason why people obey
the rules of this institution. Therefore, it is common to think that human nature is a crucial
aspect of such theories as they purport to describe, among other things, the ways institutions
are applied in human society.
The second kind of theory – conceptual institutional theories – purports to give a description
of the more general aspects of an institution which cannot be exclusively analyzed through the
lens of empirical analysis. The object of inquiry of this theory is not restricted to tokens of a
given institution, but to the basic properties and concepts that compose a type of an institution
and to the very properties and concepts that are necessary and sufficient for something to
count as an institution simpliciter. The characteristic marks of this kind of theory are the
employment of mental experiments using hypothetical situations, and the sort of questions
they intend to answer: conceptual questions. However, there are some controversies and
skepticism about the very descriptive character, merit and purpose of conceptual institutional
theories. One can argue, for example, that there is no point in making general descriptions of
institutions, for institutions are just social constructs that serve to be implemented in order to
fulfill some social purpose, and elaborating those general descriptions will not make them any
better in fulfilling such a purpose. Thus it is just a waste of time drawing detailed descriptions
of hypothetical scenarios such as a court where all judges are dworkinian Hercules judges or a
government of a community where all of its members are morally perfect, as such situations
will never obtain, and so the insight gained – if any – will be fruitless.
These are unfair criticisms and they ignore basically two things: the fact that hypothetical
scenarios are not employed for their literary fashion or for gaining knowledge about a
different world, and the fact that some aspects of the actual institutions could be seen in best
light by altering the scenario to which they apply. Contrarily to these thoughts, hypothetical
scenarios are employed to gain knowledge about what are the general characteristics of all
sorts of institutions, and that naturally encompasses actual institutions. That is, when we build
a thought experiment, say, of a government in a situation where all subjects are morally
perfect we are not aiming to describe something numerically distinct from the actual
government type, but instead how government would work in such a scenario and whether in
this situation it would lack or gain some properties.
It is important to note that mental experiments are not restricted to conceptual institutional
theories; they can also be employed by science and by factual institutional theories. This is
pretty clear in economic theory where it is common to use the well-known homo economicus
as a simplification of human motivational behavior to achieve a better understanding of
market, such as how would be the distribution of goods in case everyone acted as free riders
or how the value of a given good would fluctuate in case everyone wants this specific good.
These fictional scenarios, thus, not only extend our knowledge of our institutions to situations
that did not obtain – an enterprise that would already be valuable just for the sake of
providing knowledge – but also can help us in building up institutions for attenuated
variations of the situations we already analyzed through the use of hypotheticals, and to avoid
certain tragic situations we predicted by using ideal situations.
This example is of an
empirical analysis through and through. It shows that the mere fact of imagining an
hypothetical situation does not turns the analysis a priori, and that hypotheticals can be useful
also in scientific analysis and not only in conceptual analysis as it is commonly thought.
Skepticism about mental experiments would then not only be harmful to the projects of
conceptual theories, but also to the aims of empirical theories.
Among legal theories we can find the so called “General Jurisprudence”. The aim of General
Jurisprudence is much similar to those of conceptual institutional theories: provide a
description of the most general aspects of law, aspects that are present in all instances of law.
As with institutional theories, what distinguish General Jurisprudence from other inquiries are
the questions to which it intends to address. The classic question of General Jurisprudence is
“what is law?” and the answer to this question cannot be based entirely on conclusions drawn
from knowledge of one´s particular legal systems, as particular legal systems may have some
properties that are not necessary for something to count as an instance of law. This sort of
concern is a characteristic mark of traditional philosophical theories and they are told to be
capable of being made entirely from the armchair6. As one could imagine, traditionally human
nature plays a reduced role in this kind of theory, for it could employ thought experiments
6
For a defense of this kind of theory in philosophy see Williamson, The Philosophy of Philosophy. For a
particular defense of this kind of theory in law see Shapiro, S. Legality, sp. Chap. 1. See also Raz Can There be a
Theory of Law? Despite the fact that there are few works that explicitly defend this kind of theory in legal
theory, many philosophers in fact do this kind of theory when they are doing legal philosophy. See, for instance,
Himma 2000, Finnis 2011, Gardner 2006, Green 2008.
violating human nature constraints either by imagining situations without human beings, or
situations with a distinct arrangement of the most salient psychological and biological
properties human beings possess.
The second group – normative theories – aims to provide theories that should be implemented
and complied, proposals for changings in actual institutions and institutional guiding
principles. Examples of such theories in legal philosophy are abundant. For instance, there are
theories about how to improve deterrence of punishment, or how to make legal norms more
effective. Also, there are a bunch of “critical theories” of law, such as feminist theories that
aims to a radical reform in legal institutions for achieving a more just state of affairs, and
theories of how to accommodate same-sex marriage into legal institutions.
The relevance of human nature here is pretty clear. One could not make normative legal
theories violating human nature constraints, such as the most salient biological and
psychological features of human beings, for this kind of legal theory purports to establish an
institution that aims to satisfy important human needs and help them to improve their social
world. Law could not without violating human nature constraints, for instance, try to
implement a theory of punishment that considers guilty whoever merely thinks about
committing a felony, or a theory of adjudication that requires judges to know the totality of
past and present judicial decisions in a jurisdiction in order to decide a case7.
Still, there is an important issue to clarify. When we talk about human nature constraints we
must understand it as referring to what humans cannot do, and not to what humans cannot
generally gather the will to do8. Certain psychological dispositions, such as moderate egoism,
are salient to human beings, and thus would partake in human nature constraints. But it is not
plausible to include them and some other similar salient features among human nature
constraints for the elaboration of normative legal theories as it would level down the quality
of the institutions we are to design and apply9. If the generality of men has a psychological
7
Note that there is a debate about whether it is possible to elaborate purely descriptive theories of law. if it turns
out that it is impossible to have purely descriptive legal theories, then human nature constraints would apply also
to what we now consider descriptive theories, as generally normative legal theories are worried to make law as
best as possible for human development. See Finnis Natural Law and Natural Rights, Chap. 1. See also Bix, B.
On the Dividing Line Between Natural Law and Legal Positivism. For a defense about the importance of Human
Nature to legal theories see Priel, D. Towards Classical Positivism.
8
This objection is made by David Estlund (2011). The original argument is designed for political theories, but I
think it perfectly suits normative legal theories.
9
Estlund also claims that saying that a theory does not applies to humans because they would not comply to it
does not affect normative theories that ought to be implemented and complied, because he thinks that the deontic
disposition of being violent to women, we would not give away an institution that
criminalizes violence against women for that reason alone. Also, we would not make a
taxation theory that allows subjects not to pay their tributes just because they are disposed not
to. Requiring too much from subjects would be wrong, but requiring just what they are
psychologically disposed to do would be damaging to the very purpose of having a legal
institution.
Another word should be said about the role of human nature to what I called factual
institutional theories. Given that the job of those theories is to describe institutions and they
are made by humans to help solving some human needs, then it would be part of the scope of
those theories to make a description of the very needs to which institutions were created to
solve. Some of those needs will be closely-tied to characteristics of human beings, such as
cognitive limitations and psychological dispositions. Thus, a complete description of a given
institution will have to mention those characteristics. Therefore, saying that human nature
plays a role in shaping this kind of theory is certainly true, but it offers no new insight on the
explanation of these theories, and it seems more likely that it is a fancy term added than some
substantial characteristic of the theories themselves. Saying that those theories cannot but
include human nature is simply saying that those theories cannot but include what is within
their object of explanation.
Having said this about legal theories and the relevance of human nature I will now turn to a
specific kind of legal theory: legal theories that purport to offer a description of actual law and
its salient features and yet want to keep the philosophical label. I will make a case against it
by presenting a controversy over coerced-based theories of law and the relevance of human
motivation to those theories.
2. An Example Within Legal Theory: Coerciveness of Law
The example of coerced-based legal theories I want to use to illustrate my point starts with H.
L. A. Hart´s critique of Austin and Kelsen´s legal theories. It is normally granted that Hart
was successful in arguing against the reduction of law to commands or sanctions and that his
introduction of power conferring rules, as much as the distinction between being obliged and
operator does not distribute over a conjunction and, then, the proposition “they ought not to comply” is not a
negation to “ought to implement and comply”. I do not share this intuition, because despite the fact that ¬OC
does not constitute a direct negation of O(I & C), the truth of ¬OC is incompatible with the truth of O(I & C) if
we keep the context constant. Though I cannot develop a detailed answer here.
having an obligation constituted important, if not essential, components of law previously
ignored, or ill-explained by sanction-based theories.
Among some of his well-known objections, Hart advances the claim that by focusing on
officials and on directives to apply sanctions, sanction-based theories are not able to explain
how law gives guidance to the puzzled man, i.e., the one who “is willing to do what is
required, if only he can be told what it is”10. This is the reason why he asks us to consider a
case where law were “equally if not more concerned with the puzzled man”11. In that case a
sanction-based account would not explain how puzzled men are guided by law, because
puzzled men follows the law regardless of being externally motivated by sanctions.
Nonetheless, some philosophers do not bite this bullet12. Schauer, for instance, claimed that
by underscoring the importance of the puzzled man Hart may have made an empirical claim
about human nature that is hardly corroborated by our reality. Hart seems to be assuming that
a significant number of subjects are puzzled men and, therefore, that sanction-based theories
have left aside without properly explaining how law offers guidance to a relevant portion of
subjects, namely those who follow the law not in virtue of its coercive aspect. This
assumption seems to go against both the fact that our actual legal systems have increased in
complexity and in number the forms of coercive regulation13 and also with some empirical
findings about human and animal behavior in the absence of sanctions14. The number of
puzzled men may be much smaller than Hart originally assumed and one of the possible
explanations for why sanctions and coercion appear as salient features of our current legal
systems is that we strongly need them to fulfill a pragmatic role given the psychological
motivation the generality of man possess.
Schauer continues to press and defended that the objection works against Hart if we interpret
his methodological commitments in an anti-essentialist manner. Following this interpretation
would lead to the conclusion that Hart was not worried about law in all possible worlds it
might exist but, contrarily, he was worried to describe law as it is15. Standing prima facie as
evidence to this view is Hart´s claim in The Concept of Law´s preface which states that the
10
Hart, 1994. p.40
Idem.
12
See Perry 2000, and Schauer 2010 pp. 6-7.
13
Schauer, 2010 p. 7.
14
See Cushmann, Fiery. The role of learning in punishment, prosociality, and human uniqueness. In: R. Joyce,
K. Sterelny, B. Calcott & B. Fraser (Eds.) Signaling, Commitment and Emotion, Vol. 2: Psychological and
Environmental Foundations of Cooperation. MIT Press: In Press.
15
See Hart, 1994, Preface and Chapter 1.See also Hart 1995.
11
book also intended to be an essay on descriptive sociology. According to Schauer, Hart
wanted a theory that “fits the facts” and used this criterion for objecting other theories16, such
as Austin´s. In that case, by asking us to focus on the puzzled man he might be the one who is
not adequately describing the facts. If he wanted to be coherent in his methodology –
Schauer´s objection continues – he would rather need to acknowledge that sanctions and
coercion are salient features of our legal systems and cannot be considered mere “ancillary”
aspects of law.
Nonetheless there are some reasons to think this interpretation of Hart´s methodological views
to be mistaken. First of all Hart´s claim about descriptive sociology needs to be clarified. Hart
had the conception – common at his time – that the right way of doing sociology was by the
employment of straightforward philosophical analysis rather than empirical investigation17.
He was mistrustful about sociology in general18 and in his late interview with David
Sugarman he assumed that he had suffered the “Oxford Disease” of distrust of sociology19.
Also, Nicola Lacey by examining Hart´s notebooks found a note which stated that “a better
formulation [of the descriptive sociology claim] would have been that the book provided the
‘normative concepts required for a descriptive sociology’”20. Thus, it is wrong to assume that
by mentioning sociology in the preface of his book Hart was willing to provide an
empirically-bounded analysis of law21. Second, in the Postscript of The Concept of Law Hart
affirmed that the aim of the book “was to provide a theory of what law is which is both
general and descriptive”22 and in so doing he gave us some guidance on how to interpret some
methodological aspects of his book that may be prone to dubious interpretation.
16
Schauer, 2010 p.8.
See, Priel (2010, p.4).
18
Lacey (2006, p. 953) illustrates that with the following passage: “Hart suggested that sociology can never
match the test of empirical rigor it sets for itself. His view boils down to the idea that because the social sciences
can never produce evidence as compelling as the evidence produced by the natural sciences, the social sciences
are not worth pursuing.”
19
See Sugarman (2005) especially p.289.
20
Lacey (2006, p.949). Lacey also says that Hart´s project “was essentially a philosophical project, and its
allusion to "descriptive sociology" was an unfortunately misleading attempt to signal his move away from the
more rigidly conceptual theories of John Austin and Hans Kelsen in favor of an approach that helps us to look at
the complex social phenomenon of law”.
21
Though there are some passages where Hart seems to take into account some empirical data, there are several
passages where Hart explicitly does straightforward conceptual analysis. See, as examples: pp.34-35; p. 42; p.
46; p. 57; p. 91. Also, Schauer is aware of the fact that there are some clear instances of conceptual analysis in
Hart´s thought and to demonstrate that he quotes (2010 p.12) Hart´s reply to Cohen about whether sanctions
were among the necessary ingredients of the concept of law where he makes a distinction of what is “logically
necessary and what was present in the standard or normal case”.
22
Hart, 1994, p. 239.
17
Leaving aside the problem about Hart´s methodological commitments and supposing for the
sake of argument that Hart´s legal theory was in General Jurisprudence´s shape, it is worthy
asking whether by focusing on a more general and detached analysis of law, Hart, and so the
ones who followed his methodology, missed what is really important about law, namely its
salient properties. The temptation of the critics here is to say that the case of coercion is just
one more example that makes clear that General Jurisprudence is a doomed project and will
not be able to yield important outcomes. Then, what we must do is to abandon General
Jurisprudence´s project and relying heavily on empirical considerations in order to make an
accurate philosophical description of law and its salience properties.
In response to these criticisms it is first arguable that Hart did not considered the coercive
aspect of law unimportant. He well assumed that it is “indispensable”23 in the actual world,
and one reason for this assumption is that he recognizes that law must pay some attention to
“universally recognized principles of conduct which have a basis in elementary truths
concerning human beings (…)”24 in order to be minimally efficacious, and by doing so
recognized the core importance of rules that restrict violence: “If there were not these rules
what point could there be for beings such as ourselves in having rules of any other kind? The
force of this rhetorical question rests on the fact that men are both occasionally prone to, and
normally vulnerable to, bodily attack.”25 However, he also defended the view that human
nature is contingent and therefore what is the case in the actual world may not be the case in a
different world law exists. Thus, a world where human beings are radically different from the
actuality would possess a radically different legal system: “If men were to lose their
vulnerability to each other there would vanish one obvious reason for the most characteristic
provision of law and morals: Thou shalt not kill”26. In sum, human nature would indeed be
important for law´s efficacy in the actual world, nonetheless it is not important to General
Jurisprudence´s endeavor.
Second, saying that Hart neglected the salience of coercion because he considered the
coercive aspect of law “ancillary” would be mistaken. By “ancillary” Hart did not mean
“unimportant”, but meant that the coercive aspect of law was a kind of backup used just in
23
Hart, 1994 p. 39.
Idem. p. 193.
25
Idem. p. 195, italics added.
26
Idem. p. 195. Emphasis in the original.
24
case law could not guide subjects through its rules alone27. Then, “ancillary” here, should be
understood as “applied in second place”.
Third, and most important to our present concern, objecting that General Jurisprudence is a
doomed project because it is not able to produce important outcomes is misleading. First of
all, one should qualify what she means by “important outcomes”. Are important outcomes
those outcomes that increase our knowledge about law? If so, then General Jurisprudence
would well satisfy it. Evidence for that is the progress legal philosophy went through the last
60th years or so, and that includes the abandoning of some implausible positions (such as
reducing all laws to commands), better formulation of the central problems of the area,
elaboration of important distinctions (primary and secondary rules, e.g.), and clarification of
central concepts (e.g. social practice, conventions, rules, authority). Or are important
outcomes just the outcomes that can be used to help lawyers and those who work with the
law, or outcomes that can be used to help law becoming a better institution? If these are the
case, then we would have only one option: abandoning all descriptive philosophical inquiry
and focus on normative inquiry. However this would be the opposite conclusion than the
advocate of empirical philosophical theories aimed by criticizing General Jurisprudence, for
she did not criticize it for its descriptive character, but for its conceptual character.
Another problematic point is that this skepticism about General Jurisprudence´s merits turns
out to be skepticism about the methodology of (traditional) philosophy in general. And there
is no way to arguing against the methodology of philosophy and proposing an alternative
philosophical methodology without entering into very kind of philosophical arguments that
one is criticizing. So, the proposal of an empirically-bound legal philosophy as a substitute for
General Jurisprudence cannot but be sustained by traditional philosophical arguments in order
to be justifiable.
Also, by turning our legal theories into an empirical description of law and its practice there
will be no difference in what sociological studies can find out about law and what philosophy
can do. There is no philosophical interest in knowing that, for instance, judges decide better
after lunch than some time before lunch. Still, I am not claiming that there is no interest
simpliciter in this kind of analysis. I accept that it is important, if not crucial for elaborating
normative theories of law, developing theories that makes law more effective and, for
instance, be able to help correcting witnesses’ biases and improve judges’ productivity, or
27
See Shapiro, Scott. 2000, p. 207.
help to clarify what are the most common motives people employ in following law. But this
kind of analysis cannot answer whether judges have a moral duty to perform their work,
whether witnesses’ oath before the court not to lie constitute a indefeasible moral norm, or if
one can accept law just for prudential reasons, and whether law can be entirely explained in
terms of coercion. In sum, it does not answer any genuinely philosophical questions, as they
are conceptual questions rather than empirical.
What all of it shows is that Hart one of General Jurisprudence´s practitioners, at least in the
discussion about coercion, did not even miss one of law´s salient properties – a worry that
some of his critics share. He recognized the important role coercion plays in the actual world,
though his project went further and he extended his analysis in order to explain how law
would regulate the behavior of an outlier subject, namely the puzzled man who has distinct
motivations from the ordinary man. Besides, with that extension he showed that a theory
solely focused on coercion would be an incomplete theory, for even if this theory could well
explain the salient aspects of law, it could not explain some more subtle and non-salient
aspects of it which are independent of coercion. Altering the scenario by imagining a distinct
possible world is just a tool to see those non-salient aspects of law in best light. Therefore,
restricting the scope of our descriptive theories of law to just what empirical analysis, and
thus human nature, can tell us is to exclude from our grasp a great amount of knowledge we
can have.
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