Hard Evidence of the Spirit of the Law

Recent Findings in Experimental Jurisprudence

Ferdinand Brütt (1849-1936), Before the Judges (1903)

The New Digest is pleased to present this guest post by Professor Brian Flanagan of the School of Law and Criminology at Maynooth University. Professor Flanagan is one of the leaders in the burgeoning new field of “experimental jurisprudence.”

On July 11, 2019, Roderick Jones, an Australian national, was found ineligible for Irish citizenship because the law required “a period of one year’s continuous residence in the State.” Citing a dictionary, the court said that this requirement precluded applicants from leaving the country for so much as an afternoon. Jones appealed. Rejecting the trial court’s analysis as “overly literal”, the Court of Appeal favoured a “purposive, reasonable and pragmatic approach”, allowing for a 6-week period of foreign travel.

Jones’ story holds different lessons. One that hides in plain sight is how important abstract, artificial statuses like ‘citizenship’ are to the life of the individual, and to that of the communities in which they wish to make a home. More obvious is the difficulty it reveals in identifying the circumstances to which such artificial statuses actually apply.

The complexity of human society is unmatched. Making sense of the unique depth of mankind’s social world, philosophers in the classical tradition rightly invoked our ability to use – that is, to create and to apply – formal rules, notably, laws. The classical tradition recognized, too, the latent tension in the very idea of achieving order through rules.

Formality is part of any legal text’s raison d’être. But a law’s formality also carries the potential to undermine the particular purpose for which it was created: ‘For when the thing is indefinite the rule also is indefinite, like the leaden rule used in making the Lesbian moulding; the rule adapts itself to the shape of the stone and is not rigid and so too the decree is adapted to the facts’ (Aristotle, Ethics). Similarly, whereas human society’s complexity depends on our capacity for formal rule-making, such complexity is itself a just means to human flourishing; it has no intrinsic value: ‘[W]hatever is the just is always the true law; nor can this true law either be originated or abrogated by any written enactments’ (Cicero, Laws).

Philosophical efforts to elucidate the tension between law’s formality and its specific purposes range widely. But consider four central questions: are wicked and benevolent texts equally legal?; do all laws derive from social facts?; should a legal text’s spirit shape its application?; and what does law’s spirit consist in, anyway?

Whereas contemporary philosophers disagree on the answers to some of these questions, they have been generally agreed on two points of method: a) that the best answers are those that are consistent with common intuition, and b) that one needn’t bother asking people what their intuitions are. So, until recently, everybody invoked the folk concept of law, but nobody considered using the tools of cognitive science to check what the folk concept actually was.

A new research agenda is now forming, ‘experimental jurisprudence’, which starts from the simple premise that if you’re using the folk concept of law to decide between competing legal theories, then you’d bloody well ought to find out what that concept is. Investigating people’s intuitions in a systematic way is possible using the same strategies that psychological research has used to elucidate people’s moral intuitions (together with some modest research funding). The results of some of these initial efforts have been striking.

Imagine a fictional country called Figuria – a large, industrialised state, with a law-abiding population. Its constitution assigns unfettered legislative power to an elected assembly and omits any mention of individual rights. In accordance with the relevant constitutional formalities, Figuria’s legislature recently enacted a statute (S), which was duly published to judges, officials, and the population at large. S, whose enactment was prompted by a belief in white supremacy, restricts marriage to couples of the same race.

I had assumed, following John Austin, that, intuitively, S is a law like any other, whose ‘existence… is one thing and [whose] merit or demerit another’ (Province). To my surprise, on being presented with this sort of scenario, ordinary people have tended to report that there is a sense in which S is not truly a law at all. Indeed, there is evidence that laypeople’s natural law thinking may go deeper still.

The view that conduct might be illegal just in virtue of its immorality has an ancient pedigree. It is prefigured in Sophocles’ Antigone, when King Creon’s authority is set against “[the immutable unwritten laws of heaven that] were not born of today nor yesterday; they die not; and none knoweth whence they sprang.” With perhaps one exception, contemporary theorists have considered such a view to be absurd. Empirically, though, it seems that this assumption too may be mistaken.

Consider a scenario in which, due to widespread sexist attitudes, Figuria’s legislature has never enacted a statute imposing a ban on sexual violence by a man against his wife, such that men may freely acknowledge such violence without fear of prosecution. Defying the philosophical consensus – and my own expectation – when presented with such scenarios, many people reported that the relevant conduct was nevertheless in some sense unlawful.

Evidence of a popular perception that morality is intrinsic to law dovetails with data on intuitions about law’s proper interpretation. We now know that a rule’s text is the dominant but not the sole determinant of how we think it ought to be applied. To elucidate law’s spirit, we might want to know whether the other, non-literal consideration is legislators’ “intended meaning” or, instead, the policy that would “best justify” their chosen text. One possible empirical strategy is to compare responses to scenarios in which agents of morally contrasting character violate the law’s letter without undermining its intended purpose. If the law’s spirit were just a social fact, then agents of both sorts of character might equally hope to be its beneficiaries.

Again, to my surprise, this is not what we find: the spirit of the law does intuitively consist in a set of moral values. The evidence suggests that, from the layman’s perspective, the content of the law is not in fact ‘a matter of social fact whose connection with moral or any other values is contingent and precarious’ (Raz Ethics). But the knowledge that morality contributes to legal interpretation at the aggregate level prompts further questions. It is natural to wish to look under the hood to get a more granular understanding of how we interpret rules as individuals.   

Analysing the nature of legal reasoning, Ronald Dworkin famously distinguished the lawyer who focuses on text alone (‘Herbert’) from the lawyer who looks also to the text’s spirit (‘Hercules’). Is it that certain people are Herberts while others are Herculeses or does everyone have a Herculean aspect? And does Hercules have a particular personality?

Using a survey sample representative of the US population, a new study suggests that the American Herbert is a rare breed indeed; nearly everyone sometimes interprets rules like Hercules. Nonetheless, there are individual differences in people’s propensities to overlook a rule’s text. Notably, the more empathetic a person is, the more likely they are to prioritise law’s spirit over its letter. (There is exploratory evidence that Hercules is not only empathetic by nature, but both extrovert and agreeable, as well.)    

The irony of early attempts to use modern tools to investigate the folk concept of law is that the results have tended to support classical suggestions about legal intuitions that the modern positivist turn had largely dismissed. Experimental jurisprudence is in its infancy, but its results have so far connected neatly with the broader arc of legal philosophy.