Perceiving Law


The more we examine what is behind our most difficult legal questions, the more puzzling it can seem that we continue both to disagree strongly and, yet, to cooperate. If law is a reasoned enterprise, how is it that we are neither torn apart nor homogenized by our long social practice of it? I resolve this puzzle, and arrive at a richer understanding of law, using the idea of modeling familiar from the natural sciences and mathematics. I show both that theorists can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and that the participants in a legal system themselves maintain and evaluate models of this sort. Understanding law this way clarifies numerous problems ranging from pluralism to legal interpretation. This work emphasizes four major points of the theory:

(1) An individual’s perception of law is an act of empathetic model-identification, model-building, and attitudinal judgment with respect to a perceived, ongoing instance of cooperation.

(2) All such models can be described as systems of information-connected institutions that each (a) receive inputs from other institutions, (b) process those inputs according to sets of reasons, and (c) produce informational output.

(3) Each institution is modeled by its participants as (a) maintaining its own set of reasons for decisionmaking, those reasons terminating in a local, ultimate rule of recognition but also (b) possessing rules that take account of the information produced by other institutions, such rules coming in various flavors of scrutiny and deference.

(4) The human conceptual system generates many such models depending on the question being asked and produces judgments through simulation. The fact that such modeling happens at many different scales, depending on the question contemplated, explains theoretical disagreement and agreement, otherwise puzzling problems of pluralism, and the moral/legal interface.