Originally uploaded at SSRN.

Abstract

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 (a) that theorists can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and (b) 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) It identifies law as the conceptual side of cooperation and, thus, the means of coordinating decisionmaking. (2) It derives from human cooperation a picture of legal systems as a network of institutions exchanging information and maintaining their own rules of recognition and decision. (3) It advances the thesis that cooperation and its associated legal system arise when individuals create institution-information models, identify the models used by others, and accept the use of those models. (4) Finally, it provides a standard representation of institutions, their communications, and their reasoning. This analysis reveals that institutional agreement and disagreement occur at discrete levels.

Together, these elements yield a theory of legal systems that grounds jurisprudence in the study of the human conceptual system. It sheds new light on the problem of theoretical disagreement, otherwise puzzling problems of pluralism, and the connection between law and morality.

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