No CrossRef data available.
Published online by Cambridge University Press: 19 August 2022
There has been considerable debate in legal philosophy about how to attribute purposes to rules. Separately, within cognitive science, there has been a growing body of research concerned with questions about how people ordinarily attribute purposes. Here, we argue that these two separate fields might be connected by experimental jurisprudence. Across four studies, we find evidence for the claim that people use the same criteria to attribute purposes to physical objects and to rules. In both cases, purpose attributions appear to be governed not so much by original intention or by moral value as by current practice. We argue that these findings in the cognitive science of purpose attribution have implications for jurisprudential questions involving purposivist legal interpretation.
1. See Adee Matan & Susan Carey, “Developmental Changes Within the Core of Artifact Concepts” (2001) 78:1 Cognition 1; Tim P German & Susan C Johnson, “Function and the Origins of the Design Stance” (2002) 3:3 Journal of Cognition & Development 279; Deborah R Siegel & Maureen A Callanan, “Artifacts as Conventional Objects” (2007) 8:2 J of Cognition & Development 183; Sehrang Joo, Sami R Yousif & Joshua Knobe, “Teleology Beyond Explanation” (2021) Mind & Language [forthcoming].
2. See Lon L Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart” (1958) 71:4 Harv L Rev 630.
3. See Henry M Hart & Albert M Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Foundation Press, 1994).
4. See Aharon Barak, Purposive Interpretation in Law (Princeton University Press, 2005).
6. See Kevin P Tobia, “Testing Ordinary Meaning” (2020) 134:2 Harv L Rev 726.
7. See Kevin P Tobia, “How People Judge What Is Reasonable” (2018) 70:2 Ala L Rev 293 [Tobia, “Reasonable”].
8. Publicity is always relative to a rule’s addressees. Making a rule accessible to the general public requires something different than making it accessible to highly specialized audiences (e.g., the financial sector).
9. For an extended argument about the importance of publicity in law, see Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, 1979) ch 11. Legal philosophers often break down what we are calling publicity into two distinct requirements: publicity proper (the idea that laws should be made public) and intelligibility (the idea that subjects should be able to understand rules). We do not mean to downplay the importance of the distinction, but nothing in our reasoning turns on it.
10. HLA Hart, The Concept of Law, 2d ed (Clarendon Press, 1994) at 124.
11. Lon L Fuller, The Morality of Law (Yale University Press, 1969) at 39.
12. Neither Hart, nor Fuller, nor Raz explicitly apply the publicity-based reasoning to the debate about purpose attribution, but this seems to be a very natural and uncontroversial extension of their ideas.
13. For a response to this objection, see Fuller, supra note 11 at 50-51.
15. See Larry Alexander & Emily Sherwin, Demystifying Legal Reasoning (Cambridge University Press, 2008) at 133.
16. Yates v United States, 135 S Ct 1074 (2015) [Yates].
17. 18 USC §1519 (2010).
18. Stephen F Smith, “Yates v United States: A Case Study in Overcriminalization” (2014) 163:1 U Pa L Rev 147 at 149 [emphasis in original, citations removed].
19. See Yates, supra note 16.
20. As evidenced by Justice Elena Kagan’s famous “we’re all textualists now” remark. Elena Kagan, “A Dialogue with Justice Kagan on the Reading of Statutes” (The Scalia Lecture, delivered at Harvard Law School, 17 November 2015), Harvard Law Today, online: today.law.harvard.edu/in-scalia-lecture-kagan-discusses-statutory-interpretation.
21. Andrew Burrows, Thinking About Statutes: Interpretation, Interaction, Improvement (Cambridge University Press, 2018) at 5-6.
22. See Fuller, supra note 11.
23. HLA Hart, “Positivism and the Separation of Law and Morals” (1958) 71:4 Harv L Rev 593 at 614.
24. See Noel Struchiner, Ivar R Hannikainen & Guilherme FCF Almeida, “An experimental guide to vehicles in the park” (2020) 15:3 Judgment & Decision Making 312.
26. See Stephen M Garcia, Patricia Chen & Matthew T Gordon, “The Letter Versus the Spirit of the Law: A Lay Perspective on Culpability” (2014) 9:5 Judgment & Decision Making 479; Jessica Bregant, Isabel Wellbery & Alex Shaw, “Crime But Not Punishment? Children are More Lenient Toward Rule-Breaking When the ‘Spirit of the Law’ Is Unbroken” (2019) 178 Journal of Experimental Child Psychology 266.
27. For a defense of this view of ascribing intentions to groups of lawmakers, see Andrei Marmor, Interpretation and Legal Theory, 2d ed (Hart, 2005) at 122-126.
28. Our use of the term is partly stipulative. Intentionalism is also used with other senses, e.g., to label positions that affirm the importance of original intentions to meaning, instead of purposes. See generally infra note 35.
29. That seems to be the suggestion of Smith, supra note 18; see also Justice Ginsburg’s opinion in Yates, supra note 16.
30. Barak, supra note 4 at 120.
31. See Larry Alexander & Saikrishna Prakash, “‘Is That English You’re Speaking?’ Why Intention Free Interpretation Is An Impossibility” (2004) 41:3 San Diego L Rev 967.
32. See Alexander & Sherwin, supra note 15.
33. See Steven Knapp & Walter Benn Michaels, “A Reply to Our Critics” in WJT Mitchell, ed, Against Theory: Literary Studies and the New Pragmatism (University of Chicago Press, 1985) at 95; Steven Knapp & Walter B Michaels, “Not a Matter of Interpretation” (2005) 42:2 San Diego L Rev 651.
34. Stanley Fish, “Intention Is All There Is: A Critical Analysis of Aharon Barak’s ‘Purposive Interpretation in Law’” (2008) 29:3 Cardozo L Rev 1109; Stanley Fish, “There Is No Textualist Position” (2005) 42:2 San Diego L Rev 629.
35. These authors focus on a debate that is slightly different from the one about legal purposes. They are preoccupied with specific legal results—whether individual outcomes clash with the intentions of lawmakers—and often explicitly refuse to take their arguments to the higher levels of abstraction in which most (but perhaps not all) debates about purposes occur. See Alexander & Prakash, supra note 31 at appendix II; Jeffrey Goldsworthy, “Legislative Intentions, Legislative Supremacy, and Legal Positivism” (2005) 42:2 San Diego L Rev 493; Alexander & Sherwin, supra note 15. This tracks the distinction proposed by Andrei Marmor between ‘application intentions’ and ‘further intentions’. See Marmor, supra note 27. Granted that they themselves might resist the label of intentionalists with regards to purposes, their arguments for this narrower form of intentionalism can also be mobilized (with no change other than the target) in favor of an intentionalist perspective on purposive interpretation (see Barak, supra note 4).
36. Alexander & Sherwin, supra note 15 at 133.
37. See Goldsworthy, supra note 35; Barak, supra note 4 at 128-29.
38. See Marmor, supra note 27 ch 8.
39. See Alexander & Sherwin, supra note 15 at 141: “What thing in the world makes it true that such-and-such was so-and-so’s intended meaning? … We assume that the interpreter is in search of the lawmaker’s mental state at the time of enactment.” See also Marmor, supra note 27 at 134: “if intentionalism is to make any sense at all, it must be confined to the original intentions of those who enacted the law” [emphasis added].
40. For experiments in the realm of physical objects that are relevant for these different forms of intentionalism, see Joo, Yousif & Knobe, supra note 1; Siegel & Callanan, supra note 1.
41. The label follows Barak, supra note 4.
42. Fuller, supra note 11 at 229.
45. Hart & Sacks, supra note 3 at 1125.
46. Thomas Bustamante, “Revisiting the Idea of Protestant Interpretation” in Thomas Bustamante & Thiago L Decat, eds, Philosophy of Law as an Integral Part of Philosophy (Hart, 2020) at 123 [emphasis in original]. See also Frederick Schauer, “A Critical Guide to Vehicles in the Park” (2008) 83:4 NYUL Rev 1109; Fábio Perin Shecaira, “Sources of Law Are Not Legal Norms” (2015) 28:1 Ratio Juris 15.
47. For a recently developed view that is in many ways similar to the idea of current practice purposivism, see Hillel Y Levin, “Contemporary Meaning and Expectations in Statutory Interpretation” (2012) 2012:4 U Ill L Rev 1103.
48. See Hart, supra note 10 at 56-58; Scott J Shapiro, “What Is The Internal Point of View” (2006) 75:3 Fordham L Rev 1157.
49. Jerome Frank, “What Courts Do in Fact” (1932) 26 U Ill L Rev 645.
50. See Matan & Carey, supra note 1; German & Johnson, supra note 1; David Rose, “Persistence Through Function Preservation” (2015) 192:1 Synthese 97; Joo, Yousif & Knobe, supra note 1.
51. See Deborah Kelemen, “The scope of teleological thinking in preschool children” (1999) 70:3 Cognition 241; Deborah Kelemen, “Are Children ‘Intuitive Theists’? Reasoning About Purpose and Design in Nature” (2004) 15:5 Psychological Science 295; T Lombrozo & S Carey, “Functional Explanation and the Function of Explanation” (2006) 99:2 Cognition 167; Konika Banerjee & Paul Bloom, “Why did this happen to me? Religious believers’ and non-believers’ teleological reasoning about life events” (2014) 133:1 Cognition 277; Konika Banerjee & Paul Bloom, “‘Everything Happens for a Reason’: Children’s Beliefs About Purpose in Life Events” (2015) 86:2 Child Development 503; Emily G Liquin & Tania Lombrozo, “Structure-function fit underlies the evaluation of teleological explanations” (2018) 107 Cognitive Psychology 22; David Rose & Shaun Nichols, “Teleological Essentialism” (2019) 43:4 Cognitive Science 12725 [Rose & Nichols, “Essentialism”]; David Rose & Shaun Nichols, “Teleological Essentialism: Generalized” (2020) 44:3 Cogntive Science 12818, online: https://onlinelibrary.wiley.com/doi/10.1111/cogs.12818 [Rose & Nichols, “Essentialism: Generalized”]; Andrew J Roberts, Colin A Wastell & Vince Polito, “Teleology and the Intentions of Supernatural Agents” (2020) 80 Consciousness & Cognition 102905.
52. See Matan & Carey, supra note 1; German & Johnson, supra note 1; Siegel & Callanan, supra note 1; Joo, Yousif & Knobe, supra note 1.
53. See Matan & Carey, supra note 1; German & Johnson, supra note 1.
54. See Siegel & Callanan, supra note 1; Joo, Yousif & Knobe, supra note 1.
55. See Julian De Freitas et al, “Normative Judgments and Individual Essence” (2017) 41 Cognitive Science 382.
56. See Rose & Nichols, “Essentialism: Generalized”, supra note 51; Rose & Nichols, “Essentialism”, supra note 51.
57. See Tobia, “Reasonable”, supra note 7.
58. See Brian Flanagan & Ivar R Hannikainen, “The Folk Concept of Law: Law Is Intrinsically Moral” (2020) Australasian Journal of Philosophy 1.
59. The hypothesis for this manuscript was pre-registered with Open Science Framework (OSF Registries). See de Almeida, Guilherme d F C F. “Original intent, current practice and morality in the attribution of purposes in law and in life”, (19 November 2019), online: http://www.osf.io/qr483
60. The code used to generate all models and model comparisons for all studies, as well as all vignettes and data, are available at OSF Registries, “Purposes in law and in life”, online: https://osf.io/grv25/?view_only=21999d1a1165403ba2fdc98f4d0ac5bc. To simplify the report, we created a variable that encoded the interaction between direction of change and moral valence. Our results are robust to the choice between building the models using the interaction between direction of change and moral valence or a single variable encoding this information as a main effect. For details, see ibid for Supplementary Materials.
61. See Matan & Carey, supra note 1; German & Johnson, supra note 1.
62. See Siegel & Callanan, supra note 1; Joo, Yousif & Knobe, supra note 1.
63. See Felipe Jiménez, “Some Doubts About Folk Jurisprudence: The Case of Proximate Cause” (2021) U Chicago L Rev Online, online: https://lawreviewblog.uchicago.edu/2021/08/23/jimenez-jurisprudence/.
64. See Dan M Kahan et al, “‘Ideology’ or ‘Situation Sense’? An Experimental Investigation of Motivated Reasoning and Professional Judgment” (2016) 164:2 U Pa L Rev 349; Kevin P Tobia, “Legal Concepts and Legal Expertise” (2020) in Bartosz Brozec, Jaap Hage & Nicole A Vincent, eds, Law and Mind: A Survey of Law and the Cognitive Sciences (Cambridge University Press, 2021) [Tobia, “Legal Concepts”].
65. All participants who reported legal training passed the pre-registered comprehension check.
66. Studies 2A and 2B included one non-legal scenario, dealing with an internal rule adopted by a university department. Even under that scenario, we primed a future decision-making environment by adding that, “Now that the rule was in place, the administrative staff is inquiring about what is the purpose underlying it. After all, the purpose of a rule is often used in an institutional setting to decide what is allowed.”
67. Preregistered on the As Predicted platform at the Wharton Credibility Lab. See As Predicted: Synchronic purposes (#32193), (3 December 2019) online: https://aspredicted.org/blind.php?x=5n6b6f.
68. In some cases, it is possible to argue that we merely contrasted morally good purposes with morally worse, but still not entirely bad, purposes. The overall conclusions, however, would still hold in that case.
69. This means we followed a 2 (majority, minority) x 2 (moral purpose, immoral purpose) between- x 4 (scenario) within-subjects design.
70. Alternatively, participants might be taking the original intentions of a majority of lawmakers to be evidence for the practice that will soon form surrounding the rule. On that interpretation, the results would be compatible with the existence of very few intentionalists: the apparent effects of original intentions could be explained by the strength of people’s commitment to current practice purposivism. Although interesting, this suggestion seems to assume too much. After all, the vignettes clearly implied the absence of an established practice surrounding the rule. Nonetheless, future research should put this alternative explanation to the test.
71. See Kevin P Tobia, “Law and the Cognitive Science of Ordinary Concepts” in Law and Mind: A Survey of Law and the Cognitive Sciences (Cambridge University Press, 2021).
72. See Joo, Yousif & Knobe, supra note 1.
73. See Deborah Kelemen & Evelyn Rosset, “The Human Function Compunction: Teleological explanation in adults” (2009) 111:1 Cognition 138.
74. But see caveats at supra note 70.
75. See Alexander & Prakash, supra note 31; Goldsworthy, supra note 35.
78. See Ivar R Hannikainen et al, “Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law” (2021) 45:8 Cognitive Science, online: https://onlinelibrary.wiley.com/doi/10.1111/cogs.13024.
79. Even in those cases, it might be that lawyers would still prefer current practice over the other alternatives in such a strong way as to nullify the effects of moral purposes. According to that alternative reading of the data, it is the conjunction of Study 2’s explicitly adjudicatory setting with the absence of a clear current practice alternative that makes lawyers turn to morality.
80. See Roseanna Sommers, “Commonsense Consent” (2020) 129:8 Yale LJ 2232 (on consent); James Macleod, “Ordinary Causation: A Study in Experimental Statutory Interpretation” (2019) 94:3 Ind LJ 957 (on causation); Joshua Knobe & Scott J Shapiro, “Proximate Cause Explained: An Essay in Experimental Jurisprudence” (2021) 88:1 U Chicago L Rev 165 (on causation); Tobia, “Legal Concepts”, supra note 64 (on intentional action); Markus Kneer & Sacha Bourgeois-Gironde, “Mens rea ascription, expertise and outcome effects: Professional judges surveyed” (2017) 169 Cognition 139 (on intentional action).
81. See Walter Sinnott-Armstrong, “A Patchwork Quilt Theory of Constitutional Interpretation” in Tom D Campbell & Jeffrey Goldsworthy, eds, Judicial Power, Democracy, and Legal Positivism (Routledge, 2016).
82. For an overview of the different answers scholars have given to the question of whose attitudes shape law, see Matthew Adler, “Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?” (2006) 100:2 Nw UL Rev 719.
83. See Jiménez, supra note 63.
84. For recent surveys of the field, see Karolina Magdalena Prochownik, “The experimental philosophy of law: New ways, old questions, and how not to get lost” (2021) 16:12 Philosophy Compass, online: https://onlinelibrary.wiley.com/doi/10.1111/phc3.12791; Roseanna Sommers, “Experimental Jurisprudence” (2021) 373:6553 Science 394; Kevin P Tobia, “Experimental Jurisprudence” (2022) 89 U Chicago L Rev [forthcoming].
85. See Sommers, supra note 80.
86. See Macleod, supra note 80; Knobe & Shapiro, supra note 80.
87. See Tobia, “Reasonable”, supra note 7.
88. See Tobia, “Legal Concepts”, supra note 64; Kneer & Bourgeois-Gironde, supra note 80.
89. For an argument to that effect, see Jeremy Waldron, “The Core of the Case Against Judicial Review” (2006) 115:6 Yale LJ 1346.
90. A similar strategy would be to argue that law’s ability to exercise legitimate authority recommends intentionalism (see Marmor, supra note 27 ch 8) and that it trumps the importance of publicity.
91. But see Lon L Fuller, “Human Purpose and Natural Law” (1958) 28 Natural Law Forum 68 (arguing that all purposeful action, even outside law, implies a blurring of the ‘ought’/‘is’ distinction).
No CrossRef data available.