Forthcoming in T. Lombrozo, J. Knobe, & S. Nichols (Eds.), Oxford Studies in Experimental Philosophy, Volume 3. Oxford: UK, Oxford University Press.

Fuller and the Folk: The Inner Morality of Revisited

Raff Donelson Ivar R. Hannikainen

LOUISIANA STATE UNIVERSITY PONTIFICAL CATHOLIC UNIVERSITY [email protected] OF RIO DE JANEIRO [email protected]

The , or , is an concept has—this empirical debate would area of study wherein experimental methods benefit from empirical research. In are largely absent but sorely needed. It is particular, we might seek out folk puzzling that the experimental turn has been psychological evidence, predicated on the slow in coming to jurisprudence, as the field positive impact such evidence has had in other straddles two disciplines where empirical domains of philosophy. evidence is increasingly common. On one The foregoing may not be convincing. flank, empirical studies have long been Traditional legal philosophers who do not use popular among non-philosophers in law empirical methods will need to hear more to departments; on the other, experimental appreciate why strange, new techniques methods now abound in many areas of might be appropriate. Experimental philosophy. philosophers who have yet to consider While it is difficult to understand why few jurisprudence will need to hear more about have adopted an experimental approach to the subfield and its issues to understand how jurisprudence, it is clear why experimental they might contribute. We hope to address jurisprudence should be on the agenda: legal such philosophers and others, but not with a philosophers routinely ask questions that are purely metaphilosophical tract. Instead, our explicitly empirical. To give just one brief essay aims to exemplify the potential for example, consider the fact that in experimental approaches to jurisprudence. As contemporary jurisprudence, some such, we focus on a narrow issue in philosophers are concerned, in part, to give jurisprudence. We appraise Lon Fuller’s the correct account of our concept of law or procedural theory using our concept of a legal system (Raz 2009), experimental techniques. Admittedly, his is while others are anxious to show that there is just one of many theories about law; however, no single concept of law (L. Murphy 2005; it is a prominent theory, and legal Priel 2011). It would seem that this debate— philosophers have written extensively to about whether we have a shared concept of criticize (Hart, 1965; D’Amato, 1981), defend law at all, and if so, what contours that (C. Murphy, 2005), and extend that theory (Winston, 2005). If our experiments usefully made public for those regulated to learn of add to this debate, we thereby establish the their and duties), and the prospectivity legitimacy and value of experimental principle (that a legal rule of conduct may only jurisprudence. regulate conduct performed after the The trajectory of the essay is as follows. We promulgation of said rule of conduct).1 Since begin with background on Fuller’s theory of its initial formulation in the 1960s, Fuller’s law and on the state of jurisprudence. For theory has been widely discussed and those well-versed in those debates, this can be continues to enlist new adherents. This is not skimmed or skipped. Next, we offer an surprising because the view has certain overview of the studies that we performed. In theoretical virtues, virtues one can identify this overview section, we state with precision upon reviewing other well-known views in how our experimental approach helps to this debate. assess Fuller’s theory. After the overview, we If the key discussion in jurisprudence is the present each of the three studies themselves. search for necessary and sufficient conditions For each study, we discussion our predictions, for law, the most notorious debate within that the motivating thoughts behind those key discussion concerns whether a has predictions, the manner by which the to have particular content in order to count as experiment was performed, and the results. legal norm. Legal philosophers have been In the final section of the essay, the general especially interested in whether a norm’s discussion, we elaborate on results of our content has to comport with the strictures of research and explore their limitations, and morality in order to be a legal norm. If a norm muse in more broad-minded way about the permits or even requires those subject to it to future of experimental jurisprudence. perform grossly immoral acts, can that norm be a legal norm? That kind of question has Fuller’s procedural natural law theory long been the hot-button issue in jurisprudence. Those who answer in the The key discussion in jurisprudence concerns affirmative are, roughly speaking, legal the necessary and sufficient conditions positivists; whereas, those who answer in the something must satisfy in order to count as a negative are, roughly speaking, natural law law or a legal system. Fuller (1969) offered a theorists. Legal has a long list of major contribution to this discussion when he famous proponents (e.g., Austin, 1998; proposed a novel set of necessary conditions. Kelsen, 1967; Hart, 1994; Raz, 2009; Specifically, Fuller argued that a social Waluchow, 1994; Shapiro, 2011); while arrangement is a legal system insofar as that natural law theory has its own list of famous arrangement satisfies eight principles that he proponents (e.g., Aquinas, 1994; King, 1986; collectively called “the inner morality of law.” Finnis, 1980; Dworkin, 1986; Murphy, 2011). These principles include the generality Fuller set himself apart by straddling the principle (that legal systems must have divide between the two camps. general rules of conduct), the publicity principle (that legal rules of conduct must be

1 We reproduce the full set of Fullerian principles below and only offer this abbreviated list to help fix ideas.

2 Scholars are often drawn to natural law sees as necessary features of law, theory because they hold as a considered minimally treat people fairly. Arguably, this judgment the thought that, prima facie, those feature of law would deserve respect and subject to a law’s provisions have a moral would give subjects some moral reason to reason to obey it. Or to put this considered comply with law. To illustrate the minimal judgment another way, prima facie, law sense in which law treats people fairly on deserves subjects’ respect. If this considered Fuller’s theory, consider two of his principles. judgment is used as a desideratum for The publicity principle (that legal rules of selecting one’s theory of law, one will endorse conduct must be made public for those some content restriction as a condition for regulated to learn of their rights and duties) some norm to count as law. On the other and the prospectivity principle (that a legal hand, scholars are often drawn to legal rule of conduct may only regulate conduct positivism because they hold as a considered performed after the promulgation of said rule judgment the thought that some laws are of conduct) together imply that law unjust such as those of the Third Reich, necessarily gives subjects fair notice of which apartheid South Africa, and the antebellum behavior will elicit adverse state responses. American South. The foregoing explains how Fuller can Because, for Fuller, a norm can be law only accommodate one of the driving thoughts if it has certain content (e.g. it is prospective behind traditional natural law theory, but he and not retrospective), his view is often does not incur that theory’s key theoretical classed as a version of natural law theory. cost, denying that there are unjust laws. It is However, Fuller’s natural law theory differs to Fuller’s theoretical advantage over other from more familiar versions of natural law natural that he can claim with legal theory which claim that a norm is a law only positivists that some norms are both unjust if the norm is just (Aquinas, 1994; King, 1986) and legal in the fullest sense. or claim that unjust norms can, at best, be Before concluding this section on Fuller’s defective instances of law (Finnis, 1980; work and its place in contemporary Murphy, 2011). Fuller’s conditions only jurisprudence, we summarize the eight disqualify norms which exhibit certain principles which comprise Fuller’s inner procedural failings from being laws. Thus, for morality of law. The principles are as follows. Fuller, many unjust norms can be laws, and (For ease of exposition, n will signify some only some unjust norms would fail to be laws. norm, L will signify law, and all claims For this reason, commentators often label concern a single jurisdiction.) Fuller’s view an instance of procedural natural law theory. CONSISTENCY: n1 and n2 are both L only if n1 Fuller’s procedural natural law theory and n2 are mutually consistent might be thought to enjoy theoretical virtues of both traditional natural law theory and ENFORCEMENT: n is L only if the published . Fuller’s view can version of n accords with how n is enforced countenance the considered judgment that GENERALITY: n is L only if n is a general rule law, prima facie, deserves subjects’ respect. of conduct Given the procedural constraints that Fuller

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INTELLIGIBILITY: n is L only if n can be whether his attempt has been successful. The understood by subjects folk intuitions are the very subject of Fullerian claims on this construal. Alternately, insofar POSSIBILITY: n is L only if n requires only those acts subjects are physically capable of as Fuller attempts to do descriptive analysis of performing law, analysis of what law actually is, folk intuitions bear indirectly on whether Fuller is PROSPECTIVITY: n is L only if n regulates right. It is a familiar epistemic principle that only conduct performed after the views requiring a massive error theory, that promulgation of n is, views that imply that most people have PUBLICITY: n is L only if n is publicly false beliefs with respect to a given announced proposition, are to be regarded skeptically (Jackson, 1998; Wright, 1994). To be fair, this STABILITY: n is L only if n does not change epistemic principle has its detractors too frequently (Frances, 2013), but generally, philosophers Overview of the studies hold that extraordinary evidence is needed to Having outlined our general ambitions and overturn widespread, commonsense views. offered a sketch of Fuller’s position, we now Given that, determining what people believe must explain our experiments. This is essential to determining whether the explanatory task is twofold: to chart the presumption against error theories weighs for specific steps we took and to justify using or against Fuller’s theory. these experiments in appraising Fuller’s Whether one understands Fuller’s procedural natural law theory. effort as an instance of conceptual analysis or Broadly, our experiments attempt to descriptive analysis, experimental data would ascertain the extent to which Fuller’s inner best bolster his account if it demonstrated that morality of law reflects the folk understanding the folk widely and reliably agree with his of law. The folk understanding of law can be principles. This implies that there are two important for assessing Fuller’s theory in two ways that the data could cause trouble for the different ways, depending on how one account: folk support for Fullerian principles understands his effort. might be modest or even meager, or folk Following Haslanger (2012a, 2012b), support for Fullerian principles might be philosophical analysis of the kind that Fuller unstable. If the data should reveal modest and others engage usually proceeds in one of support, his account faces problems, whether two modes, either as conceptual analysis, construed as conceptual or descriptive analysis of what ‘we’ take the analysandum to analysis. If few share his view and Fuller is be, or as descriptive analysis, analysis of what attempting to predict our shared concept of the analysandum actually is, irrespective of law, we may have to reject the account how we see it. If Fuller was engaged in entirely as an inaccurate prediction. If we conceptual analysis, he was trying to view the theory as descriptive analysis, the determine ‘our’ concept of law. As such, his presumption against error theories may tell theory is, more or less, a prediction of what against him. If the data should reveal unstable those who possess the concept of law would support among the folk – presented in one say. Therefore, folk intuitions bear directly on fashion, Fullerian principles garner

4 widespread support; presented another way, Throughout our studies, we investigate they are roundly rejected – supporters of whether intuitions about Fuller principles are Fuller would need to explain away the Fuller- susceptible to effects of construal level—in the unfriendly response pattern. Otherwise, some contrast between (i) hypothetical (higher- of Fuller’s opponents will attempt to explain level) versus actual (lower-level) laws in away the Fuller-friendly response pattern, Studies 1 and 3, and (ii) between the essence thereby saddling the view with the previous of law (higher-level) and concrete instances of problem, that of modest support. law (lower-level) in Study 2. With the foregoing in mind, we Evaluation mode developed three experiments in which we Judgments and decisions can be made in one probe folk (Studies 1 and 2) and expert (Study of two evaluation modes (Hsee, Loewenstein, 3) concepts of the law. Our studies aim to Blount, & Bazerman, 1999): separate capture the levels of support that Fullerian evaluation, in which a single option or principles garner while also examining two alternative is evaluated, or joint evaluation, in kinds of effects on judgments about the nature which various options are presented and of law. These effects, of construal level (Trope evaluated at once and often by comparison to & Liberman, 2010) evaluation mode (Hsee, each other. Loewenstein, Blount, & Bazerman, 1999), A wealth of studies has shown that our have already been observed in other areas of preferences and judgments can vary as a judgment and decision-making. Below, we function of evaluation mode—perhaps briefly describe both effects and summarize because judgments in separate evaluation evidence of their impact upon decision- depend on more spontaneous impressions making at large. and easily evaluable features, while in joint Construal level evaluation, secondary characteristics that are The theory of construal level posits that harder to evaluate can be taken into account mental representations (e.g., of a soccer (Hsee, 1996). player scoring a goal) can occur at different In an oft-cited example, when asked construal levels: Higher-level construal separately, participants offered to pay more focuses on the abstract and functional for a new dictionary with only 10,000 entries properties (e.g., whether it was a winning than for a dictionary with 20,000 entries and goal, or a beautiful goal), while lower-level a torn cover. Then, when asked jointly, construal highlights the concrete, participants were willing to pay more for the sensorimotor and/or descriptive properties dictionary with more entries. Thus, it is (e.g., whether it was a shot or a header, sometimes argued that joint evaluation whether it had spin, etc.). Psychological provides the opportunity for spontaneous distance is closely linked to construal level assessments—i.e., assigning more weight to (Trope & Liberman, 2010) because events that the defective cover than to the number of are closer to us in some respect, whether entries—to be checked against subjects’ own temporally, spatially, or socially, are benchmarks—i.e., believing that construed at lower levels. Distant events, by one ought to value the number of entries more contrast, tend to be construed at higher levels. than the condition of the cover (Bazerman, Gino, Shu & Tsay, 2011).

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In Study 1, we examine whether the folk to determine how likely the folk were to conception of law varies as a function of endorse these principles in the manner set evaluation mode. In particular, we test forth by Fuller, as necessary conditions for whether the folk endorse the procedural something to count as a law. We also sought natural ’s view—that laws necessarily to determine how likely the folk were to observe Fullerian principles—more in endorse these principles, if understood as separate or joint evaluation. mere contingent truths. Finally, we also sought to explore the effect of evaluation General methods mode. Our studies were conducted on samples In this and the subsequent studies, we test drawn from two populations: (1) United whether Fullerian principles enjoy States adults (N = 242) with no specific endorsement at the 2:1 supermajority level. A training or knowledge of the law, and (2) bar case can be made that “widespread support” association members (N = 92) with training is satisfied at any level of support at or above and substantial experience in the legal a simple majority. For that reason, our choice profession. Complete study materials, data of 2:1 may appear arbitrary. Several and scripts are available at considerations recommend this level of https://osf.io/my2xe/. support. A bare majority is consistent with rife disagreement. If, for instance, 50.1% of Lay sample the folk endorsed Fullerian principles, it 242 participants (39% women; Age: Q1 = 27, would seem premature and perhaps even Mdn = 31, Q3 = 40) were recruited from misleading to claim that Fuller’s theory Amazon Mechanical Turk to take part in comports with the folk conception of law. It Studies 1 and 2. All participants were US may even be premature to posit a univocal residents with a 90% approval rate and were folk conception of law in the face of such compensated for their participation (at disagreement. At the other extreme, requiring $7.25/hour, based on median completion time unanimity seems unduly onerous and during pre-testing). uncharitable to Fuller’s view. If all but a small Law professionals fraction of participants endorse Fullerian

73 participants (56% women; Age: Q1 = 38, principles, it would be unreasonable to claim Mdn = 52, Q3 = 63) were contacted via state that Fuller’s theory fails to track folk bar associations. All participants were intuitions. With both simple majority and members of bar associations, and most (87%) unanimity ruled out as reasonable options, were lawyers. Median years of experience both the 2:1 and the 3:1 levels recommend doing law-related work was 25 (Q1 = “10”, Q3 themselves. The 3:1 level looks particularly = “30 or more”). attractive because it seems to “split the difference” between simple majority and unanimity. However, because we predicted Study 1: Necessary or actual? Fullerian that Fullerian principles would not even principles in separate and joint evaluation garner support at the 2:1 level, we chose this In our first study, we sought to determine level as opposed to the more demanding 3:1 the degree of support Fullerian principles level. enjoy among the folk. In particular, we sought

6 To continue about our predictions, we Imagine that anthropologists discover a predicted that Fullerian principles would few previously unknown societies on Earth, garner only modest support, falling below the referred to as the Faraway nations. Their 2:1 level, whether the principles were inhabitants are Homo sapiens like us and, understood as necessary claims or claims though their customs and traditions are about the actual world. This skeptical unique, they have and laws prediction is motivated by general skepticism much like the rest of nations on Earth. In that Fuller’s theory reflects folk intuitions as this survey, we are interested in what you well as some concern that there is a univocal suppose Faraway nations are like. folk conception of law to be tracked. We also Specifically, we will ask you eight questions predicted that the folk would be more likely to about their laws. endorse Fullerian principles as true of the Next, participants were shown pairs of actual world than as true necessarily. Two statements for each Fullerian principle and reasons backed this prediction. First, since were asked to endorse one statement from necessity entails actuality but not vice versa, each of the eight pairs. In each pair, one the necessity claim is the more ambitious. statement was a Fullerian principle, phrased Second, we expected that participants’ own either as an empirical claim (“The law as experience living in polities that observe the enforced does not differ much from the law as rule of law would dispose them to claim that formally announced”) or as a necessary claim actual legal systems often do respect Fullerian (“The law as enforced [in Faraway nations] principles; however, we also expected could not differ much from the law as participants to be familiar with political formally announced”). The other statement orders—historical, contemporary, and even in the pair was the negation of the Fullerian fictional—with little respect for the rule of law, principle. and this familiarity would dispose them to reject the idea that Fullerian principles are Results necessary truths. There was substantial variation in Study 1a: Fullerian principles in separate endorsement by principle: Some principles, evaluation like the publicity principle and the possibility principle, garnered endorsement by a In this part of our first study, we ask one supermajority; others, such as the consistency group of participants to evaluate Fullerian principle, fell even below a simple majority claims as actually true, and another group to view (see Figure 1 and Table 1). evaluate whether they are necessarily true. To generate an overall measure of support Procedure for Fullerian principles, we first averaged Participants were randomly assigned to one of participants’ responses across all eight two conditions, Actual or Necessary. In the principles: Agreement with Fullerian views Actual condition, participants read: ranged between 46% and 54% in the Actual In this survey, we will ask you eight condition (M = 0.50, SD = 0.21), and between questions regarding the law. 52% and 64% in the Necessary condition (M = 0.58, SD = 0.27). One-sample t-tests against Meanwhile, in the Necessary condition, the 2:1 supermajority level revealed that participants read: support for Fuller principles fell short of a

7 supermajority in both conditions: Actual t(82) It is unclear why a majority of participants = 7.16, p < .001; Necessary t(80) = 2.81, p = treated Fullerian principles as necessarily true .006. with regard to hypothetical laws, but not Surprisingly, agreement with Fuller empirically true of the laws they know. First, principles appeared to be higher in the it could be that participants do not fully Necessary than in the Actual condition— understand necessity and possibility opposite our original prediction. A mixed- (◊A→~□~A). Alternately, by appealing to effects logistic regression confirmed this hypothetical laws in one condition and known result: We entered condition as a fixed effect, laws in another, perhaps we inadvertently and participant and principle as random asked participants to report on distinct effects, while allowing the slope of condition concepts (Knobe, Prasada, & Newman, 2013). to vary across principles. The model revealed If, however, participants view these a significant effect of condition, OR = 1.55 distinct intuitions as conflicting or [1.04, 2.34], t = 2.21, p = .027. In other words, inconsistent, then the difference in participants were more likely to believe that participants’ judgments regarding actual Fuller properties are necessary for law (when versus hypothetical laws ought to vanish (or thinking about hypothetical legal systems) even reverse) under joint evaluation—a than that they are actual properties of laws. hypothesis we pursue in Study 1b.

Figure 1. Actuality (x-axis) and necessity (y-axis) judgments for each Fuller principle under separate (blue) and joint (red) evaluation. The solid diagonal line highlights the judgment reversal between conditions. The diagonal dashed lines correspond to supermajority disbelief (1:2) and belief (2:1) averaging across judgment types.

8 Study 1b: Joint evaluation participants to spot the seeming inconsistency In this second part of the study, we asked a in claiming that laws obey Fullerian principles single group of participants to assess whether by necessity though many laws fail to do so in Fullerian principles actually hold, and practice. whether they hold necessarily. We predicted Procedure that the surprising result we obtained in Participants were asked to make both types of Study 1a would dissipate when participants judgments (actuality and necessity) regarding make both judgments at once. Joint each Fuller principle. A short introduction to evaluation, we surmised, would help the study made this clear.

Model 1 Model 2 Weighted prop. Necessity Joint Evaluation Necessity×Joint Evaluation 0.7 0.89 0.71 0.28 ** Publicity [.65, .75] [0.56, 1.43] [0.44, 1.14] [0.11, 0.73] 0.68 0.7 0.71 0.30 * Possibility [.63, .73] [0.42, 1.18] [0.42, 1.20] [0.11, 0.88] 0.57 0.57 * 0.85 0.71 Stability [.52, .63] [0.34, 0.94] [0.51, 1.42] [0.27, 1.87] 0.57 0.81 0.69 0.46 Generality [.52, .63] [0.51, 1.30] [0.43, 1.10] [0.18, 1.18] 0.53 1.29 1.01 0.33 * Prospectivity [.48, .59] [0.83, 1.99] [0.66, 1.57] [0.13, 0.82] 0.49 1.18 1.43 0.59 Enforcement [.43, .54] [0.77, 1.82] [0.93, 2.21] [0.25, 1.40] 0.46 1.06 0.96 0.53 Intelligibility [.41, .52] [0.68, 1.65] [0.61, 1.65] [0.22, 1.31] 0.29 1.56 # 1.46 0.49 Consistency [.24, .34] [0.96, 2.52] [0.90, 2.35] [0.18, 1.30] Model 1: 0.87 0.94 - Main effects only [0.73, 1.05] [0.74, 1.19] Model 2: 1.60 ** 1.45 * 0.42 **

+ Necessity×Joint interaction [1.26, 2.04] [1.05, 2.01] [0.28, 0.62]

Table 1. Endorsement of Fuller principles (in descending order) and effects (odds ratio and 95% confidence interval) of statement modality, evaluation mode, their interaction derived from mixed-effects logistic regression models on agreement. #: p < .10. *: p < .05. **: p < .005.

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Results participants to assess whether they constitute Agreement with Fuller principles ranged law. By comparing participants’ endorsement between 53% and 63% in the Actual of abstract principles to their assessments of condition (M = 0.58, SD = 0.24), and between concrete laws, we aim to conceptually 42% and 54% in the Necessary condition (M replicate the effect of construal level on = 0.48, SD = 0.26), once again significantly Fullerian intuitions. below supermajority support in one-sample t- We predicted that the folk would be tests: Actual t(77) = 3.18, p = .002; Necessary more likely to endorse Fullerian principles t(77) = 6.33, p < .001. when the principles are stated abstractly than Indeed, prompting participants to evaluate when grappling with the principles in Fuller principles simultaneously as empirical concrete situations. This prediction is and necessary claims reversed the distinction undergirded by the thought, expressed by we saw under separate evaluation. In a others (e.g. Hart, 1965), that Fuller’s mixed-effects model, the effect of condition principles express reasonable rules-of-thumb was highly significant, OR = 0.64 [0.46, 0.89], to make legislating rational and efficient. As z = 3.00, p = .003. such, it may be hard—when thinking This time, laws were seen as observing abstractly—to imagine how one would engage Fullerian principles de facto (by a simple in lawmaking in any other way. However, if majority), but not necessarily in a one is invited to consider concrete cases of hypothetical legal system—as we originally lawmaking that run afoul of the Fullerian predicted. principles, this difficulty in imagining dissipates, which should lead to lower rates of Table 1 summarizes Fuller principles by endorsement. endorsement and compares the results of Studies 1 and 1b, through additive (Model 1) Finally, we also investigate whether and interactive (Model 2) models with judgments on either task, the concrete or the evaluation mode and statement modality as abstract, are impacted by the order in which fixed effects. The Necessity×Joint Evaluation the tasks were presented. In our opening interaction represents the judgment reversal study, we found evidence that participants across conditions: Overall, participants were treated their judgments at different construal more likely to treat Fuller principles as levels as contradictory. Specifically, they necessarily (but not actually) true when appeared to ‘correct’ their spontaneous judged in isolation, and as actually (but not Fullerian intuition—that hypothetical laws necessarily) true when making both necessarily observe Fuller principles—when judgments at once. prompted to consider also whether actual laws in fact observe them. Analogously, we might expect that beliefs about the essence of Study 2: The abstract essence versus law, stated in abstract terms, might depend on concrete instances of law whether participants previously considered The previous study focused on attitudes specific violations of Fuller principles (i.e., an toward Fullerian principles when stated in effect of order on judgments in the abstract abstract terms. Next, we introduce concrete condition). violations of Fullerian principles, and ask

10 Procedure speeds under 85 kilometers per hour is In a 2 (construal: abstract, concrete) × 2 forbidden and that anyone found driving at (order: abstract-first, concrete-first) mixed speeds under 85 kilometers per hour on factorial design, 104 participants were Highway 1 will be ticketed. As a result of randomly assigned to one of two orders. the two bills, many tickets are issued and Every participant viewed two tasks—an the state revenues increase dramatically. abstract task and a concrete task—in a In the above example, we then asked “Are counterbalanced order across participants. these two bills truly laws” Fullerian In the abstract section, participants were judgments (that they are not laws) were asked whether laws ‘must’ observe a given coded as 1s, while non-Fullerian judgments Fuller principle P or if they ‘can’ violate P, for that they are laws despite violating the example: consistency principle were coded as 0s. Can there be laws that contradict one another or must laws be consistent? Results The dependent measure in the abstract As predicted, we observed an effect of condition was participants’ endorsement of construal level, OR = 7.51 [3.75, 15.03], z = one of two statements: 5.69, p < .001. Participants were much more likely to endorse Fuller principles in the There can be laws that contradict one abstract. When stated abstractly, participants another in a single jurisdiction (0: non- endorsed Fullerian principles approximately Fullerian), 67% [64%, 69%] of the time. When assessing or concrete violations of Fuller principles, participants largely reported that they were There must not be any laws that contradict truly laws nonetheless, with only 21% [19%, other laws in a single jurisdiction (1: 24%] reporting Fullerian judgments. Fullerian). Unexpectedly, there were no effects of In the concrete section, participants read order in either condition, |z| < 1, ps > .50. about a city ordinance, policy proposal or bill Exposure to violations of Fuller principles did that violated a certain Fuller principle P and not affect beliefs about the inner morality of were asked whether it was ‘truly a law’ or not, law, and reflection on the essence of law in the for example: abstract did not promote Fullerian reactions to concrete violations of procedural In a hypothetical country, a state principles. legislature passes two bills that the governor eagerly signs. The first bill is a speed limit bill. It says that driving along Study 3: The expertise defense Highway 1 at speeds over 80 kilometers per So far we have assessed views about the hour is forbidden and that anyone found procedural morality of law in a sample of driving at speeds over 80 kilometers per participants who lack technical knowledge of hour on Highway 1 will be ticketed. the law. In reaction to past folk psychological The second bill is a speed minimum bill. It evidence, philosophers have sometimes says that driving along Highway 1 at argued against drawing any major

11 conclusions from laypeople’s use of technical simple effects of expertise emerged in either concepts (Sosa, 2007). On this view, evidence modality: Professionals were no more likely to of experts’ beliefs is needed to understand judge that Fuller principles are actually whether law truly observes Fuller’s inner observed, OR = 0.81 [0.33, 1.97], z = -0.51, p morality of law. In Study 3, we examine = .61, or that they are necessarily observed by whether professionals with legal training and hypothetical legal systems, OR = 1.86 [0.84, experience reveal distinct intuitions about the 4.28], z = 1.57, p = .12. nature of law. Much like lay respondents, experienced Procedure lawyers exhibited the core intuition that For this study, lawyers were contacted Fuller’s procedural principles are necessary through their bar association mailing lists and for law, while at the same time believing that assigned to one of two conditions, Actual or laws in practice fail to observe them. Hypothetical, as in Study 1a. The materials were identical to Study 1a, except we added General discussion specific questions about participants’ In three studies, we found limited support for experience in the legal profession to the Fuller’s (1969) procedural natural law theory. demographic information section. As we noted at the outset, in the best case for Results Fuller, we would see widespread and reliable Averaging across principles, overall folk endorsement for his principles. This is agreement with Fullerian views ranged not what we see. between 39% and 54% in the Actual First we consider the widespread front. condition (M = 0.47, SD = 0.22), and between Though some individual principles were 57% and 78% in the Necessary condition (M widely endorsed by the folk, others were not, = 0.67, SD = 0.32). Like lay participants, legal and as a set, the inner morality of law did not professionals did not tend to think that actual garner 2:1 supermajority level support from laws observe Fuller principles at the 2:1 the folk. Insofar as Fuller aimed to capture supermajority level, Actual, t(34) = 5.26, p < ‘our’ concept of law, his theory misses the .001. However, they did tend to judge that mark at least in part. Because many of his hypothetical legal systems would necessarily principles garner a slim majority support observe Fuller principles at approximately a (when construed the right way), worries 2:1 ratio, t(37) = -0.08, p = .93. about the presumption against error theories Replicating the results of Study 1a, law probably do not obtain. Thus, if Fuller’s professionals tended to demonstrate the effect venture is what we called descriptive analysis, of construal level observed in laypeople, OR = he may be largely safe. However, some of his 4.05 [1.15, 15.08], z = 2.29, p = .022. When principles, particularly the consistency thinking about hypothetical legal systems, principles which has 2:1 supermajority level Fuller principles were viewed as necessary negative support, perhaps that needs to be properties although they were not viewed as modified. properties of actual law. There are larger problems on the reliability We then compared the responses of legal front. In conjunction, Studies 1a and 1b show professionals to those of lay participants. No participants’ views about Fullerian principles

12 shift depending on the conditions in which the philosophical debate concerning the role they are evaluated. Instability of this kind is of morality in law may in some arise from the problematic for Fuller, because, as we argued psychological capacity to oscillate between above, when there are two conflicting reports two conflicting concepts of law (see also of the level of endorsement, Fuller’s defenders Struchiner, Hannikainen & Almeida, in prep.). are now saddled with data to explain away. Our results also speak to two common This general problem looks particularly objections levied against folk psychological worrying given the precise way that results evidence on philosophical issues: the expertise turned out, since non-Fullerian reactions look defense and the reflection defense. like they emerge in the epistemically Regarding the former, did experienced preferable circumstance, i.e., joint evaluation legal professionals reveal different intuitions? in Study 1b. In joint evaluation, as opposed to They did not; legal professionals were also separate evaluation, arguably one’s views are divided with regard to the truth of Fuller more likely to reflect one’s more settled principles and susceptible to the effect of opinion. Study 2 looks similar, for it shows construal level. If anything, under separate that when we vary construal levels from high evaluation, legal professionals were to low, participants are more likely to doubt somewhat more likely to treat Fuller Fullerian principles. Again, Fuller is saddled principles as necessary properties of with something to explain away; and again, hypothetical laws despite recognizing that the there is room to argue that the non-Fullerian principles are flouted by actual legal systems. response pattern is formed in the more One may wish to push back at this point by epistemically ideal setting. Such an argument contending that legal professionals are not the might begin by noting that our intuitions are relevant sort of experts for the expertise sharpest when considering more everyday defense. On this refurbished version of the things. expertise defense, legal philosophers, not On closer inspection, our experiments also lawyers, are the true experts. We do not and point toward effects of construal level on the need not deny that our attack on the expertise propensity toward Fullerian views. When defense would be better if we also surveyed asked to reason about the law at a higher legal philosophers. Nevertheless, trained construal level, a majority of respondents lawyers do not have untutored minds about demonstrated Fullerian intuitions. This was the law, such that one can just dismiss their true when participants reasoned about intuitions. These professionals have expertise hypothetical legal systems instead of actual vis-à-vis the folk regarding a wide range of legal systems (Studies 1 and 3), and when they norms that purport to be law, and frankly, described the abstract essence of law instead many trained lawyers have expertise vis-à-vis of concrete instances of law (Study 2). legal philosophers. Taken together, the evidence we presented Regarding the reflection defense, did casts doubt upon the notion that we have a conditions favoring more careful reflection stable and univocal concept of law. Rather, influence beliefs about the inner morality of our evidence suggests that naturalist and law? Indeed, our evidence indicated that, positivist concepts of law are supported by when prompted to resolve the tension thinking at different levels of construal. If so, between their conflicting intuitions,

13 individuals were more likely to conclude that intuitions are the very thing they aim to Fuller principles are contingent, not discover. Experimental jurisprudence will necessary, properties of law. provide more reliable access to the truths they However, we must draw attention to seek. Other philosophers contend that we important limitations of our studies. First, our have no shared concept of law (Murphy, sample of legal professionals was smaller than 2005); for them, access to good data about one would hope. As a consequence, our claims folk intuitions could help to decide that regarding the expert concept of law should be matter. Our data might be suggestive on this treated as provisional and subject to front, but much more evidence is needed. Still confirmation in future research. Second, we other philosophers argue that our task as did not succeed in eliciting a distinction philosophers of law should include (or even between necessary and contingent truth wholly comprise) advocating that people overall, which may somewhat compromise accept particular conceptions of law for our conclusions regarding the modality of practical reasons (Murphy, 2005; Stoljar, Fuller principles. 2012; Donelson, forthcoming); for them, data We close by reemphasizing the broad about which views already have currency ambition of this essay. As the article actually might influence the views that these proceeded, it was largely a piece which offered philosophers recommend. These are just new reasons to doubt Fuller’s procedural some of the theorists who stand to gain from natural law theory. As such, one might be led more of these projects. We can only hope that to believe mistakenly that the interest of this others will continue in our stead and that this paper lies in solely in point-scoring for will yield a new, experimental jurisprudence. particular sides in a narrow debate. One of our broader ambitions was to demonstrate that, Acknowledgements by using empirical methods, we can We thank Guilherme Almeida, Joshua Knobe, contribute to core debates in jurisprudence. Noel Struchiner, Dietmar von der Pfordten Thus, this work hopes to make a significant and three anonymous reviewers for feedback methodological point about jurisprudence, on earlier versions of this manuscript. that experimental methods are viable. We also hope that this essay provides a blueprint to others (to revise and improve!) on gathering References information about folk intuitions about the Aquinas, T. (1994). The Treatise on Law. Ed. R.J. nature of law. At present, little of such Henle. Notre Dame: University of Notre Dame Press. evidence is available (e.g., MacLeod, Austin, J. (1998). The Province of Jurisprudence forthcoming; Tobia, forthcoming). Thus, this Determined. Indianapolis: Hackett. venture and others it inspires will be helpful Bazerman, M. H., Gino, F., Shu, L. L., & Tsay, C. J. to many philosophers. (2011). Joint evaluation as a real-world tool for To see this, we mention just three groups managing emotional assessments of morality. that stand to benefit from more experimental Emotion Review, 3(3), 290-292. jurisprudence projects. There are D’Amato, A. (1981). Lon Fuller and substantive philosophers of law engaged in conceptual natural law. American Journal of analysis of law (Raz, 2009); for them, folk Jurisprudence, 26(1), 202-18.

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