Legal Theory

Jon Hanson & David Yosifon, The Situational Character: A Critical Realist Perspective on the Human Animal, 93 GEORGETOWN L.J. 1, 136 – 38 (2004) (footnotes omitted):

Getting to know the situational character . . . teaches us something about what moves our own theories about what moves us. We are not referring here to the many exterior situational forces behind the long and successful “life” of the dispositional actor. . . . We are referring instead to the influence that our interior situation tends to have on the shape of the policy theories likely to be most successful. Legal theory, too, will share much in common with the law. But, as an outside observer, a legal theorist is to law something closer to what a social psychologist is to the human variety of situational characters: an observer attempting to ascertain what really moves the situational character—to see, for example, if the purported attitudes, reasons, and rationalizations of the situational character square with its behavior. Where apparent incoherence is identified, legal scholars offer theories intended either to make sense of the decisions (positive theories, which can be legitimating or delegitimating) or to show how the law, in practice, should be (re)formed or (re)structured to achieve a particular goal (normative theories).

Knowing something more about the situational character, we can better predict which theories will be most highly valued outside of law schools, and thus which ones will tend to be advantaged, other things being equal. First, successful theories will rely on a highly dispositionist view of the human actor—one that presumes that humans will their choices through thought and preferences. The model actor—the one that sets the standard for all of us—will be a fairly robust version of our widely held, dispositionist self-conceptions. The model actor therefore will be a thoughtful, reasoning actor, who approaches questions from a data-driven, bottom-up perspective, one who is not biased by cognitive shortcuts, distorting knowledge structures, emotions, or any unseen interior influences. She will have stable preferences that are consistent over time and with her behavior. And exceptions to that conception will be narrow and snugly anchored to that conception.

Legal conclusions and legal-theoretic inclinations will tend to favor the most powerful groups (and cultural in-groups). Various cloaks of legitimacy will be draped over the law and legal theories. Categories and schemas that tend to favor those groups will be created and perceived as neutral and natural, even when they are false, incomplete, or biasing. Laws and legal theories will also, on the whole, tend to be system-affirming. For all of these reasons, legal theories will, like the laws, tend to underestimate the role of situation—too often ignoring or downplaying the role of unseen forces that move or exploit the situation. Similarly, they will vastly limit our ability to see certain harmful situational forces and our ability to correct for those that we do see, such as the role of market manipulation.

System affirmation will be accomplished in significant part through the dispositionism that already infects our attributions. Throughout, there will be little serious attention given to the possibility that people’s conduct deviates from that of the model (dispositional) actor. That is, only the most obvious interior and exterior situational influences will be acknowledged. And those theorists who challenge the dominant conceptions will be viewed (along with their theories) as members of the same marginal and threatening out-group(s).

The above description, we believe, accurately depicts much of traditional law and economics, and it helps to explain its tremendous real-world influence. Unfortunately, social psychology also strongly suggests that such a legal theory or legal system will have significant harmful effects—even as measured by existing normative theories regarding the goal or goals of law. . . .

Our point here is that a better understanding of the situational character helps us to better understand our policy and policymaking systems. And the lessons of social psychology may be as unsettling and counterintuitive for our understanding of those systems as they have been for our understanding of ourselves. The very theories that we use to legitimate our systems, for example, may in fact be contributing to injustice—as defined by those theories. Insofar as we ignore situation, we ignore the limits of presumed autonomy and many of the most influential forces in our society—often far more influential than personal choice. That situational ignorance, it would seem, likely advantages those people, groups, and interests with the greatest autonomy to start with. Thus, situational ignorance helps to create—and then legitimate and maintain—power relationships. Power that is reinforced by the law is legitimated as the acceptable outcome of neutral legal processes. When those processes are understood as part of the manipulated, constructed, hidden situation that creates that power, any claim of neutrality vanishes—and, with it, the legitimacy that guards associated inequalities.

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