Brief Excerpts

From Jon Hanson’s Introduction:

Now that the end of the end of ideology has been declared, social psychologists and other mind scientists have begun to study the characteristics and situations of people drawn to different political dogmas.  What they are learning does not square easily with the presumption that rationality and choice form the foundation for political preferences.

For instance, the widespread belief that our foes, but not we ourselves, are subject to the biasing influence of ideology is badly flawed; indeed, it is analogous to the erroneous assumption that those who do not pronounce words as we do have an accent, but we do not.  Ideologies—and the knowledge structures they entail and cognitive shortcuts they encourage—are, to some degree, inevitable.  Moreover, mind scientists are discovering that ideologies are as much a manifestation of nonconscious associations, implicit motives, and affective reactions as they are a product of careful reasoning and explicit choices.

Thus, when we embrace an ideology or claim to rise above it—whether as citizens, judges, or scholars—that choice is generally motivated by implicit processes and shaped by our social and psychological situations.  Such findings pose a major challenge to those who endorse and claim to abide by the norm of reasoning—including the peddlers of legal thought and legal theory.

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The legal system is one of many institutions that purports to operate according to the norm of reasoning and outside the distorting influence of political ideology. […]

To the extent that a judge or a judicial decision is widely perceived to be ideologically motivated, the legitimacy of that judge or that decision will be compromised.  And, if many judges are so perceived, then the legitimacy of the entire judiciary, or even the legal system itself, will be undermined.  The most influential legal theories and legal theorists have been similarly committed to the norm of ideology-free reasoning.  Thus, when Posner criticized the highly ideological “sociology of law,” he praised “law and economics” for having “no political valence.” [However,] insights from the mind sciences raise difficult questions for legal practitioners and legal theorists about whether it is possible or feasible to rise above ideology or evade its influence.

In fact, a critical examination of the legal system reveals that it fails in that ambition and is, instead, built upon a dubious ideological framework. For instance, the American legal system is premised on a highly individualistic conception of the person—what Steven Lukes calls abstract individualism, what Duncan Kennedy calls the will theory, and what social psychologists might call a dispositionist person schema Although that context-blind perspective, whatever its name, was significantly challenged in the middle of the 20th century, it returned with a vengeance for the final few decades of the 20th century, when neoclassical economics and the rational-actor model came to dominate legal theory.

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Thus, influenced by that free-market ideology, the professed goal of law was to facilitate voluntary transactions, which involved encouraging unencumbered markets and discouraging regulatory interference in the otherwise free choices of individuals.  The ideology grew strong enough to animate the neo-conservative political movement and to shape policy across the entire legal landscape, as evinced by the policy scripts of the most powerful policy leaders. And all that occurred while many legal theorists and legal actors believed themselves to be operating independent of the distorting influence of any ideology.

Such was the state of law and legal theory roughly from 1980 through 2000.  True, there were detractors and critics, but the ideology of economics was king—dressed as it was beneath the legitimating wardrobe of logic, neutrality, and reason.  Legal economic theory assumed that individuals and legal institutions operated largely through rational analysis and deliberate choice, circumscribed from the influence of underlying political ideologies or psychological forces.

Furthermore, legal economists made the same assumption about themselves, presuming that they were free of any biasing influences in the development and maintenance of their theory. Their policy preferences were, they believed, the product of rigorous social science—that is, the product of objective inquiry, the scientific method, and empirical verification.

Put differently, the legal economists believed that their policy preferences emanated from the norm of reasoning.  What they failed to recognize, and what the mind sciences would help reveal, however, was that behind the façade of science and reasoning lay that shadowy metaphysics of ideology.

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As legal academics began to explore new fields, they soon encountered discoveries with far-reaching implications for law and legal theory.  Indeed, while economists, lawmakers, and legal theorists were embracing the rational actor model (or the law’s reasonable person norm) in the late 20th century, social psychology, social cognition, cognitive neuroscience, and other mind sciences were demonstrating its flaws. […]

More specifically, researchers amassed a sizable and still burgeoning body of evidence showing that the commonsense presumption that a person’s behavior is the product of stable preferences […] was based on an illusion or “attribution error.” More than people’s disposition and conscious decision making, mind scientists demonstrated that people’s situation—that is, hard-to-see forces within us (such as knowledge structures, subconscious motives, and implicit associations) and nonsalient forces outside of us—are shaping behavior and outcomes. The mind sciences turned commonsense legal theory on its head by recognizing ideology—construed broadly to include numerous internal influences outside the norm of reasoning—as foundational to human behavior and “reasoning” as a potential façade behind which ideology operates.

Looking back just a decade or two, we appear to be in the midst of a fundamental shift in the direction and trajectory of legal theory and the law itself. It is as if the legal world had been operating on geocentric assumptions and has only now begun to confront the heliocentric discoveries of modern astronomy.  In projects ranging from modest to enormous in scope, legal theorists are increasingly attempting to grapple with a new way of understanding the world.

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