The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

“Critical Legal Histories Revisited”: A Response

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.     

What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

Labor Regulation,Corporate Governance,and Legal Origin: A Case of Institutional Complementarity?

We explore the influential claim that "legal origin"—the historical origin of a given national legal system in the common law or civil law—accounts for a significant degree of cross-national diversity in economic regulation and development. We show that the claim is undermined by problems in index construction and by a misreading of the implications of the common law/civil law divide for the respective roles of courts and legislatures in law making. We argue that a critical factor, instead, was the timing of industrialization in relation to the emergence of legal institutions associated with the modern business enterprise (the employment relationship and the joint stock company). We also show how distinctive "legal cultures" of the common law and civil law have played a part in setting national systems on separate pathways to economic development.     

Law and Coercion: Some Clarification

The relationship between law and coercion has been, and still is, a central topic in legal philosophy. Despite this, discussion about it is immersed in confusion. Some philosophers have noticed this, but hardly any work has been done to attempt to solve or even identify the confusions. This paper aims to fill this gap. Here I propose distinctions and qualifications that help us clarify the relationship between law and coercion and avoid confusion. Building on the clarificatory work, I then argue that despite there being several distinct philosophical discussions about the relationship between law and coercion, one of them should be prioritised.     

A Criticism of the International Harm Principle

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability.     

Putting risk factors in their place: an evolutionary-developmental approach to understanding risk

ABSTRACT

The assessment of criminal risk plays a prominent role in the criminal justice systems of many different countries and risk assessment is employed in a number of different domains. Given the importance of risk assessment tools in forensic contexts, and the amount of research devoted to evaluating their accuracy in predicting re-offending, it might be expected that risk assessment tools are grounded in our best theoretical understanding of the causal processes that give rise to criminal actions. However, it is not at all clear that this is the case. In this article, I will argue that one important area of neglect is the failure to fully engage with the literature in developmental and life-course criminology which also has directed an enormous amount of effort in to identifying risk factors for offending. At the heart of this neglect, I will claim, is the failure to fully recognise the key distinction between predicting offending and predicting re-offending. I will further argue that an evolutionary developmental perspective provides the theoretical resources to provide fully explanatory accounts of offending and re-offending, and in which risk factors can be appropriately located. I conclude by briefly considering some implications for theory, research, and practice.     

Post-sale confusion

Legal context: Recent case law has established that post-sale confusion isrelevant to determining whether registered trade mark infringementhas occurred under UK law. This raises questions as to whatthat relevance is in practice and as to whether the common lawof passing off should develop accordingly so as to take post-saleconfusion into account. Key points: In this article, the authors review the case law on the relevanceof post-sale confusion to actions for trade mark infringementand passing off. They conclude that U K law does regard post-saleconfusion as relevant to trade mark infringement, provided thatthere is also sufficient similarity on a mark-for-sign basisat the point of sale. They argue that the tort of passing offshould develop in the same way. Practical significance: Brands can be harmed even where there is no confusion at thepoint of sale. The law's development to recognize this providesimportant weapons for brand owners, particularly in the contextof ‘look-alike’ products.     

Farewell to the Exclusive-Inclusive Debate

In recent years there has an ongoing debate between two versionsof legal positivism. According to one, called exclusive positivism,whenever the law refers to morality, the law necessarily directsits subjects to an external, non-legal, standard, because thereis a conceptual impossibility in incorporating moral standardsinto the law. According to the rival inclusive positivist position,such incorporation is possible, and therefore moral standardscan be (although they need not be) part of the law. In thisarticle I argue that both views are mistaken since they bothassume that whenever words like ‘equality’, ‘justice’etc. appear in the law they refer to moral standards. Rather,I argue, these words refer to legal standards, which are differentfrom the moral standards. As a result the question of the possibilityof incorporation can be avoided, and the debate between exclusiveand inclusive positivists put to rest.     

Biological factors and crime: implications for forensic psychiatry

To summarize, we can say that (1) Criminal behavior, especially chronic criminal behavior, seems to be partly genetically predisposed; (2) An important task at this point is to attempt to determine the biological factors which predispose people to crime; and (3) We have related some tentative initial steps being taken in the study of the autonomic nervous system as one possible heritable, biological basis for the failure of normal social learning forces in inhibiting criminal behavior. Early in this paper we discussed the tenability of asserting criminal responsibility on individuals whose criminal behavior has a partly genetic etiology. But this special consideration seems to set biological factors apart as being in some unique causal category. In fact, genetic, physiological, and biochemical factors are causal agents in the same sense as family, social class, or neighborhood factors. Of course, criminal behavior (like all other behavior) must be caused; one class of causal variables is the biological category. The legal doctrine of responsibility is not challenged by identifying biological factors as partially determining crime any more than it is by findings of social causation. Only in cases in which abnormal biological factors are exceptionally powerful influences might responsibility be challenged. Such cases will be quite rare.     

An Economic Analysis of State and Individual Responsibility Under International Law

The international law of state responsibility determines whenstates are liable for international law violations. States aregenerally liable when they have control over the actions ofwrongdoers; thus, the actions of state officials can implicatestate responsibility whereas the acts of private citizens usuallydo not. We argue that the rules of state responsibility havean economic logic similar to that of vicarious liability indomestic law: the law in both cases provides third parties withincentives to control the behavior of wrongdoers whom they canmonitor and influence. We also discuss international legal remediesand individual liability under international criminal law.     

Leiter on the Legal Realists

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two ‘prediction’ theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.     

The Constitution of Criminal Law: Justifications, Policing and the State��s Fiduciary Duties

This paper, originally written for a conference on criminal law in times of emergency, considers the implications of the ‘German Airliner case’ for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim a criminal law justification defence. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. I also argue that both the constitutional decision and its criminal law implications are salutary.     

Artificial intelligence as a service: Legal responsibilities,liabilities, and policy challenges

Artificial Intelligence as a Service ('AIaaS') will play a growing role in society's technological infrastructure, enabling, facilitating, and underpinning functionality in many applications. AIaaS providers therefore hold significant power at this infrastructural level. We assess providers’ position in EU law, focusing on assignment of controllership for AIaaS processing chains in data protection law and the availability to providers of protection from liability for customers’ illegal use of AIaaS. We argue that in data protection law, according to current practice, providers are often joint controllers with customers for aspects of the AIaaS processing chain. We further argue that providers lack protection from liability for customers’ illegal activity. More fundamentally, we conclude that the role of providers in customer's application functionality – as well as the significant power asymmetries between providers and customers – challenges traditional understandings of roles and responsibilities in these complex, networked, dynamic processing environments. Finally, we set out some relevant issues for future regulation of AIaaS. In all, AIaaS requires attention from academics, policymakers, and regulators alike.     

Icons of control: Deleuze,signs, law

This paper is broadly concerned with Deleuze’s distinction between ‚la loi et les lois’ on the one hand, and jurisprudence on the other. Jurisprudence is the␣creative action of legal practice, the process by which it is forced to think constructively and anew. In such circumstances legal thought is akin to Deleuze’s concept of the event. I explore the distinction between law and jurisprudence by way of Deleuze’s comments on control societies, arguing that, under control, law ceases to be a juridical hierarchy conforming to disciplinary modes to become a regulatory practice of interminable modulation. In order to begin to explore the relations and connections between law/jurisprudence and control, the paper will look to the semiotics of C.S. Peirce (who influenced Deleuze’s work on cinema). In particular it will argue that control operates predominantly through icons. As a consequence I argue that the proper ground of the sign, the event, is co-opted and, following from this, that control functions through the confusing of sense and meaning. Thanks to Anne Bottomley, Ronnie Lippens and Jamie Murray.     

STICK-UP,STREET CULTURE,AND OFFENDER MOTIVATION*

Motivation is the central, yet arguably the most assumed, causal variable in the etiology of criminal behavior. Criminology's incomplete and imprecise understanding of this construct can be traced to the discipline's strong emphasis on background risk factors, open to the exclusion of subjective foreground conditions. In this article, we attempt to remedy this by exploring the decision-making processes of active armed robbers in real-life settings and circumstances. Our aim is to understand how and why these offenders move from an unmotivated state to one in which they are determined to commit robbery. Drawing from semistructured interviews with 86 active armed robbers, we argue that while the decision to commit robbery stems most directly from a perceived need for fast cash, this decision is activated, mediated, and shaped by participation in street culture. Street culture, and its constituent conduct norms, represents an essential intervening variable linking criminal motivation to background risk factors and subjective foreground conditions.     

Why we need the independent sector: the behavior, law, and ethics of not-for-profit hospitals

Among the major forms of corporate ownership, the not-for-profit ownership form is distinct in its behavior, legal constraints, and moral obligations. A new empirical analysis of the American Hospital industry, using eleven years of data for all urban general hospitals in the country, shows that corporate form accounts for large differences in the provision of specific medical services. Not-for-profit hospitals systematically provide both private and public goods that are in the public interest, and that other forms fail to provide. Two hypotheses are proposed to account for the findings, one legal and one moral. While no causal claims are made, not-for-profit hospital behavior is consistent with the behavior required by law and morality. The moral argument, developed as a preliminary theory of not-for-profit ethics, also provides a potential reason to prefer not-for-profit hospitals. The findings provide a new justification for the not-for-profit tax exemption for hospitals, and also suggest new uses for ownership categories as regulatory tools.     

Forensic neuropsychology and the criminal law

This article explores theoretical and empirical issues in the application of clinical neuropsychological evidence to forensic issues in the criminal law. The nature of forensic neuropsychological evaluations is discussed with reference to issues of competency to stand trial, criminal responsibility, and other competencies in the criminal process. Examples of specific disorders relevant to criminal law standards are presented, together with data estimating the prevalence of brain dysfunction in criminal and forensic populations. Research is also reviewed on the role of neuropsychological brain dysfunction in the etiology of violence and criminally relevant behavior. Finally, empirical and ethical issues concerning the applicability and admissibility of forensic neuropsychological data in the criminal context are discussed.