Some Doubts about Folk Jurisprudence: The Case of Proximate Cause

Abstract

This Essay offers a critique of “folk jurisprudence.” Folk jurisprudence is the focus on folk understandings as a means to determine the content of the concept of law and of legal concepts. Folk jurisprudence is characteristic of some (though not all) forms of both “armchair” analytic philosophy and experimental jurisprudence. Folk jurisprudence gets many things right. For instance, it captures the fact that law and legal concepts are social kinds that are sensitive to the ways in which agents conceptualize them. However, folk jurisprudence gets one big thing wrong: the understandings that matter are not those of the population at large. The legal system is a governance structure characterized by an artificial, highly technical, and relatively arcane form of practical reasoning. Law is not a practice of the folk; it is a practice of an elite of experts in law—legal officials. The concept of law is not the people’s concept of law. It is the concept of law of the legal officials who populate the governance structure we call “law” and make that governance structure an institutional reality. The same is true for legal concepts. Their meaning depends on their use by law’s personnel. This explains why legal institutions are exposed to the risk of legal alienation. It also explains why folk concepts are not determinative of the concept of law or legal concepts, and why attempts—like Knobe and Shapiro’s—to determine the content of legal concepts by appealing to folk understandings is misguided and inevitably collapse into traditional forms of legal argument. We might want law to be responsive to citizens’ views. We might also want to reduce legal alienation. Still, we should not confuse what we would want to be the case with what in fact is the case.