Many-Minds Arguments in Legal Theory

La sagesse collective : principes et mécanismes Colloque des 22-23 mai 2008, organisé par l'Institut du Monde Contemporain du Collège de France, sous la direction du Professeur Jon Elster. Intervention de Adrian Vermeule, Harvard Law School, 23 mai 2008 Many-minds arguments are flooding into legal theory. Such arguments claim that in some way or another, many heads are better than one; the genus includes many species, such as arguments about how legal and political institutions aggregate information, evolutionary analyses of those institutions, claims about the benefits of tradition as a source of law, and analyses of the virtues and vices of deliberation. This essay offers grounds for skepticism about many-minds arguments. I provide an intellectual zoology of such arguments and suggest that they are of low utility for legal theory. Four general and recurring problems with many-minds arguments are as follows: (1) Whose minds?: The group or population whose minds are at issue is often equivocal or ill-defined. (2) Many minds, worse minds: The quality of minds is not independent of their number; rather, number endogenously influences quality, often for the worse. More minds can be systematically worse than fewer because of selection effects, incentives for epistemic free-riding, and emotional and social influences. (3) Epistemic bottlenecks: In the legal system, the epistemic benefits of many minds are often diluted or eliminated because the structure of institutions funnels decisions through an individual decisionmaker, or a small group of decisionmakers, who occupy a kind of epistemic bottleneck or chokepoint. (4) Many minds vs. many minds: The insight that many heads can be better than one gets little purchase on the institutional comparisons that pervade legal theory, which are typically many-to-many comparisons rather than one-to-many. Adrian Vermeule is Professor of Law at Harvard Law School. He graduated from Harvard College in 1990 and from Harvard Law School in 1993. From 1998 to 2006, he was a law professor at the University of Chicago. His books include Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (2006), Terror in the Balance: Security, Liberty and the Courts (with Eric A. Posner) (2007); and, most recently, Mechanisms of Democracy: Institutional Design Writ Small (2007).