Legal Theory Lexicon: It Takes A Theory To Beat A Theory
Introduction
"It takes a theory to beat a theory"–this is surely one of the top
ten all-time comments uttered by law professors to one another in those
ritual interactions that are called "faculty workshops" or
"colloquia." The first instance of the comment that I can find in the
legal literature appears in an article by Richard Epstein [92 Yale Law
Journal 1435 (1983)], and the some legal academics associate the
comment with Professor Epstein, whose facility in workshops is
legendary.
What does "It takes a theory to beat a theory" mean? What is the
point or purpose of making this comment in a debate about normative or
positive legal theory? Of course, the core idea is relatively
straightforward. One can’t beat a theory just by nitpicking. We go
with the best theory we have, warts and all. So if you want to beat a
theory, you must show it is not the best theory we have, and the only
way to do that is to produce a better theory. Hence, it takes a theory to beat a theory. Or to put it crudely, if we are playing "king of the hill," whoever is on top stays there until pushed off.
Most of the entries in the Legal Theory Lexicon series deal
with some concept, theory, or idea that law students are likely to
encounter in their first year of law school. But this entry is a
little different. "It takes a theory to beat a theory" is not likely
to be heard much in the classroom. It’s a "workshop comment" not a
"class comment." But in a way, that makes this idea all the important
for law students, including first year law students, with an interest
in legal theory. And understanding this move and its counters is
essential for anyone who plans a career in the legal academy.
The Aphorism and its Applications
Here is one of the most famous examples of the aphorism at
work–although the exact words do not appear. This is Justice Scalia,
in his famous article, Originalism, the Lesser Evil:
Apart from the frailty of its theoretical underpinning,
nonoriginalism confronts a practical difficulty reminiscent of the
truism of elective politics that "You can’t beat somebody with
nobody."’ It is not enough to demonstrate that
the other fellow’s candidate (originalism) is no good; one must also
agree upon another candidate to replace him. Just as it is not very
meaningful for a voter to vote "non-Reagan,"’ it is not very helpful to
tell a judge to be a "non-originalist."’ If the law is to make any
attempt at consistency and predictability, surely there must be general
agreement not only that judges reject one exegetical approach
(originalism), but that they adopt another. And it is hard to discern
any emerging consensus among the nonoriginalists as to what this might
be.
Here is another version of the argument–this time from George Stigler’s 1982 Nobel Prize Lecture:
Nevertheless the
economic theory of regulation is achieving a substantial scientific
prosperity. Its findings with respect to both the operation and the
origins of regulatory policies directed to particular industries (such
as the securities markets, transportation, and occupational licensing)
command a substantial support. To be sure, the explanatory triumphs
have not been overwhelming, and indeed the theory itself is still
relatively primitive. The main reason for the considerable acceptance
of the approach is that fundamental rule of scientific combat: it takes
a theory to beat a theory. No amount of scepticism about the fertility
of a theory can deter its use unless the sceptic can point to another
route by which the scientific problem of regulation can be studied
successfully.
Variations
If you’ve been paying close attention, you will have
noticed that Scalia and Stigler were making very different
arguments–relying on different premises and with only a surface level
similarity. "It takes a theory to beat a theory"–is not a single
move. It’s several different moves, each of which can nonetheless be
expressed via the same aphorism. Let’s quickly catalog some of the
variations:
–"It takes a practice to replace a practice." This variation is
at the root of Scalia’s point. You can’t vote against a candidate; you
must vote for someone. You can’t just stop interpreting the
constitution if you reject originalism; it takes some other
interpretive practice to substitute for originalism.
–"It takes a better explanatory theory to substitute for a theory
that has even limited success." This variation is at the root of
Stigler’s point. The economic theory has some success; so it will
continue as the "dominant paradigm" until something better comes along.
–"It takes a better normative theory to substitute for a
normative theory that has plausible support." Thus, one might say that
it takes a better theory of justice to displace Rawls’s theory.
And I’m sure there are many other variations.
Counter Moves
What are the counter moves to "It takes a theory to beat a
theory." They are legion, and many are contextual, but here are a few
typical counter moves:
–Expose the hidden "presumption." It takes a
theory to beat a theory may assume that the theory in question must be
"beaten" or it stands. But that assumption requires a justification.
It must be argued there is some "presumption" in favor of the theory’s
validity. What is the source of that presumption? Why does this
theory enjoy the presumption rather than a rival theory? Sometimes
these questions can’t be answered. Other times there are answers, but
once they are articulated, they can be contested.
–It doesn’t take a theory to beat an argument. Even
if it does take a theory to beat a theory, it doesn’t take a theory to
beat an argument. Arguments fail if they are invalid or unsound.
Arguments are invalid if the conclusions don’t flow from the premises.
Arguments are unsound if their premises are false. So when someone
says, "It takes a theory to beat a theory," you can reply, "Oh, you
thought I was trying to beat a theory, but what I actually did was to
beat an argument."
–Recharacterize the Status Quo. Frequently, "it
takes a theory to beat a theory," assumes that the theory to be beaten
is, in some sense, the status quo–the current king of the hill, the
way we are doing or thinking now. But this is not necessarily the
case. Take the "originalism" example. One might argue that
"originalism" isn’t the "king of the hill." Rather, the status quo is
eclecticism–a little precedent, a little originalism, a little
instrumentalism, etc. So if the case for originalism is inadequate,
the presumption is for the status quo–not originalism. In other
words, poking holes may be enough. Once the theory in question is no
longer the status quo, the question becomes is the new theory demonstrably better than what we’ve got now.
–Deny the Theory Assumption. "It takes a theory
to beat a theory" assumes that the issue at hand is one which is
properly addressed by a theory. Let’s call that, "the theory
assumption." But the theory assumption can itself be contested.
Here’s a marvelous example of "denying the theory assumption," from Dan
Farber, himself famous for this move:
The last ditch defense of the rational choice theory is to
insist that it takes a theory to beat a theory, and that the
behavioralists have only assembled a collection of empirical
regularities without any unifying theory. The behavioralists
indignantly respond that they do have a theory, although an incomplete
one. The assumption on both sides is apparently that the sine qua non
of social science is having a unified predictive theory. But perhaps
this is merely another symptom of economics’ famous case of "physics
envy." Physics presents a breathtaking example of mathematical elegance
combined with fantastically accurate predictions. But taking physics as
the paradigm of science may be a mistake. Today’s great success story
among the sciences may well be biology. Biology does have a central
paradigm (evolution) and an understanding of its molecular basis. But
organisms, because they are the products of evolution rather than
design, are extremely complex, and no one seems to think that their
features can be predicted in any detail on the basis of a deductive
theory.
(Daniel A. Farber, Toward a New Legal Realism, 68 U. Chi. L. Rev. 279, 295 (2001))
There are lot’s of ways of doing this. Here’s one way of making the move: "Hmm. You seem to be assuming that we need a theory here. I’m puzzled. Why would you assume that?"
Stressing the words in italics. This move puts the burden on the maker
of the "It takes a theory to beat a theory" move to justify the theory
assumption–and as a practical matter, it also buys you time.
–Go Pragmatic. This is a variation of denying the theory
assumption. When someone asks for a theory, you can reply that the
subject at hand requires a "contextualist" and "pragmatic" analysis. As the scare quotes indicate, I’m not very fond of this move.
–Go Metatheoretical. This move embraces the notion that
it takes a theory to replace a theory, but denies that the way that
happens is through direct confrontation. The idea is that the way we
replace theories is by accumulating the data points the theory can’t
handle. Here’s a nice example of this move from Tom Ulen:
One frequently hears it said that "it takes a theory to beat a
theory." Those who invoke that view are typically doing so in order to
justify maintaining the rational choice paradigm until some
well-articulated theory comes along to replace it. That is not,
however, how scientific advances typically occur. Rather, anomalies
arise and are either explained within an amended paradigm or serve as
observations that make a case for another paradigm (as yet undefined).
(Thomas S. Ulen, A NOBEL PRIZE IN LEGAL SCIENCE: THEORY,
EMPIRICAL WORK, AND THE SCIENTIFIC METHOD IN THE STUDY OF LAW2002 U.
Ill. L. Rev. 875, 887, n. 47)
–I’ve Got a Theory. Of course, this move is
especially impressive in the context of a workshop. Your paper makes a
critical or destructive point. Someone in the audience goes "It takes
a theory to beat a theory." And you go, "Great point. I’ve got a
theory and here it is." You then get 5 minutes of uninterrupted theory
exposition, and, of course, no one at the workshop has heard your
theory before, and hence, no one has had an opportunity to prepare
objections.
–It Takes a Theory to Beat a Theory, but you have no Theory. This is a variation of Lloyd Bentsen’s famous, "Senator, you are no Jack Kennedy." The idea is this: "It takes a theory to beat a theory," assumes that we have a theory
of X on the table. So one effective counter is an argument that there
is no "theory of x" to replace. One way to do this is to set out a
list of criteria, C1, C2, C3 . . . Cn, that must be fulfilled if a
given cluster of ideas (I1, I2, I3, . . . In) is to count as a theory,
T, of a subject, X. You then argue that the view on the table is not a
true theory, because it fails one or more of the criteria.
A variation on this move is "It doesn’t take a theory to beat a really bad theory." If your objection to a theory makes it clear that the theory cannot
be correct, then it doesn’t take theory to beat a theory. Or to
continue the metaphor, "You don’t have to become the king of the hill
to knock someone down."
Undoubtedly, there are many
other standard countermoves and numerous others that are relevant to
particular contexts. I hope this post gets you started.
Conclusion
"It takes a theory to beat a theory." Or does it? I hope this Lexicon installment
has given you a taste of this famous move and some of the replies. And
I also hope that it has provided some of the flavor of the intellectual
atmosphere of faculty workshops and colloquia. As always, the Lexicon provides only a simplified (and all too often simplistic) treatment of a subject that deserves an extended discussion.
Links
Adam Kolber, Theory v. Theory (March 16, 2006)
James E. Ryan, Does It Take a Theory? Originalism, Active Liberty and Minimalism (January 27, 2006)
Lawrence Solum, It Takes a Theory to Beat a Theory (September 12, 2002)
(Last modified on November 7, 2008.)
Source: Lawrence Solum
