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.