When Does the Law Not Apply?
Jon Hanson is the Alfred Smart Professor of Law at Harvard Law School. He is the Director and co-creator of The Project on Law and Mind Sciences at Harvard Law School and co-creator of, and contributor to, The Situationist blog, which is a forum for identifying, examining, discussing, and debating, the effect of situational forces — that is, non-salient factors around and within us — on law, policy, politics, and legal theory, and on our social, political, and economic institutions.
Question: What are some of the changes that the legal system should be making?\r\n
Jon Hanson: Well it’s a difficult challenge to figure out now what to do with this information from the Mind Sciences. My prediction is that legal theory is going to be, legal theorists in the law are going to be focused on this and struggling with this and entangled in these difficult questions going forward for who knows how long. One of the things to be aware of is that in every area of law there exists a place where the law and legal decision makers recognize the power of situation and when they do the law changes. The outcome of the law changes.\r\n
So I teach Tort Law for example, and we are in Tort Law very prone to say that people assume the risk, that they made choices, and therefore they should bear the consequences. And we are also inclined not to allow there to be liability where we think the parties could have contract so we say look if you use someone else’s stuff and you could have gained consent and you didn’t you’re going to have to pay. We may have to put you in jail. We call this sort of Property Rule Protection. Well there are times when we say that doesn’t apply, that the situation actually played a role that doesn’t typically play a role and so now we’re going to adjust the law. An example, a famous example in Tort Law is the case of a family out on a boat on a lake and a sudden storm comes up and now this family is stuck in the middle of the lake and they need to get somewhere for safety, they see a dock and they approach the dock, they try to get on it and they are pushed off right. And now as a consequence of the person on the dock pushing them off, something that the person is generally entitled to do because it’s their property, so Property Rule Protection, the boat slams against the shore, it’s damaged, and some of the people are injured. So, that’s at least a variation of an actual case.\r\n
Tort Law recognizes that in those situations where a storm comes up and people are looking to protect their lives that it’s not exactly their disposition that’s leading them, it’s more their situation. Tort Law says then that your permitted to use someone else’s dock and that if they do try to push you off heir going to have to compensate you for the consequences. So there’s an example of where the law is adjusted to take situation into account. I could take you through every area of law, I won’t. In part because I don’t know them all but if I did I would take you through all of them and show you that in every area of law there’s a place where situation comes in. And so the law has already struggled with this it’s just picked a particular sort of dividing line. So in Contract Law we say if someone puts a gun to your head and says you’re money or you’re life and you give your wallet, that’s not an enforceable contract, it wasn’t your disposition that allowed you to do it, it was your situation and so we change the law to reflect it. I think one general way in which the law is going to have to deal with this is its going to have to slide, slide the sort of the dividing point between when situation matters and when disposition matters. And that’s going to be difficult because there is some simplicity and there’s something affirming about the idea that if something bad happens to someone it’s because they chose it. So there will be resistance to this but I think that the Mind Sciences are going to appeal to those who are committed to kind of a truth to expand those circumstances in which we take situations seriously. Now, if you do that and you begin thinking about problems like crime, this doesn’t mean that you are suddenly saying well, because criminal behavior was situationally caused we should set all the criminals free. It’s actually much more complicated than that. But its implications can be quite concrete.\r\n
So one thing it might do is it might suggest to you that if criminals behaved a certain way it’s not a solution to changing that behavior simply to say that those people should be put behind bars. Because if they are indeed moved by situation and we might look at a number of situational factors, but some of the classics that already come to mind are things like poverty and hunger that might lead people to behave in a criminal ways that we’re not going to change that behavior if we attribute what they did simply to their dispositions and miss the fact that they were operating in an environment which would lead many people, including perhaps ourselves, to behave the same way. So, its focus on behavior kind of an instrumentalists view of law, asking how can we change what people do that might lead us to change how we respond to criminal behavior? To be sure, we may put people behind bars but behind bars we may be less likely to say they are of a certain character and therefore we just make them do their time and there’s nothing we can do. Maybe we can change their situation behind bars and maybe we can change the situation of people who are not behind bars to lead others to engage in less of that kind of conduct.\r\n
A commitment to trying to do something about the actual problem I think entails a commitment to shedding the simple dispositionist model. And one more concrete thing I would add and that is that our institutions themselves are sort of sources of situational influence. And we have for the most part been blind to those situational influences and have assumed that the way people have operated is a function of their disposition and not their institutions. In part for that reason I think we don’t pay close attention to the way in which there exists a competition over our institutions, a competition that changes our institutions and in turn, changes us. And this might be everything from our government, congress, our judiciary, whether judges, state judges for example are elected it may have real implications for the outcomes of the decisions and what the nature of those elections are. Whether money from large corporations or other groups can influence those institutions is something again, we’ve been not inclined to ask very carefully in part because of our faulty view of the human animal. So I would say there are many concrete ways in which a sort of a more situationist perspective might change the law. The details of it though I think require first accepting kind of the nature of the problem and second, a more general attempt on the part of many of our best and brightest legal scholars and young law students and indeed our judges to help sort out exactly what this means.
Recorded on February 17, 2010
Interviewed by Austin \r\nAllen
As Jon Hanson’s pioneering project on "situationalism" reveals, humans think and operate in ways that don’t fit within our legal framework all the time, as the context in which an act is committed may be more powerful than our minds can know.
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