A Reply to Allen

Readers may be surprised at how this discussion developed between Ronald J. Allen, Michele Ubertone, and myself.1 Allen (2025b, 133) thinks that our comments on his original paper “are much more in the vein of seeking clarification of the use of language and logic than examining advances in understanding, treating the original paper as a contribution to general jurisprudence to be judged by the standards of analytical philosophy, whatever they may be, rather than as a contribution to knowledge about legal systems, which is what it is.” Were we talking past each other, then? Readers will judge that. Here I will limit myself to trying to clarify the sense of my comment and to rectify certain impressions that it apparently generates. Before that, let me reiterate that I have learned a lot from Allen, even in this exchange, and that I continue to feel indebted to him, despite the differences in our approaches. First, I did not want to treat his paper “as a contribution to general jurisprudence to be judged by the standards of analytical philosophy.” What I was trying to do was to build a bridge, or find common ground, between his reflections and the kind of theories that readers of this journal are familiar with. There is much theorizing about legal systems (Kelsen, Hart, Raz, among others) and there are shared assumptions that readers of this journal know. I found it was interesting to understand in what respects Allen's reflections are in line with those theories and assumptions, or in what respects they diverge, and in what respects Allen's work adds to the existing literature. Especially the claim that legal systems are dynamic is not new, and readers of this journal may well wonder how Allen's work improves our understanding of this. The questions I posed were an invitation to deepen or broaden the discussion.2 Second, I was not “complaining” (Allen 2025b, 133 n. 1) that Allen did not play the game of a logical account of legal systems. I was just pointing out that there are, again, well-received theories that model legal systems according to (deductive) logic and that it was interesting to see for what reasons and to what extent they differ from Allen's research program. To then come to the three specific questions I asked him at the end of my comment (Tuzet 2025, sec. 5, p. 108), let me take them in reverse order. The third was about truth, evidence, and evidence law. I am satisfied with his response that a central factor in the accuracy of verdicts is the adversary system, rather than the set of rules of evidence that we call “evidence law.” The second question was the “brain teaser”: How can a complex system tame another? Here his answer is that sometimes this happens and sometimes it does not. It is a matter for empirical inquiry and, as an explanation for the cases in which it happens, feedback mechanisms play a crucial role. I have no objection to this. The first question was precisely the one I sketched above, namely, in what respects his reflections constitute an advancement over other views of legal systems as dynamic. His answer, if I do not misunderstand it, is that there are empirical advances which jurisprudential accounts instead do not (or even cannot) contribute. Here I would like to add a methodological point. I see no incompatibility between theoretical and empirical work, and I assume that Allen is not disagreeing with this. Instead, there can be mutual advantages from the collaboration between theorists and empiricists. There are feedback mechanism, again, between theory and observation. Theory revision goes from empirical findings to theoretical construction, but understanding often goes from theoretical clarifications to empirical research. Observation must be guided by hypotheses, theoretical classifications, problem-understanding. Popper used the simple instruction “Observe!” to demonstrate this point: The fact that people ask “Observe what?” shows that they need a specific focus or problem to guide their observation. As he put it, “the belief that we can start with pure observations alone, without anything in the nature of a theory, is absurd” (Popper 1962, 46). To insist on the point, “Observe what?” is a crucial question, in that observations and empirical findings are always guided by pre-existing theories, expectations, or problems.3 We do not passively observe the world; we actively look for something, guided by our understanding or expectations on what we are trying to investigate. I assume that Allen does not disagree with this either. One could add that theoretical and empirical work are complementary. So, where is our disagreement? Perhaps simply in the fact that we played different games, which, however, are not incompatible and in a sense need each other. If one looks for a more speculative account of what theory is, this is my favorite: It is “a steady contemplation of all things in their order and worth.” (Santayana 1922, 11). Actively looking (Popper) is a different attitude than contemplating (Santayana). But the point remains that authentic theorizing is about the relevant things “in their order and worth.” That is especially true, I think, of the social sciences, in which we do not inquire into an independent world, physical and natural: Insofar as we model our own social and institutional reality, the words and the concepts we use to build it cannot be dispensed with. Atoms are not influenced by the ways we think and talk about them, but surely legal systems are. Open access publishing facilitated by Università Bocconi, as part of the Wiley - CRUI-CARE agreement.