Shyamkrishna Balganesh (Columbia University – Law School) & Taisu Zhang (Yale University – Law School) have posted Legal Internalism: A Behavioral Theory (Yale Journal of International Law, Volume 52, forthcoming) on SSRN. Here is the abstract:
This Article argues that legal systems, regardless of socioeconomic, political, cultural, or ideological context, naturally drift towards jurisprudential internalism. We define “legal internalism” as a behavioral paradigm in which legal actors treat legal rules as normative, epistemologically self-contained, and systemically coherent. Such a paradigm is deeply controversial within the legal academy: formalists embrace it as objectively “correct,” whereas realists reject it as empirically false and conceptually incoherent.
Regardless of what scholars believe, we argue—first at the level of behavioral theory, then through empirical illustration—that internalism naturally appeals to lawyers and judges due to the socioeconomic incentive structures they face. Once socially accepted, internalism greatly increases the legal knowledge gap between specialists and non-specialists, rendering legal comprehension easier for trained lawyers and but more difficult for laymen. This enhances the legal profession’s functional dominance over legal interpretation, which in turn enhances its prestige, sociopolitical stature, and earning power. As a result, legal professionals will tend to behaviorally embrace internalism regardless of its intellectual merits. Legal scholars, in contrast, have different incentive structures that significantly dilute the appeal of internalism.
These are universalist theoretical claims that should apply in nearly every socioeconomic and political context. We demonstrate their applicability to six of the world’s most important legal systems: the United States, China, Germany, England, Japan, and India. In all six countries, which otherwise diverge dramatically, legal professionals behaviorally drift towards internalism over time. They do so despite some significant political and intellectual obstacles, and often in an explicitly self-interested manner. In contrast, legal scholars in several of these countries are visibly more skeptical towards internalism.
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