Legal Theory Lexicon

Legal Theory Lexicon 068: Welfare, Well-Being, and Happiness

Introduction

Normative legal theory is concerned with the ends and justifications for the law as a whole and for particular legal rules.  Previous entries in the legal have examined exemplars of the three great traditions in normative theory--consequentialist, deontological, and aretaic (or virtue-centered) perspectives.  There are important differences between these three families of theories at a very general and abstract level: for example, deontologists emphasize rights and wrongs while consequentialists emphasize the goodness or badness of states of affairs.  And there are differences between particular theories within the broad families: within consequentialism, for example, welfarists emphasize preference satisfaction, whereas hedonistic utiliarians emphasize pleasure and pain.

Despite these disagreements, I think it is fair to say that many or most of the reasonable views about normative theory agree that what is good or bad for individual humans is morally salient.  Welfarists believe that humans are better off if their preferences are satisified.  Hedonistic utilitarians believe an individual is better off if she experiences more pleasure and less pain.  Aristotle believed that humans flourish if they live lifes of social and rational activity that expresses the human excellences or virtues under conditions of peace and prosperity.  A deontologist who believes that autonomy is the central value might believe that humans are better off if they are autonomous and worse off if they are not  In other words, a wide variety of moral theories agree that what is good for humans is morally salient.

This entry in the Legal Theory Lexicon will examine three related concepts that are related to the good for humans, welfare, well-being, and happiness--and along the way we will explore some related ideas like pleasure, satisfaction, pain, flourishing, and eudaimonia.  Of course, the nature of the human good is a deep topic--one that that has been debated by philosophers, psychologists, economists, theologians, and others for millennia.  All of the great moral and political philosopher, from Plato and Aristotle, through Hobbes, Hume, Kant, Bentham, and Mill, to contemporary figures like Thomas Scanlon and Derek Parfit have engaged in debates about the nature of the human good.  This entry in the Legal Theory Lexicon will only scratch the surface of these debates.  As always, the Lexicon is aimed at law students, especially first-year law students with an interest in legal theory.

Three Concepts

Let's begin by saying a few words about each of the three concepts.  Our aim in this section is not to provide a canonical definition, but instead is to give a sense for the way these terms are used in normative legal theory:

Welfare--The term "welfare" is heavily theory laden.  For contemporary law-and-economics scholars, welfare sometimes operates as a technical term.  One's welfare is a function of one's utility, and most contemporary economists understand utility as a function of one's preferences over states of affairs.  If I prefer a world in which I eat an ice cream cone after lunch to one in which I am abstemious, then the ice cream cone increases my welfare.  But the term "welfare" is also used in a much broader sense, in which my "welfare" is a function of what is good (and bad) for me.  In this sense, my "welfare" might be synonymous with my "well-being" or "flourishing or "happiness."  We might say that there are competing conceptions of the general concept of welfare.

Well-Being--The term "well-being" is similar to "welfare" in the broad and nontechnical sense.  In ordinary language, we frequently associate "well-being" with health--primarily physical health but mental health as well.  Philosophers use this term to refer to what is noninstrumentally good for someone.

Happiness--In ordinary language, the term "happiness" is frequently used to refer to a mental state.  One might think of happiness as a feeling of pleasure, contentment, satisfaction, or enjoyment.  But the word "happiness" is also used as a translation for the Greek word "flourishing," and even in ordinary talk the use of phrases like "true happiness" suggests that not one can have pleasant feelings from moment to moment, but lack "happiness."  Some theorists would reserve the term "happiness" for a stable or enduring quality that is produced by the appropriate features of one's life.  Thus, it might be the case that "a job well done" can make you "happy," but a delicious desert can only give you "pleasure" or "enjoyment."

As is apparent from this very brief introduction of these three concepts, they are connected with others like "pleasure," "pain," "preference," "utility," "flourishing," "enjoyment," and so forth.  But rather than defining each of these concepts, we will now move to a more abstract level and discuss three general views about the nature of human well-being (or welfare in the broad sense).  These three views are offered only as illustrations.  I am not going to attempt to provide a comprehensive catalog.

Three Theories of the Human Good

One way for us to get a better handle on the concepts of welfare, well-being, and happiness is to examine three particular theories of the good for humans:

Hedonism: Philosophical hedonism (which may or may not be related to the view that the good human life is produced by lots of sex, drugs, and rock 'n roll) is the view that the good for humans is pleasure (or more generally positive or enjoyable mental states) and bad for humans is pain (or negative mental states).  Hedonists might believe that pleasure is a distinctive brain state that varies continuously, with the intense pleasure induced by opiates or cocaine at one end of the spectrum, and that pain is similar, with the intense pain of passing a kidney stone at the other end.  But some hedonists believe that pains are differ qualitatively.  John Stuart Mill, for example, thought that there were higher pleasures (e.g., from listening to great music or reading a great novel) and lower pleasures (e.g., from strong drink, drugs, or playing video games).  There are deep questions about the nature of pleasure and pain, but for our purposes let us simplify greatly and assume that all hedonic values (positive or negative) consist of mental states (or brain states, which may or may not be equivalent) that are experienced as positive or negative.

Welfarism: In the legal academy, "welfarism" is strongly associated with normative law and economics.  (But in other disciplines, the terms "welfare" and "welfarism" have other meanings.)  Of course, economists differ among themselves on the nature of welfare, but let us stipulate (for the sake of simplicity) that "welfare" in the economic sense is a function of "utility" and that utility for an individual is a function of the individual's ordinal preferences among states of affairs.  If my preferences are satisfied, then my utility and welfare goes up.  If the world moves in a direction that I would rank lower (and hence disprefer), then my level of welfare goes down.  We might call this theory of "welfare" a "preference satisfaction" theory.

Eudaimonism: The third view that I will outline is based on Aristotle's claim that the highest humanly achievable good is "eudaimonia," which I will translate as "flourishing".  Aristotle believed that humans flourished if they both fared well (lived under the right circumstances) and did well (engaged in valuable activities): hence, Aristotle's claim was that eudaimonia consisted in faring well and doing well.  Let's put faring well aside, and focus on doing well.  Aristotle believed that the nature of "doing well" depends on human nature.  Humans are rational and social creatures.  So a flourishing human life consists of rational and social activities done well.  "Done well" for Aristotle means "expressing the human excellences or virtues."  In sum, a flourishing human life is a life of rational and social activity that expresses the human excellences, and hence a life under conditions of peace and prosperity sufficient to support or enable such activity.

Let's try to make this more concrete by offering examples of three different lives:

The Life of Pleasure: The first life is lived by Ben, who takes great pleasure in sex, drugs, and rock 'n roll.  Ben does what it takes to get enough money to party hard.  He is careful not to overdo or to party so hard that he screws up his life.  Ben's wits are somewhat dulled, and his social interactions might be a bit superficial, but he has a ton of fun almost every day.  It turns out that lots of the time, things don't go the way that Ben prefers--his favorite bands always break up, he doesn't get job he wants, his girlfriends cheat on him.  But Bob doesn't let disappointment interfere with pleasure--if things don't go well, he grabs a brewski, takes a couple of tokes, and chills.

The Life of Satisfaction:  Alice has many preferences about how things should go.  She wants her children to get a good education and live up to their potential.  She wants her city to care for the homeless.  She wants endangered species to be saved.  She works for those things, and as a result of her efforts, her kids do well.  For reasons that were largely out of her control, her city does care for the homeless and many endangered species are saved.  Things go as she wants them to go, but because Alice worries a lot, her satisfaction is only rarely translated into pleasure.  Some of Alice's friends observe that she had the potential to do more with her life, as things turned out, she has what she wants.

The Life of Accomplishment:  Phillipa grows up in an loving and nurturing family and gets an excellent education.  As a result, she becomes an adult who is smart, wise, courageous, temperate, good tempered, caring, responsible: she is a truly excellent human beings, or to put it differently, she is virtuous.  She is reasonable fortunate in her life circumstances as well, so she has a good and stable relationship with her partner, many friends, and meaningful work as an architect.  She lives a balanced life, with periods of intense and difficult work, but also times for fun.  Many of her preferences are satisfied, but many are not.

I hope the description of the three lives is not so oversimplified that it becomes unrealistic.  The point is that the three theories we have described will evaluate the three lives differently.  At least some varieties of hedonism will count Ben's life as the best life--it is a life of pleasure.  There may be pleasure in Alice and Philippa's lives as well, but not as much as in Ben's.  A welfarist who counts all preferences equally might view Alice's life as the life that goes the best: her preferences are satisfied.  Although she doesn't get as much pleasure as Ben, she doesn't prefer a life of pleasure; likewise, she doesn't want to live up to her potential for excellence: she is satisfied with a more passive life.  Philippa gets much of what she wants and experiences her share of pleasures, but as things turn out, her life is worse than Ben and Alice's lives are if the scale is either pleasure or preference satisfaction.  A eudaimonist or virtue theorist will nonetheless say that Philippa's life is the best life.

The Conceptual Space of Debates about the Nature of the Good for Humans

Things are about to get abstract, so watch out.  The next step we will take involves mapping the ways in which the three theories of human good differ.  This is not the only way we could map the conceptual space, but it illuminates some of the important issues.  This map is going to rely on a distinction between the subjective (which is associated with our minds or inner lives) and the objective (which is associated with the world, including our bodies and our environment).  That distinction will then be applied in two dimensions: one concerned with the source of the standards for value and the other concerned with the things that can satisfy those standards.  I warned you--this is abstract, but bear with me.

Objective and Subjective Views of the Sources of the Standards for Human Good: What is the source of our criteria for well-being, happiness, welfare, or the human good?  One possibility is the standards are subjective--they are relative to what we think or feel.  Another possibility is that the standards are objective--they depends on the nature of the world and not our feelings or beliefs about it.

Objective and Subjective Views of the Conditions to Which the Standards for Human Good Are Applied: Once we have standard for human good, we need to apply them to something.  We could apply them to things that are subjective--to our mental states.  Or we could apply them to things that are objective--to states of the world.

OK.  Now we can characterize our three theories of value in light of the two dimensions in which a theory of human value can be objective or subjective.

Hedonisim is usually understood as having both a subjective understanding of the sources of value and a subjective understanding of what those standards apply to.  Our mental states determine what is good or bad for us: it depends on what we get our kicks from and what makes us feel bad.  And our mental states or subjective experiences are what the standards apply to.  So hedonism is subjective in both senses.

Welfarism is committed to a subjective view of what is good and bad for humans.  Our preferences (which are mental states) provide the criteria or standards by which utility and welfare are judged.  But welfarists are objectivists about what these standards are applied to.  Utility is a function of preference over states of the world.  My utility goes up if the world moves to a state I prefer.

Eudaimonism as I have described is a hybrid theory on both levels.  The basic standard of a flourishing life is objective--it is derived from an account of human nature and the virtues.  But for any particular individual, a flourishing life will also be a function of that individuals plans and goals and also a function of what that individual finds satisfying, rewarding, and to some extent pleasurable.  Likewise, a virtue-centered theory of human flourishing takes how one fares (faring well) and how one does (doing well) as the conditions to which the theory is applied.  So the conditions are partially objective.  But the human virtues involve subjective states.  Doing well involves doing the right actin for the right reason.  A flourishing human being has the right preferences and takes enjoyment from the right kinds of things: for this reason, the conditions to which the criteria for the human good are applied are partially subjective.

In other words, hedonism is a subjective-subjective view, welfarism is a subjective-objective view, and eudaimonism is a hybrid-hybrid view.  One can imagine views that might be objetive-objective: for example, if you believed that well-being was cashed out by a list of objective goods, such as health, meaningful work, and an active social life, you might have a view that the standards for human good are objective and that they are satisfied by objective features of particular human lives.

Arguing About (or Investigating) the Nature of Welfare, Well-Being, and Happiness

Which of these rival accounts is the best one?  Of course, the nature of the human good has been the subject of philosophical debate and cultural strife for more than two millennia.  So it will surprise no one that the Legal Theory Lexicon will just skim to the surface of the arguments that can be made for and against various conceptions of welfare, well-being, and happiness.

Let's begin with methodology.  What kinds of reasons might be offered for and against various conceptions of the human good?  Now that is a big topic in itself, but we can identify three of the common strategies used to advance our thinking about this topic:

Reflective Equilibrium: One strategy is to attack the problem directly using the method of reflective equilibrium.  We can begin with intuitions (our unreflective beliefs and the opinions of others) about the topic at hand.  Some of those beliefs will be general and abstract (e.g. "happiness is a feeling").  And some of those beliefs will be quite particular: a serious illness involves a loss of well-being even if the pain is completely managed).  We can then attempt to formulate a theory of the good for humans (or of welfare, well-being, or happiness) that best fits those intuitions.  Some of our intuitions may need to be revised in light of the tentative theory, and some aspects of the theory may need to be revised in light of recalcitrant intuitions.  Eventually, we can reach a reflective equilibrium between beliefs that have become well-considered judgments and our general theory.

Ethical Theory & Metaethics:  There is a second method that we might employ.  We might begin with our best understanding of metaethics (at what we might think of as the highest level or "top" of normative theory.)  We could then work down through ethical theory to our conception of the human good.  For example, if we adopted an internalist view of moral motivation (i.e., that what is morally good necessarily provides motivation) then we might conclude that our view of the human good must have a certain form if it is to play this motivational role.  We might call this the top-down strategy: we proceed from axioms of metaethics to deduce the postulates and lemmas of our theory of the human good.

Thought Experiments: The notion of a thought experiment (or "hypothetical") is familiar to all legal theorists.  One of the problems of the method of reflective equilibrium may be the tendency of various conceptions of human good to coincide or converge in particular cases.  Our preferences and subjective experiences of happiness may align with elements of objective well-being such as health.  In order to pry these things apart, we might want to construct thought experiments in which force us to evaluate cases in which our subjective happiness diverges from our preferences or health.

The Experience Machine

Robert Nozick is famous for a thought experiment that can be used to test the subjective experience conception of well-being.  Suppose you have a choice between two lives.  One is roughly equivalent to your current life (or a typical human life).  You experience pleasure and pain; some of your preferences are satisfied and some aren't.  The other life involves your being attached to an experience machine that directly feeds experiences into your brain.  You will be given an amnesiac when you are attached so that you will forget the fact that you are on the experience machine: it will seems as if you current life is continuing.  But your life on the experience machine will be supremely good from the subjective point of view.  You will feel supremely happy.  You will be successful, adored by your friends and partners, and everything that makes you feel good (whether it be career success or Jimmy Choo shoes) will come your way.  This life will involve very little or no pain, frustration, or disappointment.  Finally, the experience machine is well tested, and you are truly convinced that it will cause you no serious physical harm.  Which life would you choose?

Many people would choose a normal life with real experiences and would believe that their life on the experience machine would go very badly--although it would seem as if it were going well.  If you have this reaction to the thought experiments, then you have a reason to believe that you have metaethical intuitions that are inconsistent with a hedonistic-subjectivist conception of well-being.

Of course, this thought experiment can be criticized in various ways.  It might be argued that you aversion to the experience machine is improperly influence by a reaction that being on the machine would be "yucky"--when (by hypothesis) it would not be.  Or it might be the cases that you distrust the long-range effectiveness of the machine.  These issues have to be considered carefully before we place too much stock in the results of a thought experiment.

There is so much more to be said about the inquiry into the nature of the human good, and my discussion of methodology and one thought experiment does not even begin to scratch the surface.  Nonetheless, I hope I have given you an idea of how you might begin to think and argue about this topic.

Why Does the Human Good Matter to Legal Theory?

I imagine that most readers of the Lexicon can see that the nature of the human good has important implications for legal policy.  If the preference satisfaction view of welfare were correct, then normative law and economics might provide the correct methodology for normative legal theory.  If the hedonistic approach were correct, then we would want to pay close attention to empirical research on subjective happiness.  Normative evaluation of legal policy is one of the central activities of legal scholars, and one's views about the human good surely plays a big rule in such evaluations.  Of course, some normative theories (e.g., consequentialism) will given the human good a decisive role in the evaluation of legal policy, whereas others, e.g., deontological or rights based theories might give the human good a less decisive role.

Can We Do Normative Legal Theory Without a Conception of the Human Good?

Given the difficulty of arriving at confident conclusions about the nature of the human good, you might ask, "Can we ever reach confident conclusions in applied normative legal theory?"  Or to put the question differently, "If I can't make up my mind about the nature of the human good, can I still reach confident conclusions about what legal rules are better than others?"  One answer to this question might invoke the Rawlsian idea of an overlapping consensus.  There may be a wide range of cases where the most plausible theories of the human good converge, and legal theorists might focus on those cases.  A related strategy might invoke the idea of "public reasons," and argue that controversial conceptions of the human good are inappropriate as reasons for public policy.  Another strategy might involve a kind of what is called "pragmatism."  (I am using the scare quotes, because I have doubts about the use of that term, but those doubts can be set aside for now.)  That is, we could invoke the theory of the human good that seems most appropriate or salient for each context.  When we do tax policy, we might use the welfarist conception of the human good, but when we are thinking about health policy, we might focus on objective health outcomes.  Of course, there is always the option of abandoning normative theory altogether.  You might come to the conclusion that legal scholars can only describe existing doctrine and provide information about the probable effects of changing that doctrine.

Conclusion

As usual, the Lexicon is both too short and too long.  Too short to even give you and elementary introduction to the issues, but too long for a one minute read.  Nonetheless, I hope to have given you the tools that can help you to identify questions about the human good and to read intelligently about this topic.

Related Entries in the Lexicon

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 025: Social Welfare Functions
• Legal Theory Lexicon 028: Concepts and Conceptions
• Legal Theory Lexicon 041: Metaethics
• Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

Other Resources on the Web

• Roger Crisp, Well-Being, Stanford Encyclopedia of Philosophy
• Andrew Moore, Hedonism, Standford Encyclopedia of Philosophy

Bibliography

• Bentham, J., (1789), An Introduction to the Principles of Morals and Legislation.
• Feldman, F. (2004) Pleasure and the Good Life (Oxford: Clarendon Press).
• Griffin, J. (1986) Well-being (Oxford: Clarendon Press).
• Kraut, R. (2007) What is Good and Why: The Ethics of Well-Being (Cambridge: Harvard University Press).
• Mill, J.S., (1863), Utilitarianism.
• Nozick, R., (1974), Anarchy, State, and Utopia (Oxford: Basil Blackwell).
• Nussbaum, M and A. Sen (ed.) (1993) The Quality of Life, Oxford: Clarendon Press.
• Scanlon, T. (1998) What Do We Owe to Each Other?, Harvard: Belknap Press.
• Sumner, W. (1996) Welfare, Happiness, and Ethics (Oxford: Clarendon Press).

(This entry in the Legal Theory Lexicon was last revised on June 9, 2009.)

Legal Theory Lexicon 067: The Priority of the Particular

Introduction

One kind of legal theory attempts to relate the mass of legal materials (cases, clauses, statutes, etc.) to a systematic set of principles.  Such theories may be normative: that is, some legal theories are frameworks for the prescriptive evaluation of legal rules.  Or the theory might be doctrinal: some legal theories attempt to describe the results in particular cases through the articulation of a set of general rules or principles.  Finally, there are legal theories that combine the normative and the descriptive: Dworkin's interpretive theory of law aims at producing a general theory of law that best "fits" and "justifies" the legal materials.  In each of these three cases, there is a metatheoretical question: what role do particulars (e.g., judgments about or the outcomes of individual cases) play in relationship to the more abstract, general, and universal propositions that make up the theory?

This entry in the Legal Theory Lexicon examines "particularism"--the general view that particulars have priority over the general (or universal) in positive and/or normative legal theory.  As always, the Lexicon is written for law students, especially first year law students with an interest in legal theory.

The Basic Idea

Simplifying greatly, we can imagine two different relationships between the particular and the general in legal theory.  First, we might think that general propositions have priority, and that recalcitrant particulars must give way.  On this view, the legally correct outcomes in individual cases are determined by general propositions of law--for doctrinal theories.  And our moral intuitions about individual cases must give way to general moral propositions--for normative theories.  Second, we might think that the particular has priority, and that general theories are falsified if they conflict with individual cases.  On this view, the legally correct outcomes in individual cases are determined by the way that legal actors (e.g., judges) have treated those cases: if a general statement of the law (in a court's reasoning or a statute) conflicts with particular judgment, then the general statement must be abandoned or qualified--for doctrinal theories.  Similarly, for normative legal theories, the priority of the particular implies that normative legal theory must answer to intuitions (or perhaps considered judgments) about particular cases.  This second view of the relationship between the general and the particular is sometimes summarized by the phrase, "the priority of the particular."

A Puzzle About Particulars in Legal Theory

At this point, you might be thinking, "What is all the fuss about?" or "Why should we care about
the priority of the particular?"  Particularism is a metatheoretical view--it goes to the highly abstract question: how are theories about law confirmed or validated?  This is the kind of issue that lawyers rarely consider.  Even legal theorists rarely engage in systematic debate or discussion of this kind of question.  Nonetheless, there are some obvious puzzles about the relationship of particulars to general legal theories.  Consider the role of particulars (data or observations) in the empirical sciences.  If well-confirmed data conflict a scientific theory, there is a sense in which the theory is in serious trouble.  Of course, observation may be theory laden, and the interpretation of data is subject to revision.  But in some sense, we believe scientific theories are answerable to our particular beliefs about the world, and we don't think is is good scientific practice to "revise the data" in order to "fit the theory."

But in legal theory, the data does not seem recalcitrant in quite the same way.  If we have a powerful normative theory, then perhaps our intuitions are in error.  If we have a doctrinal theory that fits most of the cases, then perhaps the rest of the cases are in error.  Perhaps, but this sort of revision is called into question by the priority of particular.  Particularism suggests that our beliefs about individual cases may be more reliable than our general theories.

Pragmatism and Anti-Theory

Particularism in legal theory may be related to another big idea--"pragmatism" or "legal pragmatism."  Pragmatists tend be skeptical about the value of big theories, and for that reason may be attracted to particularism.  A similar set of attitudes about the value of abstract theorizing underlies what is sometimes called "anti-theory."  Perhaps we can do without general, abstract, and universal theories altogether.

Conclusion

The issues raised by the priority of the particular are deep ones, and this Lexicon post hardly limns their surface--much less resolves them.  If you are interested in these issues, there is a substantial literature on particularism in moral philosophy--that's a good place to begin a more systematic investigation of particularism.

Bibliography

Jonathan Dancy, Moral Particularism, Stanford Encyclopedia of Philosophy

Brad Hooker & Margaret Little (eds.), Moral Particularism (Oxford: Oxford University Press 2000)

Legal Theory Lexicon 066: Baselines

Introduction

Most undergraduates are likely to become acquainted with John Stuart Mill's famous harm principle at some point.  Here is how he stated the principle in On Liberty:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

The harm principle is itself a fascinating topic (perhaps for another Lexicon entry), but on this occasion, we are using it to ask the question: what constitutes harm to others?  Of course, we can all enumerated examples of harm.  Alice kicks Ben in the shin and bruises him.  Carla steals David's lunch.  Edwina falsely accuses Frank of plagarism.  But all of these examples assume that we can distinguish what the infliction of harm from something else--the denial of a privilege or advantage.  Gertrude denies Harry a job.  Ingrid decides not to invite Jim to her party.  Karl refuses to share his collection of MP3 files with Laurie.  Are these harms or not?

The problem of distinguishing harm from denial of advantage or rights from privileges involves one of the most interesting concepts in legal theory--the notion of a baseline.  This entry in the Legal Theory Lexicon introduces to the baseline problem.  As always, the Lexicon is aimed at law students, especially first-year students, with an interest in legal theory.

The Function of a Baseline

A variety of important legal concepts are relative in the following sense: an action, event, or state of affairs falls under the concept by comparison to some alternative.  Mill's idea of "harm" has this property: an event is a "harming" only in comparison to some prior or alternative state of affairs.  A similar point could be made about "injury," "advantage," "benefit," and similar terms.

There is where the notion of a baseline comes in.  For example, we might use a temporal baseline to define harm: action X is a harm to individual P if and only if P is worse off after X and this change in welfare is causally produced by X.  This sounds plausible, but it isn't difficult to cook up examples where this formula doesn't match our intuitive understanding of harm.  Mary asks Nancy to repay a $10 loan, and Nancy agrees to do so. Nancy is worse off, but it isn't clear that Mary has harmed Nancy--even though her request for payment is the cause of Nancy's being worse off (financially) than she was before the request for repayment. A similar point could be made about advantage. Mary forgives Nancy’s debt. Nancy's financial circumstances aren't improved relative to a temporal baseline, but we might believe that Mary has conferred an advantage on Nancy. In both examples, the temporal baseline doesn't capture our intuitive sense that the relevant baseline ought to be defined in terms of Mary and Nancy's respective entitlements.

Possible Legal Baselines

So how could the law identify baselines?  Let's just list a few possibilities:

Positive Entitlements: The law could take one's existing entitlements (as defined by the positive law) as the baseline for measuring legal harm or advantage.

Common law: Another option would be to take the common law system of property, contract, and tort law as the definition of baseline entitlements.  Official actions that worsened an individual's position relative to the common-law baseline could be defined as harms, and actions that bettered the common-law baseline could be defined as advantages.

Natural rights: Yet another possibility would be the the baseline could be defined by a theory of natural rights.  One such theory is offered by theories of the state of nature and the social contract.  The baseline of natural rights could be identified with those rights that would be retained by rational individuals who agreed to enter into civil society from a state of nature.

Human rights: Another source of a baseline might be the bundle of entitlements identified by international human rights law.

At this point, I'm sure that Lexicon readers will have recognized that the identification of a baseline can be crucially important to answering the question whether an injury has occurred.  If positive law identifies the baseline, then there are no injuries unless a legal entitlement is violated.  But if natural right sets the baseline, then there can be injury without violation of the positive law.

Contexts in which Baselines Matter

Baselines are important in a variety of contexts.  How do we distinguish offers from threats?  Nozick's clever distinction is that a threat is an offer you would rather not receive, but underlying his point is the notion of a baseline.

Baselines have played an especially prominent role in constitutional theory.  In that context, the baseline problem is strongly associated with Cass Sunstein, and especially with his analysis of the United States Supreme Court's decision in Lochner v. New York.  As most readers of the Lexicon will know, the Supreme Court invalidated a New York statute that regulated the number of hours that could be worked by bakers on the basis of the due process clause of the 14th Amendment of the United States Constitution.  The statute was challenged on the basis that it deprived bakery owners of liberty.  The question is what determines the baseline.  Sustein argued that the Court had erroneously assumed that the common-law provides a natural baseline, when in fact the system of common-law rights is itself a product of positive law and hence subject to redefinition by legislative action.  The following passage provides the flavor of Sunstein's argument:

The Lochner Court required government neutrality and was skeptical of government “intervention”; it defined both notions in terms of whether the state had threatened to alter the common law distribution of entitlements and wealth, which was taken to be a part of nature rather than a legal construct. Once the common law system came to be seen as a product of legal rules, the baseline from which constitutional decisions were made had to shift. When the Lochner framework was abandoned in West Coast Hotel, the common law system itself appeared to be a subsidy to employers. The West Coast Hotel Court thus adopted an alternative baseline and rejected Lochner era understandings of neutrality and action. (Sunstein, Lochner's Legacy, p. 917)

Of course, the system of common-law rights could be used as a baseline.  Sunstein's point is that the common-law is not more "natural" than any other baseline derived from the positive law.

One can imagine a variety of replies to Sunstein's argument.  One possibility is to argue that the common-law system of rights does have some special statues.  For example, it might be argued that common-law property, contract, and tort rights instantiate a system of natural rights.  Or it might be argued that the common law reflects deeply held and wide shared social norms that provide the content of a shared social sense of justice.  Whether arguments like this will succeed on the merits is certainly contestable, but for your purpose the important point is that baselines must be justified--they cannot just be assumed.

Conclusion

Concepts like harm, injury, advantage, and benefit are pervasive in legal theory.  Understanding these concepts requires an appreciation of the baseline problem.  The pont of this Lexicon entry is to give the reader a basic understanding of what baselines are and how they can be challenged and defended.  Of course, there is much more to be said, and the bibliograph provides some additional sources to investigate.

Bibliography

Jack M. Beerman & Joseph William Singer, Baseline Questions in Legal Reasoning: The Example of Property in Jobs, 23 Ga. L. Rev. 911 (1989).

David E. Bernstein, Lochner's Legaacy's Legacy, 82 Tex. L. Rev. 1 (2003).

Cass Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873 (1987).

Cass Sunstein, After the Rights Revolution: Civil Rights, Environmental Law, and Statutory Interpretation (Harvard University Press 1990).

(This entry was last revised on March 1, 2009. My thanks to Kenneth Simons for his comments.)

Legal Theory Lexicon 065: The Nature of Law

Introduction

What is the nature of law?  This question has occupired center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurispurdence.  This entry in the Legal Theory Lexicon aims to give an overview of the "What is Law?" debate.

Historically, the answer to the question, "What is law?," is thought to have two competing answers.  The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice.  The modern answer is provided by legal positivisim, which, as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

Contemporary debates over the nature of law focus on a revised set of positions.  Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Jules Coleman.  The natural law tradition is defended by John Finnis.  And a new positition, interpretivism is represented by Ronald Dworkin.

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

This Lexicon entry maps the territory of the "What is Law?" controversy, and provides introductory sketches of the major positions.  As always, the Lexicon is written for law students, especially first-year law students, with an interest in legal theory.

Natural Law Theory

Natural law theory is strongly associated with classical and medieval thought, especially Aristotle, Roman jurisprudence, and St. Thomas Aquinas.  There are several challenges associated with the task of explicating natural law theory, and one of the most important tasks of this introductory entry is simply to identify these challenges.

First, there are two interrelated but distinct views that are called "natural law theory."  One is a view about the nature of morality: this view asserts that there are natural moral laws, and it is not essential to this view that it take any particular stand on the "What is law?" debate.  A second view that is called "natural law theory" is a theory about "law" as an institution or practice--that is the view that is implicated in the "What is law"" controversy.

Second, contemporary understandings of "natural law theory" have been strongly influenced by the legal positivists critique.  When the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition.  When Holmes referred to a "brooding omnipresence in the sky" he was not offering a sympathetic or charitable reading of the natural law tradition.

For the purposes of this broad overview, we might use the latin phrase lex injusta est non lex as a starting point.  Natural law theory could be understood as affirming something like the following:

An unjust "law" is not a true law.

This formulation differs from a literal translation--an unjust law is not a law.  Formulated in that way, natural law theory seems to be committed to a contradiction: something which is a law (but also is unjust) is not a law.  The quotation marks around "law" and the phrase true law make it clear that natural law theory is asserting something else, that something which might be called a "law" is not in fact a law if it is unjust.  Usually, this notion is accompanied by some explication of the characteristics that are required for status as a "true law" or perhaps "valid law."

Legal Positivism

It is difficult to know where the positivist tradition begins.  Hobbes's theory of law shares some characteristics with the theories offered by Jeremy Bentham and John Austin--both of whom are clearly in the positivist tradition.  Jeremy Bentham developed a very sophisticated version of legal positivism, but for a variety of reasons, the more influential and widely known view was that of Bentham's student, John Austin, the author of The Province of Jurispudence Determined (1861).

Austin's theory was that a given rule was a law if and only if the rule was the command of the sovereign to subjects of that sovereign backed by the threat of punishment.  A sovereign is some person or institution who is habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.

Austin's positivist theory does an excellent job of explaining the rules of criminal law, which forbid certain actions and impose punishments on those who engage in the forbidden actions.  But this theory has a difficult time accounting for other aspects of law, and especially for those rules that create legal powers, such as the power to create contracts, trusts, wills, and so forth.  This difficulty is most acute with respect to rules that define the basic institutional arrangements that define the sovereign itself, e.g., the rules of constitutional law in the United States.

These deficiencies in Austin's theory prompted H.L.A. Hart to develop a more sophisticated version of legal positivism.  One feature of that theory is the distinction between primary rules (which would include criminal prohibitions) and secondary rules (which allow for the creation, alteration, and termination of primary rules).  Hart replaced the notion of a sovereign with that of a rule of recognition--a social rule that specifies what counts as a law and what does not.

Moral Facts, Social Facts, and Legal Content

The contemporary approach to these issues is the product of almost sixty years of thinking within the tradition that is sometimes called "analytic jurisprudence."  Beginning with the work of H.L.A. Hart in the 1950s, through is publication of The Concept of Law in 1961, and extending through Ronald Dworkin's critique of Hart, and the reformulation of the positivist tradition by both Joseph Raz and Jules Coleman, the basic issues and questions have gone through several transformations.

One useful way to get get at the heart of these developments is to conceive of the debate about the nature of law as centrally concerned with the relationship between social facts, moral facts, and legal content.  Our question is "What determines legal content?," where "legal content" is simply understood as the content of the legal norms.

• One answer to this question takes the form: It is necessarily the case that only social facts determine legal content.  This is exclusive legal positivism--a view that is strongly associated with Joseph Raz.

• A second answer to this question takes the form: It possibly the case that moral facts determine legal content, but only if social facts give the moral facts this role.  This is inclusive legal positivism--and this view is most strongly associated with Jules Coleman.

• A third answer to the question takes the form: It is necessarily the case that moral facts determine legal content.  This view would include natural law theory and interpretivism--the view that is strongly associated with Ronald Dworkin.

By framing the "What is law?" debate in terms of the relationship between social facts, moral facts, and legal content, the conceptual space we get precise mapping of the conceptual space.  In the rest of this Lexicon entry, we will take a somewhat less shallow look at the three options.

Inclusive and Exclusive Legal Positivism

Exclusive legal positivism is the view that only social facts can determine legal content.  Joseph Raz famously argued for exclusive legal positivism based on the premise that law claims authority, that authority consists in displacing other reasons for actions, and therefore law must displace moral reasons for action.  (That was a very short and inadequate summary of a long and complex argument.)

Inclusive legal positivism is the view that moral facts can play a role in determining legal content, but only if there are some social facts that give the moral facts this role.  For example, a constitution might include an clause that make a moral conception of human equality a legal rule.  This would give the morality of equality a role in determining legal rights, but this role would exist because a social fact (the Constitution) made it so.

Interpretivism

The final view is "interpretivism," strongly associated with Ronald Dworkin.  For Dworkin, social facts, such as constitutons, statutes, and court decisions, do not directly determine legal content.  Instead, Dworkin believes that the content of the law is given by the theory that best fits and justifies the legal materials.  Dworkin makes this theory vivid by imagining a judge, Hercules, who is able to construct a grand theory of political morality that provides a constructive interpretation of the entire institutional history of a given society.  Because this theory is a theory of that institutional history, it is constrained.  For example, the best constructive interpretation of the institutional history of the United States will have to acknowledge that our federal legislature is bicameral and that it includes a Senate with equal reprsentation of each state.  But this constraint does not require a perfect match between a literal interpretation of every legal text and the content of the law.  So some precedents may be categorized as mistakes, and some statutory or constituitonal provisions may be given a constructive interpretation that makes them morally more attractive but does not follow every jot and tittle of the text.

Conclusion

This very brief introduction to the "What is law?" debate is necessarily incomplete and shallow.  But I hope that it gives you a general sense of the various positions that have been taken on the nature of law.

Bibliography

John Austin, The Province of Jurisprudence Determined (1861).

Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2001).

Ronald Dworkin, Law's Empire (1986).

John Finnis, Natural Law and Natural Rights (1980).

H.L.A. Hart, The Concept of Law (1961) (2d ed. 1984).

Joseph Raz, The Authority of Law: Essays on Law and Morality (1983).

Links

John Finnis, Natural Law Theories, Stanford Encyclopedia of Philosophy.

Leslie Green, Legal Obligation and Authority, Stanford Encyclopedia of Philosophy

Leslie Green, Legal Positivism, Stanford Encyclopedia of Philosophy.

Andrei Marmour, The Nature of Law, Stanford Encyclopedia of Philosophy.

Nicos Stavropoulos, Interpretivist Theories of Law, Stanford Encyclopedia of Law.

Brian Tamanaha, Law, Oxford International Encyclopedia of Legal History, 2008.

Related Legal Theory Lexicon Entries

Legal Theory Lexicon 032: Fit and Justification

Legal Theory Lexicon 038: The Internal Point of View

Legal Theory Lexicon 039: Primary and Secondary Rules

Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law

(This entry was last revised on February 22, 2009.)

Legal Theory Lexicon 064: Possibility and Necessity

Introduction

What policy choices are feasible and which options are "pie in the sky," "utopian," or "politically impossible"?  What is "necessary" and what is merely "probable"?  The Legal Theory Lexicon includes two entries that deal with aspects of these questons Legal Theory Lexicon 011: Second Best and Legal Theory Lexicon 062: Path Dependency.  In this post, we will investigate the concepts of "possibility" and "necessity."  These ideas are ubiquitious in theoretical discourse, but they are rarely defined or explicated.  One way to get clear about possibility and necessity is via the power philosophical idea of a possible world, made famous by Leibniz and deployed in contemporary metaphysics by Saul Kripke and others.

As always, the Legal Theory Lexicon is aimed at law students, especially first year law students with an interest in legal theory.  Although "possible worlds" talk may sound complex, the core ideas and terminology can easily be mastered.

Modality

Before proceeding any further, we need to introduce an important term, the adjective "modal" and its noun form "modality."  These words are probably unfamiliar to anyone who wasn't a philosophy major, but you may dimly recall that "could" and "must" are called "modal verbs" in texts on English grammar.  "Could" is a modal verb because it expresses possibility: if something could happen, it is possible.  "Must" is a modal verb because it expresses necessity: if something must happen, it is necessary.  When I use the word "modality" in this post, I am simply referring to the general concept that includes both necessity and possibility in all their forms.

Possible Worlds Semantics 

The phrase "possible worlds semantics" sounds pretty intimidating, but it is really based on a very intuitive and simple set of ideas.  Possible worlds talk translates talk about possibility and necessity into talk about possible worlds.

Begin with the notion of a possible world. This notion is similar to the notion of a "state of affairs," which may be familiar from economics. The philosophical idea of a "possible world," is understood as a complete history of a whole universe. If some thing is possible, say event X, we say that X occurs in some possible world. Complimentary to the concept of possibility is the concept of necessity. Let us say that an event Y is necessary if Y occurs in all possible worlds; a proposition, p, is a necessary truth if it is true in all possible worlds.

The next step is to add the notion of the "actual world," where actual is an indexical term that separates this world from all possible worlds.  You may not be familiar with the idea of indexical terms.  "Here" is an indexical: its meaning is indexed to the place where the word is uttered.  Likewise, "now" is an indexical: Its meaning is indexed to the time the word "now" uttered.  And when "actual" is used in the philosophical sense, its meaning is indexed to this possible world: the actual world is the possible world that we inhabit.

Varieties of Possibility 

Now that we have the idea of a possible world in place, we can talk about different kinds of possibility.  For example, "logical possibility" requires only logical consistency, and, in the logical sense, possibility is rarely implicated by debates in normative legal theory.  That is because almost anything that legal theorists would care to talk about is logically possible: it is logically possible that the Constitution will be amended next year to abolish the Electoral College and eliminate the Senate, but no one thinks that these possibilities are even worth discussing in that time frame.

Practical Possibility 

The notion that there are different types of possibility can be made very precise by using the notion of a possible world.  Let's try to develop a concept of "practical possibility" that captures the claims made by legal theorists that same legal options are not in the feasible choice set.  We can do this by narrowing the set of possible worlds that are the domain of legal necessity in a series of steps.

Each step can be expressed in terms of the idea of an accessibility relation. The phrase "accessibility relation" may sound obscure, but an example will make it crystal clear. For practical purposes, normative constitutional theory may sometimes only be interested in those worlds that are possible future states of the actual world. Such worlds share the history of the actual world up to this moment, and we call worlds that have this property "historically accessible" from the actual world.  Notice that talk about historical accessibility frequently can be translated into talk about "path dependency."  The feasible choice set--the future choices that are possible--may be (or is) constrained by history.

But "historical accessibility" is not a sufficient limitation for the purposes of normative legal theory. Why not? Because it is logically possible that the future states of the actual world could be just about anything you can imagine; there is no logical contradiction in a possible world that shares the history of the world up until now but in which the United States instantly becomes a parliamentary democracy at the next snap of Jeremy Waldron's fingers. For the purposes of normative legal theory, we should restrict the domain of possible worlds to those that share the basic laws of nature (physics, etc.) with the actual world; these worlds are called "nomologically accessible."  In nomologically accessible worlds, Waldron's finger snaps do not produce constitutional revolutions. The historically and nomologically accessible worlds, then, are those that share the history of the actual world up to now and that share our laws of nature.

At this point it is useful to introduce the idea of "distance" between the actual world and some possible world. Adjacent possible worlds are "close" to the actual world. A possible world that was just like the actual world, except that this entry in the Legal Theory Lexicon was never written, would be very close, i.e., adjacent, to the actual world.  Remote worlds are "distant" from the actual world. A possible world in which complete essays appear without effort, simply by wishing upon a star would be more remote. Even more distant worlds are easy to imagine. In ascending degree of remoteness, we can imagine a world in which the Mongols conquered Europe and the Renaissance did not occur, a world in which humans never evolved, or a world in which subtle variations in physical laws made the evolution of carbon-based life impossible.

The possibilities that concern normative legal theory are primarily those that exist in historically and nomologically accessible possible worlds that are adjacent to the actual world. One set of accessibility relationships is especially relevant to legal discourse: these relationships concern human psychology, institutional capacities, social norms, and political attitudes. Some legal options will not work, given what is true about human psychology: they make unrealistic assumptions about what officials or citizens are capable of doing. Other legal options would require dramatic changes in social norms: their success relies on unrealistic assumptions about what citizens and officials believe is acceptable or unacceptable conduct. Some options make counterfactual assumptions about institutional capacities. And yet other legal options are politically infeasible: they presuppose political attitudes that only exist in possible worlds that are remote from the actual world.

But normative legal discourse requires what we might call "normative space."  That is, normative discourse assumes that minds can be changed and the attitudes are not entirely fixed. We can call worlds that conform to the laws of psychology and political science but in which attitudes and beliefs are not fixed "psychologically and politically accessible worlds."

Practically Accessible Possible Worlds

Sometimes normative legal theory has practical aims: it is concerned with how we should act in the actual world. Let us call constitutional action in the actual world "legal practice."  Legal practice is not concerned with historically and nomologically accessible possible worlds that cannot come into being given the limits on human choices. If there is nothing that any agent (individual, institutional, or collective) does in any historically and nomologically accessible world that brings a future state of the world about, then the future state is outside the feasible choice set. Let us call the worlds that are open to human choice in the sense just specified "practically accessible."  A practically accessible world must be nomologically and historically accessible through human agency. Legal practice is, by stipulation, concerned with possible worlds that are practically accessible.

Epistemological Accessibility

One final accessibility relation requires a brief mention. We can distinguish between those worlds that are consistent with our knowledge of the actual world and those which are inconsistent with such knowledge. We can use the phrase "epistemologically accessible" to capture this idea. Worlds that are consistent with everything we know about the actual world are epistemologically accessible. Worlds that have a feature contradicted by our knowledge of the actual world are epistemologically inaccessible. Not all epistemologically accessible worlds are nomologically and historically accessible; there may be historical facts or natural laws of which we are unaware.

The Feasible Choice Set 

We are now in a position to define the notion of a feasible choice set. A claim that a given legal option is outside the feasible choice set is a claim about constitutional practice, and hence a claim about which possible worlds are practically accessible. Usually, a claim that a given legal option is infeasible will rest (either explicitly or implicitly) on a claim about human psychology, anthropology, economics, sociology, or political science.

For example, the claim that a constitutional amendment banning abortion is politically infeasible, if fully articulated, would rest on claims: (i) about the legal requirements for constitutional amendments, (ii) about beliefs and desires causally relevant to the motivations of constitutional actors such as congresspersons and state legislators, and (iii) about the beliefs and desires of citizens. Thus, the claim might be that, given the legal requirements, the motives of those whose assent is legally required for a constitutional amendment, and the attitudes of voters, a constitutional amendment banning abortion is impossible. In possible worlds talk, we might say that worlds in which such amendments become law are relatively remote from our own; in these worlds, political actors behave much differently or many citizens have different attitudes about abortion or the legal requirements for a constitutional amendment have been altered. This remoteness is the underlying reason for our judgment that such a constitutional amendment is outside the feasible choice set.

Legal options that exist only in possible worlds that are either historically or nomologically inaccessible are outside the feasible choice set in a very strong sense. They cannot come about in a future state of the actual world given the natural laws that govern this world. Legal options that exist in historically and nomologically accessible worlds may nonetheless be only remote possibilities: they may depend on changes in beliefs, desires, or institutions that depend on unlikely contingencies. When such possibilities are sufficiently remote, we may say they are outside the feasible choice set, but if we speak in this way, we are using "feasibility" in a sense that diverges from historical and nomological possibility.

Agent Relativity & Collective Action

One more point about the feasible choice set is that it may be "agent relative."  Consider again, the claim that a constitutional amendment banning abortion is infeasible.  When this claim is cashed out, the relevant kind of "possibility" is likely to hinge on the assumption that the beliefs and desires of certain agents are held constant.  Given political attitudes (as they currently exist in the actual world), such an amendment could not be ratified by the requisite three-quarters of the fifty state legislatures.  So from the point of view of particular political actors (e.g. an advocacy group), the constitutional-amendment option is outside the feasible choice set.  In other words, relevant to a particular agent (e.g., an advocacy group), the feasible choice set is constrained by the political attitudes of other agents.

But now suppose that we are asking a different question: is a constitutional amendment possible for the collective agent that consists of the Congress and fifty state legislatures?  From the point of view of that agent, the same legal action (the constitutional amendment) is within the political choice set--it is within the set of options that it is possible for that collective agent to choose.  In other words, practical possibility can be "agent relative"--where a choice that is infeasible for one agent is feasible for another.

I am sure that many readers of Legal Theory Blog will recognize that this aspect of legal possibility is related to what are called "collective action problems."  For an example, see the Legal Theory Lexicon entry on the prisoners' dilemma (Legal Theory Lexicon 007: The Prisoners' Dilemma).  Some actions require cooperation between multiple agents, but if we make certain assumptions about the motivations of the needed cooperators (as rational choice theory does), then cooperation and hence the collective action may be outside the feasible choice set.

Two Mistakes About Possibility

The Mistake of Reducing Possibility to Cost  Positive and normative law and economics provide powerful frameworks for thinking about the law and policy. Part of that power derives from a focus on costs and benefits. Frequently, we can understand and predict behavior by focusing on the expected costs and benefits of alternative actions. Sometimes, the action that is morally best is the action that accrues the greatest benefits or minimizes costs. If carried to an extreme, this focus on costs and benefits might lead to the conclusion that talk about possibility and feasibility can be reduced to talk about costs. We might come to believe that the sentence, “Outcome A is impossible,” can be reduced to, “Outcome A is too costly to be seriously considered.” Or “Choice B is not feasible,” might be equivalent to “Choice B is so costly that it should not be considered as an alternative.”

Possibility cannot be reduced to cost for several reasons. First, some kinds of impossibility are unrelated to cost (in even the broadest sense of that term). The number of Senators apportioned to each state cannot simultaneously be equal and proportionate to population; given unequal population size, this would be a logical impossibility. Second, the attribution of costs to options is dependent upon a prior notion of possibility. Thus, if we say that option A entails the accrual of cost n, that assertion depends on the prior assumption that a state of affairs in which option A is chosen, but cost n is not accrued is not a possible state. Third, even when costs play a causal role in establishing impossibility, agent relativity differentiates between costs as factors to be weighed in decisionmaking and costs that make certain outcomes practically impossible. For example, if respecting the freedom of speech is costly in cases involving advocacy of terrorism, the Supreme Court (as a relevant constitutional agent) might take that fact into account. And in some circumstances, high costs might lead the court to view a given constitutional rule as “infeasible.” But this is quite different from the court reaching the conclusion that compliance with a rule would be impossible, because the costs associated with compliance would be too large for the affected governmental entity to bear. In the first case, the costs are factors to be weighed in making the decision. In the second case, the costs are causal influences that determine which outcomes are possible from the point of view of the Court.

The Mistake of Reducing Possibility to Probability  Another tempting error is to equate possibility and probability. Possibility is normally understood as a binary function. An action, outcome, or event is either possible or impossible—once we specify the “sense of possibility” or, more technically, the accessibility relationships that define the relevant set of possible worlds. Probability, however, is a scalar: a given outcome may be “more or less likely” or, more formally, its probability may assume any real value from 0 to 1. The tempting mistake is to equate “possible” with “probability greater than zero” and “impossible” with “probability equal to zero.” Given this move, an even more serious error becomes tempting: one might then say that assertions of “impossibility” are actually assertions of “extreme improbability,” with the consequence that the concept of impossibility would turn out to be confused or mistaken. But the equation of possibility and probability is, in fact, based on conceptual confusion. The nature of the error is easiest to see in the case of logical possibility. It simply does not make sense to assert that it is merely improbable that the following two statements are both true: (1) this article was written entirely in the twenty-first century, and (2) this article was not written entirely in the twenty-first century. It is logically impossible that both statements are true, and the concept of improbability has no application to this kind of case. If someone were to assert the following: “The probability of both statements being true is zero,” we would understand that they were using probability in a figurative or metaphorical sense. There may be cases where “impossible” means “probability of zero,” but not all cases are like this. In some cases, talk of probabilities is simply inappropriate.

Avoiding Double Standards

One last point before we conclude.  Arguments about legal possibility should avoid double standards. That is, if one argues against a legal alternative on the ground that it is outside the feasible choice set, then one is obligated to show that the preferred option or options are inside the set—on the basis of the same criteria and in light of available evidence. The possibility of a double standard can be illustrated by reference to a hypothetical dispute between advocates of constitutional originalism and Dworkin’s view of law as integrity. Originalists might claim that their approach is superior because it provides objective standards for correct constitutional interpretation. A Dworkinian might attempt to refute this claim by arguing actual judges are incapable of discerning the original public meaning of the Constitution; in the actual world, the argument might go, judges and justices lack both the historical chops and the capacity to set aside their own preferences. But if the Dworkinian (or quasi-Dworkinian) were then to appeal to Dworkin’s ideal judge, Hercules, when the feasibility of law as integrity was assessed, a double standard would have been imposed. In the actual world, the same judges who lack historical chops may lack Hercules’s capacity to construct the theory that best fits and justifies the law as a whole; in the actual world, the same biases that distort originalist judges could distort the method of law as integrity. Of course, we can easily imagine that the tables are turned and that it is the originalists who deploy a double standard.

Conclusion

The concepts of "possibility" and "necessity" do a lot of work, but legal theorists frequently make arguments about feasibility without a theory.  This leads to confusion and creates the possibility of double standards.  The aim of this entry in the Legal Theory Lexicon has been to give you the tools to think clearly and consistently about legal possibilities.

References

John Divers, Possible Worlds (Rutledge 2002).

David Lewis, On the Plurality of Worlds (new ed. Wiley-Blackwell 2001).

Lawrence B. Solum, Constitutional Possibilities, 83 Indiana Law Journal 307 (2008).

(This entry was last revised on February 15, 2009).

Legal Theory Lexicon 063: Interpretation and Construction

Introduction  

Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex.  What does the text mean?  How does that meaning translate into legal doctrine?  And how does the doctrine apply in the context of the facts of the case?  One way to think more clearly about this process is to distinguish between interpretation and construction.  We can roughly define these two activities as follows:

• Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.

• Construction: The activity of translating the semantic content of a legal text into legal rules.

Those definitions sound pretty technical to me, but I hope you are starting to get the idea.  We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.

Courts and legal theorists use the distinction between interpretation and construction in a variety of legal contexts, including contract law and constitutional law.  In a contracts case, for example, the Iowa Supreme Court stated, "Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect." Fashion Fabrics of Iowa v. Retail Investment Corporation, 266 N.W. 2d 25 (Iowa 1978).

This introduction to the interpretation-construction distinction is aimed at law students (especially first year law students) with an interest in legal theory.

Some Background Concepts  Before we get back to interpretation and construction, it may be helpful to clarify some of the background concepts and ideas.  We can begin with the idea of meaning itself.

Meaning  What does the word "meaning" mean?  This question (which may sound pedantic) is actually incredibly important, and a good deal of confusion can be avoided if we are careful about the way we use this slippery word.  Consider the following senses of the word meaning:

Linguistic meaning  The primary sense of "meaning" is used in expressions like, "What does that word mean?" or "What did he mean by that?"  In this sense, when we ask what a constitutional or statutory provisions means, we are asking for its semantic content.

Teleological meaning  But sometimes we use the word meaning in another sense.  When we ask for the meaning of a statute, we can be asking why the statute was enacted?  When someone says, "by passing that statute, Congress meant to benefit the construction industry," they are not referring to the semantic content of the statute, they are refering to the purpose or teleological meaning of the statue.

Applicative meaning  Lawyers sometimes use meaning in a third sense, to refer to the implications that a legal text has for a particular case.  "What does the Second Amendment mean for my client?"--this question is not about the semantic content or the purpose of the statute, it is about the way the statute will apply.

Back to the interpretation-construction distinction for just a moment.  Interpretation is about meaning in the linguistic sense.

Vagueness and Ambiguity  The interpretation-construction distinction is closely connected to another distinction--between vagueness and ambiguity.

There is a entry in the Legal Theory Lexicon on vagueness and ambiguity so I will be very brief here.  A word, phrase, sentence, or clause is ambiguous if it has more than one sense: for example, the word "cool" is ambiguous because it can mean (a) hip, (b) of low temperature, or (c) of even temperament.  A word or phrase is vague when it has borderline cases: for example, the word "tall" is vague, because there is no bright line between those individuals who are tall and those who are not.  The same word can be both ambiguous and vague in one of its senses: cool is ambiguous and each sense of cool is vague.

Sometimes legal texts are vague.  Sometimes they are ambiguous.  Sometimes they are both vague and ambiguous.  And sometimes they are neither vague nor ambiguous.  For example, the provision of the United States Constitution that gives each state two senators is neither vague nor ambiguous: in context, neither "two" nor "Senator" is ambiguous.  And Senators come only in whole numbers, so "two" is not vague.  But many provisions of the constitution are vague: What constitutes an "infringement" of "freedom of speech"?

Characteristically, interpretation resolves ambiguity and construction creates subsidiary rules that resolve vagueness.  Why?  Interpretation resolves ambiguity, because it is usually the case that there is a linguistic fact of the matter about the semantic meaning of a text that is ambiguous.  For example, the phrase "domestic violence" is used in Article I of the United States Constitution: does it mean "spouse abuse" or "riot, rebellion, or insurrection"?  In context, it is clear that the linguistic meaning of "domestic violence" was the latter and not the former.  Construction resolves vagueness, because interpretation cannot do that work.  When a word or phrase has a linguistic meaning that is vague, then interpretation has done all the work it is capable of doing.  At that point, what we need is a construction that allows us to draw a line (making the vague provision more specific) or that gives us a decision procedure (allowing case-by-case resolution of the vagueness).

What Work Does the Interpretation-Construction Distinction Do? 

Is this interpretation-construction distinction really necessary?  What work does it do?  Does the distinction reflect a real and fundamental difference between different modes of legal practice?

One way to think about these question is to imagine what things would look like if we didn't have the interpretation-construction distinction.  What if we called everything "interpretation" and didn't recognize construction as a distinct activity.  Well, we could reinvent the distinction within the concept of interpretation.  You can imagine talking about two stages of interpretation--stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction.  But if we did that, we would simply be using different labels to refer to the same concepts.

So let's do a thought experiment that involves our failing to distinguish between the lingustic meaning and legal effect of legal texts.  Judges and legal theorists have actually done that (so I guess it isn't really a "thought experiment).  For example, Allan Farnsworth once wrote, "[Courts] have more often ignored [the interpretation-construction] by characteizing the process of 'construction' as that of 'interpretation' in order to obscure the extentof their control over private agreement."  If courts deliberately ignore the distinction in order to make their role opaque rather than transparent, then legal theorists can deploy the interpretation-construction distinction in order to expose what is really going on.  (There is a Legal Theory Lexicon entry on transparency.)

But sometimes courts run interpretation and construction together without any awareness of the what they are doing.  That is, the court may not realize that there is a difference between the inquiry into the linguistic meaning of a legal text and the creation or application of subsidiary rules that translate the semantic content into legal content.  When courts (or legal theorists) are confused in this way, it is not surprising that their reasoning is likely to be confused or incoherent.  On the one hand, they may try to squeeze constructions out of linguistic facts.  On the other hand, they may try to reach conclusions about the actual linguistic meaning of a text on the basis of policy considerations.  (Making the egregious error of arguing for the existence of a fact from its desirability.)  When this happens, the interpretation-construction distinction allows the legal theorist to step in and reconstruct the arguments so that they make sense (or if they don't, then in a way that exposes the error).

So is the interpretation-construction distinction real and significant?  Of course, it isn't the particular terminology that matters, but the substance of the distinction is not something that legal theorists can do without.  The linguistic meaning of a legal text and the content of legal rules are really two different things.

The Interpretation-Construction Distinction and the New Originalism 

One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism."  One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction.  (This is especially clear in the work of Keith Whittington and Randy Barnett.)  The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation.  Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work.  New Originalists deny that this is true.  They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene. 

Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results.  We might call the view that original meaning and a living constitutionalism are consistent "compatabilism"--the case for this view has been made by Jack Balkin.

This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning.  Some originalists who resist compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction. 

This is just one example of the interpretation-construction in action.  It is relevant in a number of other doctrinal contexts, including contract law, trusts and wills, and the theory of statutory interpretation and construction.

Conclusion 

Once you become aware of the interpretation-construction distinction, you will begin to notice its ubiquity and subterranean quality.  The distinction is ubiquitous, because the law in theory and practice is almost always about the application of legal texts to particular cases.  The distinction is subterranean, because of the failure of theorists, judges, and lawyers to observe the distinction, with resultant deception or confusion.  With the distinction at hand, your own thinking about the law can become clearer and more transparent, and you possess a powerful tool for understanding or criticizing the work of others.

Links

Legal Theory Lexicon 015: Transparency

Legal Theory Lexicon 019: Originalism

Legal Theory Lexicon 030: Textualism

Legal Theory Lexicon 051: Vagueness and Ambiguity

Bibliography

Jack Balkin, Abortion and Original Meaning, 24 Constitutional Commentary 291 (2007).

Randy E. Barnett, Restoring the Lost Constitution: The Presumptions of Liberty (Princeton University Press 2003).

E. Allan Farnsworth, Contracts (4th ed., Aspen 2004).

Lawrence Solum, Semantic Originalism.

Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (New ed. University Press of Kansas 2001).

Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Harvard University Press 2001).

(This entry was last modified on February 8, 2009.)

Legal Theory Lexicon 062: Path Dependency

Introduction 

The phrase "path dependency" is used to express the idea that history matters--choices made in the past can affect the feasibility (possibility or cost) of choices made in the future.  This entry in the Legal Theory Lexicon introduces this idea to law students, especially first-year law students, with an interest in legal theory.

The General Idea of "Path Dependency" 

The general idea of path dependency is that prior decisions constrain (or expand) the subsequent range of possible or feasible choices.  That is, a decision, d, made at t₁ may affect the choice set, S = (c₁, c₂, . . . c_n) at t₂.  We can define a choice set as a set of actions that a given agent could take.  Or to expand the path metaphor, if we imagine a network of paths through time, from past to future, decisions to branch at an earlier point on the chosen path may affect the destinations that one can reach from a later point on the path.  Sometimes, if we choose the left fork, we may be able to reach exactly the same destinations we could have reached via the right fork, but sometimes, our choices foreclose some possibilities altogether.  It isn’t always the case that in the long run, there’s still time to change the road you’re on.

The notion of path dependency is associated with the discipline of economics and also with political science.  In the context of economics, there is a tendency to associate "path dependency" with effects on the costs of various options.  But the phrase "path dependency" can be (and is) used in a more general sense--to encompass the ideas of feasibility and possibility.  The terminology doesn't matter for its own sake, but it is important to be clear about the meaning of the phrase when discussing path dependency.

Specifying Parth Dependency

This general notion of path dependency can be specified in various ways--(1) by the type of effect, (2) by causal mechanisms, and (3) by remediability.   Each of these ideas requires further explanation.

The Type of Effect First, we can specify the type of effect that d₁ has on the choice set.  One type of seffect is an effect on which actions are members of the choice set.  Thus, by making a decision d at t₁, the resulting choice set at t₂ would have members c₁, c₂, and c₃, but if the decision had been d′ (d prime), then the choice set at t₂ would have members c₁, c_3, and c₄.  In this illustrative case, making decision d rather than d′ both added and subtracted from the choice set at t₂.  Another type of effect is an effect on the costs associated with the actions that are members of the choice set.  That is, decision, d, might result in the price of a given choice P(c₁) being greater than that price would have been if an alternative decision, d′, had been made.  Notice, however, that if we include price in the specification (or description) that designates a choice, then the second type of effect (that is, cost effects) are reducible to the first type of effect (possibility effects).

What Causal Mechanisms?  A second way in which we can specify the general notion of path dependency is to describe the causal pathway by which decisions affect future choices.  On the one hand, one might use the phrase “path dependency” to refer to all causal mechanisms.  On the other hand, we could reserve the phrase for a specific type of causal mechanism.  For example, Paul Pierson has suggested that the notion of path dependency should be limited to what he calls “positive feedback.”  Positive feedback (or self-reinforcement) involves the idea that as time progresses, the relative benefit of maintaining some feature of the system (and hence the relatively costliness of modifying or eliminating that feature) increases.  Once a constitution has been adopted and gone into effect, it becomes more costly to adopt a different constitution.  Once a federal system has been created out of sovereign subunits, it becomes more costly to eliminate that the federal (or national) government.  Once a judicial precedent has been established and relied upon, the costs of reversal grow.

Remediable and Nonremediable Path Dependency  A third way in which we can specify the idea of path dependency is by differentiating between “remediable” and “nonremediable” path dependency.  Path dependency is remediable if there are some points on the path at which there is an alternative decision, d′, such that if the decision had been d′ rather than d, the outcome would have been better (relative to some goal or criteria for evaluation).  Path dependency is nonremediable if no alternative could have improved the outcome.  For the idea of nonremediable path dependency to be plausible, we must assume that we are talking about particular choices in relationship to particular consequences within some time frame.  Thus, the framers’ decision to create equal suffrage in the Senate might be nonremediable with respect to the goal of establishing majoritarian democracy if all of the alternatives (say, vetoes of national legislation by a single state governor) had been worse with respect to this goal.

Applications in Normative Legal Theory

Path dependency interacts with legal theory in a variety of ways.  One simple example--stare decisis--is described by Oona Hathaway:

Path dependence theory is relevant to the common law system for a simple reason: the doctrine of stare decisis. Under the doctrine of stare decisis et non quieta movere--"let the decision stand and do not disturb things which have been settled" [FN88]--decisions of higher courts are controlling in subsequent cases involving similar circumstances. [FN89] Courts also give their own prior decisions great weight, though they are not strictly bound to follow their own precedents. [FN90] Furthermore, even when decisions of other *623 courts are not explicitly binding, they can provide persuasive authority. [FN91] Judges who follow the doctrine thus generally apply decision rules that entail explicit reliance on earlier choices and thereby generate path dependence.

Another example is provided by a recent article by Lucian Arye Bebchuk and Mark J. Roe.  They argue that initial decisions made about the form of corporate organization create path dependencies--making changes in form more costly or infeasible.  And a final example is provided by Article V of the United States Constitution.  Article V makes amendment difficulty by subjecting amends to a supermajoritarian process of proposal and ratification.  Once the Constitution of 1789 had been adopted and gained legitimacy, "path dependency" made substantial changes without supermajority support infeasible.

Conclusion 

The idea of path dependency is now a familiar one to many legal theorists, but its use in academic legal discourse is frequently vague or ambiguous.  I hope this brief introduction will give you a more precise sense of

Online Resources

Lawrence B. Solum, Constitutional Possibilities.

Bibliography

Paul Pierson, Increasing Returns, Path Dependence, and the Study of Politics, 94 American Political Science Review 251 (2000)

Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton University Press 2004)

William H. Sewell, Three Temporalities: Towards an Eventful Sociology, The Historic Turn in the Human Sciences 262-63 (Ann Arbor, University of Michigan Press 1996)

S.J. Liebowitz & Stephen E. Margolis, PATH DEPENDENCE, LOCK-IN, AND HISTORY, 11 J.L. Econ. & Org. 205 (1995)

Oona A. Hathaway, PATH DEPENDENCE IN THE LAW: THE COURSE AND PATTERN OF LEGAL CHANGE IN A COMMON LAW SYSTEM, 86 Iowa L. Rev. 601 (2001)

Lucian Arye Bebchuk & Mark J. Roe, A THEORY OF PATH DEPENDENCE IN CORPORATE OWNERSHIP AND GOVERNANCE, 52 Stan. L. Rev. 127 (1999)

(This entry was last revised on February 1, 2009.)

Legal Theory Lexicon 061: Feminist Legal Theory (by Ann Bartow)

The entry in the Legal Theory Lexicon is by Ann Bartow of the University of South Carolinia and of Feminist Law Professors (the excellent blog).  Thank you, Ann!  The entry has been revised for style and form.

Introduction

A while back Larry Solum asked me to write a short post about feminist legal theory for his excellent Legal Theory Blog. What follows is a brief (though longer than it probably should be) overview of this scholarly subject area. With two exceptions, I don’t mention any feminist legal theorists by name, but at the very end there are links to several feminist legal theory bibliographies.

Most feminist legal theory starts, at least implicitly, with the belief that women are not treated the same as men are by the law or by legal actors. Women should be treated equally to men because we really are not very different, in terms of our hopes and dreams and desires and abilities. Women are in some ways different from men, but those differences are not weaknesses or deficiencies, and when the law accounts for them correctly, this promotes broadly accepted notions of justice and equality.

In her book “The Second Sex,” feminist philosopher Simone de Beauvoir explained the concept of “woman as other,” writing that “humanity is male and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being.” Feminist legal theory acknowledges the “otherness” of women by recognizing that laws are made, interpreted and enforced by men, and for men. When the justicial interests of women and men are conterminous and congruent, that isn’t problematic for women, but when they are not, it is. Feminist legal theory seeks to identify ways in which the legal system treats women less favorably than men, and to recommend remedial legal reforms.

Subject Areas

The most important writings and practical applications of feminist legal theory have primarily occurred in the family law, criminal law, reproductive rights, and employment law arenas. These areas of the law tend to have the most immediate and extensive relationships to the general population of women. Important theoretical feminist work has also been done in legal disciplines such as property law, tax law, and corporate law. Eventually there will be multiple feminist critiques of every legal subject area.

Four Analytic Approaches: Equality, Difference, Dominance, and Intersectionality

To prevent this from becoming The Never Ending Feminist Legal Theory Blogpost, I’m going to greatly oversimplify a very rich and diverse field by breaking feminist legal critiques down into four categories. I warn the reader that while the categories are defined quite broadly, they still probably fail to capture important strains of feminist legal thought. None of these categorical approaches is mutually exclusive, but there are times when independently applying various approaches to a particular issue will lead to oppositional outcomes.

Equal Treatment The first category of feminist legal theory concerns itself with equality. It attacks laws that explicitly treat women differently than men, and recommends laws that promulgate change in social policies or practices that put women in inferior positions. Examples: “Equal pay for equal work” was a very powerful rallying cry when women with identical skills and responsibilities were paid less than identically situated men, and laws like the Equal Pay Act of 1963 made a tremendous positive impact on the lives of working women. Reflecting on far more ancient history, feminist legal scholars know that women were not “given” the right to vote, they had to fight very hard for passage of the Nineteenth Amendment, which states in pertinent part: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

Attaining the right to own property was also an important “equality” triumph, and in some ways a battle that is still being fought, as women are still discriminated against by landlords, by mortgage lenders, and in myriad other ways that affect our ability to acquire and possess property so that we can live independently. Future equality battles will likely address issues like the status of women in the military, and practices in the medical and insurance industries.

Recognition of Difference The second category of feminist legal theory addresses ways in which the legal system intersects with cognizable differences (both biological and socially constructed) between women and men. “Difference” feminist legal theory critiques facially neutral laws that affect women and men disparately, and recommends laws that ease the burdens that gendered expectations place on people, usually to the detriment of women.

Examples: Laws against pregnancy discrimination are an obvious example of legislation that is specifically related to gender differences. The “comparable worth” approach to pay equity posits that the law should guarantee equal pay for comparable as well as equal work, to accommodate the fact that many occupations are highly segregated by gender. The fact that because they are “different,” women may choose certain occupations over others, one argument goes, shouldn’t condemn them to lower salaries if they are working just as hard and skillfully as if they were in male dominated professions with higher pay scales.

The Sometimes Symbiosis of “Equality” and “Difference” The “equality” and “difference” approaches to feminist legal theory are sometimes described as being in tension with each other, but I think that concern is exaggerated by people who feel threatened by the idea of making women a more explicit focal point of the legal system. There are certainly people who describe themselves as “equality feminists” who assert that once all laws are facially neutral, the work of feminism is done, but few feminist legal theorists take this position. Nor I am aware of any “difference” proponents, legal scholars or otherwise, who assert that all laws need to explicitly take account of differences between women and men. Many feminist legal scholars adopt a blended approach, believing that for women to achieve true and meaningful equality, sometimes the law needs to treat women and men as equals, and other times it needs to acknowledge and control for differences related to gender.

Dominance and Subordination The third categorical feminist legal approach is that of dominance theory. It recommends stepping back from scrutiny of individual laws and social constraints, and viewing the entire legal system as an overarching mechanism of dominance and subordination. This returns us with a vengeance to the concept of “otherness” articulated by Simone de Beauvoir. In her 1984 essay, “Difference and Dominance: On Sex Discrimination,” Catharine MacKinnon asserted that to treat issues of sex equality as issues of sameness and difference was to take an approach that concealed the substantive way in which men were the measure of all things, writing:

Under the sameness standard, women are measured according to our correspondence with man, our equality judged by our proximity to his measure. Under the difference standard, we are measured accord8ing to our lack of correspondence with him, our womanhood judged by our distance from his measure. Gender neutrality is thus simply the male standard, and the special protection rule is simply the female standard, but do not be deceived: masculinity, or maleness, is the referent for both. Think about it like those anatomy models in medical school. A male body is the human body; all those extra things women have are studied in ob/gyn. It truly is a situation in which more is less. Approaching sex discrimination in this way – as if sex questions are different questions and equality are sameness questions – provided two ways for the law to hold women to a male standard and call that sex equality.

Under the dominance theory approach, when a law has differential effects on the binary gender categories of “female” and “male,” this is an exercise of power, a way in which women are subordinated to men. Limiting activism to changing discreet laws means all that can realistically be achieved by women is less inequality in targeted contexts. Fighting male dominance in any substantive way requires working for political changes that invest women with equal power in all aspects of social life.

Anti-Essentialism and Intersectionality Finally, the fourth category can be described as either the “anti-essentialist” or “intersectionality” approach to feminist legal critique. This approach rejects the idea that gender issues in the law can or should be considered in isolation. Because in real life women can not be stripped down to an “essential” assortment of gender characteristics, legal analysis shouldn’t attempt this either. Other human attributes such as race and sexual orientation inseparably intersect with gender in the physical world, so the anti-essentialist approach demands that they always be considered together with gender in theory as well as practice. It also strongly encourages conterminous consideration of issues like class and religion, which, while not as legally immutable as race and gender, are viewed as having important connections to gendered constructs that should inform and animate feminist legal theory.

Feminist Legal Theory and the Power of Personal Experiences

One important tool of feminist legal theory is the use of personal narratives. Personal narratives sometimes get written off by anti-feminists as self-serving stories of little consequence, up until they point that they are immortalized in appellate opinions, when they suddenly become Important Statements of Law. Feminist legal theorists recognize the importance of personal stories to the project of identifying gender-related problems that are caused by the legal system, or that could be improved by the legal system. One oft invoked feminist phrase is that “the personal is political,” which for feminist legal theorists means that lurking within personal narratives are important political issues that are or can be affected by laws. When women began telling personal stories about bosses who groped them or demanded sexual favors, quid pro quo sexual harassment emerged as a political issue with a legal solution. When individual women began talking about experiences with sexual abuse, among other things an understanding that rape laws required reform emerged. Sharing stories reveals that women have many common experiences, and knowing that “it’s not just me” can be validating and empowering for women who feel disadvantaged or oppressed by gender-related issues.

Quilts

My scholarly specialty is intellectual property law, which is comprised of three discreet areas: Copyright law, patent law, and trademark law. Cyberspace law sometimes gets thrown in for good measure as well, since so many legal issues on the Internet involve some facet of intellectual property law. Using the personal narrative format, I will try to illustrate the categories of feminist legal theory I set out above, and I will do this by talking about quilts.

Quilting is a largely female identified art form that does not mesh well with copyright law because quilts are functional, rather than being merely decorative; because quilters use a lot of repetition, such as a particular pattern to represent a wedding, or to symbolize the birth of a child, and these features are intentionally echoed (indeed “copied”) in many later quilts; and because quilts are often designed and executed by amorphous groups (e.g. during “quilting bees”) rather than by a single heroic author. Congress has never attempted to write a provision of the Copyright Act that was specifically applicable to quilts, even though it has done so for many other discreet art forms, categories of writings, and specific technologies. Is this because quilting is viewed as unimportant? And if so, is quilting viewed as unimportant because it is perceived to be the provenance of women? These are the sorts of queries feminist legal theory raises. The equality approach might ask whether there were “male identified” art forms that are similarly ignored by copyright law. The difference approach might ask whether women are better served by keeping copyright laws away from quilting. The dominance approach might ask why women were quilting at all, instead of using their time and talents to pursue more lucrative and culturally respected art forms. The intersectionality approach might ask whether women of particular races or economic classes quilted more than others, and if this could be part of the explanation for why copyright law ignored quilts.

I would initially try to use all these approaches to analyze the interplay (or lack thereof) of quilting and copyright law. However, if I wanted to do more than describe the situation, I’d have to recommend either a change in the law, or a change in the way courts apply and interpret current law. This would require me to favor one theoretical approach over the others, based on what I though the superior normative solution was.

Because I believe that a “low barriers” approach to copyright law is best, I’d be reluctant to recommend adding a specific quilting provision to the Copyright Act if it meant that quilters could more easily assert copyright claims against each other. This would degrade the quilting culture of copying and group authorship that strikes me as socially valuable, so I would reject an “equality” approach that made quilting “equal” to drawings and sculptures. In doing so I would be embracing the “difference” approach, because my views clearly reflect a belief that quilting is different in part because it is women identified, and these differences are beneficial, so the law should preserve them. However, by reifying difference in this manner, I might also be condemning quilting to second class status. It is certainly possible that if the copyright laws treated a quilt more like an oil painting, society might follow suit, and this would elevate the social and economic status of quilters. Valuing “difference” too greatly might preclude this.

Applying dominance theory would require me to recognize that women may turn to quilting because they are subordinated by men who deny them access to other creative outlets. It would therefore make more sense to devote resources to reducing impediments to women’s full participation in the fine arts, rather than simply attempting to amend the Copyright Act on behalf of quilting. One problem with this approach is that quilters may be deeply offended, and wonder why what they do is not being valued. Some will question whether the merits of quilting are being disregarded because quilting is so closely aligned with women: Is quilting getting short shrift because it has “girl cooties”? Others will ask whether, because they prefer quilting to oil painting, they are being accused of “false consciousness,” meaning they are assumed not to recognize that by quilting rather than pursuing other artistic endeavors, they are complicit in their own oppression. I struggle with all this, because while I recognize that framing the world in terms of dominance and subordination tends to abrade the sensitivities of many women, it also seems intuitively correct to me. When I visit a major museum and notice that only a tiny fraction of the exhibited works have been created by women, I don’t blame quilting. I love well made handmade quilts, and I know that producing them requires a lot of specialized effort and skill But I also recognize that the artistry responsible for them might have been channeled into more “museum worthy” forms of artistic expression if the talents and skills of women had been nurtured and developed for centuries along with those of men. It is very difficult to reassure quilters that you value and appreciate their work, while simultaneously asserting that quilting is a symptom of subordination. How can upsetting and offending quilters possibly forward the goals of feminism? It’s a very hard question, and one that reappears in some form or another every time dominance theory is applied to social phenomenon. The intersectionality approach requires me to consciously stop thinking about quilting from a white, middle class perspective and do some research about the role of quilting in the artistic, social and economic lives of women of difference races and in different economic groups than my own. If I specifically determine that the importance of quilting to (for example) poor women is greater than it is to more affluent women, I need to make sure my analysis, and any recommendations I make, take this into consideration. Maybe this means that I will recommend legal changes that would privilege quilt makers (who are mostly women) over quilt sellers (who may be mostly women), and also over quilt buyers (who may also be mostly women). Thinking about the relationships and conflicts between various groups of women can be difficult, but it is also both worthwhile and necessary. While it is certainly possible that if we took over the world, women would start acting just like men, I hold out hope (quite possibly “essentialist” hope, if truth be told) that we could do a bit better, and intersectionality theorists remind feminists that our true project is to build a better world for all women, not just ourselves.

Bibliographies Compiled By Others

External bibliographies of books and articles about feminist legal theory include:

http://www.rdg.ac.uk/law/femlegalnet/index.htm

http://www.library.wisc.edu/libraries/womensstudies/core/crlaw.htm

http://72.14.209.104/search?q=cache:kI-ZMIaWIQ4J:library.law.pace.edu/research/flt.doc+feminist+legal+theory+bibliography&hl=en&gl=us&ct=clnk&cd=8&client=firefox-a

http://www.cddc.vt.edu/feminism/law.html

http://www.library.ucsb.edu/subjects/blackfeminism/soc_legaltheory.html

(Entry last revised on February 1, 2009.)

Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

Introduction 

Almost every law student get's some introduction to normative law and economics in their first year of law school.  One of the basic ideas of normative law and economics is that the law should be "efficient."  But what does efficiency mean?  For economists, "efficiency" is a technical idea--with only a tangential connection to the use of "efficiency" in ordinary speech.  In order to understand economic efficiency, we will look at what are called the Pareto principles and a related idea that is sometimes called Kaldor-Hicks efficiency.

In addition to explicating the idea of efficiency, we will take a qucik look at some of the criticisms that might be made of this concept.  Although many economists operate on the assumption that "efficiency" is an uncontroversial good, that conclusion is controversial both inside and outside of the discipline of economics.

As always, the Legal Theory Lexicon is aimed at law students, especially first-year students, with an interest in legal theory.  This is very much a "quick and dirty" look at a topics upon which whole books can be written.

The Idea of Utility and the Problem of Measurement 

There are several plausible formulations of normative economics, but almost all of normative economics begins with the fundamental idea of utility as a conception or measure of the good. Economists may disagree about the nature of utility, the relationship of utility to social welfare, and the role of welfare in public policy, but most (but not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing.

Historically, one of the most important interpretation of utility is associated with the great English philosopher and legal theorist Jeremy Bentham.  Bentham defined utility in terms of pleasure (and the absence of pain).  Bentham argued that laws and policies could be evaluated by a "hedonic calculus"--the best policy produces the greatest number of "hedons"--units of pleasure.  But Bentham's idea does not provide a workable basis for the science of economics, because there is no workable method for measuring hedonic values.

Economists have interpreted the idea of "utility" as a function of preferences--the subjective values that individuals place on states of affairs.  If individual I prefers state of affairs X to state of affairs Y, then X produces more utility for I than does Y.

The move to preferences as the basis for utility offered economists the possibility of solving the problem of measurement.  How can we measure preferences?  In order to understand the way that economists answer this question, we need to distinguish between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual I prefers possible world X to possible world Y, but it doesn’t tell us whether X is much better than Y or only a little better.  A cardinal utility function yields a real-number value for each possible world. If we assume that utility functions yield values expressed in units of utility or utiles, then individual I’s utility function might score possible world (or "state of affairs") P at 80 utiles and possible world Q at 120 utiles.

The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, "utilitarianism" can be stipulated to refer to the view that an action is the best action if and only if the action maximizes utility when compared with all possible alternative actions. For technical reasons, utilitarianism requires both cardinality and full interpersonal comparability.  But both cardinality and interpersonal utility comparisons are problematic.  It is difficult to measure cardinal utilities for even a single individual. 

And it is even more difficult to compare utilities among different persons.  How can we compare the value that I assign to consuming a glass of fine wine with the value that you assign to imbibing a fine single-malt scotch?  And some things seem even more incommensurable: how do we compare the value that Ben derives from viewing a beautiful photograph by Ansel Adams to the joy that Alice takes in serving meals to the homeless on Thanksgiving Day?  Or Ben's satisfaction from solving difficult math problem with Alice's pleasure in a new pair of Jimmy Choo's?  These examples suggest that the problem of interpersonal comparison may be compounded by the problem of incommensurability--the idea that some preferences may not be comparable on the same scale.

This point about the difficulties faced by utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory. Both cardinality and interpersonal comparability pose measurement problems for economists. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require the cardinal and interpersonally-comparable utilities.

The Pareto Principles  This is the point at which the Pareto principles arrive on the scene. Suppose that all the information we have about individual utilities is ordinal and not interpersonally comparable.  In other words, each individual can rank order states of affairs, but we (the analysts or policymakers) cannot compare the rank orderings across persons. The weak Pareto principle suggests that a state of affairs P is socially preferable to state of affairs Q, if everyone’s ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn’t get us very far, because such unanimity of preferences among all persons is rare.

The strong Pareto principle suggests that state of affairs P is socially preferable to state of affairs Q, if at least one person ranks P higher than Q and no one ranks Q higher than P.  Or to put it more colloquially: strong Pareto says that it is good to make one person better off if no one will be made worse off. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions. The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals I1 and I2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient—and hence satisfies the strong Pareto principle. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient.

From Pareto to Kaldor Hicks  Because Pareto efficiency assumes no negative externalities, it has significant limits as a normative concept.  For example, there are many questions of legal policy in which externalities are particularly important--pollution is a classic example.  If I operate a factory that pollutes the air or water, my action may cause harms to my neighbors.  If even one person would lose by the move from state P to state Q, then that move is not Pareto efficient.  So if Pareto efficiency were the only normative principle available to law and economics, the consequence would be that economics would have nothing to say about many of the most important legal questions, e.g. many questions of environmental law.

Kaldor-Hicks is a technique for extending the normative implications of economic analysis.  Here is how it works.  We take a situation in which their are externalities, e.g. pollution that affects third parties. Let's assume that markets can't reach a Pareto-efficient outcome.  That assumption might be accurate because of high transactions costs, as in the case where the pollution impacts on so many individuals that bargaining is impractical or costly.  Counterfactually, however, we can imagine that there were zero transaction costs.  We can then ask what outcome would occur if those who were effected by the externality (the pollution) entered into a Pareto-efficient bargain that compensated them for their losses.  Outcomes that would be Pareto-efficient if there were zero transaction costs are Kaldor-Hicks efficient.

Kaldor-Hicks extends normative law and economics to a wide range of situations in which externalities and transaction costs prevent markets from reaching Pareto-efficient outcomes.

Criticisms of Efficiency  Does efficiency (either Pareto or Kaldor-Hicks) provide an attractive normative yardstick by which legal policies may be judged?  That's a complex question, but we can quickly explore a few critical ideas:

Wealth Effects  When Pareto is applied to market transactions, preferences (or utility) is interpreted as a function of willingness to engage in market transactions (or willingness to pay).  But willingness to pay is a function of wealth.  Thus, someone who is very poor may be willing to engage in degrading or dangerous work, because they have no real alternative.  But this does not mean that the efficient transaction is better than non-Pareto-efficient alternatives, which might involve a redistribution of wealth that would obviate willingness to engage in degrading work. (These alternatives will not be Pareto efficient, assuming that redistribution would not be preferred by all, including those whose wealth is being redistributed.)

Bad Preferences  Pareto and Kaldor-Hicks assume that state A is better than state B on the basis of individual preferences.  But preferences aren't fixed.  Preferences can change for a variety of reasons and some preferences may be better than others.  For example, the preference to sexually abuse children is considered evil--satisfying it is not a moral good.  Efficiency takes preferences as a given: it can't tell us whether the law should attempt to shape or alter preferences.  But outside of the discipline of economics, there is almost universal agreement that satisfaction of evil preferences is intrinsically bad.  And many people believe that society has a legitimate interest in undertaking measures that will change such preferences.

Kaldor-Hicks and Rights  Kaldor-Hicks characterizes a move from state P to state Q as efficient even if a third party is injured by the move.  That injury may involve unfairness or a violation of the third party's rights.  From a consequentialist perspective, rights violations may have no significance in themselves, but deontological normative theories do afford moral signficance to rights.  From a deontological point of view, taking rights seriously may require government to forbid some Kaldor-Hicks efficient transactions.

Efficiency & Social Welfare Functions  Some economists move beyond Pareto and Kaldor-Hicks and embrace what are called "Bergson-Samuelson Social Welfare Functions."  There is a separate entry on this idea (Social Welfare Functions) in the Legal Theory Lexicon, but the general idea is to reintroduce interpersonal comparability for individual utilities.  The key difference between Kaldor-Hicks and Berson-Samuelson arises in cases where the hypothetical compensation seems unusually large, and an extreme version of this would be the case of someone who would not accept any level of compensation--the hold out problem.  Bergson-Samuelson permits us to assign an interpersonally comparably utility value to the welfare that the "hold out" would lose, and that value may be much lower than the demanded compensation would suggest.

Conclusion  Efficiency is one of the bedrock ideas for normative law and economics.  The point of this Lexicon entry is to give you the tools to understand what economists mean by efficiency.

Related Entries

Legal Theory Lexicon 002: The Coase Theorem

Legal Theory Lexicon 008: Utilitarianism

Legal Theory Lexicon 025: Social Welfare Functions

References

Lawrence B. Solum, Public Legal Reason

Daniel M. Hausman & Michael S. McPherson, Economic Analysis, Moral Philosophy and Public Policy

(This entry was last revised on January 25, 2008.)

Legal Theory Lexicon 059: The Law Is A Seamless Web

Introduction 

F.W. Maitland, the famous legal historian wrote, “Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web.”  (A Prologue to a History of English Law, 14 L. Qtrly Rev. 13 (1898))  Maitland didn't actually say that the "law is a seamless web," but he is usually given credit for the idea that the law forms some kind of "organic unity" or is characterized by strong interconnections.  The idea that law is seamless web is ambiguous--the aphorism expresses different ideas on different occasions.  This post in the Legal Theory Lexicon series will explicate the seamless web metaphor and its several implications for legal theory.

As always, the Lexicon is especially aimed at law students--especially first-year law students--with an interest in legal theory.

The Seamless Web and the Interconnectedness of Legal Doctrine 

One idea expressed by the metaphor of the seamless web is the interconnectedness of legal doctrine.  If the law is a seamless web, then the categorization of legal doctrine into discrete fields (torts, property, contracts, and so forth) does not accurately capture the nature of the law.  A classic example of this idea can be found by examining the line between torts and contracts.  It might be thought that there is some "seam" or dividing line that sharply separates these two doctrinal fields.  For example, we might think that contracts is the law of voluntary transactions, whereas torts deals with involuntary (or unconsented-to) transactions.  Of course, there is something to this idea.  Face-to-face bargaining resulting in a written and signed agreement is the paradigm of a contract and also represents a paradigmatically voluntary transaction.  Battery--an unconsented-to, harmful touching--represents both a clear instance of tort law and clearly involuntary transaction.  But the thesis that the law is a seamless web is not inconsistent with there being paradigm cases of conceptually distinct doctrinal fields.  Rather, the idea is that these paradigm cases blend into one another through a series of small and barely noticeable steps--so that there is no sharp boundary, no "seam," between tort and contract.  For example, first year law students quickly learn that not all of contract law involves agreement or bargain.  "Quasi-contract" and reliance-based liability involve transactions that are involuntary or at least not fully voluntary, and this cluster of doctrine is neither clearly tort  nor clearly contract.  One interpretation of the seamless web metaphor is that it asserts that the law is always or almost always like that--the organizing principles of various rules fade gradually into one another, and hence, there are no sharp boundaries in the web of the law.  We might say that this first interpretation of the seamless web metaphor is ontological: "law is a seamless web" could be an assertion about the nature of doctrinal categories--they are interconnected and not isolated.

On the ontological interpretation, the law is a seamless web of legal doctrines--rules, standards, and principles.

Epistemological Holism 

A second interpretation of the seamless web metaphor is "epistemological" rather than "ontological."  What does that mean?  By epistemological, I mean that we might be talking about our knowledge of the law rather than the law itself.  Here the idea might be that understanding or comprehending any piece of legal doctrine requires knowledge of the surrounding areas of law and knowledge of those areas requires knowledge of yet more distant areas--so that a complete understanding of any one legal rule requires knowledge of the law as a whole.

An example may help.  Suppose we are trying to understanding a rule regarding consent in criminal law.  Understanding the legal concept of consent may require us to go beyond criminal law.  The criminal law concept of consent may borrow from tort concepts, contract concepts, and so forth.  Moreover, gaining knowledge of the criminal law doctrine of consent may require us to understand the relationship between the authority of the courts to shape the criminal law and the authority of legislatures to pass statutes that change common-law doctrines.  Understanding that relationship requires knowledge of the law of statutory interpretation (which is contained in opinions on many different statutes dealing with many distinct doctrinal areas) as well as constitutional law governing the separation of powers and the nature of judicial power and legislative power.  One might think that one could learn everything one needed to know in order to understand consent in the criminal law concept of consent from criminal law statutes and cases, but if the law is a seamless web, then knowledge from torts, contracts, constitutional law, and so forth may be required for a full understanding.

On the epistemological interpretation, the seamless web is a web of belief or knowledge.

The Seamless Web of Fit and Justification 

Another use of the metaphor is found in the work of Ronald Dworkin.  In the Lexicon entry on Fit and Justification, we explored Dworkin's idea that judges decide cases in the way that best "fits" and "justifies the law.  Both "fit" and "justification" connect to the idea that the law is seamless web.  So when a judge decides a "hard case," the judge's decision must "fit" the existing legal landscape.  It must be coherent with the cases, statutes, constitutional provisions, and so forth.  This requirement of fit is holistic.  That is, the decision must fit all of the law--not just the law that is directly relevant to the case at hand.  So a rule of contract law is improper if that rule would violate the constitution or authorize violation of a statutory prohibition.

Dworkin contends that legal decisions must fit the legal landscape, but that is not the end of the matter.  There may be more than one ruling that would satisfy the criterion of fit.  Of example, an ambiguous statutory provisions may have more than one reading that is consistent with the precedents, statutes, and other authoritative legal materials.  In that case, Dworkin argues, the judge should decide the case in the way that coheres with the best justification for the law.  In other words, the judge should ask, "What is the best normative theory that can justify the law as whole?"  That normative theory is then used to guide the judge's decision in the particular case.  Like the criterion of fit, the criterion of justification is holistic.  Although judges may, as a practical matter, seek the justification for a particular area of legal doctrine, in theory the question is, "What justifies the whole of the law?"  This is another sense in which the law is a seamless web--it is the whole web and not a particular strand that is the object of normative justification.

On the Dworkinian interpretation, the seamless web of the law is the object of the Herculean enterprise of producing the theory that best fits and justifies the law.

Conclusion 

The phrase, "the law is a seamless web," is one of those big ideas that students encounter early in their law school experience.  Almost every law student begins to think thoughts like, "What we are doing in contracts is connected to what we are doing in torts" or "It is all starting to fit together in one big picture."  And sooner or later, these thoughts will run into the seamless web metaphor.  This entry in the Lexicon is designed to give you the tools to think about the aphorism in a nuanced and rigorous way.

(This entry was last revised on January 18, 2009.)

Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

Introduction

Some of the key conceptual tools deployed by legal theorists are likely to be familiar to most law students from their undergraduate education.  One of these is the notion of the "social contract"--familiar from Hobbes, Locke, and Rousseau.  But unless you were an undergraduate philosophy major or have some graduate work in philosophy, you may not be as familiar with some of the ideas that have grown out of the social-contract tradition.  One of these is the development of social contract theory in the political philosophy of John Rawls.  Two additional ideas are "contractarianism" and "contractualism"--distinctive positions in moral philosophy that are respectively associated with David Gauthier and Thomas ("Tim") Scanlon--and many others, of course. 

This entry in the Legal Theory Lexicon explores the "social contract" and its contemporary variants.  As always, the Lexicon is pitched at law students, especially first year law students, with an interest in legal theory.  It goes without saying that social contract theory or any one of its modern variants cannot be summarized accurately in a long article, much less a short Lexicon entry.

The Distinction Between Contractarianism and Contractualism

Contemporary political philosophers now distinguish between two different kinds of theory in the social contract tradition.

Contractarianism--The term "contractarianism" applies to theories that focus on self-interest; a contractarian justification for civil society would attempt to show that cooperation with government is interest of each citizen.

Contractualism--The term "contractualism" applies to theories that focuses on reasonableness or justifiability to others.  Contractualist theories might emphasize the idea that each reasonable person will endorse social arrangements that could be accepted by all reasonable persons--with the idea of reasonable justification acting as a constraint on pure self interest.

Classical Social Contract Theory 

The classical social contract tradition is most strongly associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau.  There are very important differences between these thinkers, but I am got to collapse the differences and present a sort of "generic" version of the social contract.  Here goes.

The State of Nature--Social contract theory begins with the notion of a "state of nature".  What is the state of nature?  That turns out to be a tricky question.  The core idea is that the state of nature does not have a government or similar social institutition that can provide security, public order, and other public goods.  In the state of nature, individuals must resort to self-help to resolve disputes.  There are no institutitions that protect property rights or rights of personal security.

What are the characteristics of life in a state of nature?  This is one of the topics upon which social contract theorists disagree.  Hobbes is famous for his argument that a state of nature is a state of war of all against all.  As a consequence, "the life of man [would be] solitary, poore, nasty, brutish, and short."  For Locke, the state of nature, while not a state of war, would be a state of inconvience: because the lack of a common judge would mean that everone would be a judge in their own case, disputes would frequently be resolved by private violence.  Both Hobbes and Locke agree that the state of nature would be no utopia--it would be a relatively violent and insecure environment.

A Social Contract--The insecurity that characterizes the state of nature creates the motivation to enter into a social contract or social compact.  There are a number of possible variations of this agreement, and it is worth our while to break some of them down:

Who is a party to the social contract?  One possibility is that the social contract is an agreement among individuals but not an agreement with the government or sovereign.  That is, the parties in the state of nature, A, B, & C, agree one with another to institute some other person, S, (or organized group of persons) as the sovreign or government.  On this view, the sovereign is not a party to the social contract.  A second possibility is that the social contract is an agreement between the individuals in the state of nature and the sovereign.  That is, A, B, & C agree with S.  I'm sure you can see immediately that this difference will be important: if the sovereign is a party to the social contract, its provision will bind the sovereign, but if the only parties are the individuals who become citizens, then only they will be bound by the contract.

What is the content of the social contract?  Another question about the social contract concerns its content?  For example, the social contract could simply obligate citizens to obey the sovereign irrespective of the content of the sovereign's commands (or laws).  Hobbes's view of the social contract is close to this extreme--although Hobbes argues that citizens do not bind themselves to obey the sovereign if the sovereign commands them to lay down their own lives.  On the other hand, the social contract could impose strict limits on the powers of the sovereign.  For example, the contract could obligate the sovereign to protect the security of persons and property.  On this understanding, laws that actually invaded personal security or attempted to appropriate property would be invalid as contrary to the provisions of the contract.  Locke's view was something like this.

What is the consequence of a breach of the contract?  Another question might concern the consequences that would attend breach of the social contract.  If the sovereign breaches the contract, one possible consequence is that citizens are released from their obligation to obey the commands of the sovereign or are entitled to engage in revolution.  Another possibility, especially interesting to legal theorists, is that violations of the social contract by the legislative or executive branches are not "law" and hence should not be enforced by the judicial branch.

Problems with Classical Social Contract Theory--There are a number of well known problems with classical versions of social contract theory--and answers to these problems--and answers to the answers.  (It is an "impacted field of argument" to say the least.)  I am going to focus on just one cluster of problems--having to do with the question whether the state of nature is actual or hypothetical.

Is the state of nature an actual historical state or is it a hypothetical state?  One line of criticism begins with the contention that the state of nature cannot be an actual historical condition of human society.  If there never was a historical condition like the state of nature and therefore, no actual "social contract", so the argument might go, then what is its normative significance.  The fact that fictional individuals might have agreed to a social contract under fictional conditions seems to lack normative oomph.

The standard reply to this objection is that the state of nature is hypothetical and not actual, but that hypothetical consent does have normative force, because it tells us that the authority of government is preferable to the alternative--a state without government.

Are the conditions of a hypothetical state of nature arbitrary or unfair?  But the argument does not end with the introduction of a hypothetical state of nature.  It is just getting started.  Now that we know that the state of nature is hypothetical, it becomes clear that the description of the setup of the state of nature is very important.  Depending on how the conditions of the state of nature are described, the parties may agree to different versions of the social contract or may not agree to a social contract at all.  If the state of nature is really truly awful--a Hobbesian state of war of all against all--then we may agree to an absolute sovereign.  On the other hand, if the state of nature is merely inconvenient, we may agree only to a more limited government--perhaps a Lockean state with powers that are constrained by a narrow conception of the purpose of the state.  (Of course, the last two sentences vasly oversimplify huge issues.)

If the setup of the state of nature is crucial to the content of the social contract and if both the state of nature are the social contract are merely hypothetical, then we might ask how the setup is justified.  Lacking justification, the setup of the state of nature is potentially arbitrary and unfair.  "Arbitrary"--because the setup is not constrained by actual social conditions.  "Unfair"--because the setup may advantage some individuals over others.

Contemporary Social Contract Theory: Rawls and the Original Position 

One reaction to criticism that a hypothetical social contract can be arbitrary and unfair is represented by John Rawls's theory of the original position.  (There is a separate Lexicon entry on The Veil of Ignorance that provides additional detail on Rawls's idea.)  Rawls's theory does not have a "social contract" or a "state of nature."  Instead, Rawls tries to set up a hypothetical choice situation that is neither arbitrary nor unfair.  In other words, Rawls asks the question, "What hypothetical choice situation would produced a "fair" agreement?"  Rawls calls this hypothetical choice situation "the original position."  Simplifying vastly, parties in the original position represent citizens and choose principles of justice that are to regulate the basic structure of society.  They do this behind a "veil of ignorance" that masks the identities and other characteristics of the citizens they represent.  The veil of ignorance is designed to insure that the choice situation is fair: no one is unfairly advantaged because the characteristics that might create an advantage are excluded via the veil.  Rawls argues that under these conditions the parites would unanimously agree on two principles of justice--the liberty principle (that guarantees an adequate scheme of basic liberties such as freedom of conscience, freedom of speech, and procedural fairness) and the difference principle (that provides the differences in the allocation of what Rawls calls the "primary goods" (including wealth and income) must be arranged so as to beneift the least well-off group in society.

Rawls's theory is not a social contract theory.  There is no state of nature and no social compact.  But Rawls sees his theory as an extension of the social contract tradition.  We might say that Rawls's theory is contractarian because it is based on the idea of hypothetical agreement.

Contemporary Social Contract Theory: Contractualism and Contractarianism 

The social contract tradition has been extended in a different direction by moral philosophers such as Tim Scanlon and David Gauthier.  I'm going to discuss Scanlon, but I want to emphasize that Gauthier's Morals by Agreement is one of the most important contemporary works in contemporary contractarian moral philosophy.

Scanlon's contractualism is inspired by the classical social-contract notion of hypothetical agreement or hypothetical consent.  But Scanlon's theory is not a political theory--it is not about the relative powers and duties of individuals and the state.  Rather his theory is a moral theory, about what "we owe to teach other".  Scanlon's theory is deep and rich--and it defies easy summary.  But you can get a flavor of Scanlon's view by thinking about his very famous formulation of contractualism:

An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of behaviour which no one could reasonably reject as a basis for informed, unforced general agreement.' T.M. Scanlon, ‘Contractualism and Utilitarianism’ in A. Sen and B. Williams (eds), Utilitarianism and Beyond 110 (Cambridge: Cambridge University Press, 1982)

I'm sure you can already see how precise Scanlon's formulation is, including the following elements: (1) actions are right or wrong in virtue of their being allowed or disallowed by a "system of rules," (2) the system of rules must be one that is for the "general regulation of behavior," and (3) the system must be such thtat no one could "reasonably reject" the system as the basis for an "informed, unforced general agreement."  The core idea is that morality is based on rules that could form the basis for informed and unforced agreement: "informed and unforced agreement" expresses the contractarian dimension of Scanlon's view.  An action is morally wrong if it is contrary to the general system of moral rules upon which there could be informed and unforced agreement.

The Rivals of Contractarianism and Contractualism 

Before we close, let's situate contractualism and contractarianism in all their forms by looking briefly at some rival views.  In moral philosophy, contractarian ethics are usually viewed as a form of deontology.  Scanlon's contractarian deontology could be contrasted with Kant's idea that the content of morality can be specified by the categorical imperative, one formulation of which is "act so that the maxim of your action could be willed as a universal law of nature."  Outside of deontology, contractarian ethics competes with consequentialisms of various forms, most prominently utilitarianism.  Another rival of moral contractarianism is virtue ethics, which posits excellence of character as the fundamental organizing principle of moral theory.

In the political realm, social contract theory has a variety of rivals.  Utilitarianism can be the basis of a political theory as well as a moral theory.  Democratic legitimacy may rival contractarianism as the fundamental grounding principle of social organization.  In recent years, communitarianism and civic republicanism have also been articulated as rivals of social contract theory.  Libertarian and anarchist political theories reject the strong role for the state that is implicit in Hobbes or in Rawls's modern variant of political contractarianism.

Conclusion  I hope this entry in the Legal Theory Lexicon has given you a lively sense of the broad outlines of the contractarian tradition in moral philosophy and political theory.  Of course, I've barely scratched the surface!  I've provided some links and references for additional reading and investigation.

Links and References

Contractarianism and Contractualism, both entries in the Stanford Encyclopedia of Philosophy.  Highly recommended.

Contemporary Approaches to the Social Contract in the Stanford Encyclopedia of Philosophy. Highly recommended.

John Locke, Two Treatises of Government

Thomas Hobbes Leviathan

T. M. Scanlon, What We Owe to Each Other

David Gauthier, Morals by Agreement

John Rawls, A Theory of Justice

(Last modified on January 11, 2009.)

Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories

Introduction 

Many of the Legal Theory Lexicon entires provide tools--the argumentative moves and theoretical constructs that should be in any legal theorist's toolkit.  Lot's of these are drawn from other disciplines: for example, the distinction between "Concepts" and "Conceptions" is taken from philosophy and the The Coase Theorem, with its powerful idea of a transaction cost, is drawn from economics.  But some of the most powerful moves are generated from within legal theory.  One of those, which I am going to call "realist deconstruction of formal legal categories," is powerfully associated with American legal realism.

This move is incredibly nifty, and it will be especially useful to first year law students with an interest in legal theory.  As always, the Lexicon is aimed at that group, and what is offered here is only a sketch of ideas and arguments that can be the subject of whole articles and even books.

The Basic Idea 

The American legal realists were skeptical about legal formalism.  In particular, they were skeptical about the idea that "logic" and abstract legal concepts were doing the work in deciding cases.  One source of their skepticism was their discovery of a certain pattern in formalist reasoning.  Here is one way that we might schematize or outline the pattern:

Step One: Categorization.  A given fact situation, F, is categorized as falling into some formal legal category, C.

Step Two: Rule Identification.  A legal rule that incorporates the category is identified and stated.  The simplest rules have the following form: If the fact situaation, F, falls under category, C, then legal rule R, requires outcome, O.

Step Three: Rule Application: In the instant case, F is C, therefore O.  In other words, in the case before the court, the fact situation does fall under the relevant legal category and so the rule reqauires a particular outcome.

This form or style of reasoning suggests that the legal work is really done in step two--where we identify the legal rule that produces the outcome.  Step one looks like it is just factfinding, we are just describing the facts in terms of a legal category.  The legal realists were famous for showing that step one frequently concealed something that was not factfinding at all.  When the facts were categorized, what was really going on was an instrumentalist or policy-driven process, where the judge was deciding which legal category to apply on the basis of the judge's decision about which outcome was best.

This insight deconstructs the process of legal reasoning--showing that the apparent form of the legal argument conceals the real process of legal decisionmaking.  Let's do an example and then we can come back to the theory.

An Example: Personal Jurisdiction Over Corporations 

Law students may not always know it, but they learn the realist technique for deconstruction when they study Pennoyer v. Neff  and International Shoe in the first year of law school.  (This may get a few people mad at me, but I can't help but editorializing here.  If your civil procedure professor skips Pennoyer and goes straight for the modern approach to personal jurisdiction, they are depriving you of one of the four or five most valuable moments in a legal education.  Shame on them!)

Here is how it works.  The nineteenth century approach to personal jurisdiction (the Pennoyer approach) made jurisdiction hinge on power over territory.  In order to assert jurisdiction over a person, a state had to have de facto power over the person--and de facto state power is limited by territory.  The state of Illinois can't send its police force into Indiana.  If you have studied Pennoyer, you know that there is a piece of legal jargon (in law Latin!) that describes lawsuits in which the claim is against an individual person; these suits are called in personam actions.  Here comes the tricky part: "corporations" are considered legal persons and they can be named as defendants in in personam actions.  What does all that jargon mean?  It means that when you sue McDonalds, the law treats McDonalds as if it were a natuiral person like Tom Cruise.  But corporations are different from natural persons in one crucial respect: they don't have a physical location.  Tom Cruise is always located in some specific space; he is either in Illinois or not in Illinois.  But the McDonald's corporation doesn't have a body: to use the legal jarbon, McDonalds is an artificial or incorporeal person.  Corporations are a web of legal relationships--contractual relationships, property relationships, fiduciary duties, and so forth.  So McDonald's does not have a "physical location."

One of the most famous passages in all of theoretical legal scholarship was about this problem.  It comes from  Felix Cohen's famous article, Transcendental Nonsense and the Functionalist Approach, 35 Colum. L. Rev. 809 (1935).  Cohen's brilliant move was to argue that when court's decided "where" a corporation was located, they were actually deciding the personal jurisdiction issue.  And since a corporation doesn't have an actual or real physical location, something else must be doing the work.  What is the something else?  Cohen argued that the something else must be some considertion of policy.

Here is an excerpt from Cohen's article (the whole thing is available at Hein Online):

Clearly the question of where a corporation is, when it incorporates in one state and has agents transacting corporate business in another state, is not a question that can be answered by empirical observation.  Nor is it a question that demands for its solution any analysis of political considerations or social ideals.  It is, in fact, a question identical in metaphysical status with the question which scholastic theologians are supposed to have argued at great length, “How many angels can stand on the point of a needle?”  Now it is extremely doubtful whether any of the scholastics ever actually discussed this question.  Yet the question has become, for us, a symbol of an age in which thought without roots in reality was an object of high esteem.

      Will future historians deal more charitably with such legal questions as “Where is a corporation?”  Nobody has ever seen a corporation.  What right have we to believe in corporations if we don’t believe in angels?  To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.).  But this does not give us the right to hypostatize, to “thingify,” the corporation, and to assume that it travels about from State to State as mortal men travel.  Surely we are qualifying as inmates of von Jhering’s heaven of legal concepts when we approach a legal problem in these essentially supernatural terms.

      Yet it is exactly in these terms of transcendental nonsense that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in New York State.  “The essential thing,” said Judge Cardozo, writing for a unanimous court, “is that the corporation shall have come into the State.”  Why this journey is essential, or how it is possible, we are not informed.  The opinion notes that the corporation has an office in the state, with eight salesmen and eleven desks, and concludes that the corporation is really “in” New York State.  From this inference it easily follows that since a person who is in New York can be sued here, and since a corporation is a person, the Susquehanna coal Company is subject to suite in a New York court.

The Realist Reconstruction of Formalist Argument  We can take this realist move and reconstruct the true or underlying structure of legal arguments.  Here is how it might go:

Step A: Instrumentalist Assessment of Outcomes.  Given the facts of the case, which of the possible legal outcomes is best on policy grounds?  Or more formally: given fact situation F, which outcome O is the best outcome on policy grounds, B.

Step B: Identification of the Legal Rule.  The legal rule that will decide the case is identified and stated.  The simplest rules have the following form: If the fact situaation, F, falls under category, C, then legal rule R, requires outcome, O.

Step C: Outcome Driven Categorization.  Given that the judge wants to reach the best outcome, B, what categorization, C, is necessary under rule R to reach B?  Categorize the facts, F, so as to reach that outcome.

In other words, the legal realists believe that all the real work of formalist argument is done in Step One--which is reconstructed as Steps A, B, and C in the realist deconstruction of the formalist argument.  Steps Two and Three of formalist argument are simply the process by which judges dress up their policy-driven decisions in formalist clothing.

Conclusion 

Of course, there is a lot more to be said about this realist move.  In the context of personal jurisdiction over corporations, the realist deconstruction was expecially compelling because the physical location of a corporation is a legal fiction--and hence, the legal rule and ordinary factfinding can't really be driving the decision.  But this is not always the case.  In order to truly master realist deconstruction, you need to recognize that it works in some cases but doesn't in others.

But realist deconstruction of formalist legal reasoning is a lot of fun, especially when you first begin to master the technique.  I hope this post has given you the tools to attempt your applications of the technique.

(Last modified on January 4, 2009.)

Legal Theory Lexicon 056: Pragmatism

Introduction 

Back in the day (by which I mean the mid-70s through the mid-90s) big normative theories were all the rage in the legal academy.  It's hard to be sure, but one suspects that it started with Rawls: when A Theory of Justice hit the legal academy, it produced a dramatic shift in the practice of normative legal argument in the academy (and even had ripples in legal practice).  Rawls's big normative theory was "justice as fairness" with two famous principles, the liberty principle and the difference principle supported by a complex argument employing ideas like the original position, the veil of ignorance, and reflective equilibrium.  From Rawls, it was only a hop, skip, and jump to a variety of other theories drawn from moral and political philosophy--Kantian deontology, utilitarianism, welfarism, and other forms of consequentialism, Nozick's libertarainism, civic replublicanism, and on and on and on.

Ronald Dworkin played a key role in this movement with his famous distinction between the criteria of "fit" and "justification."  When two or more views of the law have sufficient "fit" with the cases, statutes, and other legal materials, Dworkin argued, hard cases must be resolved by asking which view accords with the best justification for the law.  So if there are two or more interpretations of the equal protection clause that fit the text and the cases, we should choose the interpretation that accords with our best theory of equality--and that is likely to be a big normative theory.

Indeed, there was a time when those in the know, the cognoscenti of the legal academy, subscribed to what was widely know as the "theory of the month club."  But something became quite clear as the years became decades: there were no winners in the debates between and among the advocates of big normative theories.  Skirmishes and battles were won and lost, but there were no declarations of victory, surrenders, or peace treaties in the theory wars.

So it was probably inevitable that there should be some sort of reaction--an antitheoretical counterrevolution.  And there was--or rather, there were several reactions.  One move was away from the normative altogether and towards positive law and economics and empirical legal studies.  Another move was away from abstract theories and towards contextual approaches to feminist legal theory and critical race theory.  And yet another move was to pragmatism--a term that resonates with both the heritage of American philosophical pragmatism (Pierce, James, and Dewey) and the appeal of common sense in its particularly lawyerly form--the preoccupation with the practical.

This entry in the Legal Theory Lexicon provides an introduction to "legal pragmatism" for law students, especially first-year law students, with an interest in legal theory.  As always, the Lexicon provides a "quick and dirty" introduction to a topic on which whole articles and books can and have been written.

Philosophical Pragmatism

Legal pragmatism is related to (but distinct from) philosophical pragmatism.  Pragmatism is usually associated with three American philosophers--Charles Sanders Pierce (pronounced "purse"), William James, and John Dewey.  Attempting to define a conceptual core of philosphical pragmatism is an enterprise frauth with peril--the major pragamtists disagreed among themselves and there never was a "pragmatism program" with a set of common tenets or principles.  One idea that is associated with pragmatism is the notion that beliefs are neither true nor false, but instead are helpful or unhelpful for the accomplishment of goals or the success of actions.  Another notion is the idea that "truth" is a function of practices of verification (the making and testing of predictions).

The following passage from William James's Pragmatism is both famous and gives the flavor (if not the philosophical substance) of philosophical pragmatism:

Pragmatism asks its usual question. "Grant an idea or belief to be true," it says, "what concrete difference will its being true make in anyone's actual life? How will the truth be realized? What experiences will be different from those which would obtain if the belief were false? What, in short, is the truth's cash-value in experiential terms?"

William James, Pragmatism (1907).

Three Ideas

As you might expect, legal pragmatism focuses on neither the theory of truth nor the theory of meaning and is instead directed at the normative and the role of normative theory in legal practice.  There are many ways in which we might approach this relationship.  Let's focus on three ideas that illuminate legal pragmatism: (1) the idea of practical judgment, (2) the idea of particularism, and (3) the notion of antitheory.

Practical Judgment  One way to think about legal pragmatism begins with the distinction between "practical judgment" (and the allied notion of "practical wisdom") and "theoretical judgment."  No one doubts that legal practice involves "practical judgment."  Judges and lawyers cannot limit their activity to the theoretical realm.  The decision of a case is always contextual--conditioned by a history of facts and by the concrete consequences that attend to a decision.  Legal pragmatism emphasizes the idea that practical judgment is an ineliminable part of legal reasoning and may even make the stronger claim that the practical trumps the theoretical if the two are in conflict.

Paticularism  Another way to approach legal pragmatism is via the an idea that is sometimes called "the priority of the particular."  This phrase is shorthand for the assertion that judgments (or intuitions or considered judgments) about particular cases have priority over theoretical judgments about broad classes or categories of cases.  What does "priority" mean in this context?  One answer to this question is that the priority of the particular means that our judgments about particular cases are firmer, more grounded, and less subject to revision than are our beliefs about theory.  In other words, when a theory collides with a firmly held belief about what is right or wrong in a particular case, it is the theory and not the judgment about the case that will have to give way.

Antitheory (or Antifoundationalism)  And a final way to approach legal pragmatism is based on the notion that legal pragmatism is anitheoretical (or antifoundational).  Let me back up a bit to explain this point.  Some philosophers are suspicious of "big" "top down" normative theories generally, and there are "antitheoretical" positions in moral and political philosophy.  What does it mean to be antitheoretical?  One formulation expresses opposition to deductive systems--to be antitheoretical is to be oppose a method that begins with axioms and then proceeds to deduce the theorems and corollaries that guide normative practice.  Another formulation uses "top down" and "bottom up" as metaphors.  Being antitheoretical is being against "top down" construction of legal arguments that move from abstract and general propositions to conclusions about particular cases.  The alternative approach is "bottom up," starting with judgmetns about particular cases and ending with "low level" principles that are more concrete and contextual than abstract and general.

Ad Hoc Legal Pragmatism

So far, I've tried to get at what I think is the core coneptual content of legal pragmatism--in its best and most intellectually defensible forms.  But there is another version of "legal pragmatism" that deserves some discussion.  Sometimes, the phrase "legal pragmatism" is used in a very casual way as a kind of evasion or escape from serious objections.  For example, someone might make a series of normative arguments that rest on inconsistent theoretical premises--affirming some form of consequentialism at one point and then relying on strong deontological premises at another.  When confronted with inconsistency, they might say, "Oh, I'm a pragmatist."  And they might be, but "pragmatism" is not a "Get Out of Jail Free" card that somehow magically nullifies contraditions or reconciles theoretical contraditions.  The best uses of legal pragmatism always ground specific pragmatic moves in some metatheoretical framework.

There is no official name for "sloppy pragmatistm," but I use the label "ad hoc pragmatism" as a short-hand label for the attempt to use "pragmatism" as an excuse for theoretical inconsistency or for gaps in a theoretical argument.  "Pragmatism" should be the term we use to describe a family of metatheoretical arguments; it is not an excuse for avoiding such arguments.

Conclusion 

"Pragmatism" is tricky.  In philosophy, the term "pragmatism" is both vague and ambiguous referring to a family of related but distinct philosophical positions, some of which are inconsistent and most of which are highly general and abstract.  Similarly "legal pragmatism" is not really a single well-defined metatheoretical position, but is, instead, a label that is applied to a number of different moves in general legal theory.

References

Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2003)

Daniel Farber, Legal Pragmatism and the Constitution, 72 Minn. L. Rev. 1331 (1988).  Highly recommended as an exemplar of legal pragmatism.

Farber & Frickey, Practical Reason and the First Amendment, 34 UCLA L. REV. 1615, 1639-56 (1987).

Thomas C. Grey, Judicial Review and Legal Pragmatism, 38 WAKE FOREST L. REV. 473, 497-507 (2003).

Richard A. Posner, Law, Pragmatism, and Democracy (2003).

(This post was last revised on December 28, 2008.)

Legal Theory Lexicon 055: Principles in Constitutional Theory

Introduction 

When studying constitutional law, students are likely to be exposed to the idea that interpretation of the United States Constitution may include reference to what are sometimes called "constitutional principles"--general and abstract normative ideas that can aid or guide attempts to glean meaning from the text and may even provide "extraconstitutional" or "nontextual" reasons for decisions in constitutional cases.  For example, interpretation of the equal protection clause of the fourteenth amendment might be guided by an "antisubordination principle" or an "equal citizenship principle."  Similarly, the federalism provisions of the constitution might be interpreted in light of a principle of "dual sovereignty" or a principle of "state sovereign immunity."

What are constitutional principles?  How do they relate to legal theory more generally?  Where do they come from?  What role can they play in constitutional interpretation and the decision of particular cases?  This entry in the Lexicon explores these questions and examines the role of principles in constitutional interpretation.  As always, the Lexicon is aimed at law students, especially first-year law student, with an interest in legal theory.

What are "constitutional principles"? 

The phrase "constitutional principle" is used in a variety of senses.  For example, thre phrase "constitutional principle" could simply be another way of describe a constitutional "rule" or "standard."  (This seems to be the sense in which principle is used in Wechsler's famous conception of "neutral principles" of constitutional law. See Weschler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959). ) Or we might use the phrase to pick out matters of "principle" that are to be distinguished from matters of "prudence" or "pragmatisim."  This Lexicon entry will focus on a more specialized or technical meaning of "principle."  As I use the phrase, "constitutional principles" will be general and abstract normative propositions that are not themselves part of the constitutional text.  Constitutional principles can be distinguished from rules and standards of constitutional law--principles provide normative guidance at a higher level of abstraction and generality than do "hard edged" constitutional rules or more "open textured" constitutional standards.  This use of principle is related to Ronald Dworkin's use in his early essay Hard Cases and in his book on constitutional theory, A Matter of Principle.

An example will help.  Here is a passage from the majority opinion in Gonzales v. Raich:

For example, cases such as Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), and New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), affirm that a law is not " 'proper for carrying into Execution the Commerce Clause' " "[w]hen [it] violates [a constitutional] principle of state sovereignty."

The constitutional principle of state sovereignty is not in the text of the constitution.  The text never uses the term "sovereign" or "sovereignty" and it never refers to the states as "sovereign".  State sovereignty is not a rule of constitutional law.  The principle doesn't provide any specific command, requirement, prohibition, or power.  Instead, the principle of state sovereignty is best understand as shorthand for a normative conception of the powers and immunities of the states in the federal system.

This is a bit tricky.  The notion of a constitutional principle is a bit "vague around the edges" and I haven't provided a set of necessary and sufficient conditions that sharply define what counts as a constitutional principle.  Nonetheless, this is a familiar idea that is frequently invoked in constitutional theory and practice.  For an example of sophisticated use of "constitutional principles," by a contemporary legal theorist, check out the links Jack Balkin's work on the method of "text and principle" at the end of this Lexicon entry.

Where to constitutional principles come from? 

Or to put the question just a bit differently, what are the sources of constitutional principles?  Let's focus on three ways in which we might derive a constitutional principle:

Principles derived from particular clauses.  Some constitutional principles may be derived from particular clauses or provisions of the Constitution.  For example, the "free speech" clause is vague, general, and abstract.  What is the "freedom of speech"?  What constitutes an "abridgement"?  On approach to answering these questions is to posit a constitutional principle that states the central purpose or function that the clause serves.  For example, the free speech clause might stand for a "principle of freedom of expression" or a "principle of equality of communicative opportunity."

Principles derived from constitutional structure.  Another possibility is that constitutional principles might be derived from the structure of the constitution--either of the whole constitution or of some identifiable part.  For example, there may be a constitutional principle of state sovereign immunity.  There is not "sovereign immunity clause" of the constitution, but it might be argued that the Eleventh Amendment, Article III, the Tenth Amendment, and the importance of the States to the whole structure of federalism are the source of a general principle that favors the immunity of states from suits in federal court.

Principles Derived from Political or Constitutional Theory.  Another possibility is that some constitutional principles might be derived from a source outside the text, for exampe, from background considerations of political morality or constitutional theory.  For example, constitutions do not provide their own sources of normative legitimacy, but the conditions for constitutional legitimacy could be seen as the source of principles that would shape constitutional law.  Suppose, for example, that we concluded that the constitution is legitimated by a theory of popular sovereignty--the constitution is legitimate because it was ratified by the people when originally adopted or because it is accepted by the people today.  That theory of legitimacy might then provide a constitutional principle that would guide the interpretation of varoius provisions of the constitution.

The Role of Constitutional Principles in Constitutional Interpretation 

What role do (or should) constitutional principles play in the interpretation of the constitution and in its application to particular cases, either inside or outside the courts?  This is a complex issue, but we can simplify it by contrasting two uses of constitutional principle--which I shall call "direct" and "textualist."

Direct Application of Constitutional Principle  Constitutional principles might be considered to play a role in constitutional interpretation that is equal or even superior to the role of the text.  Here, in schematic form, is how it might go:

Step One: Identify a constitutional principle (on the basis of (a) the text of a specific clause, (b) a structural feature of the constitution, or (c) some extraconstitutional consideration of political morality or constitutional theory.

Step Two: Apply the constitutional principle directly to a question of constitutional law, using the principle as the justification for a constitutional rule or doctrine that resolves a particular case.

Textualist Use of Constitutional Principles  There is an alternative way that constitutional principles might play a role in constitutional interpretation or adjudication.  A "textualist" use of constitutional principle might proceed as follows:

Step One: Determine the relevant textual provisions of the constitution.  If these provisions are neither ambiguous nor vague with respect to constitutional question at hand, then apply the text, but if there is relevant vagueness or ambiguity, then proceed to step two.

Step Two:  Identify the constitutional principles that are relevant to the meaning of the vague or ambiguous constitutional provision.

Step Three: Resolve the ambiguity and/or adopt a construction of the vague provision on the basis of the relevant principle (or principles).

Step Four: Apply the disambiguated provision or the vagueness-resolving construction to the constitutional question at issue.

The Difference Between Direct and Textualist Use of Constitutional Principles

Most readers will immediately grasp the theoretical significance of the distinction between direct and textualist use of constitutional principles.  Some theories of constitutitional interpretation insist that the text of the constitution plays an essential role in constitutional law.  "Textualism" or "original meaning originalism," for example, insist that the linguistic meaning of the constitution is given by the "original public meaning" of the constitutional text.  It might be thought that these theories are inconsistent with constitutional principless, but, as we have seen, this is not necessarily the case.  If constitutional principles are used to resolve ambiguity or vagueness, then their use may be entirely consistent with an approach that gives pride of place to the original public meaning of the constitutional text.

On the other hand, there are alternative constitutional theories that seem more consistent with the direct use of constitutional principles.  For example, some forms of original intentions originalism conceptualize the original intentions of the framers as general principles: these principles (or intentions) can then be applied directly to resolve particular cases.  Similarly, Ronald Dworkin's approach to constitutional interpretation could be understood as consistent with the direct approach to constitutional principle.

Conclusion 

There is much more to be said about the idea of constitutional principles.  And of course, the use of principles in legal theory is not limited to constitutional theory.  Principles can play a similar role in statutory interpretation and in common-law reasoning.  Nonetheless, I hope this Lexicon entry has given you a basic introduction that will enable you to think about the role of principles in constitutional theory.

Related Entries 

The topics raised in this Lexicon entry are connected to several others in the Lexicon series.  Here are few related entries that you might want to explore:

Originalism

Rules, Standards, and Principles

Textualism

Bibliography & Links

Jack Balkin, Original Meaning and Constitutional Redemption, Constitutional Commentary, Vol. 24, 2007

Jack M. Balkin, Abortion and Original Meaning.

Ronald Dworkin, "Hard Cases" in Taking Rights Seriously.

Ronald Dworkin, A Matter of Principle.

Herbert Weschler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).

(This entry was last revised on September 22, 2007.)

Legal Theory Lexicon 054: Standards of Review

Introduction

Law students begin to encounter the concept of a "standard of review" earlier in the first year. That's not surprising. First-year law students read appellate cases, and every appellate decision explicitly or implicitly includes a standard of appellate review--a rule that defines the relationship between the appellate and trial court. For example, the standard of appellate review on questions of law is "de novo."

Now, you may be wondering why "standards of review" are being discussed in the Legal Theory Lexicon. After all, this whole topic sounds like doctrine, not theory. And that's right--standards of review are "doctrine," but that doesn't mean that they aren't also of theoretical interest. In this entry in the Legal Theory Lexicon series, we will take a look at standards of review from a theoretical perspective. We'll try to figure out whether the idea of a deferential standard of review makes sense, and if it does, how that idea might be explained and defended. We'll also take a whirlwind tour through a variety of contexts in which the idea of a "standard of review" plays a role. Here goes!

As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.  All the usual caveats apply, this is a very basic introduction that emphasizes theoretical issues--it is not intended as a review of the various legal doctrines that are discussed.

Is Deferential Review Possible?

Let's start with the hard stuff. Many standards of review are described as "deferential." The abuse of discretion standard is supposedly "deferential," as is the "rational basis" standard and the "reasonable jury" standard.  Appellate courts are supposed to defer to the management decisions made by trial courts.  Courts are supposed to defer to the legislative decisions made by Congress.  Judges are supposed to defer to the factual judgments made by juries.

Superficially, this all looks quite straightforward.  After all, the idea of "deference" is familiar from ordinary language and life: for example, I might defer to a friend's judgment about wine or a colleague's judgments about golf--they know more than I do about those topics.  But in the context of law, it can get to be tricky.  To tease out the difficulty, let's distinguish between two different notions of deference, "deference to authority" and "epistemic deference."

By "deference to authority," I mean to refer to the practice of deciding that someone else's judgments or beliefs should substitute for your own.  If defer to my friend's choice of wine, I am simply letting her choose, giving her the authority to make the decision.  On the other hand, I might ask my friends advice about wine.  If she is more knowledgeable than am I, I might give her advice substantial weight in making my decision.  "I've never tried the Screaming Eagle Cabernet, but Dennis has and I have found his evaluations to be reliable in the past.  If he says it is overrated, then it probably is."  I am deferring to Dennis's experience and reliability in forming my own beliefs--because this form of deference is about knowledge, we can call it "epistemic deference."

OK, OK, but what did that all mean?  Here is the possibility that I would like to put on the table: it might be the case that all deference is at bottom either "deference to authority" or "epistemic deference," and hence that there is nothing "in between."  If that's right, it will have implications for the idea of a deferential "standard of review."  In particular, if this were true, then we might reach the conclusion that if there is any meaningful review at all, it must be nondeferential de novo review.  Let me be clear: I am not going to argue for that conclusion.  Instead, I am going to pose a challenge or offer a puzzle--I won't be reaching any conclusions, one way or the other.

Here's what we are going to do.  I'm going to give a brief and sweeping outline of various legal contexts in which the notion of a standard of review plays a role.  Then after we've looked at these contexts we'll return tot he deference problem.

Contexts 

The phrase "standard of review" is used a variety of legal contexts.  Let's take a look at some of them.

• Judicial Review of Jury Decisions: Juries make decisions, but judges are required to review them in a variety of procedural contexts--motions for judgment as a matter of law (or judgment non obstante verdictum), motions for a new trial on the grounds that a jury's decision was contrary to the weight of the evidence, and so forth.  In this context, the conventional wisdom is that judge's must "defer" to the jury and uphold any decision that could have been reached by a "reasonable jury."
• Appellate Review of Trial Court Decisions: This is the most familiar context for thinking about "standards of review."  The conventional wisdom is that there are three.  The de novo standard applies to trial court decisions of law: appellate court's are not required to defer to these and may review them de novo (as if they were "new").  The clearly erroneous standard applies to findings of fact by a trial judge.  This is supposed to be a deferential standard; appellate judges are supposed to review factual findings for error, but to do this deferentially.  The abuse of discretion standard applies to discretionary or management decisions by trial court judges.  Again, this is supposed to be a deferential standard.  Even if the appellate court would have made the decision differently, it should not reverse unless that trial court's decision was an "abuse of discretion," something beyond "mere error."
• Judicial Review of Legislation: Yet another context is provided by judicial review of legislation, usually for constitutionality.  This is a huge topic, but we can simplify by focusing on two standards, both derived from doctrine developed in connection with the equal protection clause of the United States Constitution.  The "rational basis" standard is intended to be highly deferential--a statute subject to this standard should be upheld unless no rational legislature pursuing a legitimate objective could have believed that the statute would advance the objective, even very imperfectly.  The "strict scrutiny" standard, on the other hand, is not deferential at all.  In fact, the saying goes "strict in theory, fatal in fact."  In fact, the "strict scrutiny" standard is even "antideferential" rather than merely "neutral" as is the de novo standard of appellate review.
• Judicial Review of Administrative Agencies: The Administrative Procedures Act requires federal courts to uphold the actions of federal agencies if they are supported by "substantial evidence."  The famous "Chevron doctrine" requires federal courts to defer to an agencies interpretation of a statute, so long as that interpretation is "reasonable."  The Chevron doctrine seems to imply that administrative agencies should receive more deference on questions of law than trial courts receive under the de novo standard of appellate review.

The Deference Question Revisited 

We are now in a position to think again about the question whether "deferential review" is possible and, if it is, what deference really means.  Some standards of review are simply not deferential at all--de novo appellate review of questions of law, for example.  Other standards of review might be interpreted as involving "deference to authority."  Under the Chevron doctrine, for example, we might say that administrative agencies have authority to interpret the statutes that govern them--although that authority may have "outer bounds" that are policed by the courts.  Yet other standards might be explained as "epistemic deference."  For example, the clearly erroneous rule may simply require appellate courts to give "epistemic deference" to the fact-finding advantages of trial court judges.

On the other hand, it might be argued that some standards of review seek a middle ground between "deference to authority" and "epistemic deference."  Perhaps, a jury can be reasonable, even though the trial judge knows the jury was wrong--if so, then the "reasonable jury" standard is not a matter of epistemic deference.  But trial judges are not required to defer entirely to the authority of the jury--the judge retains the power to set aside verdicts contrary to the weight of the evidence.  The hard question that remains is "what exactly is this "middle ground?"  How can you believe a jury is wrong but reasonable?  How can you decide that a given statute only serves the narrow economic advantage of a special interest group but also find that the legislature had a rational basis?

One more idea before we conclude.  It is tempting to think of the standards of review in terms of probabilities or degrees of confidence.  So we might way that complete deference requires that a decision be upheld even if the chance that one of its predicates is correct is zero (0.0).  A nondeferential standard permits the reviewing entity to reverse a decision so long as the probability that it is correct is less than fifty-fifty (0.5).  This leaves a middle ground--e.g., a standard that would uphold decisions unless there was a .25 chance they were correct (or any other real number great than 0.0 and less than 0.5).  It's worth thinking about this possibility, but for reasons I won't explain here, I am inclined to think that this model of appellate review cannot, in the end, be made to work.

Conclusion 

Understanding the idea of a standard of review is fundamental to understanding legal doctrine.  And to really understand standards of review, you need to grasp the theory that grounds them.  The aim of this post has been to give you some basic ideas from which your own reflections can begin.

(Last modified on December 14, 2008)

Legal Theory Lexicon 053: 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 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)

 

Paul Gowder, “It takes a theory to beat a theory” is false or vacuous, and possibly also incoherent. (December 8, 2008)

(Last modified on December 8, 2008.)

Legal Theory Lexicon 052: Property Rules and Liability Rules

Introduction

One of the most famous distinctions in contemporary legal theory was made popular by Guido Calabresi & A. Douglas Melamed s famous article, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral.  The core idea is simple.  Legal rules that create private causes of actions (or claims for relief) can be sorted into two kinds.  Kind one consists of rules that entitle the claimant to an injunction.  Kind two consists of rules that entitle the claimant to damages.  The first kind of rule is associated with property rights--hence, we can call the first kind "property rules."  The second kind of rule is associated with tort liability or contractual liability--hence, we can call the second kind "liability rules.  The distinction between property rules and liability rules is important, because injunctions and damages have different effects on future behavior and on negotiated settlements to claims.

This post in the Legal Theory Lexicon Series is aimed at law students--especially first-year law students--with an interest in legal theory.  As always, this is a very short introduction to a complex topic.  I've provided references for further reading and a deeper understanding.

Calabresi & Melamed's Famous Formulation

"Another View of the Cathedral" is one of those articles that every law student should read.  But to get us started, let's quote the famous passages from near the start of the article where the distinction between property rules and liability rules is introduced:

An entitlement is protected by a property rule to the extent that someone who wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction in which the value of the entitlement is agreed upon by the seller. It is the form of entitlement which gives rise to the least amount of state intervention: once the original entitlement is decided upon, the state does not try to decide its value.  It lets each of the parties say how much the entitlement is worth to him, and gives the seller a veto if the buyer does not offer enough. Property rules involve a collective decision as to who is to be given an initial entitlement but not as to the value of the entitlement.

Whenever someone may destroy the initial entitlement if he is willing to pay an objectively determined value for it, an entitlement is protected by a liability rule. This value may be what it is thought the original holder of the entitlement would have sold it for. But the holder's complaint that he would have demanded more will not avail him once the objectively determined value is set. Obviously, liability rules involve an additional stage of state intervention: not only are entitlements protected, but their transfer or destruction is allowed on the basis of a value determined by some organ of the state rather than by the parties themselves. An entitlement is inalienable to the extent that its transfer is not permitted between a willing buyer and a willing seller. The state intervenes not only to determine who is initially entitled and to determine the compensation that must be paid if the entitlement is taken or destroyed, but also to forbid its sale under some or all circumstances. Inalienability rules are thus quite different from property and liability rules. Unlike those rules, rules of inalienability not only "protect" the entitlement; they may also be viewed as limiting or regulating the grant of the entitlement itself.

There is a lot packed into this short package.  First, we get the basic distinction between enforcement by injunction and enforcement by liability for damages.  Second, we get the distinction between rights that are alienable and those which cannot be bought and sold and hence are "inalienable."  Third, we get an argument that alienable rights that can be enforced by injunctions require less state intervention than do inalienable rights that are only enforceable by damage awards.  These three ideas were the conceptual core of Calabresi and Melamed's distinction between property rules and liability rules.

Mixed Rules 

Even if you have never encountered the distinction between property rules and liability rules before, you probably have already thought to yourself that the world is not quite as black and white as the distinction implies.  The same underlying "primary right"--such as the right to security of property--may be enforced by both injunction and damages and involve both alienable and inalienable aspects.  That is, there are "mixed rules" as Calabresi and Melamed themselves noted:

It should be clear that most entitlements to most goods are mixed. Taney's house may be protected by a property rule in situations where Marshall wishes to purchase it, by a liability rule where the government decides to take it by eminent domain, and by a rule of inalienability in situations where Taney is drunk or incompetent.

Choosing Between Property Rules and Liability Rules 

Why should the law choose property rules for some situations and liability rules for others?  That's a very large and complex question.  Here are some of considerations that bear on an answer--recognizing that these are only starting points:

The Possibility of Bargaining--It might be argued that property rules are better suited to situations where the parties can bargain over the transfer of rights.  So the possessory interest in real estate or chattels might be protected by property rights, because the transfer of possession is something over which the parties can bargain.  An injunction against involuntary transfer forces the parties to agree on terms for a voluntary transfer.  On the other hand, it might be argued that liability rules are better suited to situations in which bargaining is impossible (or to be more precise, very costly).  For example, it would be difficult to bargain over an automobile accident--the parties may be strangers, the accident is unanticipated, and so forth.  In that situation, a damage award rather than an injunction seems like the only feasible mechanism for protecting the right.

Existence or Measurement of Damages--Sometimes it is very difficult to measure damages.  For example, in copyright law, it may be difficult to prove that my copying of portions of you book had the consequence of hurting your sales.  (It's possible my copying even helped your sales.)  When damages either don't exist or can't be measured, then liability rules may be ineffective.  But if the copyright holder--to continue the example--has the right to an injunction, this will force the infringer to pay for the right to continue the infringing activity.

Administrative Costs--Liability rules require the system to measure damages and that may be costly.  Evidence on the extent of damages must be gathered, processed, and evaluated by a finder of fact.  Property rules do not involve these costs.  This facto generally favors property rules over liability rules.

Of course, this is a partial and incomplete list.  But these examples illustrate the kinds of considerations that might favor a property rule or a liability rule as the solution to a particular legal problem.

Conclusion

The distinction between property rules and liability rules is fundamental to private law.  As you study contracts, torts, and property, it is very useful to ask yourself whether a particular legal doctrine or cause of action involves a liability rule, a property rule, or a mixed rule.  Once you have the answer to that question, the next inquiry is "why?"  What justifications can be offered for the law's choice of a property rule over a liability rule, or vice versa.  If you ask these questions systematically in your study of private law, you will be well on your way to a deeper and more sophisticated understanding of these building block subjects.

References

Ian Ayres & J.M. Balkin, Legal Entitements as Auctions: Property Rules, Liability Rules, and Beyond, 106 Yale L.J. 703 (1996).

Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).

Louis Kaplow & Steven Shavell, Property Rules versus Liability Rules: An Economic Analysis, 109 Harv. L. Rev. 713 (1996).

(This entry was last revised on November 30, 2008.)

Legal Theory Lexicon 051: Vagueness and Ambiguity

Introduction 

This week the Legal Theory Lexicon entry focuses on "ambiguity" and "vagueness"--two important concepts for the theory of interpretation.  Some legal texts are ambiguous--they can have two or more distinct meanings.  And some legal texts are vague--they use concepts that have indefinite application to particular cases.  And some legal texts are both vague and ambiguous--they have multiple meanings, some of which have indefinite applications.  Because "vagueness" and "ambiguity" are basic concepts in the theory of interpretation, its important to master each of them and to understand the difference between them.

As always, this entry in the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

Vagueness 

What does it mean to say that a concept, term, or phrase is vague?  Let's start with some examples and then try for an elucidation of the concept.  "Tall" is a good example of a vague concept.  Some humans are definitely not tall--Danny DeVito, for example.  Others definitely are tall--Shaquille O'Neal, for one.  But the term "tall" is vague.  5'11 is almost definitely tall for a woman in the United Sates, but might be a borderline case for men.  "Tall" is not the sort of quality for which there are definite criteria that sort the world into "tall" things and "not tall" things.  In other words, "tall" is vague.

There are lot's of terms that are like tall: short, strong, weak, beautiful, ugly, heavy, light, warm, and cool--all of these are terms that seem to have borderline cases.  And that is one way that we might define vagueness.  A term is vague, we might say, if and only if it has borderline cases.  A term is not vague just in case it has no borderline cases.

As you might guess, the fact of vagueness creates a variety of issues in the philosophy of language.  Is vagueness built into the fabric of the universe?  Or is vagueness merely a feature of the imprecision of human language?  Is vagueness a property of things?  Or is it a property of our knowledge of things?  We won't worry about these deep questions.  For the purposes of this rough and ready introduction, it is sufficient simply to see that there are such problems and that a philosophical theory of vagueness should propose to answers to them or show that they aren't true problems at all.

Ambiguity 

What about "ambiguity"?  A concept, term, or phrase is ambiguous if it has more than one meaning.  Take "cool" for example.  One meaning of "cool" has to do with temperature, and in this sense, "cool" contrasts with "warm," "cold," and "hot."  Another meaning of "cool" has to do with fashion and social attractiveness.  And there are other senses of cool as well, as in, he kept his cool in a very pressured situation.

In a particular context, the meaning of an ambiguous term may be clear.  With just a bit more context, the sentence "He's one cool dude" is likely to refer to social attractiveness and not temperature.  But in some contexts, the ambiguity may be difficult to resolve: "The mojito is a cool drink" could refer either to the fact that mojitos are served chilled or to the fact that mojitos are fashionable and popular among some social groups.

And this last example, "cool" can be used to illustrate the fact that the same term can be both vague and ambiguous in the same context.  If I say, "Bring me a cool drink!", my utterance may be both ambiguous--do I mean fashionable or coldish?--and vague--how far below room temperature is "cool" or are mojitos still "cool" or are they "out of style"?

Interpretation of Vague or Ambiguous Texts 

Now that we have a basic grasp of vagueness and ambiguity, we are in a position to see that each of these two concepts has a role to play in a theory of the interpretation of legal texts.

Many legal texts are vague.  In fact, most law students become very familiar with a variety of vague terms early in their law school careers.  Take "reasonable"--was the tort defendant's conduct "reasonable" under the circumstances?  There will be clear cases of unreasonable conduct: driving 150 mph in a residential area.  But there will also be borderline cases.  Was it reasonable to drive at 55 mph in a light fog?

Some legal language general, abstract, and vague.  For example, the phrase "equal protection" in the 14th amendment of the United States Constitution might refer to a very general and abstract idea of equality.  Given this generality and abstraction, it might be that the "borderline" cases seem to make up the whole of equal protection doctrine.  What would count as a clear example of "equal" or of "unequal"?  In a common law system, general and abstract language may be translated into relatively more particular and concrete rules through case-by-case adjudication.

Vagueness is ubiquitous in the law.  Ambiguity is a bit less common, because many potentially ambiguous terms or phrases are disambiguated by context.  "Seizure" can refer to a physical taking or it can refer to a medical symptom, but in the Fourth Amendment of the United States Constitution, it is clear that the correct meaning is the former rather than the latter.

Relationship to the Interpretation-Construction Distinction

The distinction between vagueness and ambiguity is related to the interpretation-construction distinction--discussed in a separate entry in the Legal Theory Lexicon.  Roughly, the distinction is that interpretation of a text aims at recovering its linguistic meaning or semantic content.  Construction involves the "tranlation" of the semantic content into legal content: we we construe a legal text we formulating legal rules that enable application of the text to particular cases.

Interpretation and Ambiguity--In many cases, problems of interpretation involve ambiguity: a legal text uses a word with more than one meaning and the interpreter looks to context to resolve the ambiguity.

Construction and Vagueness--But when a text is vague, it is usually the case that interpretation cannot resolve the vagueness.  Why not?  Because interpretation only can take us as far as the meaning of the text: if the linguistic meaning is vague, then something else will be required if we must apply the text to a particular case.  Construction allows legal actors (e.g., judges) to devise a supplementary rule or procedure that resolves the vagueness.  Thus, a legal text may supply a vague standard ("freedom of speech"), but construction may yield a more particular rule ("no prior restraints").  (There is a Lexicon entry on rules, standards, and principles.)

Conclusion

"Vagueness" and "ambiguity" are important concepts in the theory of legal interpretation generally, and as a consequence, they are important to constitutional theory and the theory of statutory interpretation.  I hope this Lexicon entry has clarified the distinction between these two concepts.

Links

Stanford Encyclopedia of Philosophy Article on Vagueness

Wikipedia Article on Vagueness

Vagueness in Law by Timothy A. O. Endicott

(This entry was last revised on November 22, 2008.)

Legal Theory Lexicon 050: Default Rules and Completeness

Introduction 

At some point in the introductory class in contract law, students are likely to encounter a very powerful idea--the distinction between "default rules" and "mandatory rules."  The basic distinction is easy to grasp.  Some rules of contract law supply default terms that are subject to contractual override; other rules of contract law are mandatory--they can't be modified by the contract.  Lurking in the background of this distinction is a theoretical construct--the complete contract, an idealized contract that would include explicit terms covering every possible contingency.  Once you understand the distinction between default rules and mandatory rules, additional questions arise: as a matter of normative contract theory, which rules should be default rules and which rules should be mandatory?  And what normative principles should guide the design of default rules?

As always, this post in the "Legal Theory Lexicon" series is aimed at law students--especially first year law students--with an interest in legal theory.

Default Rules and Mandatory Rules 

Let's start with the "takeaway" point.  In contract law, we can sort the rules into two sorts, "default rules" and "mandatory rules." 

Here's an example.  The Uniform Commercial Code (or UCC, the codified law of contract that applies to contracts between businesses as a matter of state law in the United States) creates a duty to act in good faith--this is a mandatory rule, because this duty cannot be disclaimed by a contractual provision.  The UCC also includes an implied "warranty of merchantability," that attaches to contracts, but can be waived by agreement--this is a default rule.

Grasping this distinction is important for at least two reasons.  First, unless you know whether a given rule of contract law is a default rule or a mandatory rule, you don't really know the law.  And it isn't always clear whether a given rule is one or the other: the usual tipoff is language like, "unless the contract provides otherwise" or "absent an agreement to the contrary."  Second, the distinction between default rules and mandatory rules is fundamental to the normative structure of contract law.  Learning contract is more than a matter of mastering the rules; mastering the arguments of principle and policy that can be used to argue for and against the rules is equally important.  But the arguments for default rules and the arguments for mandatory rules must be different--because these two kinds of rules have different functions.

Generalizing the Idea of "Default Rule" 

Although the notion of a "default rule" is usually introduced to law students in the context of contract law, the idea is more general.  For example, we could think of the law of wills and intestate succession through this theoretical lens.  Rules of intestate succession are "default rules" that can be overridden by a will.  Much of the law of wills consists of default rules, and we can imagine a "complete will" that covered every possible contingency.

Similarly, we can imagine a "complete code" that covers every possible action or inaction and specifies what legal consequences follow.  Given that actual codes are incomplete, we can look at the law of statutory interpretation as including a collection of "default rules" that allow courts to fill in the gaps.  Another example is provided by corporations law--once again, some of the rules are mandatory and others are merely defaults.

You get the idea--default rules can be applied to any authoritative legal text that is "incomplete."

Normative Theories of Default Rules 

Once we understand the distinction between default rules and mandatory rules, we can then ask the question, "What normative principles should guide the design of default rules?"  For example, we might decide that lawmakers (legislators or common-law judges) should attempt to devise the default rules that are most likely to be the rules that the parties would have adopted had they contracted on the issue.  Or we might want "efficient" default rules.  Or default rules that maximize utility.  All of these approaches are associated with normative law and economics.  But there are other approaches as well.  For example, we might try to design default rules so that they maximize the autonomy or liberty of the parties to the contract--imposing the fewest possible restrictions that have not actually be agreed to by the parties.  Or we might impose default rules that will serve some other goal such as distributive justice or economic equality.

Default Rules as Public Goods 

Another interesting question is why the law provides default rules at all.  Why don't we force the parties to reach complete agreements?  Immediately, of course, we realize that this would be very costly.  Drafting a complete contract would almost always (perhaps always) cost more than the contract is worth.  And there is another problem as well.  Most contract provisions are not protectable as intellectual property; in general, you can't copyright or patent a nifty contractual provision.  (You may be able to copyright the specific language, but that doesn't preclude someone else from expressing the idea in different language.)

This suggests an interesting perspective on the economics of default rules.  We might see the default rule provisions of contract law as a "public good."  That is, consumption of default rules is "nonrivalrous"--because my use of a given provision doesn't interfere with your ability to use the same provision.  And consumption of default rules is "nonexcludable"--assuming that there is no intellectual property protection available for "form contracts" or "form contract provisions."  If this is correct (and it may not be), then there is a classic economic justification for government to provide for the "public good."  For more on the idea of a public good, see Legal Theory Lexicon 029: Public and Private Goods.

Complete Contracts 

Now that we have the basic distinction between default and mandatory rules in mind, let's discuss the related idea of a complete contract.  Once again, the core intuitive idea is relatively simple--a complete contract has provisions that cover "every contingency."  In other words, a complete contract has no gaps.

Why did I put "every contingency" in scare quotes?  Because "every contingency" is an ambiguous way of formulating a fairly complex idea.  We need some special terminology here.  Economists tend to use the phrase "states of affairs" to express the idea of a contingency.  A "state of affairs" is simply a way that the world can be--a complete specification of the way things are.  Philosophers use different jargon--the phrase "possible world" expresses the same idea as "state of affairs."

So a truly "complete" contract would be a contract that specified the duties and rights of the parties for all the future states of the world--or all the possible worlds that share the history of the actual world up to the point the contract is formed.  Once you think about it, it becomes clear that no actual contract could be complete.  There are infinitely many possible future states of the world--and a contract that covered all of them would have an infinite number of provisions, and hence the drafting of such a contract would never be complete--it would still be unfinished when the universe reached a state of complete entropy.  (Oh, and by the way, that's one of the contingencies that the contract would have to cover.)

So the notion of a complete contract is an idealization--not a practical option.  And once we see this point, another point becomes obvious.  Contract law cannot provide default rules to cover every possible contingency either.  Of course, as a practical matter, contract law doesn't have to cover all the contingencies.  Some possible future states of the world are so remote or far-fetched that they can safely be disregarded--Martian invasions and or the discovery of a universal fabrication machine are not contingencies about which we need worry.

The General Idea of Completeness 

Just as the idea of a default rule can be generalized beyond contract law, so can the idea of completeness.  So we can imagine "complete wills," "complete corporate charters," "complete trusts," and so forth.  One particularly important idealization is the idea of a "complete code"--a legal code that itself has provisions that cover every possible contingency.  The complete code will have default rules or mandatory rules that for every possible future state of affairs.

Conclusion 

Well, as is usually the case, we've barely scratched the surface.  Nonetheless, I hope this Lexicon entry has given you a basic framework for understanding the ideas of a complete contract and the distinction between default rules and mandatory rules.  Once you have this ideas in your conceptual toolkit, you are likely to start noticing them in all kinds of contexts, not just in contract law, but in every legal subject you encounter.  When you do, you might ask yourself, "Why is this a default rule rather than a mandatory rule?," or vice versa.  And, "What normative legal theory or principle supports this choice?"

Links

Default Rules on Wikipedia

Complete Contract on Wikipedia

Ian Ayers & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale Law Journal 87 (1989)

Ian Ayers, Default Rules for Incomplete Contracts

The Desert and the Jungle: Alan Schwartz and Robert Scott on Contract Theory

(This entry was last updated on November 17, 2008.)

Legal Theory Lexicon 049: Distributive Justice

Introduction

Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at "risk spreading"? Should the Equal Protection Clause of the United States Constitution be read as guarantee of the equal distribution of rights or resources? In order to answer these and similar questions, we need to have some account of distributive justice? What makes the distribution of liberties, income, and wealth fair? Should the law aim at equality? And if it should, what sort of equality?

This entry in the Legal Theory Lexicon will provide a brief introduction to distributive justice. As always, the Lexicon is aimed at law students (especially first-year law students) with an interest in legal theory.

Context

A prior entry in the Lexicon provided a brief overview of the idea of Justice. (Legal Theory Lexicon 018: Justice) In that entry, we divided the general topic of justice into four parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. Corrective justice is concerned with the righting of wrongs: so, in criminal law, we might be concerned with punishing crimes, and in tort law, we could focus on the rectification of wrongfully inflicted harms. Political justice is concerned with issues such as voting rights, democracy, legitimacy, and authority. Procedural justice addresses questions about the fairness of civil and criminal proceedings. Our topic today is distributive justice. As a rough and ready starting point, let's say that distributive justice addresses questions about the distribution or allocation of liberties, wealth, and income. As we shall see, one of the major debates about distributive justice will call this rough and ready starting point into question, because "liberties, wealth, and income" may be the wrong target for theories of distributive justce. But let's put that concern aside for now.

Rawls's Theory of Distributive Justice: Justice as Fairness

Discussions of distributive justice usually start with the work of John Rawls--the most influential political philosopher of the 20th century. It really isn't possible to do justice to Rawls's theory in a paragraph or two, but I'm going to try.

Let's start with the historical roots of Rawls's theory. Rawls saw his theory as an extension of the social contract tradition--associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Traditional social contract theory posits a state of nature--in which there is no government--and then asks what would be the content of a social contract--an agreement to enter civil society. If we assume that the state of nature and the social contract are hypothetical (not actual), we can then ask the question: is an agreement reached in the state of nature fair? The answer to this question might be, "No, a social contract reached in the state of nature would not be fair, because it would favor those who are advantaged by the conditions of the state of nature, e.g. the strong, the smart, and the powerful." Rawls attempted to correct that problem with classical social contract theory by positing what he called the "original position." In the original position, the parties are to agree on principles of justice to govern the basic structure of society. Unlike the state of nature, however, the original position includes a "veil of ignorance," which prevents the parties from knowing the specific characteristics of those whom they represent.

Rawls argues that the parties to the original position would choose two principles of distributive justice:

1. The Equal Liberty Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

2. The Difference Principle: Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society.

The first principle has priority over the second in cases of conflict.

In this very short introduction, we won't try to recreate the reasoning that would lead the parties to the original position to adopt the two principles. The basic idea of Rawls's argument is that the parties behind the veil of ignorance would have to take into account the possibility that they represent the least fortunate members of society. To protect the interest of those who are worst off, they would first make sure that everyone's basic rights--liberty of conscience, freedom of speech, due process--were protected: that is the role of the equal liberty principle. Then, the parties in the original position would attempt to make sure that wealth and income (and other basic goods) were were distributed so as to make the worst-off members of society as well off as they could be made: that is the role of the difference principle.

Rival Approaches to Distributive Justice

What are the alternatives to justice as fairness? Let's take a quick look at four rivals to Justice as Fairness: (1) utilitarianism, (2) egalitarianism (or "strict equality"), (3) desert, and (4) libertarianism.

Utilitarianism--Classical utilitarianism suggests that we should maximize the sum total of utility--Jeremy Bentham's slogan was "the greatest good for the greatest number." For classical utilitarians, the distribution of goods and resources doesn't matter in and of itself. What matters is how much good can be produced, not how it is distributed. This does not mean, however, that utilitarians do not care about the distribution of wealth and income. For example, a utilitarian might argue that wealth and income have "diminishing marginal utility." That is, the first $1000 of income is very important--it allows you to buy essentials like food and shelter. But the difference between $100,000 and $101,000 may be very minor--it allows you to buy a nicer car. Therefore, the utilitarian might argue that egalitarian distributions of resources will tend to increase total welfare--unless there is some countervailing reason such as increased incentives to produce useful goods and services that might result from unequal distributions of wealth and income.

Utilitarians are frequently criticized on the ground that they lack a principled objection to gross inequalities. Suppose, for example, that the total welfare of society could be improved by enslaving a small group. If this were the case, then utilitarians would be committed to the consequence that such slavery is "just" or "good," but this seems counter intuitive. Utilitarians can reply to this point in many ways, but one argument is that, in fact, slavery does not increase total utility, but actually is quite harmful. Critics are likely to say that this may usually be the case, but that utilitarianism falters on the exceptional cases where gross inequalities lead to net welfare gains. Of course, the argument can be extended by both sides, but you get the general idea.

Utilitarians are likely to object to Rawls's second principle--the difference principle--on the ground that it requires that we pay a huge penalty in total welfare to produce a small benefit for those who are least advantaged. For example, suppose that the average income could be increased by $10,000 per year if the income of the worst-off group were decreased by $10 per year. Utilitarians argue that it is wrong to deprive a large group of a very substantial amount of income in order to preserve a small amount of income for a small group. Once again, the arguments will go back and forth, but you can see how the issue is framed.

Egalitarianism--Another rival of justice as fairness is "strict egalitarianism." The difference principle permits inequalities of wealth and income if those inequalities benefit the worst-off group in society. For example, it it could be shown that private ownership of capital was required to produced economic growth that benefits even the poorest members of society, the difference principle might allow Bill Gates to accumulate billions of dollars while the poorest members of society subsisted on a tiny fraction of that. Strict egalitarians maintain that distributive justice requires that each person recieve the same share--even if the consequence is that everyone (including the worst-off) gets less than they could if inequalities were permitted.

It is very important to understand that egalitarianism comes in many forms--because egalitarians have different answers to the "Equality of what?" question--which we will cover below.

Desert--Yet another view of distributive justice would link distributive shares with desert or deservingness. In a very broad sense, one might say that all theories of distributive justice are desert-based. Egalitarian theories simply say that everyone deserves the same share. Fair enough! But I want to focus on a special kind of desert-based theory--one that focuses on merit or effort or some other quality as the basis for desert. For example, one might believe that wealth and income ought to be distributed in proportion to social contribution. If I work hard and create valuable goods or services, then I deserve a greater share of wealth and income, as compared with someone who makes a lessor contribution.

This kind of desert-based theory is quite different from justice as fairness, utilitarianism, or egalitarianism. This difference could be expressed in one of two ways. We might say that these other theories have a different conception of desert: for example, egalitarians may believe that each person is equally deserve of resources. Or we might say that the other theories deny the relevance of deserve; for example, egalitarians may believe that contribution-based desert is morally irrelevant.

Libertarianism--Libertarianism represents another approach to distributive justice. On the one hand, libertarians are likely to endorse some version of what Rawls called the equal liberty principle. That is, libertarians are likely to believe that each individual should have an equal right to basic liberties (or autonomy). On the other hand, most libertarians reject that the idea that there should be any principles that govern the distribution of resources. For libertarians, the distribution of wealth and income flows from the free choices made by individuals. That might result in relatively equal distribution of wealth and income, or it might result in massive inequalities. For the libertarian what matters is whether the transactions or transfers are themselves just. If I freely choose to sell you Whiteacre, and I gamble away the proceeds while you grow rich, then the resulting inequality is just because it result from voluntary transactions.

In a sense, then, libertarians reject the idea of "distributive justice" as applied to the distribution of wealth and income. At the same time, however, libertarians tend to be strict egalitarians when it comes to the distribution of basic liberty rights, because most libertarians believe that the basic liberties (freedom of conscience, self-ownership) cannot themselves be alienated.  So libertarianism can be described as a form of egalitarianism--where the it is liberty that must be equally distributed.

The Equality-of-What Debate

One of the most interesting debates in contemporary political philosphy has been a debate among egalitarians about the proper subject of equality. Suppose you are an egalitarian. You believe that each person should recieve an equal share of whatever is truly valuable. The question is: what is it that should be divided equally?

One possibility is "wealth and income." That is, we might believe that each person should be entitled to the same annual income. That answer becomes problematic, however, because different persons have different needs. Suppose that strict equality of income would produce a share of $20,000 per person per year. You are young and in good health, and can do quite well on that sum. I am elderly and in poor health; $20,000 per year will not even pay for the medical care necessary to sustain my life.

Here is another possibility. We might aim for equality of "welfare." Of course, we would need to define welfare, and that's a tough job. Let's assume that welfare is a subjective state, produced by the satisfaction of preferences. Equality of welfare might require substantial disparities in the distribution of resources. Those who are ill or developmentally disable might require a larger share of resources to produce an equal share of welfare. Even that might be problematic. For example, those with really severe needs might require enormous resources--the possibility of very expensive high technology medicine has hightlighted this possibility.

There is, however, another problem with equality of welfare. Suppose that you have simple tastes, and I have expensive tastes. You are happy with a modest house, simple food, and vacationing in the countryside. For me to achieve the same welfare level, I need a personal Gourmet chef, the finest wines and caviar, a mansion, and vacations at the Ritz in Paris. It seems quite odd to say that distributive justice requires that I get more resources than you, simply because my tastes are more expensive than yours.

I think you can alreay see how interesting and exciting the equality-of-what debate can be. Let me just mention some additional moves, and then stop. Another step would be to introduce the idea of equal opportunity. Thus, we might decide that it is not "equality of welfare" but "equality of opportunity for welfare" that should be the criterion for distributive justice. Another important theory, associated with the economist Amartya Sen focuses on the "capacities for valuable functionings" as the subject of equality.

Conclusion

This is another Lexicon entry that is both too long and too short. Too long because it is a bit much to swallow in one quick read, but too short because the topic of distributive justice requires many multiples of the words devoted to it here--for even a short treatment. Nonetheless, I hope I have provided enough of an introduction to get you thinking!

I've included a short bibliography and some links to other resources on the Internet!

Bibliography

Ackerman, Bruce, Social Justice in the Liberal State (1980)

G.A. Cohen, Rescuing Justice and Equality (2008)

John Locke, Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought) (1988)

Robert Nozick, Anarchy, State, & Utopia (1974)

John Rawls, Justice as Fairness: A Restatement (2001)

John Rawls, A Theory of Justice (1971)

Jean-Jacques Rousseau, 'The Social Contract' and Other Later Political Writings (Cambridge Texts in the History of Political Thought) (1997)

Links

Fred D'Agostino, Contemporary Approaches to the Social Contract, Stanford Encyclopedia of Philosophy

Ann Cudd, Contractarianism, Stanford Encyclopedia of Philosophy

Julian Lamont, Distributive Justice, Stanford Encyclopedia of Philosophy

Fred D'Agostino, Original Position, Stanford Encyclopedia of Philosophy

Amartya Sen, Equality of What (PDF)

(This entry was last revised on November 9, 2008.)

Legal Theory Lexicon 048: Libertarian Theories of Law

Introduction

The dominant approaches to normative legal theory in the American legal academy converge on fairly robust role for the state and government subject to the constraints imposed by an equally robust set of individual rights. Normative legal theorists of all stripes--conservatives and liberals, welfarists and deontologists—tend to agree that the institution of law is fundamentally legitimate and that the legal regulation has a large role to play. There is, however, a counter-tradition in legal theory that challenges the legitimacy of law and contends that the role of law should be narrowly confined or even eliminated. This entry in the Legal Theory Lexicon will examine libertarian theories of law. As always, the Lexicon is aimed at law students—especially first year law students—with an interest in legal theory.

The libertarian tradition of social, political, and legal thought is rich and varied, no brief summary can do it justice. So the usual caveats apply. This is a brief introduction to libertarian thought with an emphasis on its role in normative legal theory. Debates about the true meaning of the term “libertarian” will largely be ignored, and will disputes over the advantages of “liberalism,” “classical liberalism,” and “libertarianism” as the best label for libertarian ideas. Enough with the caveats, here we go!

Historical Roots of Contemporary Libertarianism

One good way to approach contemporary libertarian legal theory is via its historical roots. A good place to begin is with John Locke’s conception of the social contract.

John Locke and the Social Contract

The idea of a “social contract,” by which individuals in a state of nature contract with each other (or with a sovereign) to enter a “civil society” is one of the most important in all of political philosophy. Hobbes, Rousseau, and Locke all have distinctive theories of the social contract, but Locke’s version has been especially salient—both to libertarian theory and American constitutionalism. For the purposes of this discussion, the crucial point is that a legitimate (or perhaps just) civil society has authority that is limited to those powers that the citizens-to-be would agree to delegate to the government in a social contract. Locke himself argued that the inconveniences of the state of nature would motivate a social contract that delegated to the government the power to protect property—understood in a broad sense that encompasses personal security and liberty—and the power to resolve disputes. But the Lockean social contract would not authorize government to restrict fundamental liberties or to take property from one citizen and transfer it to another. Of course, there is much more to say about Locke, but we are concerned here only with getting the gist of those Lockean ideas that are historically important to libertarian theory.

Kant and Spheres of Autonomy

Kant also made an important contribution to libertarian theory via his idea of autonomy. There is no good way to summarize Kant’s theory of autonomy in a sentence or two, but the gist of his notion is the humans, as rational beings, have an interest in being autonomous in the sense of “self governing.” The role of law is to protect individual “spheres of autonomy” or “zones of liberty” in which individuals can act without interference from others. Suppose then, that our theory of proper legislation was that the laws should create maximum equal liberties for each, consistent with the same liberty for all. These two Kantian ideas—autonomy and maximum equal liberty—have played an important role in libertarian thinking about law.

John Stuart Mill and the Harm Principle

John Stuart Mill was a liberal utilitarian, and so, in a sense, it is odd that he is also the author of one of the most important works in the libertarian tradition, On Liberty, a rich, complex, and easily misunderstood work. I am afraid I may be contributing to the misunderstanding by emphasizing just one idea from On Liberty--the so-called “harm principle.” Here is how Mill states the principle:

. . . the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right...The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

The harm principle is almost as controversial as it famous. In particular, there is a persistent worry about the problem of the baseline against which “harm” as opposed to “lack of advantage” might be measured.  Many libertarian theorists have recognized this problem and replace "harm" with "rights violation" as the relevant principle that defines the limits of governmental (or social) coercion.

Locke, Kant, and Mill are not the only historical influences--there is, for example, a rich tradition of anarchist thought.  Another figure worth mentioning Herbert Spencer, whose "Social Statics" famously drew Justice Holmes's fire in the famous lochner dissent.  Libertarian thought is also related to anarchism, with roots in the thought of William Godwin, Pierre-Joseph Prodhoun, and others.

Theoretical Foundations of Libertarianism

This very brief introduction to the historical roots of libertarianism in Locke, Kant, and Mill prepares the way for a discussion of the theoretical roots of libertarian legal theory. Libertarianism operates at the level of political theory: it is a view about questions like “What is the proper role of government?” and “When is coercive legislation legitimate?” Theories at this level of abstraction need foundations of some sort, either deep foundations in comprehensive moral theories like utilitarianism or shallow foundations that explain why deeper foundations are unnecessary. Let’s take a look at both sorts of foundations for libertarian legal theories.

Consequentialist Foundations

The consequentialist case for libertarianism is contingent—it depends on empirical and theoretical questions about the effects that various legal regimes have. Consequentialist libertarians believe that minimum government interference with individual liberty and free markets produces better consequences that extensive government regulation or redistribution of income. Historically, both John Stuart Mill and Adam Smith are associated with both libertarianism and consequentialism.

There are many different flavors of consequentialism, but in the legal academy, the most prominent strands of consequentialist thinking are associated with law and economics and assume a preference-satisfaction (or “welfarist”) notion of utility. Even among theorists who accept welfarism, there are major disagreements about how much and when government should regulate. But the general idea behind the consequentialist case for libertarianism is that markets are more efficient than regulation. This conclusion follows from fairly straightforward ideas in neoclassical microeconomics. Markets facilitate Pareto-efficient (welfare enhancing) transactions; regulations thwart such transactions.

Markets may lead to substantial disparities in wealth and income, but from the consequentialist perspective, such inequalities may not justify legislation that redistributes wealth and income. First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor. Of course, there is a well-known utilitarian argument for the redistribution of wealth and income based on the idea of diminishing marginal utility, but this argument might be outweighed by the massive utility losses caused by redistributive programs—providing a utilitarian argument against government-mandated redistribution of wealth and income. Second, even consequentialists who believe in some form of egalitarianism might believe that the worst off members of society will be better served by a libertarian regime than by a social-welfare state. We are already on a tangent, so I’m going to leave the topic of redistribution—noting that this is an issue upon which consequentialists themselves many differ in a variety of ways.

In contemporary legal theory, Richard Epstein is the “libertarian” thinker who is most strongly associated with consequentialist foundations. Because he is a consequentialist, Epstein may not be a pure libertarian, but on a variety of issues (e.g. antidiscrimination laws), Epstein takes strongly libertarian positions.

Deontological Foundations

Although some libertarians are consequentialists, many others look to deontological moral theory for the foundations of their libertarianism. There are many different strategies for arguing for libertarianism based on deontological premises. One method starts with the idea of self-ownership or autonomy. Each of us has a moral right to control our own bodies, free of wrongful interference by others. This might imply that each individual has a right against theft, battery, false-imprisonment, enslavement, and so forth. Of course, these rights might justify a certain kind of government—one that protects us against invasions of our rights. But when government goes beyond the protection of these rights, then government itself operates through force or threats of force. For example, the redistribution of income might be accomplished by taxing income to finance a welfare system. Taxes are not voluntary; tax payments are “coerced” via threats of violence and imprisonment. Without consent, it might be argued, these threats are wrongful actions.

In my mind, the deontological approach to the foundations of libertarian political theory is most strongly associated with the late Robert Nozick and his magnificent book, Anarchy, State, and Utopia (see reference below).

Pluralist Foundations

There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of libertarianism, because we reject the foundations.  One alternative would be to try to argue for libertarianism on the basis of all of the different moral theories, but that would obviously be a very time-consuming and difficult task.  Another approach would be to articulate shallow foundations for libertarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian.

One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- has good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.

Libertarian Agendas for Legal Reform (or Revolution!)

Even thought this is “Legal Theory Blog,” we should say something about the practical agendas of various libertarian legal theories. Let’s begin with modest libertarianism and proceed to its most radical (anarchist) forms.

Modest Libertarian Reforms: Deregulation, Privatization, and Legalization

At the very least, libertarians favor less government—as measured against the baseline of the current legal order in the United States. So, libertarians are likely to be in favor of more reliance on markets and less reliance on government. Hence, libertarians are likely to support programs of deregulation and privatization. Deregulation might include measures like abolition of consumer product safety regulations and the elimination of rent control laws. Privatization might include the federal government selling off the national park system or the Tennessee Valley Authority.

A libertarian reform agenda might also include the legalization of various forms of conduct that are currently prohibited. Examples of this kind of reform might include the legalization of recreational drugs, the end of prohibitions on various consensual sexual activities, and the elimination of restrictions on gambling and prostitution.

Comprehensive Libertarian Reform: The Night-Watchman State

A more ambitious libertarian agenda might be the establishment of what has been called the night-watchman state. The idea is that government would limit its role to the protection of individual liberty. Government would continue to provide police protection, national defense, and a court system for the vindication of private rights (property, tort, and contract rights, for example), but nothing else. In other words, the function of law would be limited to those activities that are necessary for the protection of private property and liberty.

The difference between the advocacy of modest and comprehensive libertarian reform may be more a matter of tactics than of principle. One might believe that there is no realistic chance of a transition to a night-watchman state. Those who advocate such comprehensive reform may undermine their own political effectiveness by sounding “radical.” So as a matter of practical politics, it may be that libertarians are most effective when they advocate marginal reforms that move the system incremental in libertarian directions.

Libertarian Revolutions: Anarchy and Polycentric Constitutional Orders

Some libertarians advocate an agenda that is even more radical than the night-watchman state. One might question whether there is a need for the nation state at all. One version of this more radical approach is pure anarchism—the view that no government is necessary because individuals can coexist and cooperate without any need for state action. Another variation of this idea is sometimes called a “polycentric constitutional order.” The idea is that individuals could subscribe to "competitive legal systems and law enforcement agencies" that would provide the police and adjudication functions of the night watchman state. Such a society would have entities that functioned like governments in some ways—with the important exception that individuals would enter into voluntary agreements for their services.

The Rivals of Libertarian Legal Theory

Libertarian theory can be criticized in a variety of ways. Sometimes the disagreement is mostly empirical: libertarians believe that life without the state would be better, and anti-libertarians believe it would be worse. But sometimes the critics of libertarianism have a radically different vision of the fundamental purposes of government. One such rival is egalitarianism—the view the distributive justice requires that goods (let’s leave the definition of good at the abstract level) should be divided equally, and that the creation of social equality is the primary aim of government. Some libertarians might accept this goal, but argue that maximum liberty is the best way to achieve it. Other libertarians might argue that liberty is the good that should be equally divided. But many libertarians see equality as the wrong goal for government. That is, sometimes libertarians and egalitarians differ fundamentally over the purpose of government.

Another rival to libertarianism is the view that legislation should aim at the promotion of virtue in the citizenry. If one believes that the aim of government is to make humans into better people, then one is likely to see a variety of restricts of liberty as justified. (Let’s call views that see virtue as the end of government “aretaic political theories.”)

Aretaic political theorists are likely to disagree with libertarians over what might be called “moral legislation.” For instance, one might believe that legal prohibitions on gambling, drugs, and prostitution are justified because they help promote a moral climate where most citizens don’t want to engage in these activities. Many libertarians would say it is simply not the business of government to decide that a taste for gambling is a bad thing; whereas many virtue theorists are likely to say that this is precisely the sort of work that governments should be doing.

Conclusion

Libertarian legal theory is interesting on the merits—as one of the most significant normative theories of law. But there is another important reason for legal theorists to be interested in libertarianism even if they ultimately reject it. Libertarian legal theories call into question the very purpose of law and government. A really careful evaluation of libertarianism requires that one form views about the function of law and the purposes of government, and to confront a variety of criticisms of conventional views about those topics. For that reason, thinking about libertarian legal theory is an excellent way of thinking about the most fundamental questions in normative legal theory.

Once again, this entry is bit too long, but I hope that I’ve provide a good starting point for your investigations of libertarianism. I’ve provided a very brief set of references for further exploration.

References

Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Oxford University Press, 1998).

Richard A. Epstein, Skepticism and Freedom : A Modern Case for Classical Liberalism (Chicago: University of Chicago Press, 2003).

Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1977).

 

 

(This entry was last revised on November 2, 2008.)

Legal Theory Lexicon 047: The Counter-Majoritarian Difficulty

Introduction

The counter-majoritarian difficulty may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous book The Least Dangerous Branch. Whatever Bickel actually meant by the phrase, it has now taken on a life of its own. The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after Bickel’s naming of this problem, it dominated constitutional theory.

This entry in the Legal Theory Lexicon explores the counter-majoritarian difficulty, efforts to solve the problem and to dissolve it. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. As is frequently the case with the Lexicon, we will explore a very big topic in just a few paragraphs. Many articles and books have been written about the counter-majoritarian difficulty; we will only scratch its surface. Moreover, any really deep discussion of the counter-majoritarian difficulty would lead (sooner or later) to almost every other topic in constitutional theory. The Lexicon is “quick and dirty,” and definitely not deep, comprehensive, or authoritative.

Democracy and Majoritarianism

The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacy (see the Legal Theory Lexicon entry on Legitimacy ). We all know the basic story: the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.” Of course, it isn’t that simple. Among the complexities are the following:

• There are many different theories of democratic legitimacy, and only some of them emphasize “majoritarianism” as the key factor.
• Some theories of democratic legitimacy rely on the idea of “consent of the governed,” but it is very difficult to mount an argument for actual consent to existing majoritarian institutions or their actions.
• The idea of “legitimacy” is itself deeply controversial and might even be called obscure. What legitimacy is and why it is important are themselves deep and controversial questions.

Despite these complexities, most of us have a rough and ready appreciation for the idea that actions by democratic majorities have some kind of legitimacy that is lacking in the actions of unelected judges. At any rate, that idea is the normative foundation of the counter-majoritarian difficulty.

Constitutional Limits on Majoritarianism

The counter-majoritarian difficulty is sometimes characterized as a problem with the institution of judicial review, but it could also be understood as a difficulty for any constitution that constrains majority will. Of course, there could be constitutions that impose no limits at all on the will of democratically elected legislatures. For example, a regime of unicameral parliamentary supremacy might be said to have a constitution that allows a parliamentary majority to pass any legislation that it pleases and to override the courts or executive whenever the legislature is in disagreement with their actions. Of course, even this simple constitution might constrain the legislature in a certain sense.  Legislation that attempts to constrain the action of a future legislature might be “unconstitutional.” Another example might be legislation that abolishes elections and substitutes a system of self-perpetuating appointments. Similarly, a legislature might pass a “bill of rights” that purports to bind future legislatures, even in the absence of an institution of judicial review.

The Institution of Judicial Review

Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for a regime that incorporates the institution of judicial review incorporating judicial supremacy. In the United States, for example, the courts have the power to declare that acts of Congress are unconstitutional, and if the Supreme Court so declares, the Congress does not have the power to override its decision.

The institution of judicial review is counter-majoritarian in part because federal judges are not elected and they serve life terms. Presidents are elected every four years; members of the House of Representatives every two years; and Senators serve staggered six year terms. Of course, judges and justices are nominated by the President and confirmed by the Senate and these features create some degree of democratic control of the judiciary. Nonetheless, on the surface, it certainly looks like judicial review is an antidemocratic institution. Unelected judges strike down legislation enacted by elected legislators: that is certainly antidemocratic and antimajoritarian in some sense.

The counter-majoritarian difficulty is compounded by the nature of judicial review as it has been practiced by the modern Supreme Court. If the Supreme Court limited itself to enforcing the separation of powers between the President and Congress or to the enforcement of the relatively determinate provisions of the constitution that establish the “rules of the game” for the political branches, then the counter-majoritarian difficulty might not amount to much. But the modern Supreme Court has been involved in the enforcement of constitutional provisions that general, abstract, and seemingly value laden—examples include the freedom of speech, the equal protection clause, and the due process clause of the constitution. The counter-majoritarian difficulty seems particularly acute when it comes to so-called “implied fundamental rights,” like the right to privacy at issue in cases like Griswold v. Connecticut and Roe v. Wade.

Answering the Countermajoritarian Difficulty

How have constitutional theorists attempted to answer the counter-majoritarian difficulty? The problem with answer that question is that there are so many answers that it is difficult to single out three or four for illustrative purposes. So remember, the “answers” that are discussed here are arbitrary selections from a much longer list.

Discrete and Insular Minorities One famous answer to the counter-majoritarian difficulty focuses on the idea of “discrete and insular minorities.” The background to this answer is the premise that in the long run, most individuals win some and lose some in the process of democratic decision making. Shifting coalitions among various interest groups “spread the wealth” and the pain—no one wins all the time or loses all the time. Or rather, normally wins and losses are spread across the many different groups that constitute a given political society. However, there may be some groups that are excluded from the give and take of democratic politics. Some groups may be so unpopular (or the victims of such extreme prejudice) that they almost always are the losers in the democratic process. The famous “Footnote Four” of the United States Supreme Court’s decision in the Carolene Products case can serve as the germ of an answer to the counter-majoritarian difficulty. Judicial review is arguably legitimate when it serves to protect the interests of “discrete and insular minorities” against oppressive actions by democratic majorities.

Anti-Democratic Political Theory Another answer to the counter-majoritarian difficulty admits that judicial review is antidemocratic but seeks to justify this feature by appeal to some value that trumps democratic legitimacy. This isn’t really just one answer to the difficulty—it is a whole lot of answers that share a common feature—the appeal to anti-democratic political values. For example, it might be argued that “liberty” is a higher value than “democracy” and hence that judicial review to protect liberty is justified. Or it might be argued that “equality” is a higher value, or “privacy,” or something else. Obviously, there is a lot more to be said about this kind of answer to the counter-majoritarian difficulty, but for the purposes of this Lexicon entry, this incredibly terse explanation will have to suffice.

Dualism and High Politics Yet a third approach to the counter-majoritarian difficulty attempts to turn the problem upside down—arguing that judicial review is actually a democratic institution that checks the antidemocratic actions of elected officials. Whoa Nelly! How does that work? This third approach is strongly associated with the work of Bruce Ackerman—perhaps the most influential constitutional theorist since Alexander Bickel. Ackerman’s views deserve at least a whole Lexicon entry, but the gist of his theory can be stated briefly. Ackerman argues for a view that can be called “dualism,” because it distinguishes between two kinds of politics—“ordinary politics” (the kind practiced every day by legislators and bureaucrats) and “constitutional politics.” What is “constitutional politics”? And how is it different from “ordinary politics”? Ackerman’s answers to these questions begin with the idea that ordinary politics isn’t very democratic. Why not? We all know the answer to that question. Ordinary politics are dominated by self-interested politicians and manipulative special interest groups. The people (or “We the People” as Ackerman likes to say) don’t really get involved in ordinary politics, and therefore, ordinary politics are not really very democratic. Constitutional politics, by way of contrast, involve extraordinary issues that actually “get the attention” of the people. For example, the ratification of the Constitution of 1789 caught the attention of ordinary citizens, as did the Reconstruction Amendments (the 13th, 14th, and 15th) following the Civil War. When “We the People” become engaged in constitutional politics, we are giving commands to our agents—Congress and the President—and the Courts are merely enforcing our will when they engaged in judicial review—so long as they are faithful to our commands.

Ackerman’s theory emphasized the idea of distinct regimes that resulted from “constitutional moments”—periods of intense popular involvement in constitutional politics. Recently, Jack Balkin and Sandy Levinson have advanced a similar theory—which emphasizes that idea of “high politics”—the great popular movements that seek to influence the decisions of the Supreme Court on issues like abortion or affirmative action. I can’t do justice to their theory here, but the idea is that the Supreme Court may be responding to democratic pressures when it makes the really big constitutional decisions.

Dissolving the Counter-Majoritarian Difficulty

So far, I’ve been discussing responses to the counter-majoritarian difficulty that operate within normative constitutional theory. There is another important line of attack, however. The counter-majoritarian difficulty rests on a positive (factual) assumption—that the Supreme Court does, in fact, act contrary to political majorities. Some political scientists have argued that this positive assumption is incorrect—that the Supreme Court rarely, if ever, acts contrary to the wishes of the dominant political faction. There could be many reasons for that—one of them being the Supreme Court’s awareness that if it were to buck Congress and the President, it is vulnerable to a variety of political reprisals. Congress might strip the Court of jurisdiction. Ultimately, the President might simply refuse to cooperate with Court’s decisions.

There is another side to this story. There may be reasons why elected politicians prefer for the Supreme Court to “take the heat” for some decisions that are controversial. When the Supreme Court acts, politicians may be able to say, “It wasn’t me. It was that darn Supreme Court.” And in fact, the Supreme Court’s involvement in some hot button issues may actually help political parties to mobilize their base: “Give us money, so that we can [confirm/defeat] the President’s nominee to the Supreme Court, who may cast the crucial vote on [abortion, affirmative action, school prayer, etc.].” In other words, what appears to be counter-majoritarian may actually have been welcomed by the political branches that, on the surface, appear to have been thwarted.

Conclusion

Once again, I’ve gone on for too long. I hope you will forgive me, and I hope that this Lexicon entry has given you food for thought about the counter-majoritarian difficulty. Below, I’ve included a list of references to articles that focus on the difficulty itself and also to some of the authors who have attempted to give answers to Bickel’s famous problem.

References This is a very incomplete list, emphasizing the works that are focused on “the counter-majoritarian difficulty” in particular and omitting many important works of constitutional theory that deal with the counter-majoritarian difficulty as part of a larger enterprise.

• Bruce Ackerman, We the People: Foundations (1993) & We the People: Transformations (1998).
• Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045 (2001).
• Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-18 (2d ed. 1986).
• Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 Geo. Wash. L. Rev. 1373 (1998)
• Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. Rev. 933 (2001).
• Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 334 (1998).
• Barry Friedman, The History Of The Countermajoritarian Difficulty, Part II: Reconstruction's Political Court , 91 Geo. L.J. 1 (2002).
• Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Three: The Lesson Of Lochner, 76 N.Y.U. L. Rev. 1383 (2001).
• Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. Pa. L. Rev. 971 (2000).
• Barry Friedman, The Birth Of An Academic Obsession: The History Of The Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002).
• Mark Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 Studies in American Political Development 35 (1993).
• Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004).
• Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995).

(This entry was last revised on October 24, 2008.)

Legal Theory Lexicon 046: Legitimacy

Introduction

Legitimacy. It’s a word much bandied about by students of the law. “Bush v. Gore was an illegitimate decision.” “The Supreme Court’s implied fundamental rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not have a legitimate basis in international law.” We’ve all heard words like these uttered countless times, but what do they mean? Can we give an account of “legitimacy” that makes that concept meaningful and distinctive? Is “legitimacy” one idea or is it several different notions, united by family resemblance rather than an underlying conceptual structure.

This entry in the Legal Theory Lexicon theory will examine the concept of legitimacy from various angles. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Normative and Sociological Legitimacy

Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs--about what attitudes people have. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false empirical beliefs or incorrect value premises. The opposite can be true as well: a controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been a legitimate decision.

Conceptions of Legitimacy

Concepts and Conceptions--The distinction between normative and sociological legitimacy is important, but, by itself, it doesn’t get us very far. What does “legitimacy” mean? How is “legitimacy” different from “justice” or “correctness”? Those are deep questions—deserving of a book-length answer. My general policy in the Lexicon series is to steer a neutral course—avoiding controversial assertions about debatable matters of legal theory. But when it comes to legitimacy, it is difficult to stick to this plan. The difficulty is not so much that legitimacy is the subject of a well-defined debate; rather, the problem is that the concept of legitimacy is usually ill-defined and undertheorized.

So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization. Let’s take a look at four different notions of legitimacy.

Four Conceptions of Legitimacy

Legitimacy as Democratic Process--One very important and influential idea of legitimacy is connected with democratic procedures. Let’s begin with a simple example. Suppose you belong to a small-scale organization of some kind—maybe a law-school faculty. The executive of the organization can take various actions on her own authority, but there are some matters that must be decided by democratic procedures. For example, suppose the Dean of a law school decided that all first-year classes should be taught in small-groups with cooperative-learning techniques and without the traditional case method and Socratic questioning. This might be a marvelous innovation. (I’m not saying it would be.) But if the Dean made the decision without the input of the faculty (or a vote of the faculty), then it is quite likely that there would be vociferous opposition to the new organization of the curriculum on the grounds that the Dean’s decision lacked democratic legitimacy.

Let’s take a more familiar example. Federal judges are not directly elected. They are appointed for life terms. Although the President (who nominates federal judges) and the Senate (which confirms them) are both elected bodies, the judges who sit at any given time have an indirect and diffuse democratic pedigree. Moreover, there life terms make them relatively insular. So there is a question of legitimacy about the institution of judicial review. Does the fact that Supreme Court Justices are not elected make it illegitimate for them to invalidate actions taken by elected officials? Of course, that’s a big question. For our purposes, the important point is that the question itself is one of democratic legitimacy.

Legitimacy as Legal Authority--Another conception of legitimate seems to focus on legal authority. For example, when President Truman ordered the seizure of the steel mills during the Korean War, there was not question but that he had been elected in 1948. But despite the fact that Truman was elected democratically, there was still a question about the legitimacy of his action. Even if his action was democratic, it may not have been legal. When an official acts outside her sphere of legal authority, we sometimes say that here decision was “illegitimate.” When we use “legitimacy” in this way, we seem to be relying on the idea that legitimacy is connected to legal authority. Actions that are not legally authorized are frequently called “illegitimate” whereas actions that are lawful are sometimes seen as legitimate for that reason.

Legitimacy as Reliability--Yet another theory ties legitimacy to the reliability of the process that produces the decision. To see the point of the “reliability conception” of legitimacy, we need to step back for a moment. There is a difference between the “correctness” or “justice” of a decision, on the one hand, and its “legitimacy” on the other. Indeed, this seems to be a crucial feature of “legitimacy.” We think that an incorrect decision can nonetheless be legitimate, whereas a correct decision can lack legitimacy.

Reliability theories acknowledge this “gap” between legitimacy and justice, but insist that there is nonetheless a strong connection between the two. The idea is that legitimacy requires a decision making process that meets some threshold requirement of reliability. So tossing a coin would not be a legitimate method for deciding legal disputes. Even if the coin toss came out the right way and the party that would have won in a fair trial did win the coin toss, the decision that resulted from the flip of a coin would be criticized as illegitimate.

One important example of a reliability theory of legitimacy is found in Randy Barnett’s book, Restoring the Lost Constitution. Barnett argues that the legitimacy of a constitution depends on its reliability in producing just outcomes. A legitimate constitution guarantees a tolerable level of justice. A constitution that does not provide such a guarantee is illegitimate—or so Barnett argues.

The Liberal Principle of Legitimacy Let’s do one more theory of legitimacy. John Rawls’s has advanced what he called “the liberal principle of legitimacy.” Here is how Rawls states the principle:

[O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.”

Unpacking Rawls’s principle could take a whole article, but let me make three observations:

• The distinctive feature of the principle is that it makes reasons count. That is, the principle bases legitimacy on reasonable endorsement “in the light of principles and ideals acceptable to . . . common human reason.” Readers of past lexicon entries will note that Rawls’s is referring her to his idea of public reason.
• The principle does not require that citizens actually endorse the constitutional essentials. Rather, the requirement is that citizens “may reasonably be expected to endorse” the constitutional essentials. In other words, the constitutional essentials must be justified by public reasons in such a way that the justification is one that reasonable citizens could be expected to accept.
• Citizens are asked to endorse the constitutional essentials “as free and equal”. That is, the principle assumes a certain political conception of citizens as free and equal members of society. The reasons are addressed to citizens conceived in this way, and not to citizens as they are, if that includes their rejection of the notion that each and every citizen should be regarded as a free and equal member of society.

Rawls’s liberal principle of legitimacy point us in the direction of a whole family of ideas about legitimacy. Rawls’s principle is tied to his idea of public reason, but we can imagine other theories of legitimacy that include particular kinds of reasons as legitimating or exclude categories of reasons as illegitimate.

Competing versus Complementary Conceptions

We began our investigation of various conceptions of legitimacy with the working hypothesis that these would be “competing conceptions,” i.e., that only one of these theories of legitimacy could be correct for a given domain of application. Now, let’s take a second look at that assumption.

Is it really the case that the various conceptions of legitimacy compete with one another? There is another possibility—that some (or all) of these conceptions are complementary. For example, we might say that a given judicial decision has legitimacy in the sense that it was made by legally authorized officials, but that the same decision lacks democratic legitimacy, because it was made by unelected judges contrary to the will of democratically elected legislators. If this way of talking is sensible, then it may be the case that the various conceptions of legitimacy do not compete with one another, but rather exist in some sort of complementary relationship.

Conclusion

We’ve barely scratched the surface, but I hope this entry has given you food for thought about the idea of “legitimacy.” My own sense is that one should be very wary about deploying the idea of legitimacy. Because legitimacy has different senses and is undertheorized, it is very easy to make claims about legitimacy that are ambiguous or theoretically unsound.

(This entry was last revised on October 12, 2008.)

Legal Theory Lexicon 045: The Attitudinal Model and the New Institutionalism

Introduction

The legal academy is not the only locus for serious study of the law. Legal phenomena are examined in a variety of other disciplines—ranging from philosophy and sociology to history and anthropology, but political science (or “politics” or “government”) is the academic discipline that is most strongly associated with the study of law outside of the law schools. (Indeed, at one time political science departments sometimes were departments of public law.)  This entry in the Legal Theory Lexicon introduces two distinctive traditions for the study of the law from the perspective of political science. The first of these is the so-called “attitudinal model”—an approach that views courts—especially the United States Supreme Court—as policymaking institutions that are similar to legislatures and administrative agencies. The second approach is sometimes called “the new institutionalism” and it integrates a concern for legal doctrine and rules with other social science tools.

As always, this entry in the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Many of you were political science majors, and this may be “old hat” to you, but others will be exposed to these ideas for the first time. A word of warning: the dominant response of the legal academy to the study of law by political scientists is ignorance.

It may seems strange, but it is nonetheless true that many law professors have barely heard of the attitudinal model and would have to guess what the “new institutionalism” might be. Don’t make this mistake. Political scientists bring a rich set of tools and concepts to legal theory, and the legal academy has much to learn from them. One more thing: this entry discusses only a small portion of the political science that is relevant to the study of law. Political science includes many different approaches—including rational choice and game theoretic approaches that have much in common with what is called “law and economics” in the legal academy.

The Legal Model and the Attitudinal Model

Suppose you were a political scientist and you wanted to explain and predict the behavior of a court—for example, the United States Supreme Court. What variables would serve as the best predictors? One possibility is that you would seek to predict Supreme Court decisions using legal concepts. For example, you might use the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation. Let’s call this approach to the explanation and prediction of legal decisions, the “legal model.”

Even first-year law students are likely to see that the legal model may not do a very good job of predicting the outcome of appellate cases in courts of last resort. Once you study constitutional law, you are likely to learn that decisions of the contemporary Supreme Court are rarely based on a simple application of preexisting legal rules to the facts (as they are presented to the Court given the procedural posture of the case). Instead, contemporary legal education is likely to emphasize the political dimension of the Supreme Court—with liberal, moderate, and conservative Justices lining up in more or less predictable patters, especially with respect to certain politically-charged issues—implied fundamental rights, federalism, and criminal procedure, for example.

A very simple version of the attitudinal model could be based on the notion that judges and decisions occupy a "position" in an attitudinal "space."  What does that jargon mean?  Suppose that attitudes about political ideology exist on a continuum from "left" (most liberal) to "right" most conservative.  This space could be represented as a "real line," with its origin at the most conservative extreme and its terminus and the most liberal extreme.  The political ideology of judges could be represented as a point (or position) on that line.  We could then imagine that outcomes in cases also occupy a position on the line.  The attitudinal model hypothesizes that a judges political ideology (or position in attitudinal space) will predict the way that the judge decides cases.

So we have two models of judicial decisionmaking: the legal model and the attitudinal model.  Which model does a better job of predicting judicial behavior? If we limit our attention to the United States Supreme Court, it looks, at first blush, like the attitudinal model “beats the pants” off the legal model. But appearances may be deceiving. The United States Supreme Court does not hear very many “easy cases”—cases in which the application of preexisting legal rules control the outcome of the dispute. Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. Instead, the Court tends to focus on those cases in which the law is uncertain, the lower courts are divided, or there is a perceived need for a change in the law. Moreover, cases which are controlled by clear rules of law are usually settled. It is extremely rare for a party to spend the hundreds of thousands of dollars required to litigate a case to the Supreme Court on a sure-fire loser!

There is another reason why we would not expect the Supreme Court’s decisions to be predicted by a simple “legal model.” The Court does not consider itself bound by its own prior decisions. Given that the Court has the legal power to depart from precedent, it is hardly surprising that the Court does not behave as if it were so bound.

When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. For example, defendants will rarely pay large sums to settle claims that have no legal merit. Of course, this point needs to be qualified in various ways. If a case has sufficient merit to get to a jury, it may have settlement value, even if an “ideal” jury would find against the plaintiff. Similarly, litigation itself is costly, and meritless claims may have “nuisance value” so long as they cannot be thrown out of court at an early stage—by a demurrer or motion to dismiss for failure to state a claim upon which relief can be granted.

More broadly, most legal practitioners (lawyers and judges, for example) are likely to think that a very simple attitudinal model is missing something. Even if politics is important and legal doctrine is not the only important factor that shapes legal behavior, any story about legal institutions that leaves the law out of the story seems to be missing something that is crucially important—both to the understanding of the law and to understanding American politics.

The Attitudinal Model and Positive Political Theory

From one point of view, the attitudinal model hasn't been "state of the art" in political science for quite some time.  Appellate Courts are multi-member bodies, and they interact with other institutions, including legislatures and the executive.  Even if individual judges prefer that their decisions match their "ideal point" in ideological space, they may not be able to achieve that result given the need to garner a majority.  Of course, this is exactly the sort of problem that can be modeled by game theory.  Political scientists use the term "positive political theory" or "PPT" as the name for rational-choice and game theoretic approaches to political problems.

The key insight that PPT adds to the attitudinal model is simple.  Judges will join an opinion that departs from their ideal point if it moves the law from the status quo to a point that is closer to the judges ideal point.  This approach can be extended to the interaction between the judiciary and other political institutions.  For example, if the Supreme Court interprets a statute in a way that is contrary to the preferences of the key players in the legislative process (Congress and the President), then we might expect legislation to override the decision.  Whether the override will pass depends on the "veto gates"--the points at which legislation can be stopped.  If the Supreme Court were rational and were fully informed about the preferences of legislators, then we might predict that the Court will avoid decisions that would trigger legislative overrides, but move the law just short of that point.

The New Institutionalism

And that brings us to what is sometimes called “the new institutionalism,” a somewhat eclectic movement within political science that seeks to integrate legal doctrine and the distinctive character of legal institutions in political-science approaches to the study of law. When I say “somewhat eclectic,” I mean that there is no single methodology or doctrine that characterizes all of the work that fits under the “new institutionalism” umbrella. And of course, the name of this approach, the new institutionalism, points backwards to an old institutionalism—the approach commonly associated with figures like Corwin and McCloskey (and more recently with Martin Shapiro). One way to look at the work in the “new institutionalist” tradition is to use the distinction between internal and external perspectives that is familiar to legal theorists.

From the internal perspective, new institutionalist work is work that takes “the law,” broadly defined to include legal institutions, concepts, categories, and doctrines seriously. But new institutionalist work is not the same as doctrinal legal scholarship. The new institutionalists situate “the law” in political contexts. Where a doctrinalist analysis aims at producing a restatement of a legal rule, institutionalists are more likely to be focused on an elaboration of the development of legal thought in a wider social context.

From the external perspective, new institutionalists are interested in the causal influences on and of legal phenomenon. Some new institutionalists embrace the attitudinal model as a starting point for their analysis, whereas others may be more critical of attitudinalism, but any work that looks at law from the external perspective will step outside of legal doctrine and ask questions about the causal influences that shape legal institutions.

Conclusion

It is hardly surprising that a brief Lexicon entry cannot do justice to a whole body of work. The best way to learn about the attitudinal model and the new institutionalism is to read some work. If I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law!

Bibliography

Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).

Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993).

Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).

Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964).

Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001).

Rogers Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 American Political Science Review 89-108 (1988). (available on JSTOR, follow this link.)

Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999).

The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999).

 

(This entry was last revised on October 11, 2008.)

Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law

Introduction

The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is “jurisprudence” a synonym for “philosophy of law” or are these two overlapping but distinct fields? Is “legal theory” broader or narrower than jurisprudence? And why should we care about this terminology?

As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory.

Who Cares About Terminology

Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.”

Disciplinary Lines and Theorizing About Law

Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many "philosophers of law" have formal philosophical training, but some were trained in law or political theory in a political science department.

So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovering John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that.

Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory remains. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view.

What can we say about our three terms—jurisprudence, philosophy of law, and legal theory?

Jurisprudence

My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root.

Philosophy of Law

The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory” and closely related to political philosophy.  Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other.  (In both cases, the list of names is arbitrary and illustrative--we could add Coleman or Finnis or drop Donaldson or Wittgenstein and still refer to the same set of central tendencies.)

Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links).

The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy.

My sense of the "lay of the land" is that debates over the "What is Law?" question have recently become more exciting (Scott Shapiro's work is just one example)--but in my opinion the center of attention has shifted from the nature of law to normative legal theory.  A variety of potentially exiting developments that are very recent include the emergence of experimental jurisprudence and explorations of the connections between metaethics and metajurisprudence.

Legal Theory

Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic.

Conclusion

When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use.

Bibliography

Lon Fuller, Postivism & Fidelity to Law: A Reply to Professor Hart, 71 Harvard Law Review 630 (1958).

H.L.A. Hart, The Concept of Law (2d ed. 1994).

H.L.A. Hart, Positivism and the Separation of Law & Morals 71 Harvard Law Review 593 (1958).

Robert Nozick, Anarchy, State, and Utopia (1974).

John Rawls, A Theory of Justice (1971) & (rev. ed. 1999).

(This entry was last revised on October 1, 2008.)

Legal Theory Lexicon 043: Formalism and Instrumentalism

Introduction

American law students learn about formalism instrumentalism early on—although those particular terms may not be introduced explicitly in classroom discussion. Many law students hunger for “black letter law,” for legal rules that can be learned and applied to the facts in a more or less determinate fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice.

In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.

But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.

In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.

Legal Formalism

What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following

Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.

In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning.  We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:

• Judges should apply the law and not make it.


• There are legal rules that constrain what legal actors may lawfully do.


• There is a difference between following the law and doing what you think is best.


• Judges should decide cases in accord with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents

This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:

1. The law consists of rules.
2. Legal rules can be meaningful in the sense that they have semantic content or linguistic meaning.
3. Legal rules can be applied to particular facts.
4. Some actions accord with meaningful legal rules; other actions do not.
5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.

Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.

Legal Instrumentalism

Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.

The Realist Critique of Legal Formalism

It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty.

The Modern Revival of Legal Formalism or Neoformalism

Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.

Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.

Because the terms "formalism" and "formalist" carry a lot of baggage, some contemporary formalists prefer to use the term "neoformalism" as a label for their position.  Likewise, some contemporary originalists refer to "the new originalism" to distinguish their position from others that are called "originalist."

Conclusion

The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.

Related Entries

The Rule of Law
Originalism
Rules, Standard, and Principles
Textualism

Bibliography & Links

Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006).

Larry Alexander, Law and Formalism.

Neoformalism, Wikipedia.

Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights

(This entry was last modified on September 27, 2008.)

Legal Theory Lexicon 042: Consent

Introduction

Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery—unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and not actionable, even if it results in serious harm. Intercourse without consent is the very serious crime of rape; intercourse with consent is quite something else.

The basic legal structure is easy to grasp. But what is consent? Why does it have the legal and moral force that it does? When is it valid and when is it invalid?

This entry in the Legal Theory Lexicon is about the idea of consent in legal contexts involving interpersonal (but not political) relationships. The entry will explore what consent is and why consent is important, both legally and morally. Our investigation will also explore the conditions under which consent might be said to be “invalid,” e.g. in cases where consent was obtained through deception, coercision, or in which the consenting person lacked capacity to give consent. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

The Ontology of Consent

What is consent? We all know about paradigm cases of consent and its absence. Consent is clearly present (ceteris paribus) when someone says “I consent” and really means it. Consent is absent when someone says, “I object” and really means it. But the ability to distinguish clear cases of consent and its absence is not sufficinet for a theory of consent.

In general, there are two families of theories about the nature of consent. One theory is that consent is a mental state—either an affective state such as desire or a volitional state such as choice. The second theory is that consent is a performative—a speech act in which one person agrees to something by communicating with another person (or persons). Each of these two approaches to consent requires some additional explanation.

Consent as a Mental State

The first possibility is that consent is a mental state. But what kind of mental state? Is a consent a willing, a wish, a desire, a choice, a preference, or something else? We can investigate two possibilities:

Consent as an Affective Mental State One possibility is that when Alice consents to be kissed by Ben, her consent consists in a certain attitude towards the kiss. For example, if Alice wants (or desires) Ben to Kiss her, then we might be tempted to say that Alice has consented to the Kiss. Another candidate for the relevant affective mental state might be preference. We might say that Alice consents to Ben’s kiss if Alice prefers Ben’s kissing her to the alternative.

Consent as a Volitional Mental State There is another possibility. It might be that consent is not attitude but a decision, choice, or willing. Thus, we might say that Alice consents to Ben’s kiss if Alice had chosen that Ben kiss her.

Affective mental states like desires or preferences are not identical to volitional mental states like choosings or decisions. To want something is different than to having chosen to do it. Of course, there may be a close relationship between affective and volitional states. For example, you might believe that when you have an all-things-considered desire to be kissed, then the choice—the choosing to be kissed—follows more or less automatically. These are deep waters that we can elide for the purposes of this bare-boned introduction to the idea of consent.

Consent as a Performative

It is not clear that our ordinary language conception of consent can be reduced to a mental state. Consent is both a noun and an intransitive verb. Thus, we say things like, “I consent” or “He consented to having his name put forward in nomination.” When used in this way consent seems to be some kind of action, accomplished through communication.  Consent could be a performative--a communicative act in which the speaker communicates permission for or agreement to a course of action.

So which is it? Is consent a mental state or a communicative action? This is not the sort of question that can be resolved by a Legal Theory Lexicon entry. My opinion is that the performative theory best captures the ordinary language conception of consent. One reason I think so is that the idea of secret consent—which would be a perfectly alright if consent is a mental state—doesn’t seem to comport with our usual way of talking about consent. “I consented to the operation, but I didn’t tell anyone”—sounds quite odd to my ear.

The law goes both ways, however, and the legal notion of consent may vary with context.  Thus, in the criminal law, "legal consent" may be a mental state, whereas in torts or contracts "legal consent" may be a performative.

The Moral and Legal Force of Consent

Assuming we knew what consent is, we can ask the further question, “What legal and moral effect does consent have and why?

The Normative Significance of Consent

Sometimes it is said that consent works moral magic. What does that mean? The idea is that consent has a transformative moral power: consent can transform a wrongful action into a rightful action. Batteries are both morally wrong and and subject to legal sanctions (both criminal and civil), but consent somehow drains the punch of its moral and legal offense. Taking my property with the intent of permanently depriving me of use and enjoyment is theft, but taking my property with consent is simply accepting a gift.

Why Does Consent Have Moral and Legal Force

Once we recognize that consent does have some kind of transformative moral and legal force, the next question we might ask is why? There are lots of way to approach the question why consent has moral force. For example, we might approach the question from the perspectives of the major families of moral theories. Let’s give that a whirl.

Autonomy and Consent--Some moral theories make “autonomy” a central moral idea. Of course, autonomy isn’t easy to describe—especially in a sentence or so. We might say that the core idea of autonomy is self-direction or self control. An autonomous person is one who directs her own life, and not someone whose life is controlled by others. Of course, we can’t all do whatever we would like without running the risk of interfering with each other. Hence, from the idea of autonomy, we might derive the idea of moral rights and duties that create for each individual a sphere of autonomous action, in which each individual can direct her own life without interfering with the like freedom of others to do the same. The moral force of consent comes naturally if one accepts autonomy as a central moral value. Consent allows others to enter one’s sphere of autonomy. So long a consent is freely given, consented-to rights violations seem perfectly consistent with the idea that rights protect a sphere of individual choice.

Utility and Consent--Can utilitarians account for the moral force of consent? Of course, for a utilitarian, consent really can’t be said to be “moral magic.” For utilitarians, the bottom line question is whether a particular state of affairs involves greater utility than the alternatives. So, on the surface, it might seem like consent is not, per se, morally relevant. Consent is just a fact; only good and bad consequences are morally significant.

But it is more complicated than that. There are many possible forms of utilitarianism, and one dimension of variation concerns the various conceptions of utility. One important form of utilitarianism holds that there utility consists in the satisfaction of preferences. Suppose that one also believed that consent was the mental state of preferring the consented-to action to the alternatives. If no third parties were affected (and assuming that consent was freely given on the basis of adequate information), then the consented-to activity would maximize utility. So for at least some utilitarians, consent would be presumptive evidence that the consented-to action would maximize utility and hence be the morally best action.

Virtue and Consent--Consent will also be relevant to aretaic (or virtue-based) moral theories. One of the virtues is justice, and humans with this virtue will not violate the rights of others without their consent. Virtue ethics differs from deontological and utilitarian theories in part because virtue ethics denies that there is any decision procedure for ethics. That is, a virtue ethicist is unlikely to believe that consent can work “moral magic,” but instead is likely to believe that the moral salience of consent is contextual—depending on the particular circumstances of the case. Virtue ethics is also likely to ask the question whether the person given the consent is a virtuous agent. Humans without the virtues are likely to give consent when they shouldn’t—when, for examploe, the consented-to action might actually cause unjustified harm to the fortunes or capacities of the consenting agent. In such circumstances, virtue ethics might deny that consent works moral magic. A virtuous agent might regard herself as obligated not to take advantage of consent—despite the fact that the consent was freely given by an agent who meets the legal standard of competence in circumstances without coercion or deception.

Valid and Invalid Consent

We have one more important topic to consider. Consent may be invalid. Let’s explore three kinds of reasons for concluding that consent is invalid, and hence that consent does not transform the legal or moral situation: (1) deception, (2) coercion, and (3) incapacity.

Deception--Consent obtained by deception may be invalid, either morally or legally or both. For example, if Alice consents to Ben’s kiss, because Ben tells Alice that he likes her very much, but Ben in fact does not like Alice at all, then Alice’s consent may not be morally valid. Because Ben obtained Alice’s consent by deception, Ben is not morally authorized to kiss Alice. In this case, however, the law would not consider Alice’s consent to be legally invalid. Although Ben may be morally wrong if he kisses Alice, he will not have committeed the crime of sexual assault or the tort of battery. Legally, this kind of deception is not sufficient to invalidate Alice’s consent.

Outright fraud—intentionally making false statements about something materially relevant to the decision at hand—is the most obvious form of deception. But deception may involve nondisclosue as well as lying. If Ben fails to disclose to Alice that Ben is married, then Alice’s consent may not be morally transformative—although once again, the law will still treat Alice’s consent as legally valid.

Coercion--Consent may also be invalid because it is coerced. For example, if Alice consents to Ben’s kiss because Ben has threatened to harm her if she does, then her consent is invalid. And this is true, both morally and legally. Because consent was coerced, Ben should not kiss Alice and if he does, he will have acted tortiously and perhaps criminally as well.

One problem with coercion is distinguishing threats from offers and warnings. Consent is not invalidated because it is induced by an offer or warning, but it will be invalidated if induced by a threat. How do we differentiate threats from offers and warnings. One strategy is to specify a baseline of legal and/or moral entitlement. We call a communication promising an action in exhange for consent a threat, if the action would move the party below the baseline of entitlements. We call a communication promising an action in exchange for consent, if the action would move the consenting party above the baseline of moral and/or legal entitlements. So if Ben promises Alice that he will let her choose the movie in exchange for a kiss, that is an offer. If he promises to force Alice to watch a movie she doesn’t like if she doesn’t consent to a kiss, that is a threat.

Warnings are neither offers nor threats. One kind of warning arises when the warning party predicts consequences outside its control. If Ben predicts to Alice that she will feel silly if she doesn’t consent to a kiss, then he has warned her of a consequence, but he has neither made a threat nor an offer.  Another kind of warning involves situations in which the warning party does have control.  For example, "If you continue to smoke, I will leave the room," may be a warning rather than a threat if the warning party does not intend to change the behavior of the party being warned.

Incapacity--Consent requires capacity. For example, children cannot consent to sexual relations as a matter of law—hence, consent is no defence to a charge of statutory rape. On the other hand, children can consent to lots of things, including rough play such as wrestling. Other examples of incapacity include mental illness, profound developmental disability, or severe intoxication. If Ben consents to Alice’s taking Ben’s new Mini Cooper on a two-week road trip while Ben is completely blotto (and Alice knows this), then his consent may be invalid and hence Ben may be legally entitled to demand that Alice return his car.

Conclusion

Consent is one of those ideas that cuts across courses and theoretical approaches. We’ve barely scratched the surface of consent, but I hope that this post has provided a very basic introduction to some of the key concepts.

Links

Scott Anderson, Coercion, Stanford Encyclopedia of Philosophy

Louis Charland, Decision-Making Capacity, Stanford Encyclopedia of Philosophy

Bibliography

Alan Wertheimer, Consent to Sexual Relations. (Cambridge: Cambridge University Press 2005).

Peter Westen, The Logic of Consent (Ashgate Publishing 2004).

(This entry was last updated on March 3, 2009.  I owe thanks to Alan Wertheimer for a very helpful clarification re warnings and to Tom Bell for comments on the state of the law.)

Legal Theory Lexicon 041: Metaethics

Introduction

Suppose that we are debating a question in normative legal theory--e.g., whether gay couples should have a constitutional right to marry or whether tort law should replace the negligence standard with strict liability. In debates about what the law ought to be, two kinds of questions can arise. There are first order questions, e.g. the conventional arguments of principle or policy for and against particular legal rules. These first order questions involve issues of political morality; that is, normative legal theory involves first-order questions of normative ethics. Sometimes, however, a different sort of issue arises. Second order questions might include the following: "What do statements about what the law should be mean?" or "Are the propositions of normative legal theory objective?" These second order questions of normative legal theory are a subclass of the more general class of second order questions of moral and ethical theory. This is the domain of metaethics.

"Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions.

Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.

Metaethical Questions

Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics:

• What is the meaning of moral language? Do statements about what the law ought to be state facts or do they do something else?
• Are there moral facts or moral properties? More particularly, are there normative legal facts? If so, then can they be reduced to nonmoral properties or are they somehow different from nonmoral properties?  If they are not different do they "supervene" on nonmoral properties?
• Can we have knowledge (justified true beliefs) about what the law ought to be? If we can, how is such knowledge possible?
• What is the motivational role of moral propositions? Assuming there are moral facts, does the fact that X ought to be the law in any way provide a motive for making X the law?
• Are statements about what the law should be objective? If not, are they relative to the norms of some social group? Or subjective? Or meaningless?

Let's explore one or two of these concepts.

Cognitivism and Noncognitivism

One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false.

I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism.

Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural).

A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism.

It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important.

Moral Psychology

Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent.

For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations.

But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force.

Conclusion

Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain!

Links

• Geoff Sayre-McCord, Metaethics, Stanford Encyclopedia of Philosophy. (Highly recommended as your next stop.)
• Bibliography on Metaethics by Jimmy Lenman.

Bibliography

• Alexander Miller, An Introduction to Contemporary Metaethics (2003). This is a sophisticated introductory text that outlines classic and contemporary positions in metaethical debates.  Read this after Sayre-McCord.
• A.J. Ayer, On the Analysis of Moral Judgments in Freedom and Morality and Other Essays (1984).
• Simon Blackburn, Essays in Quasi-Realism (1993).
• Allan Gibbard, Wise Choices, Apt Feelings (1990).
• G.E. Moore, Principia Ethica (1903).

(This entry was last update on September 14, 2008.)

Legal Theory Lexicon 040: Functional Explanation in Legal Theory

Introduction

In a prior installment of the Legal Theory Lexicon, we explored the difference between Positive and Normative Legal Theories. Positive legal theory attempts to explain and predict legal behavior, especially the content of legal rules. Normative legal theory makes claims about what those rules should be. This week's post is about an important and familiar concept in positive legal theory--the idea of a functional explanation.

Why do legal rules have the form and content that they do, in fact, have? One answer to this question is based on the idea that the function of a rule can be part of a causal explanation of the content of the rule. Why does corporations law limit the liability of stockholders? One kind of answer to that question might begin: "That rule is the way it is, because it serves the interest of the capitalist class." Or, "The rule is that way, because that is the efficient rule, and common law adjudication selects for efficient rules." In other words, the content of the rule is explained (causally) by the function the rule serves.

The Idea of a Functionalist Explanation

Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait--why male peacock's have their feathers or why the elephants have trunks--we appeal to the function that the trait serves. Male peacock's have colorful feathers because that trait serves to attract female peacock's and hence the genes produce this trait are favored by evolution. Elephants have trunks, because they enable elephants to eat and drink more efficiently.

In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates.

Functionalist Explanation in the Social Sciences

Functionalist explanations are not limited to biology. Sociologists frequently explain (or, perhaps, "used to explain") social behavior on the basis of the social function that the behavior serves. Why does this group do a "rain dance"? Because the rain dance ritual serves to create social cohesion in times of stress. There is, however, a significance difference between functionalist explanation in biology and functionalist explanation in the social sciences. In biology, functionalist explanations are underwritten by a well-confirmed theory of the causal mechanism by which evolution functions. In social science, the causal mechanisms are murkier. What causal law explains how the social cohesion function of rain dances leads to their perpetuation across generations? Without an answer to questions like this, we have at least prima facie reason to be suspicious of functionalist explanations in the social sciences. This suspicion is enhanced because functionalist explanations can easily become nonfalsifiabile. In the case of biology, because evolutionary theory is well confirmed, we more or less know in advance that some functionalist explanation has got to be right--the question is which functionalist explanation is correct. In the case of social science, there is no well-confirmed general theory of social evolution (or similar nonevolutionary but functionalist theory), so it isn't necessarily the case that there is always a true functionalist explanation for any given social behavior.

Functionalist Explanations in Legal Theory

And that brings us to law. Functionalist explanations are frequently invoked in positive legal theory. That is, when we ask the question, "Why does the law have such and such content?", the answer frequently is, "Because such and such a rule functions in thus and so way." Here are some examples:

Marxist Explanations of Law--Marxist social theory relies heavily on functionalist explanation in general, and so it is not surprising that many Marxist explanations of law are functionalist in nature. "The law is such and such, because that rule serves the interest of the capitalist class." "Feudal law governing rights in land gave way to modern property law with free alienability, because that change was required by the transition from the feudal mode of production to the capitalist mode of production."

Legal Evolution--Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes"). The idea that legal systems evolve is very common, but there is not general theory of legal evolution that has the well-confirmed status of the corresponding theory of biological evolution. Be on the watch for claims about legal evolution; such claims frequently are not well thought out and almost always lack empirical support.

Efficiency--Another example of functionalist explanation in legal theory is the claim that the common law rules are efficient. "Why did the common law adopt the Learned Hand formula as the standard for negligence?" "Because that is the efficient standard." Sometimes these claims are accompanied by an account of the mechanism by which a common law system moves towards efficient legal rules. For example, it might be argued that inefficient legal rules will be subject to continuous litigation pressure; whereas efficient legal rules, once adopted, tend to facilitate settlement of disputes.

Microfoundations--When you are thinking about particular functionalist explanations in positive legal theory, it is particularly helpful to ask the question whether the explanation has "microfoundations." That is, does the functionalist explanation for a particular legal rule (or change in legal rules) incorporate a specific account of the causal mechanism by which the function caused the rule or change. It is always possible that a particular functionalist explanation is true, even if microfoundations cannot be provided, but the absence of causal mechanisms is a reason to be suspicious.

For a very lucid explanation of the role of microfoundations in social science, I highly recommend Jon Elster's brilliant book Making Sense of Marx. And for an equally brilliant defense of functionalist explanations, consult G.A. Cohen's Karl Marx's Theory of History. (The debate between Cohen and Elster is one of the most interesting and important debates in contemporary philosophy of the social science.)

Conclusion

Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad.

(This entry was last updated on September 7, 2008.)

Legal Theory Lexicon 039: Primary and Secondary Rules

Introduction

Most law students begin to notice that there is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts, on the other. The rules of criminal law seem to define standards of conduct; they are about what you can and cannot do, or more precisely, rules that forbid certain conduct and then attach punishments for disobedience. The rules of contract law are different. It's true that contract remedies do provide sanctions (or prices) for breaking contracts, but much of contract law is about making contracts, that is about how to make new law. In criminal law (and torts), the state makes up the rules of conduct. In contract law, the contracting parties are empowered to create their own rules of conduct.

Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

The Distinction Between Primary and Secondary Rules

Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules.

More precisely, primary rules are rules that govern primary conduct, and secondary rules are rules that govern primary or secondary rules. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation.

Some more examples may help:

Examples of Primary Rules

• Criminal prohibitions.
• Tort rules.
• The individual right to freedom of speech.
• The provisions of contracts that define the primary obligations of the parties.
• The environmental law rule that forbids discharge of toxic substances in rivers and streams.

Examples of Secondary Rules

• Contract law rules that enable parties to form contracts.
• The rules that allow testators to create a will.
• The constitutional rules that confer legislative powers on Congress.
• The statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.

The Practical Importance of Secondary Rules

One of the really nifty things about Hart's introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.

Conclusion

The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments.

One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century.

Links & Resources

K.K. Lee, Hart's Primary and Secondary Rules, 78 Mind 561 (1968) (link is to JSTOR, which may require an account or fee).

D. Gerber, Levels of Rules and Hart's Concept of Law, 81 Mind 102 (1972) (link is to JSTOR, which may require an account or fee).

(This entry was last revised on August 31, 2008.)

Legal Theory Lexicon 038: The Internal Point of View

Introduction

How can we look at a legal system? H.L.A. Hart famously deployed the distinction between external and internal perspectives on a legal system in his famous book, The Concept of Law. This post provides a very brief introduction to this distinction for law students (especially first-year law students) with an interest in legal theory.

Internal and External

What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea is fairly clear. The internal point of view is the perspective of participants in the system. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system.

Here are some examples:

--Doctrinal theories (e.g. a theory of the Commerce Clause of the United States Constitution) are usually stated from the internal point of view. This is the kind of theory that law students usually encounter early in their legal education.

--Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this.

The General Significance of the Internal Point of View

The idea of the internal point of view plays a particular role in H.L.A. Hart's theory of law, but this post is about a related but distinct topic--the more general role that the internal/external distinction plays in legal theory. Newbie legal theorists need to know this distinction in order to avoid a very serious mistake in theory development. That mistake is to slide between the internal and external point of view. This mistake is actually quite easy to make. The theorist is working within the internal point of view--describing a particular legal doctrine from the point of view of lawyers and judges who work within the constraints of the doctrine. Then, the theorist slides into an explanation as to how the law came to be the way it is--describing the operation of political or economic pressures--and then slides back to the doctrinal level--drawing the conclusion that the law should be interpreted differently in light of the causal explanation. Arguments like this can be made to work, but unless the relationship between the causal explanation and the doctrinal consequence is explained carefully, this kind of move can easily involve a category mistake. Causal explanations (of how the law has come to be the way it is) are usually irrelevant from the internal point of view.

Rules and the Internal Point of View

The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?"

If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study.

Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view.

The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions.

Conclusion

The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories,

Bibliography

Dennis Patterson, Explicating the Internal Point of View (Southern Methodist University Law Review, Vol. 52, 2006).

Scott Shapiro, What is the Internal Point of View?

(This entry was last revised on August 25, 2008.)

Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements

Introduction

As law students become more sophisticated, they begin to notice that certain debates seem to repeat themselves over and over again. Disagreements about disparate subjects--in procedure, criminal law, torts, property, and constitutional law--frequently seem to turn on the really big questions of ethics and political theory. On the one hand, the proponents of inviolate individual rights appeal to deontological premises in moral theory or liberal (or libertarian) ideas in political philosophy. On the other hand, the proponents of balancing argue from premises rooted in utilitarianism or welfarism (the economic version of utilitarian moral philosophy).

For a short time, the ability to see this pattern may be exhilarating. You begin to see big patterns that transcend courses and doctrines. But after a while, exhilaration may give way to depression. If all the great debates in legal theory boil down to debates about the deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?" Because it sure doesn't look like the debates between deontology and consequentialism or between libertarians and communitarians are going to be decisively resolved any time soon.

And that is where today's Legal Theory Lexicon comes into the picture. Even if the deep debates of moral and political philosophy are irresolvable, there may be other ways to make progress in legal theory. In particular, we may be able to use the ideas of "incompletely theorized agreements" (associated with Cass Sunstein) or "overlapping consensus" (associated with John Rawls) to break the impasse on the deep questions.

The basic idea is simple. We cannot agree on the deep questions, so go shallow. Find the level at which those who disagree on the deep can nonetheless find common ground. John Rawls calls the idea of common ground by the name "overlapping consensus." Cass Sunstein calls a similar idea, "incompletely theorized agreement." But both Sunstein and Rawls express a similar intuition. When you cannot reach agreement at the deep end of the pool of ideas, head for the shallow end!

Deep and Shallow

I suspect that you've already gotten it! But just to make sure, let's work through the ideas one by one. The first idea we need is the one that I have expressed by the metaphor of deep and shallow reasons. The metaphor is based on the idea that particular applications (e.g. particular questions of legal doctrine) are at the surface, they are in the shallow end of the pool of ideas. Beneath the surface of particular issues in legal doctrine and legislative policy are deeper disagreements. Disagreements about the a surface level question (e.g. the precise contours of the mailbox rule in contract law) lead to beneath-the-surface issues (e.g. the nature of offer and acceptance) and then to still-deeper issues (e.g. the basis for contractual obligation) and finally to the deepest questions (e.g. the nature of moral obligation). You might picture a chain of reasons, stretching from the surface of legal doctrine down to the depths of political and moral philosophy.

Overlapping Consensus

John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness), the guarantee of basic liberties would mean that individual citizens would be free to adopt their own views about morality and religion. As a result, Rawls argued, it was likely that a variety of comprehensive religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom? Rawls's answer to this question was based on the idea that divergent moral and religious conceptions of the good could (despite their diversity) converge on some common ground. That is, citizens who held a plurality of religious and moral beliefs could nonetheless agree on the constitutional essentials--the basic constitutional principles necessary for a society to satisfy the demands of justice as fairness.

This meant that different citizens would support justice as fairness for different reasons. Catholics might affirm justice as fairness for reasons found within the Catholic natural law tradition, while secular humanists might affirm the same (or similar) ideas about justice for different reasons. Although a deep consensus might on justice as fairness might be impossible, an "overlapping consensus," Rawls argued, is possible.

Incompletely Theorized Agreements

Cass Sunstein has a related but different idea. Here is a summary from his article in the Harvard Law Review:

Incompletely theorized agreements play a pervasive role in law and society. It is rare for a person, and especially for a group, to theorize any subject completely -- that is, to accept both a highly abstract theory and a series of steps that relate the theory to a concrete conclusion. In fact, people often reach incompletely theorized agreements on a general principle. Such agreements are incompletely theorized in the sense that people who accept the principle need not agree on what it entails in particular cases. People know that murder is wrong, but they disagree about abortion. They favor racial equality, but they are divided on affirmative action. Hence there is a familiar phenomenon of a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.

This sort of agreement is incompletely theorized in the sense that it is incompletely specified -- a familiar phenomenon with constitutional provisions and regulatory standards in administrative law. Incompletely specified agreements have distinctive social uses. They may permit acceptance of a general aspiration when people are unclear about what the aspiration means, and in this sense, they can maintain a measure of both stability and flexibility over time. At the same time, they can conceal the fact of large- scale social disagreement about particular cases.

There is a second and quite different kind of incompletely theorized agreement. People may agree on a mid-level principle but disagree both about the more general theory that accounts for it and about outcomes in particular cases. They may believe that government cannot discriminate on the basis of race, without settling on a large-scale theory of equality, and without agreeing whether government may enact affirmative action programs or segregate prisons when racial tensions are severe. The connections are left unclear, either in people's minds or in authoritative public documents, between the mid- level principle and general theory; the connection is equally unclear between the mid-level principle and concrete cases. So too, people may think that government may not regulate speech unless it can show a clear and present danger, but fail to settle whether this principle is founded in utilitarian or Kantian considerations, and disagree about whether the principle allows government to regulate a particular speech by members of the Ku Klux Klan.

My special interest here is in a third kind of phenomenon -- incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them. These terms contain some ambiguities. There is no algorithm by which to distinguish between a high-level theory and one that operates at an intermediate or low level. We might consider Kantianism and utilitarianism as conspicuous examples of high-level theories and see legal illustrations in the many (academic) efforts to understand such areas as tort law, contract law, free speech, and the law of equality to be undergirded by highly abstract theories of the right or the good. By contrast, we might think of low-level principles as including most of the ordinary material of legal doctrine -- the general class of principles and justifications that are not said to derive from any particular large theories of the right or the good, that have ambiguous relations to large theories, and that are compatible with more than one such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995)]

Applications

How can you use the idea of an overlapping consensus or incompletely theorized agreement? These conceptual tools are useful when you believe that you have reached a theoretical impasse at some deep level. You've identified an issue, and you can see how the issue can be traced to a deep disagreement in moral or political theory. Now, you have some choices to make. On the one hand, you can try to resolve the deep disagreement. But there is a problem with this option. The deep debates in moral and political philosophy are both ancient and persistent. The world's great thinkers have worked on these problems. If Aristotle, Kant, and Bentham were unable to come up with a knock down argument in favor of their respective moral theories, then it does seem unlikely that you will be able to resolve these debates in an article or book that is mostly focused on another topic or idea. Moreover, the current state of the art in moral and political theory involves a complex field of interconnected arguments. If you need to master these debates before you can complete your work in legal theory, then the work may never be completed.

The alternative is to see whether you can find a different level at which the dispute can be resolved. One possibility is that you can find convergence at the surface level. It seems as if deontologists and utilitarians disagree, but perhaps you can craft consequentialist arguments that converge with the arguments of fairness. Another possibility is that you will be able to find converged on what Sunstein calls "mid-level principles." For example, both consequentialists and deontologists might be able to agree that contract formation (normally) requires that both parties manifest and intention to be bound--although they would have different reasons for affirming this proposition.

Conclusion

The move to "overlapping consensus" or "incompletely theorized agreements" is one of the niftiest and most useful in contemporary legal theory. Add it your personal legal theory toolbox!

(Last revised on August 17, 2008.)

Legal Theory Lexicon 036: Indeterminacy

Introduction

It all depends on your first year section, but many law students begin to get a sinking feeling about the law early in their first year. Does the law actually make any difference to the way cases are decided? Before law school, most of us would answer "Yes, of course." And many law students start law school with the assumption that they will "learn the rules." But in contemporary American legal education, many students encounter a thesis that goes something like this:

The laws have nothing to do with how cases come out. They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please.

This counterintuitive position is a version of the claim that law is indeterminate, or what we might call the indeterminacy thesis.

The Indeterminacy Debate

The indeterminacy thesis is associated with legal realism, but in its most strident form, it is most strongly identified with the Critical Legal Studies movement--a loose and multifaceted cluster of legal scholars that became very prominent in the 1980s.

The indeterminacy debate is about the claim that the law does not constrain judicial decisions. Put differently, the claim is that all cases are hard cases and that there are no easy cases. The strongest version of the claim is the notion that any result in any legal dispute can be justified as the legally correct outcome, but the thesis can be modified or weakened in various ways.

What does the indeterminacy thesis mean?

Let's call the claim that the laws (broadly defined to include cases, regulations, statutes, constitutional provisions, and other legal materials) do not determine legal outcomes the indeterminacy thesis. Because there are many different versions of the indeterminacy thesis, our approach will be to identify clearly the distinct versions of the indeterminacy thesis and then to consider each version of the thesis on its own merits.

Indeterminacy versus Underdeterminacy

The next step in clarifying the indeterminacy debate is to distinguish between "indeterminacy" and "underdeterminacy" of law. Thus far, we have accepted the implicit assumption that indeterminacy and determinacy are exhaustive categories, i.e. that the decision of a case is either determined by the law or it is indeterminate. This assumption is not correct. A legal dispute may be constrained by the law, but not determined by it.

Roughly, an case is underdetermined by the law if the outcome (including the formal mandate and the content of the opinion) can vary within limits that are defined by the legal materials. This approximation can be made more precise by considering the relationship between two sets of outcomes of a given case. The first set consists of all possible results — all the imaginable variations in the mandate (affirmance, reversal, remand, etc.) and in the reasoning of the opinion. The second set consists of the outcomes that can be squared with the law — the set or legally acceptable outcomes. The distinctions between indeterminacy, underdeterminacy and determinacy of the law with respect to a given case may be marked with the following definitions:

• The law is determinate with respect to a given case if and only if the set of legally acceptable outcomes contains one and only one member.
• The law is underdeterminate with respect to a given case if and only if the set of legally acceptable outcomes is a nonidentical subset of the set of all possible results.
• The law is indeterminate with respect to a given case if the set of legally acceptable outcomes is identical with the set of all possible results.

Hard Cases

The notion of a "hard case" can now be explicated with reference to the idea of underdeterminacy. A case is a "hard case" if the outcome is underdetermined by the law in a manner such that the judge must choose among legally acceptable outcomes in a way that changes who will be perceived as the "winner" and who the "loser." The point is that the outcomes of an case need not be completely indeterminate in order for it to be a hard case; a case in which the results are underdetermined by the law will be "hard" if the legally acceptable variation makes the difference between loss or victory for the litigants. The distinction between indeterminacy and underdeterminacy is rarely observed in the indeterminacy debate, but it is nonetheless important to assessing the debate. Claims that the law is radically indeterminate are implausible, but more modest claims about underdeterminacy may both be defensible and play a role in a radical critique of liberal legal theory.

Is the law radically indeterminate?

The strongest (the most ambitious) claim about the indeterminacy of law is the claim that in every possible case, any possible outcome is legally correct. In other words, the strong indeterminacy thesis is the claim that the law is radically indeterminate:

The Strong Indeterminacy Thesis: In any set of facts about actions and events that could be processed as a legal case, any possible outcome — consisting of a decision, order, and opinion — will be legally correct.

To falsify the strong indeterminacy thesis one needs to establish that there is at least one possible case in which at least one possible outcome is legally incorrect. This refutation would disprove the strong indeterminacy thesis only in the sense stipulated here; it would not establish that the law is always, usually, or even frequently determinate.

The Argument from Easy Cases

One way to establish that there is at least one possible case in which at least one outcome is legally incorrect has been called "the argument from easy cases" by Fred Schauer. In its simplest form, the argument from easy cases points to a hypothetical case in which at least one outcome is legally incorrect. The following discussion attempts to formulate one such easy case:

Consider the following case, consisting of facts, a legal rule, and a legal event. First, postulate the following set of events and actions: Ben visited Point Magu State Beach in Ventura County, California between the hours of 12:30 p.m. and 4:00 p.m. on Sunday, February 14, 2004. Second, consider the following legal rule: Section 2 of the Sherman Antitrust Act states, "Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . ." (26 Stat. 209 (1890)). Third, consider the following claim about a possible case: Ben's visit to the beach on the date and time specified would not constitute a violation of Section 2 of the Sherman Act. In order fully to convince you of this, I would need to tell you more about what went on at the beach on that day. The details will include Ben's looking at the ocean, speaking with friends about politics, reading a book, and so forth. Children flew kites; a friend grilled chicken and hot dogs. You might want to know whether Ben discussed any business dealings at the beach: he did not. But no matter how many questions you asked, no matter how hard you tried, you would not be able to make out a legally valid case that the Sherman Act was violated. If a prosecution were filed against Ben based only on the events specified, a verdict of guilty would be legally incorrect.

This claim about legal correctness does not to deny that it is possible that things would go wrong in some way. Perjury might be committed; the judge assigned to the case might be deranged. Our system of justice is hardly foolproof, but that does not entail the further conclusion that any result is legally correct.

The upshot of this example of an easy case is this: there is at least one possible case in which at least one possible outcome is legally incorrect. Therefore, the strong indeterminacy thesis (as I have defined it) is false. Notice my argument is not that the outcome of an antitrust prosecution based on the facts I outline is predictable. Rather, my claim is that one possible outcome, i.e. conviction, would be legally incorrect. If the law is correctly applied and the witnesses testify truthfully, the prosecution should fail.

Changing the Hypothetical

Of course, we can easily change the hypothetical so that the legally correct outcome would change. Just add a conspiratorial conversation at the beach that does violate the Sherman Act. But the fact that the hypothetical can be changed so as to change the legally correct outcome is not responsive to the argument from easy cases. Let us stipulate for the sake of argument that it is always be possible to add facts to an easy case such that the addition of the new facts will change the legally correct outcome of the case. This does not demonstrate that there are no easy cases.

Quite the contrary, the fact that the advocate of the strong indeterminacy thesis needed to add facts to the easy case in order to change the legally correct outcome shows that as originally stated the easy case was not indeterminate. If the strong indeterminacy thesis were true, then a reasonable legal argument should be available on the facts as originally stated in the hypothetical. The additional facts should not be necessary. That facts must be added to transform an easy case into a hard one demonstrates that the law does constrain the set of legally correct outcomes.

Is a modest version of the indeterminacy thesis defensible?

If the strong indeterminacy thesis cannot be supported, is there a more modest claim about indeterminacy that is defensible and has critical bite? One modest version of the indeterminacy thesis might be the following: in most (or almost all) of the cases that are actually litigated, the outcome is underdetermined by the law. This claim about indeterminacy is not refuted by the argument from hypothetical easy cases. Confirmation of the actually-litigated underdeterminacy thesis would require empirical investigation, but there are some good reasons to believe that cases which actually proceed to filing, trial, or appeal will frequently be underdetermined by the law. Litigants will rarely have an incentive to settle easy cases. For example, in a civil dispute where the law gives a determinate answer to the question of who will win and what the amount of their judgment will be, the parties to litigation will usually prefer to settle, rather than incur the expenses of litigation. Uncertainty about the law is one of the factors that selects which cases will be filed, go to trial, and be appealed. This point should not be exaggerated, however: litigation may proceed for any number of reasons, including an irrational overconfidence in a hopeless case, uncertainty about facts in a case in which the law is clear, and so forth.

Important Cases

Another modest version of the indeterminacy thesis claims that while many ordinary cases are roughly determinate, all the really important cases are indeterminate. Put more precisely, the claim might be that the important issues in important cases are underdetermined by the law. If true, this claim might preserve almost all of the critical force of the strong indeterminacy thesis. Yes, there are easy cases, but those cases are unimportant.

One difficulty with the important case version of the indeterminacy thesis is its potential circularity. Our concept of what counts as an important case may have indeterminacy as a component. Part of what makes a case important is that the result is not certain or predictable; if we all knew how the case would come out, we would not be interested. Likewise, the Supreme Court may select cases in part on the basis of their legal indeterminacy.

Conclusion

I have just begun to scratch the surface of the indeterminacy debate, but I hope that I've provided enough perspective so that you can begin to think about this important question on your own. As I'm sure you know by now, I am not a fan of the radical indeterminacy thesis, but I also think it is important to recognize that the law is underdeterminate in important ways.

Related Lexicon Entries

Legal Theory Lexicon 051: Vagueness and Ambiguity

Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories

Bibliography

Kenneth J. Kress, “Legal Indeterminacy, 77 California Law Review 283 (1989).

Lorenz Kaehler, Indeterminacy in the law: Types and problems, IVR encyclopedie

Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987).

Indeterminacy debate in legal theory, Wikipedia

(This entry was last revised on November 15, 2009.)

Legal Theory Lexicon 035: Strict Construction and Judicial Activism

Introduction

This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that (arguably) are unimportant (or even meaningless), strict construction and judicial activism.

Strict Construction

Strict construction is short hand for the idea that the United States Constitution should be strictly construed. The phrase appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised that he would appoint judges who were "strict constructionists" as opposed to the "judicial activism" that characterized the Warren Court, but the phrase has much earlier origins and may go back as far as the late eighteenth century.

The question is: what does strict construction mean? Is there really a method of constitutional interpretation described by the phrase "strict construction" or is this a mere political slogan? The confusion engendered by the term is illustrated by the following definition (offered on law.com):

strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

This definition borders on incoherence, opposing "strict construction" to both originalism and to the notion of a living constitution--ideas that might be thought antithetical to one another. So can we offer a better definition of strict construction? One way to approach this question is via the method of separation of cases. What are the possible meanings of strict construction?

• Strict Construction as "Textualism". One possibility is that strict construction refers to textualism--the idea that all constitutional interpretations must be grounded in the text of the Constitution. There are two difficulties with this suggestion. First, almost all of the Warren Court jurisprudence to which strict constructionism was opposed was rooted in the text of the Constitution in some way. Even the "unenumerated rights" jurisprudence (e.g. the right to privacy at issue in Griswold v. Connecticut and Roe v. Wade) was grounded in the text of the 14th amendment. Second, this definition provides no content to the idea that constructions must be "strict."
• Strict Construction as "Literalism". Another possibility is that strict construction involves literal rather than purposive interpretations of the constitutional text. Perhaps, a strict construction is one that reads each clause of the Constitution to mean what the plain language says and nothing more. This idea is more promising than textualism, because it gives some real bite to the idea of "strictness" in construction. The difficulty is that the proponents of "strict construction" (and others) have rarely advocated a thorough-going literalism. That approach would, for example, mean that the First Amendment to the Constitution applies only to Congress (and not to the states, the executive, or to common-law doctrines). Other provisions of the Constitution don't seem to have any determinate literal meaning--the due process clause, the privileges and immunities clause, and the republican form of government clause come to mind.
• Strict Construction as "Originalism". Yet another possibility is that strict construction refers to some form of originalism, either original-intention originalism or original-meaning originalism. (The former looks to the intentions of the framers, whereas the latter looks to the way the text would have been understood by citizens when it was adopted.) Original-intentions originalism does not fit well with the label "strict constructionism" as it would allow courts to take into account intentions of the framers that are not "strictly speaking" in the constitutional text. The latter is a much better fit with the idea of strict construction, but the label "strict construction" is simply not very descriptive of the idea that the constitutional text should be read today in a way that fits the way it would have been read at the time it was adopted.
• Strict Construction as a "Presumption of Constitutionality". Yet another possibility is that the constitution should be construed against challenges to the constitutionality of legislation or executive action. The idea of a presumption in favor of the constitutionality of challenged action is certainly a coherent idea, but it is not clear why such a presumption should be called "strict construction." One might naturally assume that a strict construction of the constitution would invalidate government action that contravened the meaning of the constitutional text.
• Strict construction as narrow interpretation of delegated powers.  One final possibility is that a strict construction of the Constitution is one that narrowly construes Congress's delegated powers.

We could go on, but I think you will now see the point. It simply isn't clear what "strict construction" means. Once you actually give content to the idea of strict construction, then the label isn't particularly description and better names can be given to the view that strict construction could name. For this reason, most serious constitutional theorists avoid using the phrase "strict construction." If you think you have a good reason to continue using this phrase, you might give serious consideration to offering a very careful definition when you first introduce the term.

I want to add one important qualification to this discussion.  It is entirely possible that "strict construction" once had a coherent meaning that has been "lost" with the passage of time.  If so, then "strict construction" may have an important role to play as a concept in constitutional history, and possibly, via that history, in contemporary theories of constitutional interpretation.

Judicial Activism

In conservative political discourse in the United States, "strict construction" is good and "judicial activism" is bad. But what is judicial activism? Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term "judicial activism" is that it translates best as "judicial decision making with which I disagree." To see why this is so, once again let us consider the possible interpretations of the phrase:

• Judicial Activism as Nonabstention. One idea would be that activist judges decide cases, whereas passive judges abstain. This would make sense of "judicial activism," but it is completely unattractive as a normative ideal. Judges need to decide cases; they need to be active in the sense that they resolve controversies.
• Judicial Activism as Exercise of the Power of Judicial Review. A second possibility is that judicial activism means striking down statutes or invalidating executive action. A passive judge approves the conduct of the other branches of government; an active judge strikes such conduct down. Once again, this interpretation is coherent, but hardly anyone thinks that it is per se wrong for judges to invalidate unconstitutional governmental action. Very few critics of "judicial activism" would criticize a court that struck down a federal statute requiring every American to attend the services of a particular denomination. Nor would many critics of judicial activism endorse a judicial decision that upheld a law reestablishing slavery.  If "activism" means "exercising the power of judicial review to invalidate executive or legislative action," then it is a coherent concept, but it would seem to be "neutral" as between good and bad judging.
• Judicial Activism as Incorrect Exercise of the Power of Judicial Review. What is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches. This naturally leads to the question, "What makes an exercise of the power of judicial review wrongful?" The answer to that question is a theory of constitutional interpretation. Different theories authorize different sets of invalidations. So, adherents of different constitutional theories would apply the label "judicial activism" to different sets of decisions.

And that's the problem with the phrase "judicial activism." One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.

Conclusion

This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally. For that reason, it is very important for constitutional theorists to be very careful about their use of language.

Links

Chad Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide

Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism" (This article is essentially reading for anyone who intends to use the phrase in constitutional scholarship.)

Frank Cross & Stefanie Lindquist, The Scientific Study of Judicial Activism

(This entry was last revised on November 8, 2009.)

Legal Theory Lexicon 034: Hohfeld

Introduction

You need to know Hohfeld! Why? Because W.N. Hohfeld’s typology of rights from his book Fundamental Legal Conceptions is, well, fundamental. And useful!

Law students encounter the idea of right (moral or legal) early and often. But “rights talk” is frequently “loose talk.” Hohfeld is famous for exposing the ambiguity in the concept of a right and resolving that ambiguity with a typology of rights that distinguishes between claims, liberties, authorities, and immunities. This post is a quick and dirty introduction to Hohfeld for law students (especially first year law students) with an interest in legal theory.

Types of Rights and Correlative Duties

Lawyers tend to mush all legal rights together into a single category. The right to privacy, the right to freedom of speech, property rights, and civil rights—these diverse legal phenomena are frequently treated as if the “right” involved in these diverse cases was a single unambiguous type. Hohfeld’s first contribution was to distinguish different types of rights. Claim rights, for example, create corresponding obligations. Thus, my right to exclusive use of my land entails a corresponding duty of noninterference. You have a duty not to enter upon my land. But my property right also entails my liberty to use my land in a wide variety of ways—to build a house, plant a garden, and so forth. Correlated to that liberty is a correlative absence of inconsistent claim rights. You have no right to prevent me from building a house or planting a garden. Some legal rights involve powers over others. Thus, an employer has a right to control and direct the employee’s actions at work, and parents have authority over their children. Finally, there are immunities from authority. Thus, when children reach the age of majority or are legally emancipated they acquire immunities that disable the authority rights of their parents.

Implicit in our discussion so far is Hohfeld’s second big idea, which is that each kind of right (claim, liberty, authority, and immunity) has a correlative legal consequence for others. Claim rights have correlative duties. Liberty rights correlate with an absence of claims. Authority rights correlate with liabilities. Immunities correlate with the absence of authority.

Four Types of Rights

The following list enumerates Hohfeld’s basic schema, identifying each kind of right and the correlative legal consequence. P is the party with the right. Q represents the person or group of persons on whom the right has a legal effect. X represents the object of the right.

Claim Rights

Rights relation: P has a claim against Q to X.

Correlative relation: Q has a duty to P to X.

Liberty Rights

Rights relation: P has a liberty against Q to X.

Correlative relation: Q has no claim against P to not-X

Authority Rights:

Rights relation: P has authority over Q to X

Correlative relation: Q has a liability to P to X.

Immunity Rights

Rights relation: P has an immunity against Q to X.

Correlative relation: Q has a disability (no authority) against P to not-X.

Moral and Legal Rights

Hohfeld was interested in legal rights, but we can extend his scheme to moral rights. Thus, if I have a moral claim right to performance of a promise, you have a corresponding moral duty to perform. Of course, many legal rights are identical to (or substantially the same as) similar moral rights. Contracts, for example, create both moral and legal obligations. Some moral rights, however, may not be reflected in the law. For example, I may have a moral obligation not to discriminate on the basis of race when letting a room in my home, but at the same time have a legal liberty right to engage in such discrimination.

Conclusion

That’s Hohfeld in a very short nutshell!

Bibliography

Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning (Dartmouth Pub Co; Reprint ed. 2002) (originally 26 Yale Law Journal 710 (1917)) (online version)

Walter Wheeler Cook, Hohfeld's Contribution to the Science of Law, 28 Yale Law Journal 721 (1918)

Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wisconsin Law Review 975.

Links

Wesley Necombe Hohfeld, Wikipedia Entry

(This entry was last revised on November 1, 2009.)

Legal Theory Lexicon 033: Holism

Introduction

Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.

And before we get on with it, a brief digression on the origins of the phrase. The idea of the law as a seamless web seems to be derived from a related idea--that thistory is a seamless web--found in the writiings of Frederic Maitland: "Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web." Frederic William Maitland, A Prologue to a History of English Law, 14 L.QUARTERLY REV. 13 (1898).

The Law is a Seamless Web

The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.

Coherence and Holism

The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.

Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”

Herculean Holism

Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.

Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.

Holism versus Particularism

So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.

At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).

Is Holism Normative, Descriptive, or Interpretive?

Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.

Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.

Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.

Conclusion

The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.

(Last revised on October 25, 2009)

Legal Theory Lexicon 032: Fit and Justification

Introduction

In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously ch 4 (Harvard University Press, 1977)). This