Legal Theory Lexicon

Legal Theory Lexicon 020: Causation

Introduction Causation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles, pedestrians, etc.), our judgments about causation rarely depend on conceptual niceties. The driver’s negligence caused the death of the pedestrian but did not cause Barak Obama to win the Iowa caucuses in 2008. In these cases, various notions of causality converge. The person on the street, the scientist, and lawyer can all agree in such cases that for all practical purposes X caused Y but not Z. But sometimes the various notions of cause come apart exposing ambiguities and vagueness in both ordinary and legal talk about causes and effects. This post provides a very basic introduction to causation for law students (especially first-year law students) with an interest in legal theory.

Cause-in-Fact & Legal Cause Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks!

Cause-in-Fact What do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of this Lexicon post is to provide a set of tools that for understanding the troubles that overreliance on but-for causation can cause.

Necessary and Sufficient Causes The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. The idea of "necessary cause" is the same idea expressed by the phrase "but-for cause."
X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. This is true, even though Ben would have died anyway, because Cynthia shot him through the head at the same time Alice shot him through the heart.

This rough ready distinction between necessary and sufficient causes really won't do all the necessary work.  For example, Alice's shooting Ben through the heart is not truly sufficient, by itself, no matter what other conditions obtain, to cause Ben's death.  If Ben had been on an operating table awaiting a heart transplant, then he might have lived despite the slot.  One suggestion for dealing with cases like this is to identify "sufficient causes" as a "necessary element of a sufficient set."  Things get even more complex from for the purposes of this introduction the point is simply to see the indadequacy of "necessary and sufficient cause" as a tool for dealing with complex cases in a precise way.

The Role of Counterfactuals The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts. What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim.

What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation.

Overdetermination Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea of overdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben.

Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause.

The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation.

Coincidence Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what? Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences.

Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident.

Legal Cause What do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause.

First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law.

Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable.

Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away.

Probability Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post.

Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y.

Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events.

Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:

--The letter “p” is frequently used to represent probability. Most law students encounter this notation in Justice Hand’s famous opinion in the Carroll Towing case (B < PL or “burden less than loss discounted by probability). The notation p(x) = 0.1 can be read “the probability of x equals 1/10.” And the notation, p=0.5 can be read “probability equals one in two.”

--The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1.

Types and Tokens So far, we have been focusing mostly on cases where an individual instance of harm is caused by some particular wrongful action. But of course, we frequently think about causation as a more general relationship. For example, in science we might speak of “causal laws.” There is no standard terminology for this distinction: we might use the phrase “individual causation” and “systematic causation.” One helpful bit of terminology for getting at this idea is to differentiate “types” and “tokens.” Ben’s running the rend light at a particular time and location is an event token and it is a token of a type of events, i.e. the type “running a red light.”

Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation.

Conclusion Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn.

Bibliography

H.L.A. Hart & Tony Honore, Causation in the Law (2d ed. 1985). This is the book on causation and the law. Currently out of print, but used copies are available on Amazon.com.

Causation (Oxford Readings in Philosophy) (Ernest Sosa & Michael Tooley eds. 1993). A fine collection of essays, with contributions by J.L Mackie, Michael Scriven, Jaegwon Kim, G.E.M. Anscombe, G.H. von Wright, C.J. Ducasse, Wesley C. Salmon, David Lewis, Paul Horwich, Jonathan Bennett, Ernest Sosa, and Michael Tooley.

Links

Antony Honore, Causation in the Law, Stanford Encyclopedia of Philosophy

Peter Menzies, Counterfactual Theories of Causation, Stanford Encyclopedia of Philosophy

Jonathan Schaffer, The Metaphyiscs of Causation, Stanford Encyclopedia of Philosophy

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

Legal Theory Lexicon 019: Originalism

Introduction There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism"--actually a loosely-knit family of constitutional theories. The idea that courts would look to evidence from the constitutional convention, the ratification debates, The Federalist Papers, and the historical practice shortly after ratification of the Constitution of 1789 (or to equivalent sources for amendments) is an old one. This post provides a very brief introduction to "originalism" that is aimed at law students (especially first-year law students) with an interest in legal theory.

Originalism is not just an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the democrats seen as a political rejection of originalism. The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory--Associate Justices Antonin Scalia and Clarence Thomas and two others, John Roberts and Samuel Alito who may also be receptive to originalist arguments.

The Origins of Originalism No one scholar or judge can deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. The landscape changed again in the late 1980s, when Justice Antonin Scalia suggested that originalists should shift their attention from "the original intentions of the framers" to the "original public meaning of the constitutional text."

The New Originalism The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. One of the important moves was the shift from "original intentions" to "original public meaning," but two developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court. (Ackerman does not call himself an "originalist," but many of Ackerman's former students do work that is implicitly or explicitly originalist.)  Second, Randy Barnett (the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists.  The most recent development in this dynamic is Jack Balkin's attempt to reconcile originalism with living constitutionalism.

After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is more likely to hear pronouncements of a different sort: "we are all originalists" or "originalism and living constitutionalism are compatible" or even "originalism is trivially true.  Contemporary debates about originalism sometimes use the label, "the New Originalism" to distinguish the current emphasis on "original public meaning" from older forms of originalism that emphasized "original intentions."  The story of that transition is crucial to understanding the current discussion among constitutional theorists.

Original Intentions Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.

Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning.

Original Public Meaning The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism "comptibilism," but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

Regime Theory Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.

Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.

Does Originalism Have a Core?  Originalism continues to evolve, and the lines of development sometimes converge, but it is fair to observe that originalism in the early years of the twenty-first century has several variations.  "Original public meaning" is one focal point, and the distinction between "interpretation" and "construction" has gained widespread traction, but there are many points upon which originalists disagree.  This leads to the question: does originalism have a core?  One answer to this question focuses on the distinction between two dimensions of the debate about originalism.  The first dimension is semantic: the semantic dimension of controversies about constitutional interpretation addresses the question, "What is the meaning of the constitutional text?"  The second dimensions is normative: the normative dimension of debates about constitutional practice addresses the question: "How should constitutional actors (judges, other officials, and citizens) act once the meaning of the constitution has been determined?"  If there is any core to contemporary originalism, it focuses on the semantic dimension.  Almost all originalists agree that the semantic content of a given constitutional provision was fixed during the period of drafting and ratification.  Some originalists believe that original intentions fixed the meaning; most contemporary originalists believe that "original public meaning" or "conventional semantic meaning" fixed the content.  But (so far as I know) almost every originalist theorist would agree that the "meaning" or "semantic content" of a constitutional provision does not change.

The point made in the prior paragraph can easily be misunderstood.  New originalists who embrace the distinction between construction and interpretation concede that the meaning of some constitutional provisions is vague, and therefore that these provisions require construction.  The core commitment of originalism to fixed semantic content does not entail fixed constructions.  For example, it might be the case that the key phrases that define the constitutional seperation of powers, "judicial power," "executive power," and "legislative power," have an original public meaning that was vague.  Given this vagueness, much of the important work required to resolve a dispute about the application of these phrases must be done by constitutional construction.  This means that originalists who share the core commitment to the idea that meaning was fixed by 1789 when the Constitution was ratified may disagree about the proper method of construction of the separation of powers provisions.

Originalists disagree about other important questions as well.  In particular, there is no consensus among originalists about the normative justifications for fidelity to the original meaning.  Some originalists belive that originalism is normatively justified by popular sovereignty theory: we should adhere to the original meaning because it was ratified by "We the People."  Other originalists, like Randy Barnett, argue that the legitimacy of the Constitution is a function of the justice of its content.  And yet other originalists have argued that adherence to original meaning is justified by the rule of law values of predictability, certainty, and stability.  These disagreements about normative foundations may lead to further disagreements about the extent to which "original meaning" should trump other considerations.  For example, should constitutional actors always adhere to original meaning when it conflicts with historical practice or judicial precedent?

Originalism and Precedent We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Some originalists have argued that as a general rule, constitutional actors should give follow original meaning, even if it would conflict with longstanding historical practice or settled precedent.  Other originalists argue that precedent and/or historical practice can trump original meaning in specified circumstances.

The New Critics of the New Originalism  The most recent installment in debates over the new originalism has been the emergence of a recent body of work that criticizes the new originalism.  This work includes "Rebooting Originalism" by Stephen Griffin, "Originalism is Bunk" by Mitch Berman, and "Originalism's Living Constitutionalism," by Thomas Colby and Peter Smith.  The distinctive feature of the new criticism is that it takes into account, in various ways, originalisms shift from intentions to public meanings.

Conclusion  This entry in the Legal Theory Lexicon is both too long and too short.  Too long, because I strive to make Lexicon entries sufficiently brief so that they can be read in just a few minutes.  Too short, because the convulated terrain of the originalism debates can only be fully mapped (much less argued out) in a very long article.  Nonetheless, I hope that I have provided enough background for a beginning student of constitutional law to get a sense of the lay of the land.  Debates about the new originalism are at the center of contemporary constitutional theory, but the long and twisted history of those debates makes it difficult to get started without a guide.

Bibliography This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism.

• Bruce Ackerman, We the People: Foundations (Harvard University Press 1991) & We the People: Transformations (Harvard University Press 1998).
• Randy Barnett, An Originalism for Nonoriginalists, 45 Loyola Law Review 611 (1999) & Restoring the Lost Constitution (Princeton University Press 2004).
• Raoul Berger, Government by Judicary (Harvard University Press 1977).
• Robert Bork, The Tempting of America (Vintage 1991).
• Paul Brest, The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204 (1980).
• Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of the Constitution, 72 Iowa L. Rev. 1177 (1987).
• Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Northwestern Univeristy Law Review 226 (1988).
• Gary Lawson, Proving the Law, 86 NW. U. L. REV. 859, 875 (1992).
• Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).
• Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989)
• Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997)
• Antonin Scalia, Speech Before the Attorney General's Conference on Economic Liberties (June 14, 1986). in Office of Legal Policy, Original Meaning Jurisprudence: A Sourcebook 106 (U.S. Dept. of Justice 1987)
• Lawrence Solum, Originalism as Transformative Politics, 63 Tulane Law Review 1599 (1989).
• Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas 1999) & Constitutional Construction: Divided Power and Constitutional Meaning (Harvard University Press 2001).

Papers Online

• Jack Balkin, Abortion and Original Meaning
• Jack Balkin, Original Meaning and Constitutional Redemption
• Randy E. Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, Underlying Principles & An Originalism for Nonoriginalists
• Mitchell Berman, Originalism is Bunk
• Thomas Colby & Peter Smith, Originalism's Living Constitutionalism
• Stephen Griffin, Rebooting Originalism
• John O. McGinnis and Michael B. Rappaport, A Pragmatic Defense of Originalism
• Lawrence Solum, Originalism as Transformative Politics
• Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights

(This entry was last revised on March 15, 2008.)

Legal theory Lexicon 018: Justice

Introduction The connection between law and justice is a deep one. We have "Halls of Justice," "Justices of the Supreme Court," and "the administration of justice." We know that "justice" is one of the central concepts of legal theory, but it is also vague and ambiguous. This post provides an introductory roadmap to the concept of justice. Subsequent entries in the Legal Theory Lexicon will cover more particular aspects of this topic such as "distributive justice." As always, this post is aimed at law students (especially first-year law students) with an interest in legal theory.

A Typology of Justice What is justice? One way to approach this question is via a typology--a scheme that divides the general and abstract concept of justice into component parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. These may be deep and fundamental differences between different types of justice, or these categories may simply be heuristic devices. For now, let's lay that question to the side and focus instead on a brief exposition of each of the four types of justice:

Distributive Justice In 1971, John Rawls's book A Theory of Justice put distributive justice at the center of philosophical discussion of justice. What is the subject of distributive justice? Even this question is controversial, but one formulation is: The subject matter of distributive justice is the distribution of the benefits and burdens of social cooperation.. The burdens of social cooperation include things like taxes and obligations to provide civic service (e.g. military service, jury service, and so forth). The benefits of social cooperation might be seen as including the resources that are produced by social cooperation, which might be represented by wealth and income. Thus, questions that might be answered by a theory of distributive justice might include:

--Should the system of taxation be progressive (with a heavier burden on the wealthy than the poor)?
--Should the government adopt an incomes policy (such as a guaranteed annual income) that will provide a minimum level of resources to those who are least well off?
--should the burden of military service by distributed equally (in the form of mandatory service for all citizens) or should this burden be allocated by a volunteer army and market incentives?

This list just begins to scratch the surface. In the context of the law school curriculum, questions of distributive justice arise in a variety of course. In tort law, distributive justice may be the basis for the theory that one of the purposes of tort law is "risk spreading" or the just distribution of the costs of accidents. In contract law, questions of distributive justice may arise in cases involving contracts of adhesions or contracts with terms that may exploit the unsophisticated and economically disadvantaged.

In a future post, I will say more about particular theories of distributive justice. For now, let me just mention three approaches. The first approach is found in Rawls's theory, justice as fairness, which includes two principles of distributive justice. The first principle guarantees to every citizen a fully adequate scheme of equal basic liberties, such as freedom of conscience, the right to vote, and so froth. The second principle (the "difference principle") requires that inequalities of income and wealth work to the advantage of the least well-off group in society. The second approach is strict egalitarianism--which would not permit differences with respect to whatever good is the subject of justice. Why not equality of wealth and income? That's one option for egalitarians, but there are others such as equality of welfare or equality of resources of equality of opportunity for these things. The third approach is libertarianism--which holds that the distribution of wealth and resources is not itself a proper subject matter for justice. Rather, libertarians begin with the premise that each individual should have certain liberty rights (e.g. self-ownership, property rights, and contract rights) and that whatever distribution results from the exercise of these rights is a just distribution.

Corrective Justice Aristotle defined "corrective" or "rectificatory" justice as "Justice in transactions." That's a good place to start. With Aristotle we might divide transactions into two categories, the voluntary and the involuntary. Justice in voluntary transactions would include the topics encompassed by contract law. Justice in involuntary transactions would include both transactions that are involuntary due to force (e.g. battery) and transactions that are involuntary due to fraud (e.g. fraud, misrepresentation, etc.).

One of the great debates in contemporary legal theory concerns the status of corrective justice. This topic is especially hot in tort theory and criminal law theory. For example, some tort theories believe that the purpose of tort law is captured by the idea of corrective justice. Such theorists tend to believe that liability standards should be fault bases (e.g. intentional tort or negligence as opposed to strict liability) and that the purposes of tort damages is to make the plaintiff whole (and to force the defendant to disgorge wrongful gains) and not deterrence. Other tort theorists, e.g. welfarists or utilitarians, believe that corrective justice institutions should be judged solely by the consequences they produce. So a utilitarian might believe that the purpose of tort law is to produce optimum deterrence. Finally, some tort theorists believe that tort law serves the ends of distributive justice.

Political Justice Yet another topic of justice is political justice. In a sense, this might be seen as a subtopic of distributive justice--since political rights and responsibilities can be seen as encompassed within the general category of the benefits and burdens of social cooperation. In relationship to the law school curriculum, we might say that political justice is concerned with the foundational issues of constitutional theory. Who shall have the right to vote? What power shall be allocated to local communities as opposed to nation-states? What limitations shall there be on the power of democratic majorities (e.g. individual rights & judicial review)?

The topic of political justice shades into another important idea--"political legitimacy." Are these two ideas essentially the same or are they different? One view is that it is possible to have a legitimate political order that is nonetheless unjust (or vice versa). For example, some might say that the test of political legitimacy has to do with the origination of the political system. If a system has been accepted and endorsed by the people, this view contends, it is legitimate--even if the substance of the system (e.g. the allocation of political rights) is unjust. On this view, a religious state might be legitimate but unjust. A quite different view is that political legitimacy depends on political justice. For example, Randy Barnett has argued that the test for constitutional legitimacy is whether the constitution provides adequate guarantees of just outcomes (for Barnett, the protection of individual liberty). On this view, popular endorsement of an unjust political system does not make that system legitimate.

Procedural Justice A final form of justice is "procedural justice." The very existence of this category is controversial. Some theorists argue that the only the outcomes of procedures count. But this is not the universal view. Some theorists believe that procedures are important for reasons that are not reducible to a concern with outcomes. One helpful typology was provided by Rawls, who distinguished between perfect, imperfect, and pure procedural justice.

--Perfect procedural justice assumes that we have an independent criterion for the correctness of outcomes. For example, a correct outcome in a criminal case would be "freeing the innocent and convicting the guilty." We have perfect procedural justice if the procedure guarantees the correct outcome. In other words, perfect procedural justice requires 100% accuracy.


--Imperfect procedural justice. Of course, in the actual world, most procedures fall short of 100% accuracy. Moreover, the more accurate a procedure is, the more expensive it is likely to be. Imperfect procedural justice acknowledges these facts and therefore conceives of procedural justice as a fair balance between the benefits of accuracy and the costs of procedure.


--Pure procedural justice is based on the denial of the premise that we have an independent criterion for a correct outcome. We have a case of pure procedural justice if the procedure itself provides the criterion for judging the justice of the outcome. Rawls himself doubted there were many cases of pure procedural justice. He did see one case--a fair bet. With a fair gamble (e.g. a roll of unloaded dice), the outcome doesn't matter.

In the context of the law school curriculum, questions of procedural justice arise in connection with procedural dues process (in constitutional law, administrative law, and procedure) and especially in the courses in civil and criminal procedure.

Justice and Moral Theory Thinking about each of these four types of justice is connected with more general views about moral and political theory. Each of the three important families of normative moral theory (consequentialist, deontological, and aretaic) connects in interesting ways with thinking about justice:

Consequentialist Ideas About Justice There are many different forms of consequentialism. In moral theory, the most familiar form is utilitarianism. In law, the emphasis lately have been on wheelbarrows. Most consequentialist theories do not see justice in any of its forms as truly distinctive. For example, for act utilitarians the rightness or wrongness of an action depends on whether that action (as opposed to the alternatives) produces the most utility. Thus, the best distribution of resources is the one that maximizes utility, and the best system of tort law is the one that utility. There are different ways of expressing this idea. One expression maintains that consequentialists do not place any independent value on justice; another way of putting it is to say that for consequentialists, justice is the production of good consequences.

Deontological Ideas About Justice By way of contrast, deontological theories have a natural affinity for the idea that justice serves as an independent criterion for the rightness and wrongness of actions. Thus, it is a characteristically deontological position to maintain that unjust actions or institutions cannot be justified on the ground that they would produce good consequences. Thus, deontologists might say that it would be unjust and hence impermissible to punish an innocent persons--even if the net long-term effect of that action were to produce good consequences.

Areataic Ideas About Justice From the view point of aretaic theory, justice is primarily a virtue, an excellence of human character. One of the most difficult problems for virtue ethics has been the development of an adequate theory of the virtue of justice. One view is that justice is the disposition to take neither too much nor too little for one's self. Another view is that justice is the disposition to act in conformity with social and legal norms, tempered by equity. Yet a third view is that the virtue of justice is simply the disposition to act in accord with the right theory of what a just action is.

The Relationship Between Law and Justice What is the relationship between law and justice? That question can be tackled from many different directions. One angle of approach would be to ask whether there is some essential or necessary connection between legal validity and justice. The view that only just laws are legally valid is usually associated with natural law theory, whereas the view that there is no essential or necessary connection between law and justice is characteristically associated with legal positivism. But whether one is a natural lawyer or a legal positivism, one could say that the laws should be just. Thus, theories of justice can be seen as guiding the science of legislation.

Conclusion Contemporary legal education is, in a sense, all about justice. Natural law, legal positivism, and legal realism all go beyond the black letter law and ask the question, "What should the law be?" Law students quickly discover that their instructors are frequently more interested in questions like, "Is that a just rule?" than in questions like, "What is the rule?" As you continue your study of legal rules, you can begin to ask questions like: "Does this rule address a question of distributive, corrective, political, or procedural justice?" "Is the rule in the case (or statute or constitutional provision) just or unjust?" "What theory of justice underlies the reasoning of the court?"

(Last modified on March 9, 2008.)

Legal Theory Lexicon 017: The Rule of Law

Introduction This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory.

What is the Rule of Law? The ideal of the rule of law, which can be traced back at least as far as Aristotle, is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even some Marxist critics acknowledge that observance of the ideal could curb abuses by the ruling class.

What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure.

Dicey's Influential Formulation Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:

(1) the supremacy of regular law as opposed to arbitrary power;

(2) equality before the law of all persons and classes, including government officials; and,

(3) the incorporation of constitutional law as a binding part of the ordinary law of the land.

Rawls on the Rule of Law A contemporary elaboration of the ideal of the rule of law is provided by John Rawls. He defines the rule of law as "the regular, impartial, and in this sense fair" administration of "public rules." In schematic form and with some alterations, Rawls offered the following conception of the rule of law:

1. The Requirement that Compliance Be Possible. The legal system should reflect the precept that ought implies can.

a. The actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.
b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate.
c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.

2. The Requirement of Regularity. The legal system should reflect the precept that similar cases should be treated similarly.

a. Judges must justify the distinctions they make between persons by reference to the relevant legal rules and principles.
b. The requirement of consistency should hold for the interpretation of all rules.

3. The Requirement of Publicity. The legal system should reflect the precept that the laws should be public.

a. The laws should be known and expressly promulgated.
b. The meaning of the laws should be clearly defined.

4. The Requirement of Generality. Statutes and other legal rules should be general in statement and should not be aimed at particular individuals.

5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.

a. A legal system ought to make provision for orderly and public trials and hearings.

b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry.

c. A legal system ought to provide a process reasonably designed to ascertain the truth.

d. Judges should be independent and impartial, and no person should judge her own case.

Absent from Rawls's formulation is the notion that the rule of law requires that the government and government officials be subject to the law. Thus, a sixth aspect of the rule of law might be added to Rawls' formulation as follows:

6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.

a. Government officials should not be above the law.

b. The legality of government action should be subject to test by independent courts of law.

More can be said about the content of the ideal of the rule of law, but this brief exposition provides sufficient clarity for for this brief introduction.

The Values Served by the Rule of Law What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.

Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulward against tyranny, chaos, and injustice.

The Rule of Law and Bad Law One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law.

Conclusion Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when its introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves.

Bibliography

Albert Dicey, Law of the Constitution 194 (London: MacMillan, 9th ed., 1950)

Richard H. Fallon, Jr., The Rule of Law" as a Concept in Constitutional Discourse 97 Columbia Law Review 1-56 (1997)

Joseph Raz, The Rule of Law and its Virtue, 93 LQR 195-202 ((1997) & reprinted in The Authority of Law: Essays on Law. and Morality (Oxford, Clarendon Press, 1979)

Judith N. Shklar (1987), "Political Theory and the Rule of Law", in Hutchinson and Monahan (eds.) The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1.

Lawrence B. Solum, Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)

Jeremy Waldron (2002), "Is the Rule of Law an Essentially Contested Concept? (in Florida)", Law & Philosophy, vol. 21/2, 2002.

(Last revised on March 2, 2008.)