Legal Theory Lexicon

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 May 27, 2007.)

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 May 20, 2007.)

Legal Theory Lexicon 036: IndeterminacyIntroduction

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.
For more on the indeterminacy debate, see Lawrence On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987). (online here)

(This entry was last revised on May 13, 2007.)

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 interpetation.

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.
• 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 August 3, 2008.)

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!

(This entry was last revised on July 27, 2008.)