Legal Theory Lexicon

Legal Theory Lexicon 048: Libertarian Theories of Law

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

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

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

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

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

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

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

The harm principle is almost as controversial as it famous. In particular, there is a persistent worry about the problem of the baseline against which “harm” as opposed to “lack of advantage” might be measured.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References

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

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

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

(This entry was last revised on August 5, 2007.)

Legal Theory Lexicon 047: The Counter-Majoritarian Difficulty

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

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


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

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

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


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

The Institution of Judicial Review Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for a regime that incorporates the institution of judicial review incorporating judicial supremacy. In the United States, for example, the courts have the power to declare that acts of Congress are unconstitutional, and if the Supreme Court so declares, the Congress does not have the power to override its decision.
The institution of judicial review is counter-majoritarian in part because federal judges are not elected and they serve life terms. Presidents are elected every four years; members of the House of Representatives every two years; and Senators serve staggered six year terms. Of course, judges and justices are nominated by the President and confirmed by the Senate and these features create some degree of democratic control of the judiciary. Nonetheless, on the surface, it certainly looks like judicial review is an antidemocratic institution. Unelected judges strike down legislation enacted by elected legislators: that is certainly antidemocratic and antimajoritarian in some sense.

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

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

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

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

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

Whew! That was a lot of “We the People” talk. I need a break from channeling Ackerman, before I can finish this entry! OK. I’m back!

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

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

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


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


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

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

(This entry was last revised on July 28, 2007.)

Legal Theory Lexicon 046: Legitimacy

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

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

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

Conceptions of Legitimacy

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

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

Four Conceptions of Legitimacy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Within the legal academy, the connection between judicial decisionmaking and politics is associated with American legal realism (and, more recently, with the Critical Legal Studies movement). But in political science, this same insight has been developed in an empirically more rigorous way, and frequently is called “the attitudinal model.”
The basic insight of the attitudinal model is that judicial decisions can, in at least some circumstances, be explained and predicted by the attitudes of judges. Thus, a simple attitudinal model might code each justice as occupying a point on a real line from left to right. A judge at the left-most point on the line would be very liberal. A judge on the right-most point of the line would be very conservative. The model might then predict how a judge’s attitudes (or position in attitudinal space) would correlate with positions on particular issues. Conservative judges are likely to vote against a right to abortion; liberal judges may be likely to uphold assertions of national power against challenges on federalism grounds.

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

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

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

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

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

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

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

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

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

Bibliography

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

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

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

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

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

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

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

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

In addition to the sources listed above, anything by either Howard Gillman or Mark Graber is highly recommended!

(This entry was last revised on July 15, 2007.)