Legal Theory Lexicon

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

Introduction  Some of the key conceptual tools deployed by legal theorists are likely to be familiar to most law students from their undergraduate education.  One of these is the notion of the "social contract"--familiar from Hobbes, Locke, and Rousseau.  But unless you were an undergraduate philosophy major or have some graduate work in philosophy, you may not be as familiar with some of the ideas that have grown out of the social-contract tradition.  One of these is the development of social contract theory in the political philosophy of John Rawls.  Two additional ideas are "contractarianism" and "contractualism"--distinctive positions in moral philosophy that are respectively associated with David Gauthier and Thomas ("Tim") Scanlon--and many others, of course.  Sometimes a distinction is made between "contractarianism"--with that label applied to theories that focus on self-interest, and "contractualism"--which focuses on reasonableness or justifiability to others.  I will set that distinction aside for the remainder of this entry.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Links and References

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

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

John Locke, Two Treatises of Government

Thomas Hobbes Leviathan

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

David Gauthier, Morals by Agreement

John Rawls, A Theory of Justice

(Last modified on October 16, 2007.)

Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Last modified on October 7, 2007.)

Legal Theory Lexicon 056: Pragmatism

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

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

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

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

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

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

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

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

William James, Pragmatism (1907).

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

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

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

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

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

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

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

References

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

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

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

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

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

(This post was last revised on September 30, 2007.)

Legal Theory Lexicon 055: Principles in Constitutional Theory

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Originalism

Rules, Standards, and Principles

Textualism

Bibliography & Links

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

Jack M. Balkin, Abortion and Original Meaning.

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

Ronald Dworkin, A Matter of Principle.

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

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