Legal Theory Lexicon

Legal Theory Lexicon 064: Possibility and Necessity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two Mistakes About Possibility

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

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

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

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

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

References

John Divers, Possible Worlds (Rutledge 2002).

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

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

Legal Theory Lexicon 063: Interpretation and Construction

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

• Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.
• Construction: The activity of translating the semantic content of a legal text into legal rules, paradigmatically in cases where the meaning of the text is vague.

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

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

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

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

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

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

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

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

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

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

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

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

What Work Does the Interpretation-Construction Distinction Do?  Is this inerpretation-construction distinction really necessary?  What work does it do?  One way to think about this question is to imagine what things would look like if we didn't have the interpretation-construction distinction.  What if we called everything "interpretation" and didn't recognize construction as a distinct activity.  Well, we could reinvent the distinction within the concept of interpretation.  You can imagine talking about two stages of interpretation--stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction.  But if we did that, we would simply be using different labels to refer to the same concepts.

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

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

The Interpretation-Construction Distinction and the New Originalism  One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism."  One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction.  (This is especially clear in the work of Keith Whittington and Randy Barnett.)  The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation.  Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work.  New Originalists deny that this is true.  They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene.  This opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results.  This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning.

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

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

Links

Legal Theory Lexicon 015: Transparency

Legal Theory Lexicon 019: Originalism

Legal Theory Lexicon 030: Textualism

Legal Theory Lexicon 051: Vagueness and Ambiguity

Bibliography

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

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

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

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

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

Legal Theory Lexicon 062: Path Dependency

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

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

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

Specifying Parth Dependency This general notion can be specified in various ways.

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

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

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

Applications in Normative Legal Theory

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

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

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

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

Online Resources

Lawrence B. Solum, Constitutional Possibilities (forthcoming Indiana Law Journal).

Bibliography

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

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

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

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

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

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

(This entry was last revised on November 11, 2007.)

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 052: Property Rules and Liability Rules

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References

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

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

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

(This entry was last revised on September 2, 2007.)

Legal Theory Lexicon 051: Vagueness and Ambiguity

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

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

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

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

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

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

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

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

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

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

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

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

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

Links

Stanford Encyclopedia of Philosophy Article on Vagueness

Wikipedia Article on Vagueness

Vagueness in Law by Timothy A. O. Endicott

(This entry was last revised on August 26, 2007.)

Legal Theory Lexicon 050: Default Rules and Completeness

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Links

Default Rules on Wikipedia

Complete Contract on Wikipedia

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

Ian Ayers, Default Rules for Incomplete Contracts

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

(This entry was last updated on August 19, 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 044: Legal Theory, Jurisprudence, and the Philosophy of Law

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

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

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

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

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

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

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

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

Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory” and closely related to political philosophy.  Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other.

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

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

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

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

Bibliography

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

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

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

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

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

(This entry was last revised on July 8, 2007.)