Legal Theory Lexicon

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 056: Pragmatism

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

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

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

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

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

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

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

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

William James, Pragmatism (1907).

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

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

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

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

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

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

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

References

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

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

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

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

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

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

Legal Theory Lexicon 049: Distributive Justice

Introduction Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at "risk spreading"? Should the Equal Protection Clause of the United States Constitution be read as guarantee of the equal distribution of rights or resources? In order to answer these and similar questions, we need to have some account of distributive justice? What makes the distribution of liberties, income, and wealth fair? Should the law aim at equality? And if it should, what sort of equality?

This entry in the Legal Theory Lexicon will provide a brief introduction to distributive justice. As always, the Lexicon is aimed at law students (especially first-year law students) with an interest in legal theory.

Context A prior entry in the Lexicon provided a brief overview of the idea of Justice. (Legal Theory Lexicon 018: Justice) In that entry, we divided the general topic of justice into four parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. Corrective justice is concerned with the righting of wrongs: so, in criminal law, we might be concerned with punishing crimes, and in tort law, we could focus on the rectification of wrongfully inflicted harms. Political justice is concerned with issues such as voting rights, democracy, legitimacy, and authority. Procedural justice addresses questions about the fairness of civil and criminal proceedings. Our topic today is distributive justice. As a rough and ready starting point, let's say that distributive justice addresses questions about the distribution or allocation of liberties, wealth, and income. As we shall see, one of the major debates about distributive justice will call this rough and ready starting point into question, because "liberties, wealth, and income" may be the wrong target for theories of distributive justce. But let's put that concern aside for now.

Rawls's Theory of Distributive Justice: Justice as Fairness Discussions of distributive justice usually start with the work of John Rawls--the most influential political philosopher of the 20th century. It really isn't possible to do justice to Rawls's theory in a paragraph or two, but I'm going to try.

Let's start with the historical roots of Rawls's theory. Rawls saw his theory as an extension of the social contract tradition--associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Traditional social contract theory posits a state of nature--in which there is no government--and then asks what would be the content of a social contract--an agreement to enter civil society. If we assume that the state of nature and the social contract are hypothetical (not actual), we can then ask the question: is an agreement reached in the state of nature fair? The answer to this question might be, "No, a social contract reached in the state of nature would not be fair, because it would favor those who are advantaged by the conditions of the state of nature, e.g. the strong, the smart, and the powerful." Rawls attempted to correct that problem with classical social contract theory by positing what he called the "original position." In the original position, the parties are to agree on principles of justice to govern the basic structure of society. Unlike the state of nature, however, the original position includes a "veil of ignorance," which prevents the parties from knowing the specific characteristics of those whom they represent.

Rawls argues that the parties to the original position would choose two principles of distributive justice:

1. The Equal Liberty Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.

2. The Difference Principle: Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society.

The first principle has priority over the second in cases of conflict.

In this very short introduction, we won't try to recreate the reasoning that would lead the parties to the original position to adopt the two principles. The basic idea of Rawls's argument is that the parties behind the veil of ignorance would have to take into account the possibility that they represent the least fortunate members of society. To protect the interest of those who are worst off, they would first make sure that everyone's basic rights--liberty of conscience, freedom of speech, due process--were protected: that is the role of the equal liberty principle. Then, the parties in the original position would attempt to make sure that wealth and income (and other basic goods) were were distributed so as to make the worst-off members of society as well off as they could be made: that is the role of the difference principle.

Rival Approaches to Distributive Justice What are the alternatives to justice as fairness? Let's take a quick look at four rivals to Justice as Fairness: (1) utilitarianism, (2) egalitarianism (or "strict equality"), (3) desert, and (4) libertarianism.

Utilitarianism Classical utilitarianism suggests that we should maximize the sum total of utility--Jeremy Bentham's slogan was "the greatest good for the greatest number." For classical utilitarians, the distribution of goods and resources doesn't matter in and of itself. What matters is how much good can be produced, not how it is distributed. This does not mean, however, that utilitarians do not care about the distribution of wealth and income. For example, a utilitarian might argue that wealth and income have "diminishing marginal utility." That is, the first $1000 of income is very important--it allows you to buy essentials like food and shelter. But the difference between $100,000 and $101,000 may be very minor--it allows you to buy a nicer car. Therefore, the utilitarian might argue that egalitarian distributions of resources will tend to increase total welfare--unless there is some countervailing reason such as increased incentives to produce useful goods and services that might result from unequal distributions of wealth and income.

Utilitarians are frequently criticized on the ground that they lack a principled objection to gross inequalities. Suppose, for example, that the total welfare of society could be improved by enslaving a small group. If this were the case, then utilitarians would be committed to the consequence that such slavery is "just" or "good," but this seems counter intuitive. Utilitarians can reply to this point in many ways, but one argument is that, in fact, slavery does not increase total utility, but actually is quite harmful. Critics are likely to say that this may usually be the case, but that utilitarianism falters on the exceptional cases where gross inequalities lead to net welfare gains. Of course, the argument can be extended by both sides, but you get the general idea.

Utilitarians are likely to object to Rawls's second principle--the difference principle--on the ground that it requires that we pay a huge penalty in total welfare to produce a small benefit for those who are least advantaged. For example, suppose that the average income could be increased by $10,000 per year if the income of the worst-off group were decreased by $10 per year. Utilitarians argue that it is wrong to deprive a large group of a very substantial amount of income in order to preserve a small amount of income for a small group. Once again, the arguments will go back and forth, but you can see how the issue is framed.

Egalitarianism Another rival of justice as fairness is "strict egalitarianism." The difference principle permits inequalities of wealth and income if those inequalities benefit the worst-off group in society. For example, it it could be shown that private ownership of capital was required to produced economic growth that benefits even the poorest members of society, the difference principle might allow Bill Gates to accumulate billions of dollars while the poorest members of society subsisted on a tiny fraction of that. Strict egalitarians maintain that distributive justice requires that each person recieve the same share--even if the consequence is that everyone (including the worst-off) gets less than they could if inequalities were permitted.

It is very important to understand that egalitarianism comes in many forms--because egalitarians have different answers to the "Equality of what?" question--which we will cover below.

Desert Yet another view of distributive justice would link distributive shares with desert or deservingness. In a very broad sense, one might say that all theories of distributive justice are desert-based. Egalitarian theories simply say that everyone deserves the same share. Fair enough! But I want to focus on a special kind of desert-based theory--one that focuses on merit or effort or some other quality as the basis for desert. For example, one might believe that wealth and income ought to be distributed in proportion to social contribution. If I work hard and create valuable goods or services, then I deserve a greater share of wealth and income, as compared with someone who makes a lessor contribution.

This kind of desert-based theory is quite different from justice as fairness, utilitarianism, or egalitarianism. This difference could be expressed in one of two ways. We might say that these other theories have a different conception of desert: for example, egalitarians may believe that each person is equally deserve of resources. Or we might say that the other theories deny the relevance of deserve; for example, egalitarians may believe that contribution-based desert is morally irrelevant.

Libertarianism Libertarianism represents another approach to distributive justice. On the one hand, libertarians are likely to endorse some version of what Rawls called the equal liberty principle. That is, libertarians are likely to believe that each individual should have an equal right to basic liberties (or autonomy). On the other hand, most libertarians reject that the idea that there should be any principles that govern the distribution of resources. For libertarians, the distribution of wealth and income flows from the free choices made by individuals. That might result in relatively equal distribution of wealth and income, or it might result in massive inequalities. For the libertarian what matters is whether the transactions or transfers are themselves just. If I freely choose to sell you Whiteacre, and I gamble away the proceeds while you grow rich, then the resulting inequality is just because it result from voluntary transactions.

In a sense, then, libertarians reject the idea of "distributive justice" as applied to the distribution of wealth and income. At the same time, however, libertarians tend to be strict egalitarians when it comes to the distribution of basic liberty rights, because most libertarians believe that the basic liberties (freedom of conscience, self-ownership) cannot themselves be alienated.  So libertarianism can be described as a form of egalitarianism--where the it is liberty that must be equally distributed.

The Equality-of-What Debate One of the most interesting debates in contemporary political philosphy has been a debate among egalitarians about the proper subject of equality. Suppose you are an egalitarian. You believe that each person should recieve an equal share of whatever is truly valuable. The question is: what is it that should be divided equally?

One possibility is "wealth and income." That is, we might believe that each person should be entitled to the same annual income. That answer becomes problematic, however, because different persons have different needs. Suppose that strict equality of income would produce a share of $20,000 per person per year. You are young and in good health, and can do quite well on that sum. I am elderly and in poor health; $20,000 per year will not even pay for the medical care necessary to sustain my life.

Here is another possibility. We might aim for equality of "welfare." Of course, we would need to define welfare, and that's a tough job. Let's assume that welfare is a subjective state, produced by the satisfaction of preferences. Equality of welfare might require substantial disparities in the distribution of resources. Those who are ill or developmentally disable might require a larger share of resources to produce an equal share of welfare. Even that might be problematic. For example, those with really severe needs might require enormous resources--the possibility of very expensive high technology medicine has hightlighted this possibility.

There is, however, another problem with equality of welfare. Suppose that you have simple tastes, and I have expensive tastes. You are happy with a modest house, simple food, and vacationing in the countryside. For me to achieve the same welfare level, I need a personal Gourmet chef, the finest wines and caviar, a mansion, and vacations at the Ritz in Paris. It seems quite odd to say that distributive justice requires that I get more resources than you, simply because my tastes are more expensive than yours.

I think you can alreay see how interesting and exciting the equality-of-what debate can be. Let me just mention some additional moves, and then stop. Another step would be to introduce the idea of equal opportunity. Thus, we might decide that it is not "equality of welfare" but "equality of opportunity for welfare" that should be the criterion for distributive justice. Another important theory, associated with the economist Amartya Sen focuses on the "capacities for valuable functionings" as the subject of equality.

Conclusion This is another Lexicon entry that is both too long and too short. Too long because it is a bit much to swallow in one quick read, but too short because the topic of distributive justice requires many multiples of the words devoted to it here--for even a short treatment. Nonetheless, I hope I have provided enough of an introduction to get you thinking!

I've included a short bibliography and some links to other resources on the Internet!

Bibliography

Ackerman, Bruce, Social Justice in the Liberal State (1980)

John Locke, Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought) (1988)

Robert Nozick, Anarchy, State, & Utopia (1974)

John Rawls, Justice as Fairness: A Restatement (2001)

John Rawls, A Theory of Justice (1971)

Jean-Jacques Rousseau, 'The Social Contract' and Other Later Political Writings (Cambridge Texts in the History of Political Thought) (1997)

Links

Fred D'Agostino, Contemporary Approaches to the Social Contract, Stanford Encyclopedia of Philosophy

Ann Cudd, Contractarianism, Stanford Encyclopedia of Philosophy

Julian Lamont, Distributive Justice, Stanford Encyclopedia of Philosophy

Fred D'Agostino, Original Position, Stanford Encyclopedia of Philosophy

Amartya Sen, Equality of What (PDF)

(This entry was last revised on August 12, 2007.)

Legal Theory Lexicon 048: Libertarian Theories of Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References

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

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

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

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

Legal Theory Lexicon 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 042: Consent

Introduction Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery—unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and not actionable, even if it results in serious harm. Intercourse without consent is the very serious crime of rape; intercourse with consent is quite something else.

The basic legal structure is easy to grasp. But what is consent? Why does it have the legal and moral force that it does? When is it valid and when is it invalid?

This entry in the Legal Theory Lexicon is about the idea of consent in legal contexts involving interpersonal (but not political) relationships. The entry will explore what consent is and why consent is important, both legally and morally. Our investigation will also explore the conditions under which consent might be said to be “invalid,” e.g. in cases where consent was obtained through deception, coercision, or in which the consenting person lacked capacity to give consent. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

The Ontology of Consent What is consent? We all know about paradigm cases of consent and its absence. Consent is clearly present (ceteris paribus) when someone says “I consent” and really means it. Consent is absent when someone says, “I object” and really means it. But the ability to distinguish clear cases of consent and its absence is not sufficinet for a theory of consent.

In general, there are two families of theories about the nature of consent. One theory is that consent is a mental state—either an affective state such as desire or a volitional state such as choice. The second theory is that consent is a performative—a speech act in which one person agrees to something by communicating with another person (or persons). Each of these two approaches to consent requires some additional explanation.

Consent as a Mental State The first possibility is that consent is a mental state. But what kind of mental state? Is a consent a willing, a wish, a desire, a choice, a preference, or something else? We can investigate two possibilities:

Consent as an Affective Mental State One possibility is that when Alice consents to be kissed by Ben, her consent consists in a certain attitude towards the kiss. For example, if Alice wants (or desires) Ben to Kiss her, then we might be tempted to say that Alice has consented to the Kiss. Another candidate for the relevant affective mental state might be preference. We might say that Alice consents to Ben’s kiss if Alice prefers Ben’s kissing her to the alternative.

Consent as a Volitional Mental State There is another possibility. It might be that consent is not attitude but a decision, choice, or willing. Thus, we might say that Alice consents to Ben’s kiss if Alice had chosen that Ben kiss her.

Affective mental states like desires or preferences are not identical to volitional mental states like choosings or decisions. To want something is different than to having chosen to do it. Of course, there may be a close relationship between affective and volitional states. For example, you might believe that when you have an all-things-considered desire to be kissed, then the choice—the choosing to be kissed—follows more or less automatically. These are deep waters that we can elide for the purposes of this bare-boned introduction to the idea of consent.

Consent as a Performative Most American jurisdictions define legal consent as a mental state, but it is not clear that our ordinary language conception of consent can be reduced to a mental state. Consent is both a noun and an intransitive verb. Thus, we say things like, “I consent” or “He consented to having his name put forward in nomination.” When used in this way consent seems to be some kind of action, accomplished through communication.
Consent could be a performative--a communicative act in which the speaker communicates permission for or agreement to a course of action.

So which is it? Is consent a mental state or a communicative action? This is not the sort of question that can be resolved by a Legal Theory Lexicon entry. My opinion is that the performative theory best captures the ordinary language conception of consent. One reason I think so is that the idea of secret consent—which would be a perfectly alright if consent is a mental state—doesn’t seem to comport with our usual way of talking about consent. “I consented to the operation, but I didn’t tell anyone”—sounds quite odd to my ear. The law goes both ways, however, and most jurisdictions use a mental state conception of consent for the purposes of defining “legal consent.”

The Moral and Legal Force of Consent Assuming we knew what consent is, we can ask the further question, “What legal and moral effect does consent have and why?

The Moral and Legal Significance of Consent Sometimes it is said that consent works moral magic. What does that mean? The idea is that consent has a tranformative moral power: consent can tranform a wrongful action into a rightful action. Batteries are both morally wrong and and subject to legal sanctions (both criminal and civil), but consent somehow drains the punch of its moral and legal offense. Taking my property with the intent of permanently depriving me of use and enjoyment is theft, but taking my property with consent is simply accepting a gift.

Why Does Consent Have Moral and Legal Force Once we recognize that consent does have some kind of transformative moral and legal force, the next question we might ask is why? There are lots of way to approach the question why consent has moral force. For example, we might approach the question from the perspectives of the major families of moral theories. Let’s give that a whirl.

Autonomy and Consent Some moral theories make “autonomy” a central moral idea. Of course, autonomy isn’t easy to describe—especially in a sentence or so. We might say that the core idea of autonomy is self-direction or self control. An autonomous person is one who directs her own life, and not someone whose life is controlled by others. Of course, we can’t all do whatever we would like without running the risk of interfering with each other. Hence, from the idea of autonomy, we might derive the idea of moral rights and duties that create for each individual a sphere of autonomous action, in which each individual can direct her own life without interfering with the like freedom of others to do the same. The moral force of consent comes naturally if one accepts autonomy as a central moral value. Consent allows others to enter one’s sphere of autonomy. So long a consent is freely given, consented-to rights violations seem perfectly consistent with the idea that rights protect a sphere of individual choice.

Utility and Consent Can utilitarians account for the moral force of consent? Of course, for a utilitarian, consent really can’t be said to be “moral magic.” For utilitarians, the bottom line question is whether a particular state of affairs involves greater utility than the alternatives. So, on the surface, it might seem like consent is not, per se, morally relevant. Consent is just a fact; only good and bad consequences are morally significant.

But it is more complicated than that. There are many possible forms of utilitarianism, and one dimension of variation concerns the various conceptions of utility. One important form of utilitarianism holds that there utility consists in the satisfaction of preferences. Suppose that one also believed that consent was the mental state of preferring the consented-to action to the alternatives. If no third parties were affected (and assuming that consent was freely given on the basis of adequate information), then the consented-to activity would maximize utility. So for at least some utilitarains, consent would be presumptive evidence that the consented-to action would maximize utility and hence be the morally best action.

Virtue and Consent Consent will also be relevant to aretaic (or virtue-based) moral theories. One of the virtues is justice, and humans with this virtue will not violate the rights of others without their consent. Virtue ethics differs from deontological and utilitarian theories in part because virtue ethics denies that there is any decision procedure for ethics. That is, a virtue ethicist is unlikely to believe that consent can work “moral magic,” but instead is likely to believe that the moral salience of consent is contextual—depending on the particular circumstances of the case. Virtue ethics is also likely to ask the question whether the person given the consent is a virtuous agent. Humans without the virtues are likely to give consent when they shouldn’t—when, for examploe, the consented-to action might actually cause unjustified harm to the fortunes or capacities of the consenting agent. In such circumstances, virtue ethics might deny that consent works moral magic. A virtuous agent might regard herself as obligated not to take advantage of consent—despite the fact that the consent was freely given by an agent who meets the legal standard of competence in circumstances without coercion or deception.

Valid and Invalid Consent We have one more important topic to consider. Consent may be invalid. Let’s explore three kinds of reasons for concluding that consent is invalid, and hence that consent does not transform the legal or moral situation: (1) deception, (2) coercion, and (3) incapacity.

Deception Consent obtained by deception may be invalid, either morally or legally or both. For example, if Alice consents to Ben’s kiss, because Ben tells Alice that he likes her very much, but Ben in fact does not like Alice at all, then Alice’s consent may not be morally valid. Because Ben obtained Alice’s consent by deception, Ben is not morally authorized to kiss Alice. In this case, however, the law would not consider Alice’s consent to be legally invalid. Although Ben may be morally wrong if he kisses Alice, he will not have committeed the crime of sexual assault or the tort of battery. Legally, this kind of deception is not sufficient to invalidate Alice’s consent.

Outright fraud—intentionally making false statements about something materially relevant to the decision at hand—is the most obvious form of deception. But deception may involve nondisclosue as well as lying. If Ben fails to disclose to Alice that Ben is married, then Alice’s consent may not be morally transformative—although once again, the law will still treat Alice’s consent as legally valid.

Coercion Consent may also be invalid because it is coerced. For example, if Alice consents to Ben’s kiss because Ben has threatened to harm her if she does, then her consent is invalid. And this is true, both morally and legally. Because consent was coerced, Ben should not kiss Alice and if he does, he will have acted tortiously and perhaps criminally as well.

One problem with coercion is distinguishing threats from offers and warnings. Consent is not invalidated because it is induced by an offer or warning, but it will be invalidated if induced by a threat. How do we differentiate threats from offers and warnings. One strategy is to specify a baseline of legal and/or moral entitlement. We call a communication promising an action in exhange for consent a threat, if the action would move the party below the baseline of entitlements. We call a communication promising an action in exchange for consent, if the action would move the consenting party above the baseline of moral and/or legal entitlements. So if Ben promises Alice that he will let her choose the movie in exchange for a kiss, that is an offer. If he promises to force Alice to watch a movie she doesn’t like if she doesn’t consent to a kiss, that is a threat.

Warnings are neither offers nor threats. One kind of warning arises when the warning party predicts consequences outside its control. If Ben predicts to Alice that she will feel silly if she doesn’t consent to a kiss, then he has warned her of a consequence, but he has neither made a threat nor an offer.  Another kind of warning involves situations in which the warning party does have control.  For example, "If you continue to smoke, I will leave the room," may be a warning rather than a threat if the warning party does not intend to change the behavior of the party being warned.

Incapacity Consent requires capacity. For example, children cannot consent to sexual relations as a matter of law—hence, consent is no defence to a charge of statutory rape. On the other hand, children can consent to lots of things, including rough play such as wrestling. Other examples of incapacity include mental illness, profound developmental disability, or severe intoxication. If Ben consents to Alice’s taking Ben’s new Mini Cooper on a two-week road trip while Ben is completely blotto (and Alice knows this), then his consent may be invalid and hence Ben may be legally entitled to demand that Alice return his car.

Conclusion Consent is one of those ideas that cuts across courses and theoretical approaches. We’ve barely scratched the surface of consent, but I hope that this post has provided a very basic introduction to some of the key concepts.

(This entry was last updated on June 25, 2007.  I owe thanks to Alan Wertheimer for a very helpful clarification re warnings.)

Legal Theory Lexicon 041: Metaethics

Introduction Suppose that we are debating a question in normative legal theory--e.g., whether gay couples should have a constitutional right to marry or whether tort law should replace the negligence standard with strict liability. In debates about what the law ought to be, two kinds of questions can arise. There are first order questions, e.g. the conventional arguments of principle or policy for and against particular legal rules. These first order questions involve issues of political morality; that is, normative legal theory involves first-order questions of normative ethics. Sometimes, however, a different sort of issue arises. Second order questions might include the following: "What do statements about what the law should be mean?" or "Are the propositions of normative legal theory objective?" These second order questions of normative legal theory are a subclass of the more general class of second order questions of moral and ethical theory. This is the domain of metaethics.

"Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions.

Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.


Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics:

• What is the meaning of moral language? Do statements about what the law ought to be state facts or do they do something else?
• Are there moral facts or moral properties? More particularly, are there normative legal facts? If so, then can they be reduced to nonmoral properties or are they somehow different from nonmoral properties?  If they are not different do they "supervene" on nonmoral properties?
• Can we have knowledge (justified true beliefs) about what the law ought to be? If we can, how is such knowledge possible?
• What is the motivational role of moral propositions? Assuming there are moral facts, does the fact that X ought to be the law in any way provide a motive for making X the law?
• Are statements about what the law should be objective? If not, are they relative to the norms of some social group? Or subjective? Or meaningless?

Let's explore one or two of these concepts.


Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false.

I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism.

Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural).

A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism.

It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important.


Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent.

For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations.

But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an i