Legal Theory Lexicon

Legal Theory Lexicon 065: The Nature of Law

Introduction

What is the nature of law?  This question has occupired center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurispurdence.  This entry in the Legal Theory Lexicon aims to give an overview of the "What is Law?" debate, with more specialized entries on specific aspects of the debate to follow over the next several weeks.

Historically, the answer to the question, "What is law?," is thought to have two competing answers.  The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice.  The modern answer is provided by legal positivisim, which, as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

Contemporary debates over the nature of law focus on a revised set of positions.  Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Jules Coleman.  The natural law tradition is defended by John Finnis.  And a new positition, interpretivism is represented by Ronald Dworkin.

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

This Lexicon entry maps the territory of the "What is Law?" controversy, and provides introductory sketches to the major positions.  As always, the Lexicon is written for law students, especially first-year law students, with an interest in legal theory.

Natural Law Theory

Natural law theory is strongly associated with classical and medieval thought, especially Aristotle, Roman jurisprudence, and St. Thomas Aquinas.  There are several challenges associated with the task of explicating natural law theory, and one of the most important tasks of this introductory entry is simply to identify these challenges.

First, there are two interrelated but distinct views that are called "natural law theory."  One is a view about the nature of morality: this view asserts that there are natural moral laws, and it is not essential to this view that it take any particular stand on the "What is law?" debate.  A second view that is called "natural law theory" is a theory about "law" as an institution or practice--that is the view that is implicated in the "What is law"" controversy.

Second, contemporary understandings of "natural law theory" have been strongly influenced by the legal positivists critique.  When the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition.

For the purposes of this broad overview, we might use the latin phrase lex injusta est non lex as a starting point.  Natural law theory could be understood as affirming something like the following:

An unjust "law" is not a true law.

This formulation differs from a literal translation--an unjust law is not a law.  Formulated in that way, natural law theory seems to be committed to a contradiction: something which is a law (but also is unjust) is not a law.  The quotaton marks around "law" and the phrase true law make it clear that natural law theory is asserting something else, that something which might be called a "law" is not in fact a law if it is unjust.  Usually, this notion is accompanied by some explication of the characteristics that are required for status as a "true law" or perhaps "valid law."

Legal Positivism

It is difficult to know where the positivist tradition begins.  Hobbes's theory of law shares some characteristics with the theories offered by Jeremy Bentham and John Austin--both of whom are clearly in the positivist tradition.  Jeremy Bentham developed a very sophisticated version of legal positivism, but for a variety of reasons, the more influential and widely known view was that of Bentham's student, John Austin, the author of The Province of Jurispudence Determined (1861).

Austin's theory was that a given rule was a law if and only if the rule was the command of the sovereign to subjects of that sovereign backed by the threat of punishment.  A sovereign is some person or institution who is habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.

Austin's positivist theory does an excellent job of explaining the rules of criminal law, which forbid certain actions and impose punishments on those who engage in the forbidden actions.  But this theory has a difficult time accounting for other aspects of law, and especially for those rules that create legal powers, such as the power to create contracts, trusts, wills, and so forth.  This difficulty is most acute with respect to rules that define the basic institutional arrangements that define the sovereign itself, e.g., the rules of constitutional law in the United States.

These deficiencies in Austin's theory prompted H.L.A. Hart to develop a more sophisticated version of legal positivism.  One feature of that theory is the distinction between primary rules (which would include criminal prohibitions) and secondary rules (which allow for the creation, alteration, and termination of primary rules).  Hart replaced the notion of a sovereign with that of a rule of recognition--a social rule that specifies what counts as a law and what does not.

Moral Facts, Social Facts, and Legal Content

The contemporary approach to these issues is the product of almost sixty years of thinking within the tradition that is sometimes called "analytic jurisprudence."  Beginning with the work of H.L.A. Hart in the 1950s, through is publication of The Concept of Law in 1961, and extending through Ronald Dworkin's critique of Hart, and the reformulation of the positivist tradition by both Joseph Raz and Jules Coleman, the basic issues and questions have gone through several transformations.

One useful way to get get at the heart of these developments is to conceive of the debate about the nature of law as centrally concerned with the relationship between social facts, moral facts, and legal content.  Our question is "What determines legal content?," where "legal content" is simply understood as the content of the legal norms.

One answer to this question takes the form: It is necessarily the case that only social facts determine legal content.  This is exclusive legal positivism--a view that is strongly associated with Joseph Raz.

A second answer to this question takes the form: It possibly the case that moral facts determine legal content, but only if social facts give the moral facts this role.  This is inclusive legal positivism--and this view is most strongly associated with Jules Coleman.

A third answer to the question takes the form: It is necessarily the case that moral facts determine legal content.  This view would include natural law theory and interpretivism--the view that is strongly associated with Ronald Dworkin.

By framing the "What is law?" debate in terms of the relationship between social facts, moral facts, and legal content, the conceptual space we get precise mapping of the conceptual space.  In the rest of this Lexicon entry, we will take a somewhat less shallow look at the three options.

Inclusive and Exclusive Legal Positivism

Exclusive legal positivism is the view that only social facts can determine legal content.  Joseph Raz famously argued for exclusive legal positivism based on the premise that law claims authority, that authority consists in displacing other reasons for actions, and therefore law must displace moral reasons for action.  (That was a very short and inadequate summary of a long and complex argument.)

Inclusive legal positivism is the view that moral facts can play a role in determining legal content, but only if there are some social facts that give the moral facts this role.  For example, a constitution might include an clause that make a moral conception of human equality a legal rule.  This would give the morality of equality a role in determining legal rights, but this role would exist because a social fact (the Constitution) made it so.

Interpretivism

The final view is "interpretivism," strongly associated with Ronald Dworkin.  For Dworkin, social facts, such as constitutons, statutes, and court decisions, do not directly determine legal content.  Instead, Dworkin believes that the content of the law is given by the theory that best fits and justifies the legal materials.  Dworkin makes this theory vivid by imagining a judge, Hercules, who is able to construct a grand theory of political morality that provides a constructive interpretation of the entire institutional history of a given society.  Because this theory is a theory of that institutional history, it is constrained.  For example, the best constructive interpretation of the institutional history of the United States will have to acknowledge that our federal legislature is bicameral and that it includes a Senate with equal reprsentation of each state.  But this constraint does not require a perfect match between a literal interpretation of every legal text and the content of the law.  So some precedents may be categorized as mistakes, and some statutory or constituitonal provisions may be given a constructive interpretation that makes them morally more attractive but does not follow every jot and tittle of the text.

Conclusion

This very brief introduction to the "What is law?" debate is necessarily incomplete and shallow.  But I hope that it gives you a general sense of the various positions that have been taken on the nature of law.

Bibliography

John Austin, The Province of Jurisprudence Determined (1861).

Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2001).

Ronald Dworkin, Law's Empire (1986).

John Finnis, Natural Law and Natural Rights (1980).

H.L.A. Hart, The Concept of Law (1961) (2d ed. 1984).

Joseph Raz, The Authority of Law: Essays on Law and Morality (1983).

Links

John Finnis, Natural Law Theories, Stanford Encyclopedia of Philosophy.

Leslie Green, Legal Obligation and Authority, Stanford Encyclopedia of Philosophy

Leslie Green, Legal Positivism, Stanford Encyclopedia of Philosophy.

Andrei Marmour, The Nature of Law, Stanford Encyclopedia of Philosophy.

Nicos Stavropoulos, Interpretivist Theories of Law, Stanford Encyclopedia of Law.

Brian Tamanaha, Law, Oxford International Encyclopedia of Legal History, 2008.

Related Legal Theory Lexicon Entries

Legal Theory Lexicon 032: Fit and Justification

Legal Theory Lexicon 038: The Internal Point of View

Legal Theory Lexicon 039: Primary and Secondary Rules

Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law

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 044: Legal Theory, Jurisprudence, and the Philosophy of Law

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

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

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

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

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

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

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

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

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

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

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

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

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

Bibliography

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

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

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

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

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

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

Legal Theory Lexicon 043: Formalism and Instrumentalism

Introduction American law students learn about formalism instrumentalism early on—although those particular terms may not be introduced explicitly in classroom discussion. Many law students hunger for “black letter law,” for legal rules that can be learned and applied to the facts in a more or less determinate fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice.

In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.

But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.

In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.

Legal Formalism What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following

Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.

In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning.

We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:

• Judges should apply the law and not make it.


• There are legal rules that constrain what legal actors may lawfully do.


• There is a difference between following the law and doing what you think is best.


• Judges should decide cases in accord with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents.

This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:

1. The law consists of rules.
2. Legal rules can be meaningful.
3. Legal rules can be applied to particular facts.
4. Some actions accord with meaningful legal rules; other actions do not.
5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.

Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.

Legal Instrumentalism Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.

The Realist Critique of Legal Formalism It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty.

The Modern Revival of Legal Formalism or Neoformalism Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.

Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.

Because the terms "formalism" and "formalist" carry a lot of baggage, some contemporary formalists prefer to use the term "neoformalism" as a label for their position.  Likewise, some contemporary originalists refer to "the new originalism" to distinguish their position from others that are called "originalist."

Conclusion The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.

Related Entries

The Rule of Law
Originalism
Rules, Standard, and Principles
Textualism

Bibliography & Links

Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006).

Larry Alexander, Law and Formalism.

Neoformalism, Wikipedia.

Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights

(This entry was last modified on July 1, 2007.)

Legal Theory Lexicon 039: Primary and Secondary Rules

Introduction Most law students begin to notice that there is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts, on the other. The rules of criminal law seem to define standards of conduct; they are about what you can and cannot do, or more precisely, rules that forbid certain conduct and then attach punishments for disobedience. The rules of contract law are different. It's true that contract remedies do provide sanctions (or prices) for breaking contracts, but much of contract law is about making contracts, that is about how to make new law. In criminal law (and torts), the state makes up the rules of conduct. In contract law, the contracting parties are empowered to create their own rules of conduct.

Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

The Distinction Between Primary and Secondary Rules Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules.

More precisely, primary rules are rules that govern primary conduct, and secondary rules are rules that govern primary or secondary rules. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation.

Some more examples may help:

Examples of Primary Rules

• Criminal prohibitions.
• Tort rules.
• The individual right to freedom of speech.
• The provisions of contracts that define the primary obligations of the parties.
• The environmental law rule that forbids discharge of toxic substances in rivers and streams.

Examples of Secondary Rules

• Contract law rules that enable parties to form contracts.
• The rules that allow testators to create a will.
• The constitutional rules that confer legislative powers on Congress.
• The statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.

The Practical Importance of Secondary Rules One of the really nifty things about Hart's introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.

Conclusion The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments.

One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century.

Links & Resources

K.K. Lee, Hart's Primary and Secondary Rules, 78 Mind 561 (1968) (link is to JSTOR, which may require an account or fee).

D. Gerber, Levels of Rules and Hart's Concept of Law, 81 Mind 102 (1972) (link is to JSTOR, which may require an account or fee).

(This entry was last revised on June 3, 2007.)

Legal Theory Lexicon 038: The Internal Point of View

Introduction How can we look at a legal system? H.L.A. Hart famously deployed the distinction between external and internal perspectives on a legal system in his famous book, The Concept of Law. This post provides a very brief introduction to this distinction for law students (especially first-year law students) with an interest in legal theory.

Internal and External What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea is fairly clear. The internal point of view is the perspective of participants in the system. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system.

Here are some examples:

--Doctrinal theories (e.g. a theory of the Commerce Clause of the United States Constitution) are usually stated from the internal point of view. This is the kind of theory that law students usually encounter early in their legal education.
--Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this.

The General Significance of the Internal Point of View The idea of the internal point of view plays a particular role in H.L.A. Hart's theory of law, but this post is about a related but distinct topic--the more general role that the internal/external distinction plays in legal theory. Newbie legal theorists need to know this distinction in order to avoid a very serious mistake in theory development. That mistake is to slide between the internal and external point of view. This mistake is actually quite easy to make. The theorist is working within the internal point of view--describing a particular legal doctrine from the point of view of lawyers and judges who work within the constraints of the doctrine. Then, the theorist slides into an explanation as to how the law came to be the way it is--describing the operation of political or economic pressures--and then slides back to the doctrinal level--drawing the conclusion that the law should be interpreted differently in light of the causal explanation. Arguments like this can be made to work, but unless the relationship between the causal explanation and the doctrinal consequence is explained carefully, this kind of move can easily involve a category mistake. Causal explanations (of how the law has come to be the way it is) are usually irrelevant from the internal point of view.

Rules and the Internal Point of View The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?"

If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study.

Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view.

The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions.

Conclusion The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories,

Bibliography

Dennis Patterson, Explicating the Internal Point of View (Southern Methodist University Law Review, Vol. 52, 2006).

Scott Shapiro, What is the Internal Point of View?

(This entry was last revised on May 27, 2007.)

Legal Theory Lexicon 033: Holism

Introduction Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.

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

And before we get on with it, a brief digression on the origins of the phrase. The idea of the law as a seamless web seems to be derived from a related idea--that thistory is a seamless web--found in the writiings of Frederic Maitland: "Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web." Frederic William Maitland, A Prologue to a History of English Law, 14 L.QUARTERLY REV. 13 (1898).

The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.

Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.
Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”

Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.

Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.

Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.

At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).

Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.

Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.

Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.

Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.

(Last revised on April 22, 2007)

Legal Theory Lexicon 031: Virtue Jurisprudence

Introduction Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's have had a profound influence on the idea of fairness in legal theory and on the conception of rights that is at the heart of deontological legal theory. Utilitarianism and the law reform agenda of Jeremy Bentham provide an important part of the normative version of law and economics. But if you recently studied moral philosophy as an undergraduate or in graduate school, you might notice that something is missing. The moral philosophy pie can be cut in many ways, but the conventional slicing divides normative moral theory into three kinds: (1) deontological moral theores (e.g. Kant and contractualism), (2) consequentialist moral theory (e.g. utilitarianism and welfarism), and (3) aretaic moral theory (e.g. virtue ethics). Recently, however, a variety of legal theorists have begun to consider the implications of aretaic (virtue-centered) moral theory for the law.

This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory.

Modern Moral Philosophy and Contemporary Legal Theory The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post.

Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy.

Virtue Ethics and Legal Theory There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics.

An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. Kyron Huygens (of Punishment Theory) and Stephen Bainbridge (of ProfessorBainbridge.com) are just two of a growing number of legal scholars who have discussed virtue ethics in their work.

Towards a Virtue Jurisprudence A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following:

• Virtue ethics has implications for an account of the proper ends of legislation. If the aim of law is to make citizens virtuous (as opposed to maximizing utility or realizing a set of moral rights), what are the implications for the content of the laws?
• Virtue ethics has implications for legal ethics. Current approaches to ethical lawyering emphasize deontological moral theory, i.e. duties to clients and respect for client autonomy, and these deontological approaches are reflected in the various codes of professional conduct that have been devised for lawyers, judges, and legislators. How can we reconceive legal ethics from a virtue-centered perspective?
• Accounts of the virtue of justice (in particular, Aristotle’s and Aquinas’s theories of natural justice) have implications for debates between natural lawyers and legal positivists over the nature of law.

In this Legal Theory Lexicon post, however, I will discuss only one aspect of virtue jurisprudence--a virtue-centered theory of judging in general and the virtue of justice in particular. Virtue-centered theories of judging answer the question: How should judges decide the controversies that are presented to them? A virtue-centered theory of judging provides an answer along the following lines: Judges should decide cases in accord with the virtues, or judges should render the decisions that would be made by a virtuous judge.

A Virtue-Centered Theory of Judging How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.

The Thin Theory of Judicial Vice Begin with the assumption that humans have characters. More particularly, let’s assume that humans have dispositional traits that incline them to behave in more or less predictable ways. Our vocabulary is rich with words to describe such traits. We use terms like “coward,” “procrastinator,” “reliable,” “hard-working,” “studious,” “curious,” “sensitive,” and so forth. Following Aristotle, let’s sort the traits, picking out those which we count as human excellences, “virtues,” and those which we count as defects, “vices.” Let’s set the virtues and any traits that are neutral to the side, and focus on the defects—traits like cowardice, gluttony, avariciousness, foolishness, and so forth.

Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging.

We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them.

There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office.

What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices.

The Thin Theory of Judicial Virtue The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.

A Preliminary List of the Judicial Virtues So let's make a tentative list of judicial virtues:

Judicial Sobriety "Sober as a judge" is the say that expresses the idea that judges should have what was classically called the virtue of temperance. Good judging requires that one’s desires be in order. This is clear when the temperate judge is contrasted to the judge who lacks the ability to control her appetites. Judges who care too much for their own pleasures are prone to temptation; they are likely to be swayed from the course of reason and justice by the temptations of pleasure. A libertine judge may indulge in pleasures that interfere with the heavy deliberative demands of the office. Hence, the saying “sober as a judge,” reflects the popular understanding that excessive indulgence in hedonist pleasures would interfere with excellence in the judicial role.

Judicial Courage A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice.

Judicial Temperament A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner.

Judicial Intelligence The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law.

Judicial Wisdom The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis.

This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom.

Beyond a Thin Theory of Judicial Virtue A thin theory of judicial virtue should prove uncontroversial because it avoids the tough questions about judging. Formalists and realists, conservatives and liberals—all can endorse a thin theory of judicial virtue, because thin theories don’t answer hard questions. We can distinguish thin theories of judicial virtue from theories that are “thick.” A thick theory of judicial virtue expands the list of judicial excellences to include characteristics of mind and will that are controversial. Corresponding to any particular normative theory of judging we can postulate a thick theory of judicial virtue that specifies those dispositions and capacities that are required for excellent judging according to the criteria provided by the particular theory.

An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind.

Instrumental and Virtue-Centered Theories Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it.

A Virtue-Centered Theory So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions:

• A judicial virtue is a naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make just decisions. The judicial virtues include but are not limited to temperance, courage, good temper, intelligence, wisdom, and justice.
• A virtuous judge is a judge who possesses the judicial virtues.
• A virtuous decision is a decision made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision.
• A lawful decision is a decision that would be characteristically made by a virtuous judge in the circumstances that are relevant to the decision. The phrase “legally correct” is synonymous with the phrase “lawful” in this context.
• A just decision is identical to a virtuous decision.

The central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.

Conclusion Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice.

For a short introduction to my own work, check out Virtue Jurisprudence: An Aretaic Theory of Judging and Natural Justice.

(This entry last revised on April 8, 2007)