Legal Theory Lexicon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Links and References

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

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

John Locke, Two Treatises of Government

Thomas Hobbes Leviathan

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

David Gauthier, Morals by Agreement

John Rawls, A Theory of Justice

(Last modified on October 16, 2007.)

Legal Theory Lexicon 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 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 037: Overlapping Consensus & Incompletely Theorized Agreements

Introduction As law students become more sophisticated, they begin to notice that certain debates seem to repeat themselves over and over again. Disagreements about disparate subjects--in procedure, criminal law, torts, property, and constitutional law--frequently seem to turn on the really big questions of ethics and political theory. On the one hand, the proponents of inviolate individual rights appeal to deontological premises in moral theory or liberal (or libertarian) ideas in political philosophy. On the other hand, the proponents of balancing argue from premises rooted in utilitarianism or welfarism (the economic version of utilitarian moral philosophy).

For a short time, the ability to see this pattern may be exhilarating. You begin to see big patterns that transcend courses and doctrines. But after a while, exhilaration may give way to depression. If all the great debates in legal theory boil down to debates about the deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?" Because it sure doesn't look like the debates between deontology and consequentialism or between libertarians and communitarians are going to be decisively resolved any time soon.

And that is where today's Legal Theory Lexicon comes into the picture. Even if the deep debates of moral and political philosophy are irresolvable, there may be other ways to make progress in legal theory. In particular, we may be able to use the ideas of "incompletely theorized agreements" (associated with Cass Sunstein) or "overlapping consensus" (associated with John Rawls) to break the impasse on the deep questions.

The basic idea is simple. We cannot agree on the deep questions, so go shallow. Find the level at which those who disagree on the deep can nonetheless find common ground. John Rawls calls the idea of common ground by the name "overlapping consensus." Cass Sunstein calls a similar idea, "incompletely theorized agreement." But both Sunstein and Rawls express a similar intuition. When you cannot reach agreement at the deep end of the pool of ideas, head for the shallow end!

Deep and Shallow I suspect that you've already gotten it! But just to make sure, let's work through the ideas one by one. The first idea we need is the one that I have expressed by the metaphor of deep and shallow reasons. The metaphor is based on the idea that particular applications (e.g. particular questions of legal doctrine) are at the surface, they are in the shallow end of the pool of ideas. Beneath the surface of particular issues in legal doctrine and legislative policy are deeper disagreements. Disagreements about the a surface level question (e.g. the precise contours of the mailbox rule in contract law) lead to beneath-the-surface issues (e.g. the nature of offer and acceptance) and then to still-deeper issues (e.g. the basis for contractual obligation) and finally to the deepest questions (e.g. the nature of moral obligation). You might picture a chain of reasons, stretching from the surface of legal doctrine down to the depths of political and moral philosophy.

Overlapping Consensus John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness), the guarantee of basic liberties would mean that individual citizens would be free to adopt their own views about morality and religion. As a result, Rawls argued, it was likely that a variety of comprehensive religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom? Rawls's answer to this question was based on the idea that divergent moral and religious conceptions of the good could (despite their diversity) converge on some common ground. That is, citizens who held a plurality of religious and moral beliefs could nonetheless agree on the constitutional essentials--the basic constitutional principles necessary for a society to satisfy the demands of justice as fairness.

This meant that different citizens would support justice as fairness for different reasons. Catholics might affirm justice as fairness for reasons found within the Catholic natural law tradition, while secular humanists might affirm the same (or similar) ideas about justice for different reasons. Although a deep consensus might on justice as fairness might be impossible, an "overlapping consensus," Rawls argued, is possible.

Incompletely Theorized Agreements Cass Sunstein has a related but different idea. Here is a summary from his article in the Harvard Law Review:

Incompletely theorized agreements play a pervasive role in law and society. It is rare for a person, and especially for a group, to theorize any subject completely -- that is, to accept both a highly abstract theory and a series of steps that relate the theory to a concrete conclusion. In fact, people often reach incompletely theorized agreements on a general principle. Such agreements are incompletely theorized in the sense that people who accept the principle need not agree on what it entails in particular cases. People know that murder is wrong, but they disagree about abortion. They favor racial equality, but they are divided on affirmative action. Hence there is a familiar phenomenon of a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.

This sort of agreement is incompletely theorized in the sense that it is incompletely specified -- a familiar phenomenon with constitutional provisions and regulatory standards in administrative law. Incompletely specified agreements have distinctive social uses. They may permit acceptance of a general aspiration when people are unclear about what the aspiration means, and in this sense, they can maintain a measure of both stability and flexibility over time. At the same time, they can conceal the fact of large- scale social disagreement about particular cases.

There is a second and quite different kind of incompletely theorized agreement. People may agree on a mid-level principle but disagree both about the more general theory that accounts for it and about outcomes in particular cases. They may believe that government cannot discriminate on the basis of race, without settling on a large-scale theory of equality, and without agreeing whether government may enact affirmative action programs or segregate prisons when racial tensions are severe. The connections are left unclear, either in people's minds or in authoritative public documents, between the mid- level principle and general theory; the connection is equally unclear between the mid-level principle and concrete cases. So too, people may think that government may not regulate speech unless it can show a clear and present danger, but fail to settle whether this principle is founded in utilitarian or Kantian considerations, and disagree about whether the principle allows government to regulate a particular speech by members of the Ku Klux Klan.

My special interest here is in a third kind of phenomenon -- incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them. These terms contain some ambiguities. There is no algorithm by which to distinguish between a high-level theory and one that operates at an intermediate or low level. We might consider Kantianism and utilitarianism as conspicuous examples of high-level theories and see legal illustrations in the many (academic) efforts to understand such areas as tort law, contract law, free speech, and the law of equality to be undergirded by highly abstract theories of the right or the good. By contrast, we might think of low-level principles as including most of the ordinary material of legal doctrine -- the general class of principles and justifications that are not said to derive from any particular large theories of the right or the good, that have ambiguous relations to large theories, and that are compatible with more than one such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995)]

Applications How can you use the idea of an overlapping consensus or incompletely theorized agreement? These conceptual tools are useful when you believe that you have reached a theoretical impasse at some deep level. You've identified an issue, and you can see how the issue can be traced to a deep disagreement in moral or political theory. Now, you have some choices to make. On the one hand, you can try to resolve the deep disagreement. But there is a problem with this option. The deep debates in moral and political philosophy are both ancient and persistent. The world's great thinkers have worked on these problems. If Aristotle, Kant, and Bentham were unable to come up with a knock down argument in favor of their respective moral theories, then it does seem unlikely that you will be able to resolve these debates in an article or book that is mostly focused on another topic or idea. Moreover, the current state of the art in moral and political theory involves a complex field of interconnected arguments. If you need to master these debates before you can complete your work in legal theory, then the work may never be completed.

The alternative is to see whether you can find a different level at which the dispute can be resolved. One possibility is that you can find convergence at the surface level. It seems as if deontologists and utilitarians disagree, but perhaps you can craft consequentialist arguments that converge with the arguments of fairness. Another possibility is that you will be able to find converged on what Sunstein calls "mid-level principles." For example, both consequentialists and deontologists might be able to agree that contract formation (normally) requires that both parties manifest and intention to be bound--although they would have different reasons for affirming this proposition.

Conclusion The move to "overlapping consensus" or "incompletely theorized agreements" is one of the niftiest and most useful in contemporary legal theory. Add it your personal legal theory toolbox!

(Last revised on May 20, 2007.)

Legal Theory Lexicon 028: Concepts and Conceptions

Introduction Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.

This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory.

Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues.

A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts.

Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept.

Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application.

Two Uses of the Concept/Conception Distinction

Rawls on the Concept and Conceptions of Justice Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.

Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts.

Conclusion The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work.

References

• Ronald Dworkin, Law's Empire (Harvard University Press 1988).
• W. B. Gallie, " Essentially Contested Concepts," 56 Proceedings of the Aristotelian Society 167 (1956).
• John Rawls, A Theory of Justice ((Revised edition, Cambridge, Massachusetts: Belknap Press, 1999).

Legal Theory Lexicon 023: Procedural Justice

Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the division of shares in social benefits and burdens; thus, many questions of tax policy are questions of distributive justice. Corrective justice involves the rectification of injustice, and thus includes a variety of topics from criminal law, torts, and contracts, among many others. Supplementing Aristotle's account, let us say that "procedural justice" is concerned with the means by which social groups (including governments, private institutions, and families) institutionalize the application of requirements of corrective and distributive justice to particular cases. This entry in the Lexicon provides an introduction to the idea of procedural justice for law students (especially first years) with an interest in legal theory.

Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.

Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,

two characteristic features of perfect procedural justice. First, there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give that desired outcome.

Rawls argues that our rule for the slicing of cakes is an example of perfect procedural justice. The person who slices picks last; Rawls believes that this procedure insures the equal division of shares. "Equal shares for each" is the independent criterion of a fair division; the slicer-picks-last rule is the procedure that reliably produces that outcome.
In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:

Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to achieve this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time.

Thus, imperfect procedural justice incorporates the notion of an independent criterion for accuracy but adds the notion of "other ends of the law," e.g., considerations of cost that may be balanced against accuracy. The final notion is "pure procedural justice." Rawls writes:

[P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed. This situation is illustrated by gambling. If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.

Pure procedural justice rejects an underlying assumption of both perfect and imperfect procedural justice--the assumption that there is an independent criterion for what constitutes the correct outcome. There are not criteria for the correct outcome except for an ideal (or actual) set of procedures.

Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:

The Accuracy Model We can begin with the utopian hypothesis that the current doctrine is structured by an implicit conception of perfect procedural justice?the accuracy model?corresponding to the idea of perfect procedural justice. The core idea of this model is that the aim of procedure is a search for truth?e.g. conclusions of law that are correct and findings of fact that are true.

But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy.

The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:

[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Beginning with the emphasis on balancing in doctrine, we could construct a utilitarian conception of imperfect procedural justice. This effort is complicated, however, because there are many forms of utilitarianism; for our purposes, we might consider ideal rule utilitarianism, in which an act is right if and only if it is conformity with the system of rules, which if universally followed would produce the best consequences. Let us make a further simplifying assumption: that all of the relevant costs can be expressed as prices. The resultant approach will be roughly similar to some law and economics approaches.

Consider for example, Richard Posner's economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs.

The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures.

On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:

At an intuitive level, a dignity approach is appealing. We all feel that process matters to us irrespective of result. This intuition may be a delusion. We may be so accustomed to rationalizing demands for improvement in our personal prospects, in the purportedly neutral terms of process fairness, that we can no longer distinguish between outcome-oriented motives and process-oriented arguments. * * * Yet there seems to be something to the intuition that process itself matters. We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.

In recent years, the question whether participation has value that is independent of outcomes has been enormously controversial. The participation model reflects the view that participation matters for reasons other than cost and accuracy. Most advocates of the balancing model deny that participation has independent value--other than a subjective taste for participation which can be weighed in a cost-benefit analysis.

Conclusion Of course, procedural justice is a very large topic, and we have only begun to scratch the surface. Law students encounter ideas about procedural justice in a variety of courses: Civil Procedure, Criminal Procedure, and Administrative Law are among the classes in which procedural justice may become an important focus of discussion. I hope this Lexicon post gives you a lively sense of the basic structure of legal thinking about procedural justice.

Online Resource

Lawrence Solum, Procedural Justice (PDF)

Bibliography

• Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488-89 (2003).
• Mathews v. Eldrige, 424 U.S. 319 (1976).
• Jerry L. Mashaw, Due Process In The Administrative State (1985).
• Richard Posner, Economic Analysis Of Law (1992).
• John Rawls, A Theory Of Justice (1971)

(This entry was last revised on April 13, 2004.)

Legal theory Lexicon 018: Justice

Introduction The connection between law and justice is a deep one. We have "Halls of Justice," "Justices of the Supreme Court," and "the administration of justice." We know that "justice" is one of the central concepts of legal theory, but it is also vague and ambiguous. This post provides an introductory roadmap to the concept of justice. Subsequent entries in the Legal Theory Lexicon will cover more particular aspects of this topic such as "distributive justice." As always, this post is aimed at law students (especially first-year law students) with an interest in legal theory.

A Typology of Justice What is justice? One way to approach this question is via a typology--a scheme that divides the general and abstract concept of justice into component parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. These may be deep and fundamental differences between different types of justice, or these categories may simply be heuristic devices. For now, let's lay that question to the side and focus instead on a brief exposition of each of the four types of justice:

Distributive Justice In 1971, John Rawls's book A Theory of Justice put distributive justice at the center of philosophical discussion of justice. What is the subject of distributive justice? Even this question is controversial, but one formulation is: The subject matter of distributive justice is the distribution of the benefits and burdens of social cooperation.. The burdens of social cooperation include things like taxes and obligations to provide civic service (e.g. military service, jury service, and so forth). The benefits of social cooperation might be seen as including the resources that are produced by social cooperation, which might be represented by wealth and income. Thus, questions that might be answered by a theory of distributive justice might include:

--Should the system of taxation be progressive (with a heavier burden on the wealthy than the poor)?
--Should the government adopt an incomes policy (such as a guaranteed annual income) that will provide a minimum level of resources to those who are least well off?
--should the burden of military service by distributed equally (in the form of mandatory service for all citizens) or should this burden be allocated by a volunteer army and market incentives?

This list just begins to scratch the surface. In the context of the law school curriculum, questions of distributive justice arise in a variety of course. In tort law, distributive justice may be the basis for the theory that one of the purposes of tort law is "risk spreading" or the just distribution of the costs of accidents. In contract law, questions of distributive justice may arise in cases involving contracts of adhesions or contracts with terms that may exploit the unsophisticated and economically disadvantaged.

In a future post, I will say more about particular theories of distributive justice. For now, let me just mention three approaches. The first approach is found in Rawls's theory, justice as fairness, which includes two principles of distributive justice. The first principle guarantees to every citizen a fully adequate scheme of equal basic liberties, such as freedom of conscience, the right to vote, and so froth. The second principle (the "difference principle") requires that inequalities of income and wealth work to the advantage of the least well-off group in society. The second approach is strict egalitarianism--which would not permit differences with respect to whatever good is the subject of justice. Why not equality of wealth and income? That's one option for egalitarians, but there are others such as equality of welfare or equality of resources of equality of opportunity for these things. The third approach is libertarianism--which holds that the distribution of wealth and resources is not itself a proper subject matter for justice. Rather, libertarians begin with the premise that each individual should have certain liberty rights (e.g. self-ownership, property rights, and contract rights) and that whatever distribution results from the exercise of these rights is a just distribution.

Corrective Justice Aristotle defined "corrective" or "rectificatory" justice as "Justice in transactions." That's a good place to start. With Aristotle we might divide transactions into two categories, the voluntary and the involuntary. Justice in voluntary transactions would include the topics encompassed by contract law. Justice in involuntary transactions would include both transactions that are involuntary due to force (e.g. battery) and transactions that are involuntary due to fraud (e.g. fraud, misrepresentation, etc.).

One of the great debates in contemporary legal theory concerns the status of corrective justice. This topic is especially hot in tort theory and criminal law theory. For example, some tort theories believe that the purpose of tort law is captured by the idea of corrective justice. Such theorists tend to believe that liability standards should be fault bases (e.g. intentional tort or negligence as opposed to strict liability) and that the purposes of tort damages is to make the plaintiff whole (and to force the defendant to disgorge wrongful gains) and not deterrence. Other tort theorists, e.g. welfarists or utilitarians, believe that corrective justice institutions should be judged solely by the consequences they produce. So a utilitarian might believe that the purpose of tort law is to produce optimum deterrence. Finally, some tort theorists believe that tort law serves the ends of distributive justice.

Political Justice Yet another topic of justice is political justice. In a sense, this might be seen as a subtopic of distributive justice--since political rights and responsibilities can be seen as encompassed within the general category of the benefits and burdens of social cooperation. In relationship to the law school curriculum, we might say that political justice is concerned with the foundational issues of constitutional theory. Who shall have the right to vote? What power shall be allocated to local communities as opposed to nation-states? What limitations shall there be on the power of democratic majorities (e.g. individual rights & judicial review)?

The topic of political justice shades into another important idea--"political legitimacy." Are these two ideas essentially the same or are they different? One view is that it is possible to have a legitimate political order that is nonetheless unjust (or vice versa). For example, some might say that the test of political legitimacy has to do with the origination of the political system. If a system has been accepted and endorsed by the people, this view contends, it is legitimate--even if the substance of the system (e.g. the allocation of political rights) is unjust. On this view, a religious state might be legitimate but unjust. A quite different view is that political legitimacy depends on political justice. For example, Randy Barnett has argued that the test for constitutional legitimacy is whether the constitution provides adequate guarantees of just outcomes (for Barnett, the protection of individual liberty). On this view, popular endorsement of an unjust political system does not make that system legitimate.

Procedural Justice A final form of justice is "procedural justice." The very existence of this category is controversial. Some theorists argue that the only the outcomes of procedures count. But this is not the universal view. Some theorists believe that procedures are important for reasons that are not reducible to a concern with outcomes. One helpful typology was provided by Rawls, who distinguished between perfect, imperfect, and pure procedural justice.

--Perfect procedural justice assumes that we have an independent criterion for the correctness of outcomes. For example, a correct outcome in a criminal case would be "freeing the innocent and convicting the guilty." We have perfect procedural justice if the procedure guarantees the correct outcome. In other words, perfect procedural justice requires 100% accuracy.


--Imperfect procedural justice. Of course, in the actual world, most procedures fall short of 100% accuracy. Moreover, the more accurate a procedure is, the more expensive it is likely to be. Imperfect procedural justice acknowledges these facts and therefore conceives of procedural justice as a fair balance between the benefits of accuracy and the costs of procedure.


--Pure procedural justice is based on the denial of the premise that we have an independent criterion for a correct outcome. We have a case of pure procedural justice if the procedure itself provides the criterion for judging the justice of the outcome. Rawls himself doubted there were many cases of pure procedural justice. He did see one case--a fair bet. With a fair gamble (e.g. a roll of unloaded dice), the outcome doesn't matter.

In the context of the law school curriculum, questions of procedural justice arise in connection with procedural dues process (in constitutional law, administrative law, and procedure) and especially in the courses in civil and criminal procedure.

Justice and Moral Theory Thinking about each of these four types of justice is connected with more general views about moral and political theory. Each of the three important families of normative moral theory (consequentialist, deontological, and aretaic) connects in interesting ways with thinking about justice:

Consequentialist Ideas About Justice There are many different forms of consequentialism. In moral theory, the most familiar form is utilitarianism. In law, the emphasis lately have been on wheelbarrows. Most consequentialist theories do not see justice in any of its forms as truly distinctive. For example, for act utilitarians the rightness or wrongness of an action depends on whether that action (as opposed to the alternatives) produces the most utility. Thus, the best distribution of resources is the one that maximizes utility, and the best system of tort law is the one that utility. There are different ways of expressing this idea. One expression maintains that consequentialists do not place any independent value on justice; another way of putting it is to say that for consequentialists, justice is the production of good consequences.

Deontological Ideas About Justice By way of contrast, deontological theories have a natural affinity for the idea that justice serves as an independent criterion for the rightness and wrongness of actions. Thus, it is a characteristically deontological position to maintain that unjust actions or institutions cannot be justified on the ground that they would produce good consequences. Thus, deontologists might say that it would be unjust and hence impermissible to punish an innocent persons--even if the net long-term effect of that action were to produce good consequences.

Areataic Ideas About Justice From the view point of aretaic theory, justice is primarily a virtue, an excellence of human character. One of the most difficult problems for virtue ethics has been the development of an adequate theory of the virtue of justice. One view is that justice is the disposition to take neither too much nor too little for one's self. Another view is that justice is the disposition to act in conformity with social and legal norms, tempered by equity. Yet a third view is that the virtue of justice is simply the disposition to act in accord with the right theory of what a just action is.

The Relationship Between Law and Justice What is the relationship between law and justice? That question can be tackled from many different directions. One angle of approach would be to ask whether there is some essential or necessary connection between legal validity and justice. The view that only just laws are legally valid is usually associated with natural law theory, whereas the view that there is no essential or necessary connection between law and justice is characteristically associated with legal positivism. But whether one is a natural lawyer or a legal positivism, one could say that the laws should be just. Thus, theories of justice can be seen as guiding the science of legislation.

Conclusion Contemporary legal education is, in a sense, all about justice. Natural law, legal positivism, and legal realism all go beyond the black letter law and ask the question, "What should the law be?" Law students quickly discover that their instructors are frequently more interested in questions like, "Is that a just rule?" than in questions like, "What is the rule?" As you continue your study of legal rules, you can begin to ask questions like: "Does this rule address a question of distributive, corrective, political, or procedural justice?" "Is the rule in the case (or statute or constitutional provision) just or unjust?" "What theory of justice underlies the reasoning of the court?"

(Last modified on March 9, 2008.)

Legal Theory Lexicon 017: The Rule of Law

Introduction This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory.

What is the Rule of Law? The ideal of the rule of law, which can be traced back at least as far as Aristotle, is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even some Marxist critics acknowledge that observance of the ideal could curb abuses by the ruling class.

What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure.

Dicey's Influential Formulation Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:

(1) the supremacy of regular law as opposed to arbitrary power;

(2) equality before the law of all persons and classes, including government officials; and,

(3) the incorporation of constitutional law as a binding part of the ordinary law of the land.

Rawls on the Rule of Law A contemporary elaboration of the ideal of the rule of law is provided by John Rawls. He defines the rule of law as "the regular, impartial, and in this sense fair" administration of "public rules." In schematic form and with some alterations, Rawls offered the following conception of the rule of law:

1. The Requirement that Compliance Be Possible. The legal system should reflect the precept that ought implies can.

a. The actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.
b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate.
c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.

2. The Requirement of Regularity. The legal system should reflect the precept that similar cases should be treated similarly.

a. Judges must justify the distinctions they make between persons by reference to the relevant legal rules and principles.
b. The requirement of consistency should hold for the interpretation of all rules.

3. The Requirement of Publicity. The legal system should reflect the precept that the laws should be public.

a. The laws should be known and expressly promulgated.
b. The meaning of the laws should be clearly defined.

4. The Requirement of Generality. Statutes and other legal rules should be general in statement and should not be aimed at particular individuals.

5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.

a. A legal system ought to make provision for orderly and public trials and hearings.

b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry.

c. A legal system ought to provide a process reasonably designed to ascertain the truth.

d. Judges should be independent and impartial, and no person should judge her own case.

Absent from Rawls's formulation is the notion that the rule of law requires that the government and government officials be subject to the law. Thus, a sixth aspect of the rule of law might be added to Rawls' formulation as follows:

6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.

a. Government officials should not be above the law.

b. The legality of government action should be subject to test by independent courts of law.

More can be said about the content of the ideal of the rule of law, but this brief exposition provides sufficient clarity for for this brief introduction.

The Values Served by the Rule of Law What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.

Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulward against tyranny, chaos, and injustice.

The Rule of Law and Bad Law One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law.

Conclusion Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when its introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves.

Bibliography

Albert Dicey, Law of the Constitution 194 (London: MacMillan, 9th ed., 1950)

Richard H. Fallon, Jr., The Rule of Law" as a Concept in Constitutional Discourse 97 Columbia Law Review 1-56 (1997)

Joseph Raz, The Rule of Law and its Virtue, 93 LQR 195-202 ((1997) & reprinted in The Authority of Law: Essays on Law. and Morality (Oxford, Clarendon Press, 1979)

Judith N. Shklar (1987), "Political Theory and the Rule of Law", in Hutchinson and Monahan (eds.) The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1.

Lawrence B. Solum, Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)

Jeremy Waldron (2002), "Is the Rule of Law an Essentially Contested Concept? (in Florida)", Law & Philosophy, vol. 21/2, 2002.

(Last revised on March 2, 2008.)

Legal Theory Lexicon 009: Public Reason

Legal Theory Lexicon 009: Public Reason

Introduction How should citizens in a modern pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate in the context of judicial opinions, legislative debate, or administrative decisionmaking? There is wide agreement that the government should not censor public debate about politics, at least not without very good reason. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, an ideal of political morality should mirror the freedom of expression: all viewpoints should contend in a marketplace of ideas. An ideal of public reason can provide guidance on these issues. This post provides a very short introduction to the idea of public reason--with a special emphasis on the role of that idea in the work of John Rawls.

Before we get into the background and complications, let's briefly state the core idea of John Rawls's idea of public reason--the version of the idea that has been most influential in legal theory. Rawls argued that public political debate about the constitutional essentials should be conducted on the basis of public reasons. His view was that public reason included common sense, the noncontroversial results of science, and public political values. Nonpublic reasons include the deep and controversial premises of particular moral and religious theorys; for example, the utilitarian idea that only consequences count would be a nonpublic reason. Rawls thought that the Supreme Court's deliberations and opinions about the meaning of the United States Constitution exemplified the idea of public reason.

Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?

For in these times, I do not know one man, that ever saw any such wondrous work, done by the charm, or at the word, or prayer of a man, that a man endued but with a mediocrity of reason, would think supernaturall: and the question is no more, whether what we see done, be a Miracle; whether the Miracle we hear, or read of, were a reall work, and not the act of a tongue, or pen; but in plain terms, whether the report be true, or a lye. In which question we are not every one, to make our own private Reason, or Conscience, but the Publique Reason , that is, the reason of God's Supreme Lieutenant, Judge; and indeed we have made him Judge already, if wee have given him a Soveraign power, to doe all that is necessary for our peace and defence. A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique ; that is to say, to God's Lieutenant.

In this passage, Hobbes uses the phrase "public reason" to refer to the reason or judgment of the sovereign.

A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:

In effect, though nature's voice is the best advice a good father could listen to in the fulfillment of his duty, for the magistrate it is merely a false guide which works constantly to divert him from his duties and which sooner or later leads to his downfall or to that of the state, unless he is restrained by the most sublime virtue. The only precaution necessary to the father of a family is that he protect himself from depravity and prevent his natural inclinations from becoming corrupt, whereas it is these very inclinations that corrupt the magistrate. To act properly, the former need only consult his heart; the latter becomes a traitor as soon as he listens to his. Even his own reason ought to be suspect to him, and the only rule he should follow is the public reason , which is the law. Thus nature has made a multitude of good fathers of families, but it is doubtful that, since the beginning of the world, human wisdom has ever produced ten men capable of governing their peers.

Rousseau's use of the phrase "public reason" is quite different than Hobbes'. Public reason is contrasted to the reason of private individuals. The latter sort of reason is self-interested; the former sort is concerned with the common good. This suggests a connection between Rousseau's idea of public reason and his notion of the general will. The general will (like public reason) is concerned with the good of all; whereas, the individual will (like private reason) is concerned with the good of the individual.
Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:

[I]t is proper that you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration . . . . [They include] the diffusion of information and the arraignment of all abuses at the bar of public reasons

Jefferson's notion of public reason seems connected to an ideal of democratic government. Information should be widely diffused so that government actions may be judged at the bar of public reason - which in this case seems to be the collective reason of the citizens of a democratic society. In this view, the quality or efficacy of public reason is connected to the freedom of speech and press.

In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:

The public use of man's reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hinderance to the progress of enlightenment. But by the public use of one's own reason I mean that use anyone may make of it as a man of learning addressing the entire reading public . What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.

As Kant uses the phrase, "public reason" is defined in terms of the audience to which reasons are given. Public reason is addressed to the entire public. Public reason should be free if the public is to become enlightened - that is, if citizens are to rely on their own reason without the guidance of another. Notice Kant's use of the phrase is, in a sense, diametrically opposed to Hobbes'. For Hobbes, public reason is reason bound by the judgment of the sovereign; for Kant, public reason is precisely that reason which is free from such constraint.

Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead.

Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":

[G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.

Although this discussion contains the core of the Rawls' position, a few additional points deserve separate discussion:

First, Rawls understands public reason as the reason of a political society. A society's reason is its "way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly." Public reason contrasts with the "nonpublic reasons of churches and of many other associations in civil society." Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial." By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and