Legal Theory Blog

Legal Theory Lexicon: Virtue Ethics

Introduction

The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.

What is virtue ethics?  Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of arete.

In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.

It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:

• Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
• Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
• Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.

Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) and the central idea of moral theory and deontology focuses on moral rules, virtue ethics focuses on character and human excellence.

Modern Moral Philosophy

 Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.

The Virtues

 What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.

The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.

The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience.

A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.

Virtue Ethics and Human Good

 What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons.

And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"

Particularism and Phronesis

 Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.

Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.

Virtue Politics and Virtue Jurisprudence

 What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.

What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.

In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.

One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:

What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.

Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.

Conclusion

 While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.

If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 031: Virtue Jurisprudence

Bibliography

• Anscombe, G.E.M., Modern Moral Philosophy, 33 Philosophy 1-19 (1958), reprinted in G.E. M. Anscome, Ethics, Religion and Politics: Collected Philosophical Papers (1991).
• Crisp, Roger (ed.), How Should One Live?: Essays on the Virtues (Oxford: Clarendon Press 1996).
• Crisp, Roger and Michael Slote (eds.), Virtue Ethics (Oxford Readings in Philosophy) (Oxford: Oxford University Press 1997).
• Foot, Philippa, Virtues and Vices (Oxford: Blackwell 1978).
• Paula Gottleib, The Virtue of Aristotle's Ethics (Cambridge University Press 2009).
• Hursthouse, Rosalind, On Virtue Ethics (Oxford: Oxford University Press 1999). The single best one-volume statement of virtue ethics.
• Solum, Lawrence B., Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003).
• Solum, Lawrence B., Natural Justice, 51 American Journal of Jurisprudence 65-105 (2006).
• Statman, D. (ed.), Virtue Ethics: A Critical Reader (Edinburgh: Edinburgh University Press 1997).

Links to Online Resources

• Virtue Ethics in the Stanford Encyclopedia of Philosophy by Rosalind Hursthouse. I highly recommend this as a starting point for further reading on virtue ethics.
• Ethics Updates Page on Aristotle and Virtue Ethics
• Internet Encyclopedia of Philosophy Entry on Virtue Theory
• Wikipedia Entry on Virtue Ethics.
• Wikipedia Entry on Virtue Jurisprudence
• Online Guide to Ethics and Moral Philosophy: Virtue Ethics

(This entry was last revised on May 12, 2013.)

Legal Theory Lexicon: It Takes a Theory to Beat a Theory

Introduction 

"It takes a theory to beat a theory"--this is surely one of the top ten all-time comments uttered by law professors to one another in those ritual interactions that are called "faculty workshops" or "colloquia."  The first instance of the comment that I can find in the legal literature appears in an article by Richard Epstein [92 Yale Law Journal 1435 (1983)], and some legal academics associate the comment with Professor Epstein, whose facility in law faculty workshops is legendary.

What does "It takes a theory to beat a theory" mean?  What is the point or purpose of making this comment in a debate about normative or positive legal theory?  Of course, the core idea is relatively straightforward.  One can't beat a theory just by nitpicking.  We go with the best theory we have, warts and all.  So if you want to beat a theory, you must show it is not the best theory we have, and the only way to do that is to produce a better theory.  Hence, it takes a theory to beat a theory.  Or to put it crudely, if we are playing "king of the hill," whoever is on top stays there until pushed off.

Most of the entries in the Legal Theory Lexicon series deal with some concept, theory, or idea that law students are likely to encounter in their first year of law school.  But this entry is a little different.  "It takes a theory to beat a theory" is not likely to be heard much in the classroom.  It's a "workshop comment" not a "class comment."  But in a way, that makes this idea all the important for law students, including first year law students, with an interest in legal theory.  And understanding this move and its counters is essential for anyone who plans a career in the legal academy.

The Aphorism and its Applications 

Here is one of the most famous examples of the aphorism at work--although the exact words do not appear.  This is Justice Scalia, in his famous article, Originalism, the Lesser Evil:

Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that "You can't beat somebody with nobody."' It is not enough to demonstrate that the other fellow's candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote "non-Reagan,"' it is not very helpful to tell a judge to be a "non-originalist."' If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be.

Here is another version of the argument--this time from George Stigler's 1982 Nobel Prize Lecture:

Nevertheless the economic theory of regulation is achieving a substantial scientific prosperity. Its findings with respect to both the operation and the origins of regulatory policies directed to particular industries (such as the securities markets, transportation, and occupational licensing) command a substantial support. To be sure, the explanatory triumphs have not been overwhelming, and indeed the theory itself is still relatively primitive. The main reason for the considerable acceptance of the approach is that fundamental rule of scientific combat: it takes a theory to beat a theory. No amount of scepticism about the fertility of a theory can deter its use unless the sceptic can point to another route by which the scientific problem of regulation can be studied successfully.

Variations 

If you've been paying close attention, you will have noticed that Scalia and Stigler were making very different arguments--relying on different premises and with only a surface level similarity.  "It takes a theory to beat a theory"--is not a single move.  It's several different moves, each of which can nonetheless be expressed via the same aphorism.  Let's quickly catalog some of the variations:

--"It takes a practice to replace a practice."  This variation is at the root of Scalia's point.  You can't vote against a candidate; you must vote for someone.  You can't just stop interpreting the constitution if you reject originalism; it takes some other interpretive practice to substitute for originalism.

--"It takes a better explanatory theory to substitute for a theory that has even limited success."  This variation is at the root of Stigler's point.  The economic theory has some success; so it will continue as the "dominant paradigm" until something better comes along.

--"It takes a better normative theory to substitute for a normative theory that has plausible support."  Thus, one might say that it takes a better theory of justice to displace Rawls's theory.

And I'm sure there are many other variations.

Counter Moves 

What are the counter moves to "It takes a theory to beat a theory."  They are legion, and many are contextual, but here are a few typical counter moves:

--Expose the hidden "presumption."  It takes a theory to beat a theory may assume that the theory in question must be "beaten" or it stands.  But that assumption requires a justification. It must be argued there is some "presumption" in favor of the theory's validity.  What is the source of that presumption?  Why does this theory enjoy the presumption rather than a rival theory?  Sometimes these questions can't be answered.  Other times there are answers, but once they are articulated, they can be contested.

--It doesn't take a theory to beat an argument.  Even if it does take a theory to beat a theory, it doesn't take a theory to beat an argument.  Arguments fail if they are invalid or unsound. Arguments are invalid if the conclusions don't flow from the premises. Arguments are unsound if their premises are false.  So when someone says, "It takes a theory to beat a theory," you can reply, "Oh, you thought I was trying to beat a theory, but what I actually did was to beat an argument."

--Recharacterize the Status Quo.  Frequently, "it takes a theory to beat a theory," assumes that the theory to be beaten is, in some sense, the status quo--the current king of the hill, the way we are doing or thinking now.  But this is not necessarily the case.  Take the "originalism" example.  One might argue that "originalism" isn't the "king of the hill."  Rather, the status quo is eclecticism--a little precedent, a little originalism, a little instrumentalism, etc.  So if the case for originalism is inadequate, the presumption is for the status quo--not originalism.  In other words, poking holes may be enough.  Once the theory in question is no longer the status quo, the question becomes is the new theory demonstrably better than what we've got now.

--Deny the Theory Assumption.  "It takes a theory to beat a theory" assumes that the issue at hand is one which is properly addressed by a theory.  Let's call that, "the theory assumption."  But the theory assumption can itself be contested. Here's a marvelous example of "denying the theory assumption," from Dan Farber, himself famous for this move:

The last ditch defense of the rational choice theory is to insist that it takes a theory to beat a theory, and that the behavioralists have only assembled a collection of empirical regularities without any unifying theory. The behavioralists indignantly respond that they do have a theory, although an incomplete one. The assumption on both sides is apparently that the sine qua non of social science is having a unified predictive theory. But perhaps this is merely another symptom of economics' famous case of "physics envy." Physics presents a breathtaking example of mathematical elegance combined with fantastically accurate predictions. But taking physics as the paradigm of science may be a mistake. Today's great success story among the sciences may well be biology. Biology does have a central paradigm (evolution) and an understanding of its molecular basis. But organisms, because they are the products of evolution rather than design, are extremely complex, and no one seems to think that their features can be predicted in any detail on the basis of a deductive theory.

(Daniel A. Farber, Toward a New Legal Realism, 68 U. Chi. L. Rev. 279, 295 (2001))

There are many ways of doing this.  Here's one way of making the move: "Hmm.  You seem to be assuming that we need a theory here.  I'm puzzled.  Why would you assume that?" Stressing the words in italics.  This move puts the burden on the maker of the "It takes a theory to beat a theory" move to justify the theory assumption--and as a practical matter, it also buys you time.

--Go Pragmatic.  This is a variation of denying the theory assumption.  When someone asks for a theory, you can reply that the subject at hand requires a "contextualist" and "pragmatic" analysis.  As the scare quotes indicate, I'm not very fond of this move.

--Go Metatheoretical.  This move embraces the notion that it takes a theory to replace a theory, but denies that the way that happens is through direct confrontation.  The idea is that the way we replace theories is by accumulating the data points the theory can't handle.  Here's a nice example of this move from Tom Ulen:

One frequently hears it said that "it takes a theory to beat a theory." Those who invoke that view are typically doing so in order to justify maintaining the rational choice paradigm until some well-articulated theory comes along to replace it. That is not, however, how scientific advances typically occur. Rather, anomalies arise and are either explained within an amended paradigm or serve as observations that make a case for another paradigm (as yet undefined).

(Thomas S. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of Law, 2002 U. Ill. L. Rev. 875, 887, n. 47)

--I've Got a Theory.  Of course, this move is especially impressive in the context of a workshop.  Your paper makes a critical or destructive point.  Someone in the audience goes "It takes a theory to beat a theory."  And you go, "Great point.  I've got a theory and here it is."  You then get 5 minutes of uninterrupted theory exposition, and, of course, no one at the workshop has heard your theory before, and hence, no one has had an opportunity to prepare objections.

--It Takes a Theory to Beat a Theory, but you have no Theory.  This is a variation of Lloyd Bentsen's famous, "Senator, you are no Jack Kennedy."  The idea is this: "It takes a theory to beat a theory," assumes that we have a theory of X on the table.  So one effective counter is an argument that there is no "theory of x" to replace.  One way to do this is to set out a list of criteria, C1, C2, C3 . . . Cn, that must be fulfilled if a given cluster of ideas (I1, I2, I3, . . . In) is to count as a theory, T, of a subject, X.  You then argue that the view on the table is not a true theory, because it fails one or more of the criteria.

A variation on this move is "It doesn't take a theory to beat a really bad theory."  If your objection to a theory makes it clear that the theory cannot be correct, then it doesn't take theory to beat a theory.  Or to continue the metaphor, "You don't have to become the king of the hill to knock someone down."

Undoubtedly, there are many other standard countermoves and numerous others that are relevant to particular contexts.  I hope this post gets you started.

Conclusion 

"It takes a theory to beat a theory."  Or does it?  I hope this Lexicon installment has given you a taste of this famous move and some of the replies.  And I also hope that it has provided some of the flavor of the intellectual atmosphere of faculty workshops and colloquia.  As always, theLexicon provides only a simplified (and all too often simplistic) treatment of a subject that deserves an extended discussion.

Related Lexicon Entires

• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law

Bibliography

• Richard A. Epstein, Common Law, Labor Law, and Reality: A Rejoinder to Professors Getman and Kohler, 92 Yale Law Journal 1435 (1983).
• Daniel A. Farber, Toward a New Legal Realism, 68 U. Chi. L. Rev. 279, 295 (2001)
• Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
• George J. Stigler, The Process and Progress of Economics, Nobel Memorial Lecture, 8 December, 1982.
• Thomas S. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of Law, 2002 U. Ill. L. Rev. 875, 887, n. 47.

Resources on the Web

• Adam Kolber, Theory v. Theory (March 16, 2006)
• James E. Ryan, Does It Take a Theory? Originalism, Active Liberty and Minimalism (January 27, 2006)
• Lawrence Solum, It Takes a Theory to Beat a Theory (September 12, 2002)
• Paul Gowder, “It takes a theory to beat a theory” is false or vacuous, and possibly also incoherent. (December 8, 2008)

(Last modified on October 12, 2012.)

Legal Theory Lexicon: Speech Acts

Introduction

Speech act theory will forever be associated with the great J. L. Austin, the Oxford philosopher whose work in the 1950s had an enormous influence on analytic and Anglophone philosophy. One of Austin's core insights is reflected in the title of his William James lectures, delivered at Harvard in 1955, How to Do Things With Words.  When we use language, we don't just communicate information or say things about how the world is; when we use language, we do things. We command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which language (both oral and written) can be used to perform actions.

Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory.
 

Sentences, Propositions, Meaning, and Truth

There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of Legal Theory Blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value.

O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values.

Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions.

Form and Function

We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance. 

Utterance, Locution, Illocution, Perlocution

With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions:

• Utterance--We can use the term "utterance" to refer to the words (e.g. the sounds or letters) that constitute a particular use of language.
• Locution--We can use the term "locution" to refer to the semantic meaning of the utterance.
• Illocution--We can use the term "illocution" to refer to the speech act that is performed by use of a particular utterance in a particular context.
• Perlocution--We can use the term "perlocution" to refer to the effect that a given expression has when it is uttered in a particular context.

Take the example of the sentence, "This room is a pig sty." The utterance is simply the words that are used: suppose this is an oral statement in English made by a parent to a child on a particular occasion. The same parent could utter similar worlds in English (or another language) that have the same semantic content. "The family room is a pig sty"--would express the same propositional content as "This room is a pig sty" if "this room" was "the family room." The illocutionary force of this statement is ambiguous. If the child spoken to was responsible for the mess, then both parent and child might understand that "This room is a pig sty" is the equivalent of "Clean up this room." The same illocutionary force can be obtained by a variety of expressions. Finally, the perlocutionary effect of "This room is a pig sty" will also depend on context. The effect might be to produce shame, but it might also produce anger. Thus, one utterance has both locutionary content, illocutionary force, and perlocutionary effect.

A Typology of Speech Acts

One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish:

• Constatives: affirming, alleging, announcing, answering, attributing, claiming, classifying, concurring, confirming, conjecturing, denying, disagreeing, disclosing, disputing, identifying, informing, insisting, predicting, ranking, reporting, stating, stipulatin
• Directives: advising, admonishing, asking, begging, dismissing, excusing, forbidding, instructing, ordering, permitting, requesting, requiring, suggesting, urging, warning
• Commissives: agreeing, guaranteeing, inviting, offering, promising, swearing, volunteering
• Acknowledgments: apologizing, condoling, congratulating, greeting, thanking, accepting (acknowledging an acknowledgment)

There are other ways of slicing and dicing the types of speech acts, but Bach and Hamish's typology gives a good sense of how such a typology might work.

Speech Act Theory and Legal Theory

How can legal theorists use speech act theory?  We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle.

Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. 

Why not?  One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action.

Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed.

If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things With Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below.

Related Lexicon Entries

• Legal Theory Lexicon 063: Interpretation and Construction
  

 Bibliography

• Austin, J. L. (1962) How to Do Things With Words, Cambridge, Mass.: Harvard University Press.
• Bach, K. and R. M. Harnish (1979), Linguistic Communication and Speech Acts, Cambridge, Mass.: MIT Press.
• Grice, H. P. (1989) Studies in the Way of Words, Cambridge, Mass.: Harvard University Press.
• Searle, J. (1969) Speech Acts: An Essay in the Philosophy of Language, Cambridge, Eng.: Cambridge University Press.
• Lawrence B. Solum, Freedom of Communicative Action: A Theory of the First Amendment Freedom of Speech, 83 Northwestern University Law Review 54 (1988 1989).
• Strawson, P. F. (1964) 'Intention and convention in speech acts', Philosophical Review 73: 439-60.

Resources on the Internet

• Mitchell Green, "Speech Acts" in the Stanford Encyclopedia of Philosophy.
• Kent Bach, "Speech Acts" entry in the Routledge Encyclopedia of Philosophy.
• What Is a Speech Act?
• Kepa Korta, Pragmatics in the Stanford Encyclopedia of Philosophy
• Barry Smith, Towards a History of Speech Act Theory

(Last modified on March 4, 2012.)

Legal Theory Lexicon: Positive and Normative Legal Theory

Introduction

One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory.

The core idea of the distinction between positive and normative legal theory is simple:

• Positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas 
• Pormative legal theories tell us what the law ought to be.

Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are aboutfacts and normative legal theories are about values.  (This simple formulations assumes that facts and values are mutually exclusive, but that may not be correct.)

Positive Legal Theory

Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:

Positive Legal Theory Type 1: Doctrinal Theories--The first kind of legal theory that is called "positive" is quite simply a theory of what the content of a particular field of legal doctrine is. Thus, a theory of the freedom of speech might simply seek to explain the shape of existing first amendment doctrine. Or a theory of hearsay rule might seek to provide an account of the rule and exceptions that explains and accurately predicts particular applications of the rule. Doctrinal legal theories are responsive to questions like, "What are the principles that shape this area of the law?" or "Can these cases be explained by some underlying theory?"  What I am calling a "doctrinal theory" is also sometimes called a "descriptive theory."

Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.  What I am calling an "explanatory theory" is also sometimes called a "causal theory."

Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.  What I am calling an "effects theory" is also sometimes called a "predictive theory."

Normative Legal Theory

Normative legal theories, on the other hand, are by their nature evaluative. Thus, a normative theory of products liability law would take a stand on the question whether negligence or strict liability is the better rule. Normative legal theories tend to be entwined with more general normative theories, e.g. moral or political theories, although this is not necessarily the case. TheLegal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most important general normative theories that have had an influence on the law. There are three other distinctions that are important to understanding the general idea of a normative legal theory:

Ideal versus Nonideal Theory Some normative legal theories are "ideal"--that is, they are theories about what the best legal rule would be in the world in which everything was politically possible, the law could be adequately enforced, and other legal rules that interact with the subject of the theory could be adjusted to produce the best overall system. Other normative legal theories are "nonideal"--that is, they are theories that assume a variety of constraints on the choice of legal rules. For example, a nonideal theory might take into account political feasibility or it might take into account the possibility that the system would not provide an optimal level of enforcement for the rule that would otherwise be best. TheLegal Theory Lexicon entry on second best explores these ideas in greater detail.

Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose.  Dworkin's theory--"law as integrity"--is an example of a justificatory theory: Dworkin offers theories that "fit and justify" existing law.  Such justificatory theories do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.

Normative Legal Theories, Political Philosophy, and Comprehensive Moral Theories Another important issue concerns the relationship of normative legal theory to other normative theories, especially political philosophy, ethics, and comprehensive moral theories.  Normative political philosphy asks questions about the normative justification for the state and the normative principles that establish the ends of and limits on the content of the law.  The term ethics can be defined in various ways--but for our purposes on this , ethics might be seen as concerned with the morality of individual action outside the political sphere.  A comprehensive moral theory might encompass both ethics and normative political philosophy.  Normative legal theories have as their domain the normative evaluation of legal substance and procedure.  Normative theories about the law as a whole might be called "general normative jurisprudence."  There can also be normative theories of particular legal domains--"normative constitutional theory," "normative tort theory," and so forth.

One picture of this relationship normative legal theory, on the one hand, and moral and political philosophy, on the other, might be called "top-down."  That is, we might start with a comprehensive moral doctrine (such as utilitarianism or Kant's version of deontology).  Using the method of deduction, we might try to deduce the principles of political philosophy and ethics from a comprehensive moral theory, and the principles of normative legal theory might in turn be deduced from those of political philosophy and ethics.  The top-down approach is exemplified by some consequentialists, who argue for a comprehensive moral doctrine such as welfarism or utilitarianism and then derive normative justifications or criticisms from the comprehensive doctrine and facts about which legal rules will result in what consequences.

Another possibility is that normative legal theory is relatively independent of ethics and political philosophy.  It is at least conceivable that one might believe that the realm of interpersonal ethics is governed by a different set of principles and theories than is the law.  For example, one might espouse deontological ethics, but believe that the laws should (for the most part) be aimed at maximizing utility.

The Intersection of Positive and Normative Theory

So far, we have been assuming a fairly sharp distinction between positive and normative legal theory. And for many purposes, assuming that there is a bright line that separates normative and descriptive legal theory is a good working hypothesis. Even assuming there is such a bright line, however, there are relationships between positive and normative legal theories.

Positive Theory in the Service of Normative Theory--One relationship is clear and straightforward. Many normative theories underdetermine what the legal rules should be in the absence of substantial information about the effects of the rules. This is most obvious in the case of utilitarian theories, where information about consequences does all the real work of determining which legal rule is best. For normative theories like utilitarianism, positive theory performs an essential service. Without a positive account of the effects of a given rule choice, utilitarianism has nothing to say about what rule is best.

Positive Theory as a Constraint on Normative Theory--Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.

Interpretivism and "Law as Integrity"--There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.

Conclusion

The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both. One of the oft-repeated questions that law professors ask of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or normative. Be sure you know the answer before the question is asked!

Related Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 014: Fact and Value
• Legal Theory Lexicon 031: Virtue Jurisprudence
• Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

Bibliography

• Adrian Vermeule, Connecting Positive and Normative Legal Theory, 10 University of Pennsylvania Journal of Constitutional Law 387 (2007).

(This entry was last revised on January 29, 2012.)

Legal Theory Lexicon: Fact and Value

Introduction

Law students quickly learn that normative argument is an integral part of the law school experience. And sooner or later, they are likely to encounter what is called the fact-value distinction. Of course, the relationship between fact and value is a deep and complex philosophical topic. Even a survey of the basic topics would take us far afield into the heart of metaethics and across the fields of normative theory and moral philosophy. Nonetheless, we can take a quick look at three important ideas with which every legal theorist should have a basic familiarity.

Hume on Deriving an Is from an Ought

The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:

I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou'd subvert all the vulgar [poorly reasoned] systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv'd by reason.

What is Hume up to?  One might start with the idea that Hume's point is about the form of moral arguments. If all the premises are "is" propositions, then perhaps Hume is claiming that some sort of logical fallacy has been committed if the conclusion of the argument is an ought statement. Consider this example:

Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.

Conclusion: Therefore, the United States ought to withdraw from Iraq.

We might think that there is a missing premises, which would be of the form:

Premise: The United States policy towards Iraq ought to aim at saving lives and improving the condition of the Iraqi people."

But there is a problem with this interpretation of Hume's point. One can easily produce a version of the argument that contains only is premises, but that looks more or less valid.

For example:

Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.

Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy.

Conclusion: Therefore, the United States ought to withdraw from Iraq.

I'm sure that you, gentle reader, have run ahead of me, and are at this very point objecting that the second premise includes a covert "ought" statement. And perhaps it does, but the point of the exericse is that Hume's point is not just about the formal qualities of moral arguments. For his point to get off the ground, it must have substantive metaethical punch--it must be grounded on some theory about what counts as a fact and what counts as a value.

G.E. Moore on the Naturalistic Fallacy

The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-callednaturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition.

The debate over Moore’s argument is almost endlessly complex, but it is possible to give an example of how the debate goes that will show that Moore’s argument may have started a conversation but it cannot be reasonable have said to be a conversation stopper. Moore’s argument is based on the idea that an assertion that “x is good” if and only if “x is pleasurable” is a claim about meaning. What Moore seems not to have noticed is that “goodness” and “pleasure” might denote the same property, but not mean the same thing. This possibility is famously illustrated with the example of “water” and H2O. We can agree that all water is H2O, but, at the same time, believe that the meaning of “water” is different than the meaning of “H2O.” We know this is true, because chemists had to discover that water was H2O—prior to the discovery, the relationship of water to the elements, hydrogen and oxygen was unknown or imperfectly understood. But it is not just the case that being water and being H2O are merely coincident properties, as being a member of the Illinois philosophy department and not having grown up in Japan are merely coincident. Water is H2O. It was an open question whether water was H2O at one time, but this did not preclude the possibility that water just was H2O.

Emotivism, Relativism, and the Fact Value Distinction

The fact-value distinction relates to a third debate in metaethics--the controversy over the meaning of moral language.  That's really a whole topic unto itself, but I want to briefly explore one aspect of that debate in this entry in the Lexicon.  In the popular culture, the idea is that factual assertions or beliefs are, in principle, demonstrably true or false, whereas moral beliefs are neither true nor false, but simply matters of opinion and culture or the products of relations of power and subordination. That is, the fact-value distinction that holds sway in the popular imagination is tied to philosophically naïve versions of moral relativism, sometimes infused with a smattering of dimly comprehended noncognitivist metaethics.  "Noncognitivist metaethics" is quite a mouthful, but the gist of noncognitivism is simply the view that moral assertions are neither true nor false: in other words, they are not "truth apt."  One form of noncognitivism is "emotivism," the view that moral statements express emotions; a crude (or "reductio") version of emotivism is the so-called "boo hooray theory."  The meaning of "Murder is wrong" is "Boo Murder!"  The meaning of "Respect for human rights is good" is "Hooray human rights!"  I won't offer arguments for or against noncognitivism or relativism here--but I will note that these views do not command support from a consensus of philosophers who work on metaethics.  At the very least, they are deeply controversial.

The Entanglement of Fact and Value

It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thickand thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thickethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line.

Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law!

If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth.

Conclusion

Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way!  Even though this advice is sound, you need to be aware that the fact-value distinction is much more controversial and contested than you might think.  Any argument in legal theory that relies on Hume's is-ought move, Moore's naturalistic fallacy, or noncognitivist metaethics is vulnerable to attack.

Related Lexicon Entries

• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 041: Metaethics

References

• David Brink, Moral Realism and the Foundations of Ethics (Cambridge: Cambridge University Press, 1989).  Highly recommended.
• Terence Hogan and Mark Timmons, “Troubles for New Wave Moral Semantics: The Open-Question Argument Revisited,” Philosophical Review 21 (1992) 153.
• G.E. Moore, Principia Ethica (Thomas Baldwin ed. Cambridge University Press 1993)
• David Hume, Treatise on Human Nature  (Clarendon Edition of the Works of David Hume edited by David Fate Norton & Mary J. Norton, Oxford University Press 2007).

Resources on the Internet

• Rachel Cohon, Hume's Moral Philosphy, Stanford Encyclopedia of Philosphy
• Richard Joyce, Moral Anti-Realism, Stanford Encyclopedia of Philosphy
• Michael Ridge, Moral Non-Naturalism, Stanford Encyclopedia of Philosophy
• Mark van Roojen, Cognitivism vs. Non-Cognitivism, Stanford Encyclopedia of Philosophy

(This entry was last revised on January 15, 2012.)

Legal Theory Lexicon: Virtue Ethics

Introduction

The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.

What is virtue ethics?  Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjective form of the Greek word for virtue, which is arete.

In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.

It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:

• Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
• Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
• Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.

Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) and the central idea of moral theory and deontology focuses on moral rules, virtue ethics focuses on character and human excellence.

Modern Moral Philosophy

 Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.

The Virtues

 What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.

The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.

The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science and theory. The intellectual virtues are initially developed by teaching and mature through experience.

A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.

Virtue Ethics and Human Good

 What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons.

And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"

Particularism and Phronesis

 Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.

Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.

Virtue Politics and Virtue Jurisprudence

What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.

What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.

In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.

One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:

What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.

Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.

Conclusion

While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.

If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 031: Virtue Jurisprudence

Bibliography

• Anscombe, G.E.M., Modern Moral Philosophy, 33 Philosophy 1-19 (1958).
• Crisp, Roger (ed.), How Should One Live? (Oxford: Clarendon Press 1996).
• Crisp, Roger and Michael Slote (eds.), Virtue Ethics (Oxford: Oxford University Press 1997).
• Foot, Philippa, Virtues and Vices (Oxford: Blackwell 1978).
• Paula Gottleib, The Virtue of Aristotle's Ethics (Cambridge University Press 2009).
• Hursthouse, Rosalind, On Virtue Ethics (Oxford: Oxford University Press 1999). The single best one-volume statement of virtue ethics.
• Solum, Lawrence B., Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003).
• Solum, Lawrence B., Natural Justice, 51 American Journal of Jurisprudence 65-105 (2006).
• Statman, D. (ed.), Virtue Ethics (Edinburgh: Edinburgh University Press 1997).

Links to Online Resources

• Virtue Ethics in the Stanford Encyclopedia of Philosophy by Rosalind Hursthouse. I highly recommend this as a starting point for further reading on virtue ethics.
• Ethics Updates Page on Aristotle and Virtue Ethics
• Internet Encyclopedia of Philosophy Entry on Virtue Theory
• Wikipedia Entry on Virtue Ethics.
• Wikipedia Entry on Virtue Jurisprudence
• Online Guide to Ethics and Moral Philosophy: Virtue Ethics

(This entry was last revised on December 25, 2011.)

 

Legal Theory Lexicon: Second Best & Nonideal Theory

Introduction

The post provides a very basic introduction to the idea of "second best." The term "second best" originated in a famous 1956 article by Lipsey and Lancaster (see bibliography), and it was originally used as a technical economic concept. Despite its technical origins, the idea behind the second best is very general: sometimes the ideal solution to a problem (or "optimal policy option") is infeasible. The best should not be the enemy of the good; so, when the first-best policy option is unavailable, then normative legal theorists should consider second-best solutions. In this post, we will take a hard look at the idea of the second best, beginning with a statement of the intuitive idea and then looking at the more formal idea of the second best in its original economic context.

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

The Intuitive Idea

The intuition behind the idea of the second best is simple. We would like to have the best possible legal system. But sometimes the best legal policies are not in the cards; that is, the best policy may be impractical. Why? In legal theory, one common reason that we cannot adopt the best policy is politics. Given the political forces that operate, the best campaign finance system may be pie in the sky. So we ask the question, of those systems that might be politically feasible, which is the "second best"?

Although I've introduced the intuitive idea by talking about "political feasibility," the idea of the second best is more general than that. First-best solutions may be unavailable because of a variety of constraints, of which politics is only one. The intuitive idea of the second best is a bit broader and less technical than the way economists define "second best," so let's turn to the technical economic idea of second best now.

The Second Best in Economics

The very general idea of the economic theory of the second best can be expressed as follows:

Assume a system with multiple variables. Take the most desirable state the whole system could assume and the associated values that all of the variables must assume to produce this state: call this condition, the first-best state of the system and call the associated values of the variables, the first-best values. Now assume that one variable will not (or cannot) assume the value necessary for the first-best state of the whole system: call this the constrained variable. Holding the constrained variable constant, consider the most desirable state the whole system could then assume and the associated values that all the nonconstrained variables must assume to produce this state: call this the second-best state of the system. There are systems in which achieving the second-best state will require that at least one variable other than the constrained variable must assume a value other than the first-best value: call these value(s) the second-best value(s).

And here is the way that Lipsey and Lancaster formulated the idea:

[I]f there is introduced into a general equilibrium system a constraint which prevents the attainment of one of the Paretian conditions, the other Paretian conditions, though still attainable, are in general, not desirable.

(If "Paretian" is unfamiliar to you, there is an explanation in Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks.)  Lipsey and Lancaster are making a normative (but technical) argument. They assert that if one variable is constrained and cannot assume its first-best value, then "in general" other variables should not assume their first-best values. The "in general" qualification is important. Lipsey and Steiner didn't and couldn't show that it is always (or necessarily) the case that constraint of one variable affects the most desirable value for other variables. Rather, their proof shows that this is possible. In the real world, whether nonconstrained variable should depart from their first-best variables depends entirely on the facts. In fact, if a policymaker lacks certain information about the second-best variables, it may turn out that the real world policy that will produce the best result is to try to move the constrained variable as close as possible to its optimal state, leaving the second-best variables in their first-best states. The possibility was called the "third best" by Ng (see bibliography below).

One or two additional points are necessary to complete the technical story.

First, the definition that I just gave assumes that only one variable is constrained. But there is no reason to limit the theory of the second best in this way, more than one variable may be constrained. In fact, in theory every variable could be constrained: in this limiting case, the second-best state would be the only possible state of the system.

Second, the second best is usually understood as relative to a constrained variable. We could use the phrase "second best" to refer to the second-best state the system could assume if all the variables were unconstrained, but this is not the way that Lipsey and Lancaster used that phrase.

Third, there is an important difference between the way economists understand "second best" and the way the same phrase is understood by noneconomists. What was interesting and powerful about Lipsey and Lancaster's proof is that it produced the counterintuitive result that sometimes when one variable is constrained, the best policy choice will involve moving other variables away from their first-best values.

Although technically, the definition of second best need not be limited to that special situation, that is the interesting result, and the use of the theory of the second best in economics may be limited to the special case. Outside of economics, however, the phrase "second best" tends to be used in a much looser sense. The important thing is not the terminology, but the ideas. To be clear, however, it is useful to explain what you mean by second best!

The Second Best and Nonideal Theory

The idea of the second best that is used by economists is analogous to a distinction made famous by the political philosopher, John Rawls. Rawls distinguished between two ways of approaching political philosophy, ideal and nonideal theory. In ideal theory, we assume compliance with the normative requirements of our theory. Rawls used the phrase "well-ordered society" to refer to the situation that obtains in ideal theory. In a society that is well ordered by Rawls's principles of justice, citizens actually would be guaranteed a fully adequate scheme of basic liberties and the basic structure would actually work to the advantage of the least well off group in society. In nonideal theory, we relax the assumption that the society is well ordered by the principles of justice. Can you make that very abstract description more concrete? Yes, here is a really good example. In a society that is well-ordered by Rawls's principles of justice, we might assume that if there are local governmental units, they will comply with the restraints imposed by the freedom of speech. But in the real world, local governments might be more susceptible to political pressure to suppress unpopular speech than would be the central government (i.e. the national government in Washington, D.C., in the case of the United States). So, in the real world of nonideal theory, we might be very considered with constraining the jurisdiction and powers of local governments; whereas, this issue may not even arise in the case of ideal theory.

Pinpointing the Constrained Variable

The notion of the second best and the related idea of nonideal theory get tossed around quite a lot in legal theory, but sometimes these terms are used carelessly or without precision. Whenever you hear or read the term "second best," ask yourself the question, "Which variable is constrained, and why is it constrained?" Because the "second best" is second best relative to a constrained variable, use of the concept of the second best doesn't mean anything unless and until the constrained variable is specified. Moreover, it is sometimes very important to know why the constrained variable is constrained. This is because it is easy to construct an argument for a second-best policy option that uses a double standard with respect to whether variables should be considered to be constrained. Here is a simple example:

Suppose our problem is racial justice with respect to the distribution of income and resources. Someone might make the case for reparations (a one time payment of a compensatory amount to descendents of the former slaves) on the ground that reparations are the second-best solution. The first-best solution would be a just economic order in which market mechanisms operate in a nondiscriminatory fashion to allocate income and wealth according to just criteria. (For this purpose, we don't need to specify what the just criteria are.) But the first-best solution is unavailable, because a just economic order is politically infeasible. Therefore, we ought to support reparations, which is the second-best policy.

So far, so good. But notice that there is a hidden assumption in this argument. The argument assumes that reparations are politically feasible. If this assumption is incorrect (which it may well be as an empirical matter), then it follows that the argument for reparations as the preferred second-best solution is fallacious. Of course, one can deploy double standards with respect to which variables are constrained (or which options are infeasible) so long as the double standard is made clear. But when the double standard is concealed and the argument is made in the context of policy evaluation, then we have either an innocent mistake or an attempt at manipulation.

The Feasible Choice Set

Another way of approaching the general problem revealed by the theory of the second best is viathe notion of the feasible choice set. Take all of the possible legal policy options with respect to a particular legal problem. Then lay out a set of well-defined criteria for feasibility. Apply the criteria to the set, sorting the options into the feasible choice set and the infeasible choice set. Practical policy discussion will usually be limited to the options within the feasible choice set, but legal theory is not limited to the practical. Frequently we can learn something important by considering options that are outside the feasible choice set. For example, a rule of strict liability might turn out to be the optimal rule of tort law. It could also turn out that strict liability regimes are politically infeasible--perhaps because the fault-based social norms are very strongly held. But that fact should not preclude legal theorists from examining the merits of strict liability regimes. Not only may such an examination be of intrinsic interest, but the insights gleaned from such an examination may well assist in the evaluation of the options that are within the feasible choice set.

The Bottom Line

The notion of the second best, the distinction between ideal and nonideal theory, and the idea of the feasible choice set, are all essential tools for a legal theorist. As a first year student, you are likely to encounter these ideas in classroom discussion or in law review articles assigned as ancillary reading. The trick to mastering these concepts and using them effectively is to identify the constrained variable (or the nonideal conditions). Once you've done that, you can move to the next step, which is the question, "What criteria are used to identify the constrained variables?" And if you can answer that question, you are now in a position to respond in an intelligent and sophisticated way to applications of the theory of the second best!

Bibliography

• R.G. Lipsey & Kelvin Lancaster, The General Theory of the Second Best, 24 REV. ECON. STUD. 11 (1956).  Available in Readings in Social Welfare: Theory and Policy (Hoboken: Wiley-Blackwell, Robert E. Kuenne ed. 2000).
• Richard G. Lipsey, Reflections on the General Theory of the Second Best at Its Golden Jubilee,  14 International Tax and Public Finance 349 (2007).
• Ng Yew-Kwang, Welfare Economics: Towards a More Complete Analysis (London: Macmillan, 1983).
• Karla Hoff, Second and Third Best Theories (pdf file).
• Thomas McCarthy, Political Philosophy and Racial Injustice: From Normative to Critical Theory(explores Rawls's use of ideal and nonideal theory).
• Lawrence B. Solum, Constitutional Possibilities (2007).

Resources on the Internet

• Steven M. Suranovic, The Theory of the Second Best, International Trade Theory and Policy (2009). 

Related Lexicon Entries

• Legal Theory Lexicon 062: Path Dependency
• Legal Theory Lexicon 064: Possibility and Necessity

(This entry was last updated on December 18, 2011.)

Legal Theory Lexicon: Deontology

Introduction

A prior Legal Theory Lexicon post explored utilitarianism, an approach to normative moral theory that has had an enormous influence on legal thought. This week, I take up one of utilitarianism's main rivals, deonotology. Deontological moral theories vary in myriad ways, but the focal point for deontology is the concept of duty with its correlative notions of rights and permission. Thus, the distinctive thesis of deontology in general might be formulated as the claim that the rightness of action is a function of whether the action is required, prohibited, or permitted by a moral rule.

This is, of course, a simple formulation, and contemporary philosophical theories in the deontological tradition offer more sophisticated and nuanced formulations. This post aims to introduce the central idea of deontological moral theory with special reference to the interests of a first-year law student with an interest in legal theory. Almost every first year course will include deontological ideas. In criminal law, deontology is reflected in the notions that an action cannot be a crime unless it is the violation of a moral duty and in retributive theories of punishment. In torts, deontological theories argue against the economic analysis of tort law and for the idea that tort law is best explained by a theory of corrective justice. In property law, deontological theories emphasize the role of property in creating spheres of autonomy. In contracts, the deontological approach results in the idea that contract is fundamentally explained by the duty to keep a promise. And even in civil procedure, deontological ideas appear in the view that litigants have a right to a "day in court."

What Rights and Duties Do We Have?

The idea that some actions are wrong and therefore forbidden has a strong intuitive appeal. And we can easily generate a list of action types that are at least ceteris paribus wrongful: telling lies, breaking promises, intentionally killing or injuring an innocent person, stealing, and so forth. For some purposes, a simple list of wrongs may be sufficient. But philosophers and legal theorists are unlikely to be satisfied with a list. Why not? Because the content of the list is likely to become controversial. Lying belongs on the list, but what about the failure to make a full disclosure to a stranger in an arms length commercial transaction? Battery is on the list, but should the exception for self-defense be extended to defense of property?

So what method or principle allows us to identify the list of duties, rights, and permissions that would provide the content of a fully specified deontological moral theory? One possibility is that we would identify the list by appeal to our sense of what is right and wrong. Let's give that sense a fancy name: call it "moral intuition." One possible method for identifying the content of a deontological moral theory would be to consult our moral intuitions about particular cases. Butobjections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then? Even if I consult only my own intuition, I may come to see that my intuitions about particular cases are not consistent at the level of principle. My intuition makes an exception for lies told to instructors as excuses for turning in late papers, but not for lies told to friends as excuses for extreme lateness.

Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls--the method of reflective equilibrium. We might aim to order our raw moral intuitions by positing some general principles that would explain and unify our considered judgments about particular cases. Once we have a set of general principles, it may turn out that some of our considered judgments about particular cases need to be revised. In other cases, a general principle may conflict with a considered judgment about a particular case that we hold very firmly. In such a case, we may wish to modify our general principles. If we work at it, we might eventually reach a point where our revised general principles are in agreement with our revised judgments about particular cases. Rawls call this state "reflective equilibrium." The same procedure might be used collectively to resolve conflicts between the judgments of different individuals; Norman Daniels call this interpersonal use of reflective equilibrium, "wide reflective equilibrium."

Kant

Reflective equilibrium is one way to specify the content of a deontological moral theory. The German philosopher Immanuel Kant provides another. Before I proceed any further, I want to make it clear that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative. Kant believed that duty was the central moral idea, and he recognized the problem of specifying duty. Kant had a particularly deep and interesting solution to that problem which begins with the idea of a good will: "Nothing can possibly be conceived in the world or out of it that can be called good without qualification except a good will." And a good will is a will that aims for the good and not merely for the objects of desire and inclination. If we act on the basis of a hypothetical imperative (if I want X, then I should do Y), we act on the basis of desire and inclination--"heteronomously" in Kant's terminology. In order to aim for the right, we must act on the basis of a categorical imperative, that is, on the basis of a reason or principle that does not include a desire or inclination. (In Kant's terminology, this would be acting "autonomously.") So what would a categorical imperative look like? Kant's answer to this question is stunningly brilliant--one of the most awesome moves in the history of philosophy. Kant suggested that one could act on the basis of a categorical imperative by consulting what he saw as three equivalent formulas:

The Formula of the Law of Nature: "Act as if the maxim of your action were to become through your will a universal law of nature."

The Formula of the End Itself: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end."

The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends."

Onora O'Neill, the great Kant scholar, has a really wonderful essay called A Simplified Account of Kant's Ethics. If you are still reading this post and you haven't already read O'Neill's piece, download the word file and read it now--believe me it is worth it.

O'Neill focused on the formula of the end itself, so let me say just a few words about the formula of the law of nature by giving an example. Suppose you are deciding whether to tell a lie to a friend to get out of a lunch date. You first ask yourself, "What is the maxim (or principle) of my action?" Suppose the answer is "Lie when convenient!" Now, you imagine that if you were to lie to your friend the principle upon which you acted would become a universal law of nature--everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First, if everyone were to lie whenever it was convenient, human communication might become impossible, because no one could be trusted. The maxim--lie whenever convenient--has a contradiction in conception, because the lie would never be believed in the possible world in which the maxim of your action was a universal law of nature. Second, if one can imagine a world in which everyone lies when convenient, you might not be willing to lie on this occasion if the result of your action was that the maxim--lie whenever convenient--were to become a universal law of nature as a result. You might not want others to lie to you when they thought it was convenient--we can call this acontradiction in the will. Of course, my analysis of this example has been very sketchy and crude, but I hope that I have done enough to give you the general idea.

Some Objections to Deontology

All of the main approaches to moral theory are controversial, and because the debates have been raging for centuries, the arguments are now enormously complex. So I am going to give two very simple objections to deontology, with the warning that the current state of play on these objections is now so complex and ramified that you really must be a specialist to give even a rough summary.

The Indeterminacy Objection. The first objection is that the content of a deontological moral theory is underdeveloped by the various methods for deriving a set of duties, rights, and permissions. So, for example, the method of reflective equilibrium may help us to order our considered judgments about particular rights, duties, and permissions, but it might be objected that this method is unlikely to settle any of the major disputes about what the duties, rights, and permissions actually are. Different people will arrive at different reflective equlibria. Even a single individual may come to believe that a variety of equilibriums are equally plausible or that her view of the most stable equilibrium is unstable, changing frequently in response to new examples or arguments. Kant's approach is subject to the same objection, with many critics arguing that Kant's method does not produce unique answers to particular questions about duty. Deontological moral theorists might counter that although their methods may not always produce unambiguous answers that will produce universal assent, that this is an unrealistic criterion for an acceptable moral theory. Particular deontological theories may allow the zone of moral disagreement to be narrowed and provide illuminating insights about particular cases.

The Rigor Objection. The second objection begins with the assumption that deontology does produce determinate answers to particular questions of morality, but argues that the answers are implausible, because they are too demanding or inflexible. Consequentialist critics of deontology argue that absolute rights, duties, and permissions can lead to consequences that would not be morally acceptable. One famous hypothetical, based on Kant's discussion of lying, imagines that you are in Germany before World War II and a Nazi has come to your door and inquired whether you have seen a Jew who has escaped. If there is an absolute moral duty to tell the truth, then you are not permitted to lie in response, but telling a lie may be the only way to save the life of an innocent person. Surely, the consequentialist argues, telling the lie is not only morally permissible, it is morally required. Deontologists can try to escape from examples like these in a variety of ways. For example, the deontologist might simply argue that there is no duty to tell the truth to evil doers who will use the truth for evil purposes. Or the deontologist might argue that this is a case which duties conflicts, and that some higher order principle favors the duty to protect the innocent person from evil over the duty to tell the truth. Or the deontologist might allow that duties can be overridden by consequences in some circumtances. Some deontologists may bite the bullet and argue that one is required to tell the truth, even if the consequences are horrific.

Conclusion

In a sense, the battle between deontology and consequentialism is one of the great battles of contemporary legal theory. Legal theorists argue over deontological and consequentialist theories of contract, tort, property, criminal law, procedure, constitutional law, and many other doctrinal fields. As a law student, you might start to look for deontological arguments in cases and class discussion. Almost every time class discussion turns to the question, "What should the rule be?," you will be able to construct both consequentialist and deontological arguments for and/or against the various possible rules. Getting the hang of normative legal theory is, in large part, a matter of mastering a set of consequenitalist and deontological moves.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 012: Virtue Ethics

Links

• Larry Alexander & Michael Moore, Stanford Encyclopedia of Philosophy Entry on Deontological Ethics (highly recommended)
• Internet Encyclopedia of Philosophy Entry on Duties and Deontological Ethics
• Wikipedia Entry on Deontology
• Ethics Updates: Kant and Kantian Ethics 
• Onora O'Neill, A Simplified Account of Kant's Ethics.

Bibliography

• Barbara Herman, The Practice of Moral Judgment Harvard Univ Pr; Reprint edition (April 1996)
• Onora O'Neill, Constructions of Reason : Explorations of Kant's Practical Philosophy Cambridge University Press; (March 1990).
• Deontology, edited by Stephen Darwall (Oxford: Blackwell, 2002). ISBN: 0631231129.

(This entry was last revised on December 11, 2011.)

Legal Theory Lexicon: 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 administrativedecisionmaking? 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 JohnRawls.

Before we get into the background and complications, let's briefly state the core idea of JohnRawls'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 theories; 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 ThomasHobbes's 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's. 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's. 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 modes of reasoning that appeal to the interpretive authority of particular persons.

Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not.

Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature.

With these features in mind, we can offer a summary of the Rawlsian ideal of public reason; this ideal has three main features: (1) The ideal of public reason limits the use of reason to (a) the general features of all reason, such as rules of inference and evidence, and (b) generally shared beliefs, common- sense reasoning, and the noncontroversial methods of science. (2) The ideal applies to deliberation and discussion concerning the basic structure and the constitutional essentials. (3) The ideal applies (a) to both citizens and public officials when they engage in public political debate, (b) to citizens when they vote, and (c) to public officials when they engage in official action - so long as the debate, vote or action concerns the subjects specified in (2). WithRawls's view in mind, we proceed to two preliminary subjects: first, the role of the idea of public reason in the regulation of public discourse and, second, the ways in which a particular ideal of public reason might be justified.

Public Reason and Law

How is the idea of public reason relevant to legal theory?  One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted inJudeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers.

One of the interesting features of the idea of public reason is that it provides an argument againstwhat we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason.

The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth.

Related Lexicon Entries

• Legal Theory Lexicon 006: The Veil of Ignorance
  
• Legal Theory Lexicon 028: Concepts and Conceptions
• Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements
• Legal Theory Lexicon 069: Reflective Equilibrium
  

Bibliography

• John Finnis, On Public Reaon (2007).
• Charles Larmore, Public Reason in The Cambridge Companion to Laws 368 (Cambridge: Cambridge University Press, Samuel Freeman, ed., 2003).
• Lawrence Solum, Public Legal Reason, 92 Virginia Law Review 1449 (2006).
• Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995).
• John Rawls, Political Liberalism (revised ed. 2005).

(This entry was last revised on December 4, 2011.)

Legal Theory Lexicon: Reflective Equilibrium

Introduction 

When we argue about the law we frequently deploy normative arguments.  Sometimes our normative arguments appeal directly to our intuitions about particular cases; sometimes we rely on general theories (e.g., welfarism or Locke's social contract theory).  This leads to the question: how can we justify our normative judgments and theories?  One answer to this question is provided by the idea of "reflective equilibrium," strongly associated with the work of John Rawls.  We could take our intuitions about particular cases and test them against our moral general beliefs, e.g., moral principles or theories--and vice versa.  Through a process of revision and reflection, we could aim for a consistent set of beliefs--where our judgments about particular cases were consistent with a coherent set of general principles.  We can call this point of repose, "reflective equilibrium."

This entry is in the Legal Theory Lexicon provides a short introduction to the idea of reflective equilibrium for law students (especially first-year students) with an interest in legal theory.  Although the primary emphasis will be on the role of reflective equilibrium in normative legal theory, we will also investigate reflective equilibrium as a method for legal reasoning.

The Basic Idea 

Legal theory is full of normative judgments.  We argue that a particular statute is just or that it produces morally good consequences.  We believe that a particular court decision is wrong in the moral sense--that it violates someone's rights or that its on balance effect is harmful.

How can we justify our normative judgments?  We might try the method of geometry--beginning with indubitable moral axioms and then reaching particular cases by chains of deductive argument, but this method will run into difficulties if someone challenges the self-evidence of our starting premises.  The method of reflective equilibrium offers an alternative to the method of geometry.  It begins with our current set of  beliefs--our moral theories, the moral principles we accept, and our judgments about particular cases.  We look for contradictions and inconsistencies and then revise.  These revisions might operate at the level of particulars--we might change our mind about a particular case (real or hypothetical) because it seems inconsistent with a general principle.  Or the revisions might go the other way.  We might discover that a moral theory or principle that seemed correct is inconsistent with firmly held beliefs about particular cases.  By working back and forth, between and among our beliefs at various levels of generality and particularity, we might eventually reach a state in which all or almost all of our moral beliefs were consistent and mutually supporting--in other words, a state of reflective equilibrium.

Two Clarifications

Intuitions versus Considered Judgments

Sometimes the method of reflective equilibrium is said to rely on "intuitions" or our intuitive judgments about particular cases.  This might be problematic, because our intuitive judgments might be defective--for example, they could be the product of prejudice, self-deception, or ideological indoctrination.  Rawls introduces the notion of a "considered judgment" to reflect the idea that our prereflective intuitions can be examined, both for sources of error and for coherence with each other.

Levels of Generality

Another misunderstanding of reflective equilibrium is the notion that it must start with our judgments about particular cases, i.e., that it proceeds from the particular to the general.  This might be the case, but it need not be.  The method can operate on our judgments at any level of generality.  For example, we could examine our judgments about moral principles and test their consistency with each other.

Wide and Narrow Reflective Equilibrium 

In more advanced discussions of reflective equilibrium, a distinction is sometimes made between "wide" and "narrow" reflective equilibrium.  For the purposes of this post, we can characterize the difference this way: (1) narrow reflective equilibrium is seeks coherence and mutual support between and among: (a) our considered judgments about particular cases or types of cases, and (b) our set of moral principles; (2) wide reflective equilibrium adds a third dimension to the other two: (c) our background theories that are relevant to normative judgment.  To reach wide reflective equilibrium, we will need to go beyond moral princples and judgments about particular cases and consider our views about general moral theories and perhaps related beliefs about human psychology, social theory, and other topics.

Wide reflective equilibrium requires that we take a "wider" range of judgments into account; narrow reflective equilibrium narrows our focus to judgments about particular cases and moral principles.

Reflective Equilibrium and Normative Legal Theory 

So how can the legal theorist use the idea of reflective equilibrium?  The most obvious deployment of this idea is as a method of justification in normative legal theory.  This might occur at the "macro" level--for example, as a method for justifying welfarism as a normative theory of law.  Or it might occur with respect to domain specific normative legal theories, e.g., as a justification for a corrective-justice theory of tort law or a retributivist theory of criminal punishment.

Similarly, reflective equilibrium could play a critical role.  One might argue against a normative legal theory on the ground that the theory is inconsistent with our considered judgments about particular cases or case types.  Of course, this use of reflective equilibrium is tricky--since one can argue that the recalcitrant judgments should be modified in order to achieve reflective equilibrium.

Reflective Equilibrium and Legal Reasoning 

Sometimes the content of the law can be determined by roughly formalist methods.  There is an authoritative legal text (a clause in the constitution, a statutory provisions, a rule or regulation); the text provides a more or less bright-line rule that guides behavior or resolves a dispute.  But sometimes the content of the law is less clear.  There is especially noticeable in common-law systems, in which the content of the rules is determined in a complex way by cases.  What do we do when the results of the cases are not fully consistent or when different cases state the rules in varying and inconsistent language?  One possible answer to this question is "use the method of reflective equilibrium!"

For example, we might take the decided cases as providing the equivalent of considered judgments about particular cases, and we could take rule statements as the equivalent of moral principles.  Our quest would be for the set of rules that accounts for the greatest number of cases and possesses the maximal degree of internal coherence.  If the cases are in tension with one another, there some cases will have to be counted as "mistakes"--the doctrine in reflective equilibrium would call for them to be overruled or confined to their facts.

Of course, something like this method is familiar to most law students, because courts do seem to seek something like "reflective equilibrium" at least some of the time.  In legal theory, the method of reflective equilibrium resembles Dworkin's theory, "law as integrity" and the "reasoned elaboration of the law" associated with the "Legal Process" school.

Criticisms of the Method of Reflective Equilbrium

The method of reflective equilibrium is controversial.  One might argue that the method relies on our "intuitions" about particular cases and that these intuitions are unreliable.  Or one might argue that reflective equilibrium can always be satisfied by moral principles with multitudinous exceptions for recalcitrant judgments about particular cases.  And these simplistic objections are just the beginning.

Conclusion

Reflective equilibrium is one of the most important tools in the legal theorists toolkit.  And even if you don't embrace this method yourself, you are sure to run into others who rely on it. 

Related Lexicon Entries

• Legal Theory Lexicon 006: The Veil of Ignorance 
• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 059: The Law Is A Seamless Web
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography 

• John Rawls, A Theory of Justice (Harvard University Press 1971) & revised edition.
• John Rawls, Outline of a Decision Procedure for Ethics,  60 Philosophical Review 177–97 (1951), reprinted in John Rawls, Collected Papers (Samuel Freeman ed., Harvard University Press 1999).
• Norman Daniels, Wide Reflective Equilibrium and Theory Acceptance in Ethics, 76 Journal of Philosophy 256–82 (1979), reprinted in Normal Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice 21-46 (Cambridge University Press, 1996).

Resources on the Internet

• Norman Daniels, Reflective Equilibrium, Stanford Encyclopedia of Philosophy (2011).

(Updated on October 2, 2011.)