Legal Theory Blog: Metatheory

Introduction

Normative legal theory is concerned with the ends and justifications for the law as a whole and for particular legal rules. Previous entries in the legal have examined exemplars of the three great traditions in normative theory--consequentialist, deontological, and aretaic (or virtue-centered) perspectives. There are important differences between these three families of theories at a very general and abstract level: for example, deontologists emphasize rights and wrongs while consequentialists emphasize the goodness or badness of states of affairs. And there are differences between particular theories within the broad families: within consequentialism, for example, welfarists emphasize preference satisfaction, whereas hedonistic utiliarians emphasize pleasure and pain.

Despite these disagreements, I think it is fair to say that many or most of the reasonable views about normative theory agree that what is good or bad for individual humans is morally salient. Welfarists believe that humans are better off if their preferences are satisified. Hedonistic utilitarians believe an individual is better off if she experiences more pleasure and less pain. Aristotle believed that humans flourish if they live lifes of social and rational activity that expresses the human excellences or virtues under conditions of peace and prosperity. A deontologist who believes that autonomy is the central value might believe that humans are better off if they are autonomous and worse off if they are not In other words, a wide variety of moral theories agree that what is good for humans is morally salient.

This entry in the Legal Theory Lexicon will examine three related concepts that are related to the good for humans, welfare, well-being, and happiness--and along the way we will explore some related ideas like pleasure, satisfaction, pain, flourishing, and eudaimonia. Of course, the nature of the human good is a deep topic--one that that has been debated by philosophers, psychologists, economists, theologians, and others for millennia. All of the great moral and political philosopher, from Plato and Aristotle, through Hobbes, Hume, Kant, Bentham, and Mill, to contemporary figures like Thomas Scanlon and Derek Parfit have engaged in debates about the nature of the human good. This entry in the Legal Theory Lexicon will only scratch the surface of these debates. As always, the Lexicon is aimed at law students, especially first-year law students with an interest in legal theory.

Three Concepts

Let's begin by saying a few words about each of the three concepts. Our aim in this section is not to provide a canonical definition, but instead is to give a sense for the way these terms are used in normative legal theory:

Welfare--The term "welfare" is heavily theory laden. For contemporary law-and-economics scholars, welfare sometimes operates as a technical term. One's welfare is a function of one's utility, and most contemporary economists understand utility as a function of one's preferences over states of affairs. If I prefer a world in which I eat an ice cream cone after lunch to one in which I am abstemious, then the ice cream cone increases my welfare. But the term "welfare" is also used in a much broader sense, in which my "welfare" is a function of what is good (and bad) for me. In this sense, my "welfare" might be synonymous with my "well-being" or "flourishing or "happiness." We might say that there are competing conceptions of the general concept of welfare.

Well-Being--The term "well-being" is similar to "welfare" in the broad and nontechnical sense. In ordinary language, we frequently associate "well-being" with health--primarily physical health but mental health as well. Philosophers use this term to refer to what is noninstrumentally good for someone.

Happiness--In ordinary language, the term "happiness" is frequently used to refer to a mental state. One might think of happiness as a feeling of pleasure, contentment, satisfaction, or enjoyment. But the word "happiness" is also used as a translation for the Greek word "flourishing," and even in ordinary talk the use of phrases like "true happiness" suggests that not one can have pleasant feelings from moment to moment, but lack "happiness." Some theorists would reserve the term "happiness" for a stable or enduring quality that is produced by the appropriate features of one's life. Thus, it might be the case that "a job well done" can make you "happy," but a delicious desert can only give you "pleasure" or "enjoyment."

As is apparent from this very brief introduction of these three concepts, they are connected with others like "pleasure," "pain," "preference," "utility," "flourishing," "enjoyment," and so forth. But rather than defining each of these concepts, we will now move to a more abstract level and discuss three general views about the nature of human well-being (or welfare in the broad sense). These three views are offered only as illustrations. I am not going to attempt to provide a comprehensive catalog.

Three Theories of the Human Good

One way for us to get a better handle on the concepts of welfare, well-being, and happiness is to examine three particular theories of the good for humans:

Hedonism: Philosophical hedonism (which may or may not be related to the view that the good human life is produced by lots of sex, drugs, and rock 'n roll) is the view that the good for humans is pleasure (or more generally positive or enjoyable mental states) and bad for humans is pain (or negative mental states). Hedonists might believe that pleasure is a distinctive brain state that varies continuously, with the intense pleasure induced by opiates or cocaine at one end of the spectrum, and that pain is similar, with the intense pain of passing a kidney stone at the other end. But some hedonists believe that pains are differ qualitatively. John Stuart Mill, for example, thought that there were higher pleasures (e.g., from listening to great music or reading a great novel) and lower pleasures (e.g., from strong drink, drugs, or playing video games). There are deep questions about the nature of pleasure and pain, but for our purposes let us simplify greatly and assume that all hedonic values (positive or negative) consist of mental states (or brain states, which may or may not be equivalent) that are experienced as positive or negative.

Welfarism: In the legal academy, "welfarism" is strongly associated with normative law and economics. (But in other disciplines, the terms "welfare" and "welfarism" have other meanings.) Of course, economists differ among themselves on the nature of welfare, but let us stipulate (for the sake of simplicity) that "welfare" in the economic sense is a function of "utility" and that utility for an individual is a function of the individual's ordinal preferences among states of affairs. If my preferences are satisfied, then my utility and welfare goes up. If the world moves in a direction that I would rank lower (and hence disprefer), then my level of welfare goes down. We might call this theory of "welfare" a "preference satisfaction" theory.

Eudaimonism: The third view that I will outline is based on Aristotle's claim that the highest humanly achievable good is "eudaimonia," which I will translate as "flourishing". Aristotle believed that humans flourished if they both fared well (lived under the right circumstances) and did well (engaged in valuable activities): hence, Aristotle's claim was that eudaimonia consisted in faring well and doing well. Let's put faring well aside, and focus on doing well. Aristotle believed that the nature of "doing well" depends on human nature. Humans are rational and social creatures. So a flourishing human life consists of rational and social activities done well. "Done well" for Aristotle means "expressing the human excellences or virtues." In sum, a flourishing human life is a life of rational and social activity that expresses the human excellences, and hence a life under conditions of peace and prosperity sufficient to support or enable such activity.

Let's try to make this more concrete by offering examples of three different lives:

The Life of Pleasure: The first life is lived by Ben, who takes great pleasure in sex, drugs, and rock 'n roll. Ben does what it takes to get enough money to party hard. He is careful not to overdo or to party so hard that he screws up his life. Ben's wits are somewhat dulled, and his social interactions might be a bit superficial, but he has a ton of fun almost every day. It turns out that lots of the time, things don't go the way that Ben prefers--his favorite bands always break up, he doesn't get job he wants, his girlfriends cheat on him. But Bob doesn't let disappointment interfere with pleasure--if things don't go well, he grabs a brewski, takes a couple of tokes, and chills.

The Life of Satisfaction: Alice has many preferences about how things should go. She wants her children to get a good education and live up to their potential. She wants her city to care for the homeless. She wants endangered species to be saved. She works for those things, and as a result of her efforts, her kids do well. For reasons that were largely out of her control, her city does care for the homeless and many endangered species are saved. Things go as she wants them to go, but because Alice worries a lot, her satisfaction is only rarely translated into pleasure. Some of Alice's friends observe that she had the potential to do more with her life, as things turned out, she has what she wants.

The Life of Accomplishment: Phillipa grows up in an loving and nurturing family and gets an excellent education. As a result, she becomes an adult who is smart, wise, courageous, temperate, good tempered, caring, responsible: she is a truly excellent human beings, or to put it differently, she is virtuous. She is reasonable fortunate in her life circumstances as well, so she has a good and stable relationship with her partner, many friends, and meaningful work as an architect. She lives a balanced life, with periods of intense and difficult work, but also times for fun. Many of her preferences are satisfied, but many are not.

I hope the description of the three lives is not so oversimplified that it becomes unrealistic. The point is that the three theories we have described will evaluate the three lives differently. At least some varieties of hedonism will count Ben's life as the best life--it is a life of pleasure. There may be pleasure in Alice and Philippa's lives as well, but not as much as in Ben's. A welfarist who counts all preferences equally might view Alice's life as the life that goes the best: her preferences are satisfied. Although she doesn't get as much pleasure as Ben, she doesn't prefer a life of pleasure; likewise, she doesn't want to live up to her potential for excellence: she is satisfied with a more passive life. Philippa gets much of what she wants and experiences her share of pleasures, but as things turn out, her life is worse than Ben and Alice's lives are if the scale is either pleasure or preference satisfaction. A eudaimonist or virtue theorist will nonetheless say that Philippa's life is the best life.

The Conceptual Space of Debates about the Nature of the Good for Humans

Things are about to get abstract, so watch out. The next step we will take involves mapping the ways in which the three theories of human good differ. This is not the only way we could map the conceptual space, but it illuminates some of the important issues. This map is going to rely on a distinction between the subjective (which is associated with our minds or inner lives) and the objective (which is associated with the world, including our bodies and our environment). That distinction will then be applied in two dimensions: one concerned with the source of the standards for value and the other concerned with the things that can satisfy those standards. I warned you--this is abstract, but bear with me.

Objective and Subjective Views of the Sources of the Standards for Human Good: What is the source of our criteria for well-being, happiness, welfare, or the human good? One possibility is the standards are subjective--they are relative to what we think or feel. Another possibility is that the standards are objective--they depends on the nature of the world and not our feelings or beliefs about it.

Objective and Subjective Views of the Conditions to Which the Standards for Human Good Are Applied: Once we have standard for human good, we need to apply them to something. We could apply them to things that are subjective--to our mental states. Or we could apply them to things that are objective--to states of the world.

OK. Now we can characterize our three theories of value in light of the two dimensions in which a theory of human value can be objective or subjective.

Hedonisim is usually understood as having both a subjective understanding of the sources of value and a subjective understanding of what those standards apply to. Our mental states determine what is good or bad for us: it depends on what we get our kicks from and what makes us feel bad. And our mental states or subjective experiences are what the standards apply to. So hedonism is subjective in both senses.

Welfarism is committed to a subjective view of what is good and bad for humans. Our preferences (which are mental states) provide the criteria or standards by which utility and welfare are judged. But welfarists are objectivists about what these standards are applied to. Utility is a function of preference over states of the world. My utility goes up if the world moves to a state I prefer.

Eudaimonism as I have described is a hybrid theory on both levels. The basic standard of a flourishing life is objective--it is derived from an account of human nature and the virtues. But for any particular individual, a flourishing life will also be a function of that individuals plans and goals and also a function of what that individual finds satisfying, rewarding, and to some extent pleasurable. Likewise, a virtue-centered theory of human flourishing takes how one fares (faring well) and how one does (doing well) as the conditions to which the theory is applied. So the conditions are partially objective. But the human virtues involve subjective states. Doing well involves doing the right actin for the right reason. A flourishing human being has the right preferences and takes enjoyment from the right kinds of things: for this reason, the conditions to which the criteria for the human good are applied are partially subjective.

In other words, hedonism is a subjective-subjective view, welfarism is a subjective-objective view, and eudaimonism is a hybrid-hybrid view. One can imagine views that might be objetive-objective: for example, if you believed that well-being was cashed out by a list of objective goods, such as health, meaningful work, and an active social life, you might have a view that the standards for human good are objective and that they are satisfied by objective features of particular human lives.

Arguing About (or Investigating) the Nature of Welfare, Well-Being, and Happiness

Which of these rival accounts is the best one? Of course, the nature of the human good has been the subject of philosophical debate and cultural strife for more than two millennia. So it will surprise no one that the Legal Theory Lexicon will just skim to the surface of the arguments that can be made for and against various conceptions of welfare, well-being, and happiness.

Let's begin with methodology. What kinds of reasons might be offered for and against various conceptions of the human good? Now that is a big topic in itself, but we can identify three of the common strategies used to advance our thinking about this topic:

Reflective Equilibrium: One strategy is to attack the problem directly using the method of reflective equilibrium. We can begin with intuitions (our unreflective beliefs and the opinions of others) about the topic at hand. Some of those beliefs will be general and abstract (e.g. "happiness is a feeling"). And some of those beliefs will be quite particular: a serious illiness involves a loss of well-being even if the pain is completely managed). We can then attempt to formulate a theory of the good for humans (or of welfare, well-being, or happiness) that best fits those intuitions. Some of our intuitions may need to be revised in light of the tentative theory, and some aspects of the theory may need to be revised in light of recalcitrant intuitions. Eventually, we can reach a reflective equilibrium between beliefs that have become well-considered judgments and our general theory.

Ethical Theory & Metaethics: There is a second method that we might employ. We might begin with our best understanding of metaethics (at what we might think of as the highest level or "top" of normative theory.) We could then work down through ethical theory to our conception of the human good. For example, if we adopted an internalist view of moral motivation (i.e., that what is morally good necessarily provides motivation) then we might conclude that our view of the human good must have a certain form if it is to play this motivational role. We might call this the top-down strategy: we proceed from axioms of metaethics to deduce the postulates and lemmas of our theory of the human good.

Thought Experiments: The notion of a thought experiment (or "hypothetical") is familiar to all legal theorists. One of the problems of the method of reflective equilibrium may be the tendency of various conceptions of human good to coincide or converge in particular cases. Our preferences and subjective experiences of happiness may align with elements of objective well-being such as health. In order to pry these things apart, we might want to construct thought experiments in which force us to evaluate cases in which our subjective happiness diverges from our preferences or health.

The Experience Machine

Robert Nozick is famous for a thought experiment that can be used to test the subjective exerience conception of well-being. Suppose you have a choice between two lives. One is roughly equivalent to your current life (or a typical human life). You experience pleasure and pain; some of your preferences are satisfied and some aren't. The other life involves your being attached to an experience machine that directly feeds experiences into your brain. You will be given an amnesiac when you are attached so that you will forget the fact that you are on the experience machine: it will seems as if you current life is continuing. But your life on the experience machine will be supremely good from the subjective point of view. You will feel supremely happy. You will be successful, adored by your friends and partners, and everything that makes you feel good (whether it be career success or Jimmy Choo shoes) will come your way. This life will involve very little or no pain, frustration, or disappointment. Finally, the experience machine is well tested, and you are truly convinced that it will cause you no serious physical harm. Which life would you choose?

Many people would choose a normal life with real experiences and would believe that there life on the experience machine would go very badly--although it would seem as if it were going well. If you have this reaction to the thought experiments, then you have a reason to believe that you have metaethical intuitions that are inconsistent with a hedonistic-subjectivist conception of well-being.

Of course, this thought experiment can be criticized in various ways. It might be argued that you aversion to the experience machine is improperly influence by a reaction that being on the machine would be "yucky"--when (by hypothesis) it would not be. Or it might be the cases that you distrust the long-range effectiveness of the machine. These issues have to be considered carefully before we place too much stock in the results of a thought experiment.

There is so much more to be said about the inquiry into the nature of the human good, and my discussion of methodology and one thought experiment does not even begin to scratch the surface. Nonetheless, I hope I have given you an idea of how you might begin to think and argue about this topic.

Why Does the Human Good Matter to Legal Theory?

I imagine that most readers of the Lexicon can see that the nature of the human good has important implications for legal policy. If the preference satisfaction view of welfare were correct, then normative law and economics might provide the correct methodology for normative legal theory. If the hedonistic approach were correct, then we would want to pay close attention to empirical research on subjective happiness. Normative evaluation of legal policy is one of the central activities of legal scholars, and one's views about the human good surely plays a big rule in such evaluations. Of course, some normative theories (e.g., consequentialism) will given the human good a decisive role in the evaluation of legal policy, whereas others, e.g., deontological or rights based theories might give the human good a less prominent role.

Can We Do Normative Legal Theory Without a Conception of the Human Good?

Given the difficulty of arriving at confident conclusions about the nature of the human good, you might ask, "Can we ever reach confident conclusions in applied normative legal theory?" Or to put the question differently, "If I can't make up my mind about the nature of the human good, can I still reach confident conclusions about what legal rules are better than others?" One answer to this question might invoke the Rawlsian idea of an overlapping consensus. There may be a wide range of cases where the most plausible theories of the human good converge, and legal theorists might focus on those cases. A related strategy might invoke the idea of "public reasons," and argue that controversial conceptions of the human good are inappropriate as reasons for public policy. Another strategy might involve a kind of what is called "pragmatism." (I am using the scare quotes, because I have doubts about the use of that term, but those doubts can be set aside for now.) That is, we could invoke the theory of the human good that seems most appropriate or salient for each context. When we do tax policy, we might use the welfarist conception of the human good, but when we are thinking about health policy, we might focus on objective health outcomes. Of course, there is always the option of abandoning normative theory altogether. You might come to the conclusion that legal scholars can only describe existing doctrine and provide information about the probably effects of changing that doctrine.

Conclusion

As usual, the Lexicon is both too short and too long. Too short to even give you and elementary introduction to the issues, but too long for a one minute read. Nonetheless, I hope to have given you the tools that can help you to identify questions about the human good and to read intelligently about this topic.

Related Entries in the Lexicon

Other Resources on the Web

Bibliography

Bentham, J., (1789), An Introduction to the Principles of Morals and Legislation.
Feldman, F. (2004) Pleasure and the Good Life (Oxford: Clarendon Press).
Griffin, J. (1986) Well-being (Oxford: Clarendon Press).
Mill, J.S., (1863), Utilitarianism.
Nozick, R., (1974), Anarchy, State, and Utopia (Oxford: Basil Blackwell).
Nussbaum, M and A. Sen (ed.) (1993) The Quality of Life, Oxford: Clarendon Press.
Scanlon, T. (1998) What Do We Owe to Each Other?, Harvard: Belknap Press.
Sumner, W. (1996) Welfare, Happiness, and Ethics (Oxford: Clarendon Press).

(This entry in the Legal Theory Lexicon was last revised on May 31, 2009.)

J.B. Ruhl has a really great post on Jurisdynamics entitled The Hierarchy of Legal Scholarship. He ranks categories of scholarship from 0 (least significant) to 10 (most significant). Here are his categories:

0 – Blog posts

1 – Publication of what are essentially blog posts with footnotes:

2 – Doctrinal review of the state of the law:

3 – Doctrinal study of interesting questions of law:

4 – Doctrinal synthesis of developments in law:

5 – Normative policy analysis of law:

6 – Normative policy analysis of law with substantial reform proposals:

7 – Legal theory:

8 – “Law and” interdisciplinary studies:

9 – Empirical study of legal institutions:

10 – Empirical study of law’s impact on society:

Good clean fun. It won't surprise regular readers of LTB that I wouldn't quite agree. Initially, the whole idea of such a list, while amusing, assumes that there is a meaningful hierarchy. Moreover, Ruhl's categories are conceptually odd. Some of the distinctions are explicitly normative. Categories 0 and 1 are differentiated by quality, as are categories 2 and 3. Other categories go the methodology, e.g. the distinction between 6 and 8. And then one methodology, empirical study of law is elevated to the top two rungs of the hierarchy, 9 and 10.

If we really want to rank importance or quality of legal scholarship, the criteria will be multidimensional and at least partially incommensurable. At the very top will be research projects that fundamentally transform the way we we study law--the clearest example in the history of modern legal thought is Bentham's project, which reconceptualized the nature of law along postivist lines and reworked normative legal theory into utilitarianism. Indeed, Ruhl's hierarchy is actually a legacy of Bentham's project--with Ruhl implicitly relying on a Benthamite conception of the purpose of legal theory in constructing his categories and his rankings.

Here are some additional examples of transformative legal scholarship. Coase's work --on mutliple problems but especially on transaction costs and the theory of the firm--would be another example of transformative scholarship. So would Hohfeld's work on the structure of legal norms, Holmes's protorealist theorizing, and Dworkin's normative theorizing (distinguished from his work on the nature of law). Even doctrinal work can be transformative--McKinnon's work on sexual harassment and hostile workplace environment in antidiscrimination law is an example.

It is rare for empirical work to have this kind of influence--empirical studies of law can only be transformative if they are integrated into a normative paradigm. I'm a big fan of empirical legal studies, but their significance is derivative of theoretical work on legal instrumentalism and normative work on consequentialism in normative legal theory. And even within the domain of empirical work, creativity and generative potential are important in assessing importance. Many empirical studies add very little useful knowledge, while the best empirical work changes the way we investigate legal institutions or their consequences.

My apologies to Ruhl--blindly following Dale Carpenter I attributed his post to Jim Chen! But I wonder what Jim thinks. And thanks to Dale for the link!