Joseph Singer posted Normative Methods for Lawyers back in February, but I missed it. Here is the abstract:
How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists.
Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.
And from the paper:
Normative methods structure human judgment but they also are constructed by human beings, who are fallible, who have a partial perspective on the world, who easily misunderstand, but who (hopefully) are also eager to do the right thing. Our best practices combine plural considerations and multiple methods; in particular, they combine impartial procedures with fundamental values, narrative elaboration, and situational contextualization. Our best practices in making normative arguments to resolve hard cases make assertions that express evaluative judgments about why certain values outweigh other values in particular contexts in light of the appropriate way to understand the meaning of the situation, the events that led up to it, the relations among the parties, and the contours of our way of life. The goal is to show respect for all persons affected by the dispute. Although there may not be a unique, mechanically derivable "right answer," the decision maker is still obligated to come up with her best formulation of the right answer.181 At some point, the decision maker actually has to decide, and then has to justify the decision by the best reasons the decision maker can offer which show respect to the loser and which affirm the attempt to treat the loser with equal concern and respect.
Highly recommended. It will come as no surprise to those familiar with Singer's work, the he sees ineliminable contradictions at the hear of normative argument, and no surprise to readers of LTB that I disagree. Marvelous essay!
