Legal Theory Blog

Zamboni on Constitutionalism in Sweden

Mauro Zamboni (Stockholm University - Faculty of Law) has posted The Role of Constitution in Sweden: Its Normative Patchy Floor and Its (Half-Way) Journey From Political to Legal Constitutionalism on SSRN.  Here is the abstract:

If one thinks about the constitution in a well-established democracy, he or she certainly contemplate it as being the most important legal, political, and (to some extent) social document according to which the life of an entire national community has to be mold. Constitutions not only contain the basic structuring of a state in its fundamental components; they also indicate the fundamental values according to which (and for the fulfillment of which) both public and private actors have to operate. In a metaphorical sense, the constitution is the ground floor which each democracy is built upon.

However, if one starts to look around the realities, he or she can easily notice how this ideal-typical picture is exactly ideal-typical. In this respect, also Sweden can be said to belong to those well-established democracies which present an idea of constitution as “divergent” from the ideal-typical one of being the legal floor upon which the regulation of the entire national community should be built upon. In particular, the Swedish constitutional ground floor appears to have a nature of legal normativity of an uneven or “patchy” character. For various reasons, constitutional documents (or parts thereof) which should normally be considered as the bearing floor of a well-established and well-functioning Western-style democracy, they are instead generally perceived and used by both the Swedish legal and political actors more as “aspirational” policy documents, not really binding them and offering them a rather broad space of legal and political maneuver.

The purpose of this work is to present both this perception (and use) of the constitutional charters in Sweden which appears to deviate from the ideal-typical one and the factors behind such a “political” (rather than legal) role played by the parts of the constitutional provisions in the national legal discourse. At the same time, this work will also point out how some of these factors have recently changed and therefore it is maybe possible to detect nowadays tendencies pushing the Swedish major legal actors into a more “legal” vision of the constitution as “per se” fundamental floor for every legal and political discourse.

Ali on Cultural Divergence in International Arbitration Practice

Shahla F. Ali (The University of Hong Kong - Faculty of Law) has posted Fluidity of Culture: Convergence and Informed Divergence in Cross Border Arbitration on SSRN.  Here is the abstract:

The theme of sustainable diversity in international arbitration necessarily calls for an examination of the broader question of cultural convergence and divergence in international arbitration practice. Examining both the convergence and divergence of approaches to arbitration in diverse settings provides an avenue to understanding the impact of globalization on the international practice of law.

Lixinski, McAdam, & Tupou on Oceans, Cultural Heritage, and Mobility Law

Lucas Lixinski (University of New South Wales (UNSW)), Jane McAdam (University of New South Wales (UNSW) - Faculty of Law & Justice), & Patricia Tupou (Australian National University (ANU) - Crawford School of Public Policy) have posted Ocean Cultures, the Anthropocene, and International Law: Cultural Heritage and Mobility Law as Imaginative Gateways (23(1) Melbourne Journal of International Law (2022)) on SSRN.  Here is the abstract:

This article argues that international legal responses to the Anthropocene cannot be adequately designed or implemented unless peoples’ cultural relationships with the oceans are taken into account. Drawing on the voices of Pacific peoples and their descriptions of the ocean as territory and a source of identity, we debunk the idea of the ocean as a static or transient place, arguing instead that it is a core element of ‘territory’, place and belonging. International cultural heritage law offers a pathway for leveraging these narratives into international legal regimes, including the development of international mobility regimes. To the extent that Pacific peoples are set to bear the brunt of the costs of the Anthropocene, and because their relationships with the oceans provide innovative ways of rethinking the design and implementation of international law, it is imperative that their voices are brought to the fore.

Shechter on Pareto-Optimal Multi-Objective Congressional Reapportionment

Steven Shechter (University of British Columbia (UBC) - Sauder School of Business) has posted Congressional Apportionment: A Multi-Objective Optimization Approach on SSRN.  Here is the abstract:

Two events, with major implications for U.S. voters, occur after each decennial census. First, congressional ``apportionment'' takes place, followed by congressional ``districting.'' Apportionment determines how to allocate the 435 seats in the House of Representatives across the 50 states, whereas districting determines the geographic boundaries assigned to representatives within each state. While districting and the practice of gerrymandering often receive great attention in the media and courts, the best way to apportion representatives across states has been debated for nearly 250 years. Historical methods (including the present method) each satisfy some desirable optimality criteria that the others are not guaranteed to satisfy. Moreover, none are guaranteed to optimize certain reasonable fairness measures (e.g., minimum range). To our knowledge, we are the first to formulate and analyze a multi-objective optimization approach to apportionment, allowing policy makers to identify Pareto-optimal allocations and quantify their tradeoffs between several competing criteria. Pareto curves from historical censuses and simulations suggest opportunities for improvement in some objectives at little sacrifice to others.

Hortal on Virtue Nudges

Alejandro Hortal (University of North Carolina (UNC) at Greensboro; Wake Forest University - Department of Philosophy) has posted Virtue Nudges: Using Choice Architecture to Form Virtuous Citizens on SSRN.  Here is the abstract:

Nudges are policy interventions intended to change people’s behaviors and habits by organizing the choice environment. They aim to facilitate the right behavior as judged by people themselves according to some objective or consensual version of wellbeing. Nudges are utilized to boost vaccinations, increase contributions to retirement accounts, or improve healthy habits in citizens. Considering the increasing number of governments and agencies employing them, some authors (Iyer 2016; Niker 2018) have wondered about the possibility of using them to help develop virtues. This paper aims to answer that question, arguing that nudges are interventions that have the potential to assist in the formation of virtuous people efficiently. They do so by inculcating or helping maintain habits in individuals, respecting their freedom to choose while guaranteeing deliberation. This paper also claims that when those habits are related to virtues, they can be classified as virtue nudges. This new category includes precisely the types of nudges that seek behavioral change through habit formation tied to virtues. Consequently, considering their low cost, potential effectiveness, and libertarian approach, the article claims that governments and other institutions should seek ways to use them in conjunction with different types of interventions to promote and form a virtuous life.

Mann on the Right to Science

Sebastian Porsdam Mann (University of Oxford) has posted The Right to Science or to Wissenschaft? A Chronology and Five Lessons from the Travaux Préparatoires on SSRN.  Here is the abstract:

Based on a detailed chronology, I argue that the drafting history of the right to science (Article 15 of the International Covenant on Economic, Social and Cultural Rights) contains important lessons for contemporary scholarship. The drafters understood ‘science’ broadly as a serious search for truth, worth protecting and promoting because it contributes to human wellbeing and to the full development and expression of the human personality. To ensure these benefits of scientific progress for all (Article 15(1)b), the drafters included a series of specific implementation measures modelled on UNESCO’s constitution (Article 15(2-4)) and intended to facilitate the free exchange of persons, equipment, ideas, and information. This exchange was seen as essential for the ability of science to progress. The drafters distinguished between the development of science itself, which must be as free as possible, and the applications of scientific development, on the uses of which aims and purposes may legitimately be imposed to prevent abuses. On the basis of this historical understanding, I argue that one object and purpose of the right to science is to facilitate, and encourage participation in, the search for truth for the benefit of all, and call for further discussion of the scope of ‘science’.

Kelsall on Critical Approaches to International Law

Michelle Staggs Kelsall (SOAS University of London) has posted Disordering International Law on SSRN.  Here is the abstract:

This article examines critical approaches to liberal internationalism in international law. It argues that, despite ongoing disavowals of the liberal international legal order, most critical international lawyers are yet to let go of liberal vocabularies in order to re-imagine how order might be constituted anew. The article proposes a disordering critique of international law. Disordering international law comprises a process of reflective discernment. Through this process, norms, conventions and principles are determined with reference to a multiplicity of spatial and temporal orders and reframe any understanding of how legal order is constituted internationally. Drawing from the concept of non-duality proposed by Ratna Kapur and the writings of Justice Cançado Trindade, it then conceptualizes a disordering sensibility. Scholars embarking on international legal disordering would ask: how do I understand the arrangement or disposition of people or things in relation to each other? How is ‘order’ determined as a result? What sequence, pattern or method am I imposing and how does that affect any characterization of ‘legal’ ordering? Whose knowledge is included, whose knowledge is excluded and why? The analysis, however, does not stop there. The further and final questions to ask are: how does this change any conception of legal ordering that remains central to the practice of international law? And how might we begin to conceptualize that order and practice differently? The return to practice provides a path towards change, which the article argues is urgently needed. I commence with some answers to these questions and hope to open a space for further disordering, premised on a turning away from dominant liberal frames.

Legal Theory Lexicon: Issue-Level and Meta-Level Questions

Introduction

There is a fundamental distinction between two kinds of questions that lawyers and judges ask.  Let's begin with some examples of what we can call "issue-level questions":

• What is the standard of care in a negligence action?
• What is the proper test for federal question jurisdiction under 28 USC §1331?
• Are laws that classify on the basis of sexual orientation subject to heightened scrutiny under the Equal Protection Clause?

These issue-level questions can be contrasted with what we can call "meta-level questions."  Here are some examples:

• Should tort law be based on ex post considerations of fairness or ex ante assessment of welfare?
• Should the interpretation of statutes be guided by the plain mean of the text, the objective purpose of the statute, or the subjective intent of the legislature?
• Should the interpretation of the constitutional text be guided by originalism or by some form of living constitutionalism?

In the first year of law school, students encounter countless issue-level questions, usually explored by discussing the cases in which they arise. Frequently, one aspect of the discussion concerns the normative question: "what should the law be?"  In common law courses, that discussion might focus on ex post considerations of fairness or ex ante consideration of policy consequences.  Those discussions are about issue-level questions. 

What about the meta-level?   At many law schools, the meta-level questions are rarely discussed explicitly, although they may be lurking in the background.  If there is a required course in Legislation and Regulation, there might be a unit on statutory interpretation and construction.  Some constitutional law courses spend a class session or two on originalism versus living constitutionalism.  Common law courses frequently include some cursory discussion of the question whether common law is discovered or made.

This entry in the Legal Theory Lexicon provides a brief introduction to the distinction between issue-level questions and meta-level questions.  As always, the Lexicon is written for law students, especially first year law students, with an interest in legal theory.

The Basic Distinction

The intuitive idea of the distinction between issue-level questions and meta-level questions is not difficult to grasp.  When the word "meta" is attached to some other word, it usually indicates conceptual ascent--going up a level of abstraction.  But "meta" indicates something else as well.  Metaethics is about fundamental assumptions in normative ethics.  Meta-level questions are about the resolution of issue-level questions. Thus, a meta-level theory of statutory interpretation aims to guide the resolution of issue-level questions about the interpretation and construction of particular statutes.  A meta-level theory of constitutional interpretation and construction tells us how to resolve issue-level questions of constitutional doctrine.  A meta-level theory of the common law instructs judges as to how they are to engage in common-law decisionmaking.

The Domains of Meta-Level Theorizing

Some meta-level theorizing takes place at a very high level of abstraction.  For example, the phrases "legal formalism" and "legal realism" (or "legal instrumentalism") are sometimes used as labels for very abstract normative legal theories.  When the words are used in this way, legal formalism combines a preference for rules over standards with the view that judges ought to consider themselves bound by written constitutional provisions, statutes, and precedent.  Legal realism is harder to pin down, but some strands of legal realism endorse standards over rules and counsel judges to attend to considerations of policy and principle; other strands of realism counsel judges to attend to the particular facts of the cases that are before them and eschew grand theories.  Many realists or instrumentalists reject the idea that judges should consider themselves bound by constitutional and statutory texts or by the formal doctrine of stare decisis.  So, normative legal formalism and normative legal realism are meta-level theories at a very high level of generality.

Other meta-level theories are less general because they focus on specific domains of law.  Here are some examples:

Meta-Level Constitutional Theories:  There are so many different views in constitutional theory!  Simplifying, we might distinguish between originalism and living constitutionalism--both of which are really families that include many members.  These days, the predominant originalist theory is "public meaning originalism," but a few decades ago, "original intentions originalism" was more common and today there is talk for "original methods originalism" and "original law originalism"--and "living originalism" as well.  Living constitutionalist views include common-law constitutionalism, constitutional pluralism, the moral readings theory, and various forms of Thayerianism (views that emphasize deference to elected officials and therefore affirm a very restrictive view of judicial review). 
"Which constitutional theory should guide judges?" is a meta-level question.

Meta-Level Statutory Theories: There are three basic approaches to statutory interpretation and construction: textualism, intentionalism, and purposivism, but there are other approaches as well, including the ad hoc pragmatism advocated by Richard Posner.  Debates about which approach to statutory interpretation is best take place at the meta-level.

Meta-Level Theories of the Common Law: Theoretical work on the common law is more difficult to organize than is the work on statutes and constitutions.  One line of meta-level disagreement concerns the question whether common-law ought to be judge-made law or whether judges should limit themselves to the discovery of preexisting social norms and customs.  Another disagreement concerns the respective roles of principle (or deontological reasoning) and policy (consequentialist reasoning).  Ronald Dworkin's theory of law as integrity posits that common-law judges ought to decide individual issues and cases in accord with the moral theory that best fits and justifies the law as a whole.  The choice between normative theories of the common law takes place at the meta-level.

Theory and Anti-Theory at the Meta-Level

The discussion so far has assumed that meta-level questions can be distinguished from issue level questions and that meta-level questions ought to be addressed from some theoretical perspective.  But this assumption is not universally shared.  Some legal theorists have anti-theoretical views about meta-level questions.  The most well-known group of anti-theorists are the pragmatists, including RIchard Posner as well as the so-called "prairie pragmatists," Daniel Farber and Suzanna Sherry.  Another strand of anti-theory draws on "particularism"--a view that is well developed in moral philosophy.  Some of the legal realists may have had particularist views.  What pragmatists and particularists have in common is an aversion to theories that abstract away from particular issues and cases.  In one sense, the antitheorists deny that there is a true distinction between issue-level and meta-level questions, but in another sense pragmatists and particularists have meta-level theories themselves.  Pragmatism is the meta-level theory that recommends pragmatic, consequence focused decisionmaking.  Particularism is the meta-level theory that counsels judges to decide each case on the basis of its particular facts.

The Role of Meta-Level Questions in Legal Practice

Much of the work of lawyers and judges is like "normal science."  There is an agreed upon framework for analyzing issue-level questions.  Lawyers make arguments within that framework.  Judges decide cases using the framework.  Meta-level questions simply don't come up.  But it isn't always like that.  Judicial agreement that statutory interpretation should be guided by legislative intent is questions; another theory, textualism, gains adherents on the bench.  Once this happens, meta-level questions arise.  There is a particular statute that raises an issue level question.  The legislative history of the statute indicates that Congress wanted the question to come out one way, but the plain meaning of the statutory text suggests a different answer.  The case now hinges on a meta-level question: which approach to statutory interpretation and construction should the court use?

In recent years, meta-level questions of constitutional theory have have arisen in the Supreme Court on a regular basis.  One of the consequences of the appointment of a significant number of originalist judges to the lower federal courts is that meta-level disputes between originalist and living constitutionalist judges have begun to surface explicitly in judicial opinions at the Court-of-Appeals level.

Conclusion

Once you become aware of the distinction between issue-level and meta-level questions, it becomes apparent that both kinds of questions are pervasive, both in law school and in legal practice.  Many of the most controversial issues in American law are controversial precisely because of a meta-level disagreement.

Related Lexicon Entries

• Legal Theory Lexicon 001: Ex Ante/Ex Post
• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 067: The Priority of the Particular
• Legal Theory Lexicon 077: Living Constitutionalism
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 095: Open and Contested Questions of Law

Bibliography

Although there distinction between "issue-level questions" and "meta-level questions" is well understood by legal theorists, there is, so far as I know, no literature on the distinction itself.  There are analogous terminological issues in philosophy.

• Geoff Sayre-McCord, Metaethics, Stanford Encyclopedia of Philosophy (2012).

(Last modified on November 27, 2022.)

Legal Theory Bookworm: "Ignorance and Moral Responsibility" by Zimmerman

The Legal Theory Bookworm recommends Ignorance and Moral Responsibility by Michael J. Zimmerman.  Here is a description:

Michael J. Zimmerman investigates the relation between ignorance and moral responsibility. He begins with the presentation of a case in which a tragedy occurs, one to which many people have unwittingly contributed, and addresses the question of whether their ignorance absolves them of blame for what happened. Inspection of the case issues in the Argument from Ignorance, whose conclusion is that, to be blameworthy for one's behaviour and its consequences, one must at some time in the history of that behaviour have known that one was engaged in wrongdoing-a thesis that threatens to undermine many everyday ascriptions of responsibility. This argument is examined and refined in ensuing chapters by way of, first, a detailed inquiry into the nature of moral responsibility, ignorance, and control, all of which play a crucial role in the argument, and then an application of the fruits of this investigation to the question of whether and how someone might be to blame for behaviour that
stems from either culpable ignorance, negligence, recklessness, or the kind of fundamental moral ignorance that often characterizes evildoers. The Argument from Ignorance implies that in a great many such cases the agent has an excuse for the wrongdoing in question. This is a disturbing verdict, and in the final chapter challenges to the argument are entertained. Despite the merits of some of these challenges, it is held that the argument, revised one last time, survives them.

 

Download of the Week: "Luck Egalitarianism and the Spirit of Capitalism" by Spector

The Download of the Week is Luck Egalitarianism and the Spirit of Capitalism by Horacio Spector.  Here is the abstract:

This paper is organized in six sections. In the following section, I discuss Dworkin’s and Cohen’s views regarding the function of markets in providing a method of social assessment. I suggest that their treatment of social valuation is of limited use because it is restricted to rudimentary economic systems like the immigrants’ island and the camping trip. In section III, I argue that the principle of responsibility is indeterminate in that it lacks a criterion of social value. I also claim that a Paretian interpretation of social value is the most plausible way to give concrete meaning to the idea of responsibility defended by luck egalitarians. Section IV contends that market prices’ information and motivational functions are empirically inseparable in any large feasible or sustainable society. In Section V, I take the argument from social valuation to its conclusion that the inequalities of condition caused by market prices are a necessary feature of the Paretian interpretation of the principle of responsibility in any feasible or sustainable economic system. In other words, under the assumption that market prices are the only available method of social valuation in large societies, the principle of responsibility presupposes the adoption of a system of social valuation that runs afoul of the principle of equality. Finally, I conclude in Section VI.

Highly recommended.