Legal Theory Blog

Legal Theory Lexicon: Common Law

Introduction

Law students encounter the notion of "common law" very early in their legal education, frequently in an orientation program or on the first day of classes.  The standard law school curriculum includes courses in contracts, property, and torts, which are "common law" subjects.  And the reading of common law cases as presented in casebooks is the primary way in which students learn the doctrinal structure (the legal norms) of these common law subjects.  But what is the common law?  And what is the role of the concept of the common law in legal theory?  This Lexicon entry explores these questions.

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

A Rough Typology & the Hierarchy of Authority

One way way to understand the notion of "common law" is to place the common law in a typology with other forms of law and to organize the forms of law into a hierarchy of authority.  Such a typology might look like this:

• Constitutions: The United States Constitution and the constitutions of the several states are examples.
• Statutes: Statutes are directed enacted by a legislature, e.g., Congress or a state legislature.
• Regulations and Rules: Regulations are typically promulgated by administrative agencies, such as the Environmental Protection Agency or the Federal Aviation Agency.  Similarly, various bodies promulgate rules, such as the Federal Rules of Civil Procedure.
• Common Law: Common law is found in judicial opinions and can be conceived as case law.  Usually common law is distinguished from case law that interprets a constitution, statute, rules, or regulations.

The conventional understanding is that there is a hierarchy of authority, with constitutions at the topic, followed by statutes, rules and regulations, and then common law.  If a common law norm is inconsistent with a regulation or rule, statute, or constitutional provision, the common law norm gives way and the higher form of authority governs.

Two Approaches to the Common Law

What is the source of the common law?  Simplifying a complex debate, we can identify two theories of the nature and source of the common law, the "discovery theory" and the "judicial legislation theory."

The Discovery Theory

The core idea of the discovery theory is that the common law preexists the judicial decisions that identify common law norms.  Judges don't "make" the common law; they "discover" it.  On this view, there must be some source of the preexisting common law that is independent of the judicial decisions that discover it.  Traditionally, there are two candidates for the source of discovered common law, "natural law" and "social norms or customs."

On the natural law interpretation, common law decisions articulate principles of natural law, which are moral principles discoverable by human reason.  If this view were correct, then morality would be the source of the common law, and common law reasoning would be a form of moral reasoning, sometimes called "right reason."

On the social norms interpretation, common law decisions articulate preexisting social norms or customs.  Thus, the common law of property would reflect the norms of the community with respect to the ownership of land and things.  As members of the community, judges would apply and articulate their intuitive knowledge norms that they have internalized.

The natural law theory and the social norms or custom theory might be rivals, but they might also be reconciled in various ways.  Custom might be considered an imperfect or approximate guide to the natural law, subject to correction when judges discover a gap between the customs of a community and the requirement of right reason.

The Judicial Legislation Theory

The judicial legislation theory denies the fundamental assumption of the discovery theory: common law is judge-made law.  On the judicial legislation theory, judges are given the power to engage in interstitial legislation.  Unlike, a legislature, judges are not authorized to write statutes.  Instead, judges legislate on a case-by-case basis, making incremental changes in the rules within the limits of the doctrine of stare decisis or precedent.

Most contemporary legal theorists affirm the judicial legislation theory of the common law.  The natural law version of the discovery theory seems to depend on the acceptance of natural law views about the nature of law, but most contemporary legal theorists are legal positivists.  The notion that the common law involves judicial legislation was the view of the legal realists, and continues to dominate legal theory in post-realist legal thought.  There has, however, recently been a revival of the view that the common law is grounded in customs and social norms.

Another View: Dworkin's Theory of the Common Law

Ronald Dworkin has a distinctive theory of the common law.  The gist of Dworkin's theory is that common law cases should be decided in accord with the moral theory that best fits and justifies the preexisting legal materials as a whole.  Simplifying, a judge deciding a property case would look at all of the prior common-law property cases and then develop the theory of property law that best justifies the pattern of decisions.  Dworkin believes that there is a "right answer" to every common law question--so his theory is inconsistent with the idea that common law involves judicial legislation.

The Doctrine of Stare Decisis

Closely related to the concept of the common law is the idea of stare decisis (the doctrine of precedent).  The common law develops via the doctrine of stare decisis, which distinguishes between the holdings and dicta.  On the traditional formulation of the theory, holdings are binding, but dicta are not, although they may constitution persuasive authority.  The various views about what constitutes the holding of a case are explored in a prior Lexicon entry (Legal Theory Lexicon 005: Holdings).  The traditional view is that the holding of a case is the ration decedendi, the legal norm that is entailed by the reasoning that is necessary to the outcome given the legally salient facts presented by the record and the arguments of the parties.  The doctrine of precedent operates to constraint the power of judges to make common law; the rules they announce are limited by the facts and issues raised in the case to be decided.

General and Local Common Law

Most law students read the Supreme Court's decision in Erie Railroad v. Tompkins in their course in civil procedure, and they may also read an excerpt from the Supreme Court's prior decision in Swift v. Tyson.  Those cases introduce a distinction between "general common law" and "local common law."  The idea of this distinction was that some common law topics are governed by "general common law," which is the same in every common law jurisdiction.  Commercial law and maritime law are examples of doctrinal areas that were thought to be governed by general common law at the time Swift v. Tyson was decided.  Local common law governed topics where local customs created rules that were not followed by all common law jurisdictions.  Many property law norms were considered to be matters of local common law.

Erie Railroad v. Tompkins rejected the idea that federal judges were free to adopt views of the general common law that differed from those adopted by state courts, leading to the demise of the distinction between general and local common law.

Normative Criticism of Common Law

Jeremy Bentham is famous for his critique of the common law.  Bentham argued that the common law was defective for multiple reasons.  One reason is that the common law is driven by the doctrine of precedent; Bentham argued that codified law based on utilitarian principles provides a superior method of lawmaking.  Bentham also contended that codified statute law is public and easier to ascertain than is the common law, which is relatively difficult to ascertain.

Conclusion

The idea of the common law has produced a vast literature exploring many issues that are beyond the scope of this Lexicon entry, but I hope to have provided a starting point for further investigation.  Some additional sources are provided in the bibliography provided below.

Related Lexicon Entries

• Legal Theory Lexicon 005: Holdings
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 073: Persuasive Authority

Bibliography

• Matthew Hale, On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings (2018).
• Oliver Wendell Holmes, Jr., The Common Law (1882).
• Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960).
• Theodore F. T. Plucknett, A Concise History of the Common Law (1929).
• Gerald J. Postema, Bentham and the Common Law Tradition (1989). 

(Last modified on August 31, 2024.)

Legal Theory Lexicon: Reasoned Elaboration

Introduction

In many ways, the "Legal Process" approach to positive and normative legal theory dominated American legal thought in the second half of the twentieth century.  There was more than one version of "legal process" theorizing, but this entry in the Legal Theory Lexicon will focus on the idea of "reasoned elaboration" that is associated with with the Legal Process materials authored by Henry Hart and Albert Sacks and exemplified by the The Federal Courts and the Federal System, a casebook authored by Hart and Herbert Wechsler.  Other figures that are associated with this version of the legal process approach include Lon Fuller, Alexander Bickel, and John Hart Ely.  Among contemporary theorists, William Eskridge Jr. is strongly identified with an evolving version of legal process theory.

It is difficult to capture the content of legal process theory in an explicit set of propositions.  The Legal Process teaching materials do not amount to a programmatic exposition of a theory, and much of the development of legal process was done via example.  There is no canonical monograph or article that precisely states the theoretical content of legal process theory.

Nonetheless, one of the key ideas of the legal process school, "reasoned elaboration," remains influential, both implicitly and explicitly, in both legal scholarship and legal practice.  The basic idea is that judicial decisionmaking should include reference to normative propositions (values, purposes, goals, principles, and policies) that are immanent in the legal materials, broadly understood to include constitutions, statutes, rules, regulations, and judicial decisions, and including commitments to policy goals and principles of fairness that can be inferred from these materials or which are explicitly stated by policymakers.

As always, this entry in the Legal Theory Lexicon is aimed at law students with an interest in legal theory.  As with every Lexicon entry, the exposition is basic.  In the case of this Lexicon entry, readers should be aware that because of the lack of definitive theoretical texts, there can different and competing understandings of the legal process approach in general and the idea of reasoned elaboration in particular.

Between Realism and Formalism

One way to approach the idea of reasoned elaboration is by situating it in the great debate between legal realists and legal formalists.  The critique of legal formalism by the American legal realists is too complex and diverse to summarize, but a very simple version of that critique could be stated as follows: legal texts (e.g., constitutions, statues, and judicial decisions) do not and should not fully determine the outcome of legal disputes.  The legal process school accepted the realist idea that judicial decisions are not the outcome of a mechanical jurisprudence that simply applies the authority (e.g., constitutional or statutory provision) to the case, but instead includes considerations of policy and principle.  But unlike the more radical versions of legal realism (and later, the critical legal studies movement), the legal process school did not believe that judging was pure politics or simply legislation by judges.  The value choices made by judges could be guided and constrained by reasoned elaboration of the policy goals and principles of fairness that were imminent in the preexisting materials.

Viewed in this way, the point of the idea of reasoned elaboration was to provide a middle ground.  Avoiding the Scylla of realist nihlism and the Charybdis of mechanical jurisprudence, reasoned elaboration provided a distinctive role for judges that was both responsive to values and constrained by the existing legal materials.  Judges discover the law, but the process of discovery is not mechanical.  Judges make policy choices, but reasoned elaboration makes judges subordinate to democratic policymaking.  The choices that judges make are supposed to be interstitial and guided by value choices that have already been made by legislatures, regulators, or constitutional conventions.

Relationship to Dworkin's Theory

Although the key figures in the early legal process school did not write programmatic theoretical statements, Ronald Dworkin's theory, Law as Integrity, was elaborated in a variety of articles and in his major theoretical monograph, Law's Empire.  Viewed from one angle, Dworkin's theory can be seen as a refinement and explicit theorization of ideas advanced by legal process theorists.  Dworkin's idealized judge, Hercules, decides cases on the basis of the moral theory that best fits and justifies the legal materials as a whole.  This method of decisionmaking bears clear affinities with the method of reasoned elaboration.

On the other hand, there are major differences between Dworkin's theory and the legal process approach.  Dworkin affirms the Right Answer Thesis--there is one and only one legally corrected outcome to each and every case that might be presented to a judge.  The legal process theorists (as I understand them) are not committed to this Dworkinian claim: there may be better and worse reasoned elaborations of the law, but they do not explicitly commit to the idea of a unique right answer to every legal question.  Dworkin draws a sharp distinction between considerations of policy (consequentialist concerns) and those of principle (fairness concerns).  Dworkin believes that judicial decisions must be based solely on principle and cannot take policy into account, but the legal process theorists seem to allow for judicial consideration of policy and hence of consequentialist arguments--so long as the policy goal is found in the legal materials rather than imposed by the judge.  Dworkin's approach is more philosophical than the legal process approach: where Dworkin engages in conceptual assent to general theories of equality or freedom of expression, the legal process approach emphasizes policies and principles at a lower level of abstraction.

Criticisms of the Method of Reasoned Elaboration

The method of reasoned elaboration has been subject to so many criticisms that it is impossible to summarize them in a short Lexicon entry.  Here are a few of the arguments that have been made against reasoned elaboration:

• Reasoned elaboration assumes that there are values (goals, policies, principles) that are immanent in the legal materials, but it is not clear that this idea is coherent.  Although the legal materials sometimes include value statements (e.g. in the preamble of a statute or constitution), operative legal materials cannot themselves have goals, only persons have the kind of mental states that constitute goals or purposes.
• Reasoned elaboration in practice may not be significantly different from judicial legislation.  Different judges are likely to see different values imminent in the law, and those differences are themselves likely to reflect the policy preferences or ideologies held by the judges.
• Assuming that the process of judging should be value driven, it is not clear why the values imminent in the law should trump the set of values supported by the best moral theory.  Legal process theory seems to require adherence to second-best values except in the rare case where the legal materials just happen to reflect the best moral theory.
• The existing set of legal materials is the outcome of political struggles and not idealized policymaking.  Statutes represent comprises between competing sets of values and political ideologies.  For this reason, the process of reasoned elaboration may itself be indeterminate, and hence the attempt to define a middle way between formalism and realism may be doomed to failure.

The Continued Influence of Reasoned Elaboration

Explicit invocation of the idea of reasoned elaboration may be less frequent than it once was, but many legal scholars use a legal process approach--even if they are not consciously aware of that fact.  Every reader of contemporary legal scholarship will see a reflection of reasoned elaboration in what continues to be the most popular genre of legal scholarship--the law review article that makes a normative recommendation for future judicial decisions based on policies or principles that the author argues are to be found in the existing legal materials.  This method is so common that many of its practitioners do not even recognize that they are relying on a controversial set of theoretical assumptions.

Conclusion

Every legal scholar needs to understand the legal process school and its central idea of reasoned elaboration.  Some scholars may decide after reflection to self-consciously employ a refined version of the idea of reasoned elaboration.  Others will reject this approach, opting instead for rival views, including contemporary versions of legal formalism (such as plain meaning textualism or public meaning originalism) or a first-best normative theory (whether it be a form of consequentialism such as welfarism or some version of deontological theory such as Rawls's justice as fairness).  And their are many other views as well, including Posner's legal pragmatism and critical theories including feminist jurisprudence and critical race theory.  The aim of this entry in the Legal Theory Lexicon has been to equip the reader with a basic understanding of the idea of reasoned elaboration and enable further investigation and reflection.

Related Lexicon Entries

• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 036: Indeterminacy
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 055: Principles in Constitutional Theory
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction

Bibliography

• Donald A. Dripps, Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School, 3 Ohio St. J. Crim. L. 125, 126 (2005).
• Neil Duxbury, Faith in Reason: The Process Tradition in American Jurisprudence, 15 Cardozo L. Rev. 601 (1993)
• Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vand. L. Rev. 953, 964-6 (1994).
• Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958).
• Henry M. Hart, Jr. and Herbert Wechsler, The Federal Courts and the Federal System (1953).
• Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L Rev. 1 (1959).

(Last revised on June 15, 2024.)

Legal Theory Bookworm: "Reclaiming the Public" by Dorfman

The Legal Theory Bookworm recommends Reclaiming the Public by Avihay Dorfman.  Here is a description:

Reclaiming the Public defines and defends the intrinsic value of “the public” that resides in our public institutions and the officials that run them. The book argues that public institutions do not simply act for us but instead speak and act in our name; i.e., they represent us. Representation requires that decisions made by public institutions or officials are consistent with the perspectives of citizens. If the decisions satisfy this requirement, these decisions are attributable to citizens, and citizens can be held responsible for them. This theory of political authority accounts for major features of our legal system, such as the non-instrumental grounds for the separation of law-making powers, the non-instrumental value of constitutions, the limits of privatization, the nature and value of public property, and the impermissibility of using artificial intelligence in setting certain policies and making certain decisions.

And from the reviews:

‘Reclaiming the Public develops an account of the distinctively public nature of legal and political institutions: institutions qualify as public only if they speak and act in the name of their constituents. Dorfman and Harel develop this striking idea to provide novel analysis of many of the hardest questions of contemporary political life, including representation, privatization, public ownership, and algorithmic decision making.’ Arthur Ripstein, University Professor, University of Toronto

‘With longstanding democracies under threat from authoritarians, Reclaiming the Public fills an urgent need for an account of popular sovereignty that explains what it means for government to be, in Abraham Lincoln’s phrasing, not just for the people, but by and of them as well. In offering a brief against technocracy and privatization, Avihai Dorfman and Alon Harel also thereby harden the public sphere against those who seek to rule in the name of making the trains run on time.’ Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School

Legal Theory Lexicon: Welfare, Well-Being, and Happiness

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 have lives 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 eudaimonia, which can also be translated "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:  The second life is lived by Alice, who 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, but as things turned out, she has what she wants.

The Life of Accomplishment:  The third life is lived by Philippa, who 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 illness 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 experience 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 their 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 decisive 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 probable 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

• 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 025: Social Welfare Functions
• Legal Theory Lexicon 028: Concepts and Conceptions
• Legal Theory Lexicon 041: Metaethics
• Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

Other Resources on the Web

• Roger Crisp, Well-Being, Stanford Encyclopedia of Philosophy
• Andrew Moore, Hedonism, Stanford Encyclopedia of Philosophy

Bibliography

• Adler, M., (2019) Measuring Social Welfare: An Introduction.
• 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).
• Kraut, R. (2007) What Is Good and Why: The Ethics of Well-Being (Cambridge: Harvard University 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 March 17, 2024.)

Legal Theory Lexicon: Possibility and Necessity

Introduction

What policy choices are feasible and which options are "pie in the sky," "utopian," or "politically impossible"?  What is "necessary" and what is merely "probable"?  TheLegal Theory Lexicon includes two entries that deal with aspects of these questons, Legal Theory Lexicon 011: Second Best and Legal Theory Lexicon 062: Path Dependency.  In this post, we will investigate the concepts of "possibility" and "necessity."  These ideas are ubiquitous in theoretical discourse, but they are rarely defined or explicated.  One way to get clear about possibility and necessity is via the powerful philosophical idea of a possible world, made famous by Leibniz and deployed in contemporary metaphysics by David Lewis, Saul Kripke, and others.

As always, the Legal Theory Lexicon is aimed at law students, especially first year law students with an interest in legal theory.  Although "possible worlds" talk may sound complex, the core ideas and terminology can easily be mastered.

Modality 

Before proceeding any further, we need to introduce two important terms, the adjective "modal" and its noun form "modality."  These words are probably unfamiliar to anyone who wasn't a philosophy major, but you may dimly recall that "could" and "must" are called "modal verbs" in texts on English grammar.  "Could" is a modal verb because it expresses possibility: if something could happen, it is possible.  "Must" is a modal verb because it expresses necessity: if something must happen, it is necessary.  When I use the word "modality" in this post, I am simply referring to the general concept that includes both necessity and possibility in all their forms.

Possible Worlds Semantics 

The phrase "possible worlds semantics" sounds pretty intimidating, but it is really based on a very intuitive and simple set of ideas.  Possible worlds talk translates talk about possibility and necessity into talk about possible worlds.

Begin with the notion of a possible world. This notion is similar to the notion of a "state of affairs," which may be familiar from economics. The philosophical idea of a "possible world," is understood as a complete history of a whole universe. If some thing is possible, say event X, we say that X occurs in some possible world. Complimentary to the concept of possibility is the concept of necessity. Let us say that an event Y is necessary if Y occurs in all possible worlds; a proposition, p, is a necessary truth if it is true in all possible worlds.

The next step is to add the notion of the "actual world," where actual is an indexical term that separates this world from all possible worlds.  You may not be familiar with the idea of indexical terms.  "Here" is an indexical: its meaning is indexed to the place where the word is uttered.  Likewise, "now" is an indexical: Its meaning is indexed to the time the word "now" uttered.  And when "actual" is used in the philosophical sense, its meaning is indexed to this possible world: the actual world is the possible world that we inhabit.

Varieties of Possibility 

Now that we have the idea of a possible world in place, we can talk about different kinds of possibility.  For example, "logical possibility" requires only logical consistency, and, in the logical sense, possibility is rarely implicated by debates in normative legal theory.  That is because almost anything that legal theorists would care to talk about is logically possible: it is logically possible that the Constitution will be amended next year to abolish the Electoral College and eliminate the Senate, but no one thinks that these possibilities are even worth discussing in that time frame.

Practical Possibility  

The notion that there are different types of possibility can be made very precise by using the notion of a possible world.  Let's try to develop a concept of "practical possibility" that captures the claims made by legal theorists that same legal options are not in the feasible choice set.  We can do this by narrowing the set of possible worlds that are the domain of legal necessity in a series of steps.

Each step can be expressed in terms of the idea of an accessibility relation. The phrase "accessibility relation" may sound obscure, but an example will make it crystal clear. For practical purposes, normative constitutional theory may sometimes only be interested in those worlds that are possible future states of the actual world. Such worlds share the history of the actual world up to this moment, and we call worlds that have this property "historically accessible" from the actual world.  Notice that talk about historical accessibility frequently can be translated into talk about "path dependency."  The feasible choice set--the future choices that are possible--may be (or is) constrained by history.

But "historical accessibility" is not a sufficient limitation for the purposes of normative legal theory. Why not? Because it is logically possible that the future states of the actual world could be just about anything you can imagine; there is no logical contradiction in a possible world that shares the history of the world up until now but in which the United States instantly becomes a parliamentary democracy at the next snap of Jeremy Waldron's fingers. For the purposes of normative legal theory, we should restrict the domain of possible worlds to those that share the basic laws of nature (physics, etc.) with the actual world; these worlds are called "nomologically accessible."  In nomologically accessible worlds, Waldron's finger snaps do not produce constitutional revolutions. The historically and nomologically accessible worlds, then, are those that share the history of the actual world up to now and that share our laws of nature.

At this point it is useful to introduce the idea of "distance" between the actual world and some possible world. Adjacent possible worlds are "close" to the actual world. A possible world that was just like the actual world, except that this entry in the Legal Theory Lexicon was never written, would be very close, i.e., adjacent, to the actual world.  Remote worlds are "distant" from the actual world. A possible world in which complete essays appear without effort, simply by wishing upon a star would be more remote. Even more distant worlds are easy to imagine. In ascending degree of remoteness, we can imagine a world in which the Mongols conquered Europe and the Renaissance did not occur, a world in which humans never evolved, or a world in which subtle variations in physical laws made the evolution of carbon-based life impossible.

The possibilities that concern normative legal theory are primarily those that exist in historically and nomologically accessible possible worlds that are adjacent to the actual world. One set of accessibility relationships is especially relevant to legal discourse: these relationships concern human psychology, institutional capacities, social norms, and political attitudes. Some legal options will not work, given what is true about human psychology: they make unrealistic assumptions about what officials or citizens are capable of doing. Other legal options would require dramatic changes in social norms: their success relies on unrealistic assumptions about what citizens and officials believe is acceptable or unacceptable conduct. Some options make counterfactual assumptions about institutional capacities. And yet other legal options are politically infeasible: they presuppose political attitudes that only exist in possible worlds that are remote from the actual world.

But normative legal discourse requires what we might call "normative space."  That is, normative discourse assumes that minds can be changed and the attitudes are not entirely fixed. We can call worlds that conform to the laws of psychology and sociology but in which attitudes and beliefs are not fixed "psychologically and politically accessible worlds."

Practically Accessible Possible Worlds

Sometimes normative legal theory has practical aims: it is concerned with how we should act in the actual world. Let us call those actions that change legal relationships or statuses in the actual world "legal practice."  Legal practice is not concerned with historically and nomologically accessible possible worlds that cannot come into being given the limits on human choices. If there is nothing that any agent (individual, institutional, or collective) does in any historically and nomologically accessible world that brings a future state of the world about, then the future state is outside the feasible choice set. Let us call the worlds that are open to human choice in the sense just specified "practically accessible."  A practically accessible world must be nomologically and historically accessible through human agency. Legal practice is, by stipulation, concerned with possible worlds that are practically accessible.

Epistemological Accessibility 

One final accessibility relation requires a brief mention. We can distinguish between those worlds that are consistent with our knowledge of the actual world and those which are inconsistent with such knowledge. We can use the phrase "epistemologically accessible" to capture this idea. Worlds that are consistent with everything we know about the actual world are epistemologically accessible. Worlds that have a feature contradicted by our knowledge of the actual world are epistemologically inaccessible. Not all epistemologically accessible worlds are nomologically and historically accessible; there may be historical facts or natural laws of which we are unaware.

The Feasible Choice Set  

We are now in a position to define the notion of a feasible choice set. A claim that a given legal option is outside the feasible choice set is a claim about constitutional practice, and hence a claim about which possible worlds are practically accessible. Usually, a claim that a given legal option is infeasible will rest (either explicitly or implicitly) on a claim about human psychology, anthropology, economics, sociology, or political science.

For example, the claim that a constitutional amendment banning abortion is politically infeasible, if fully articulated, would rest on claims: (i) about the legal requirements for constitutional amendments, (ii) about beliefs and desires causally relevant to the motivations of constitutional actors such as congresspersons and state legislators, and (iii) about the beliefs and desires of citizens. Thus, the claim might be that, given the legal requirements, the motives of those whose assent is legally required for a constitutional amendment, and the attitudes of voters, a constitutional amendment banning abortion is impossible. In possible worlds talk, we might say that worlds in which such amendments become law are relatively remote from our own; in these worlds, political actors behave much differently or many citizens have different attitudes about abortion or the legal requirements for a constitutional amendment have been altered. This remoteness is the underlying reason for our judgment that such a constitutional amendment is outside the feasible choice set.

Legal options that exist only in possible worlds that are either historically or nomologically inaccessible are outside the feasible choice set in a very strong sense. They cannot come about in a future state of the actual world given the natural laws that govern this world. Legal options that exist in historically and nomologically accessible worlds may nonetheless be only remote possibilities: they may depend on changes in beliefs, desires, or institutions that depend on unlikely contingencies. When such possibilities are sufficiently remote, we may say they are outside the feasible choice set, but if we speak in this way, we are using "feasibility" in a sense that diverges from historical and nomological possibility.

Agent Relativity & Collective Action

One more point about the feasible choice set is that it may be "agent relative."  Consider again, the claim that a constitutional amendment banning abortion is infeasible.  When this claim is cashed out, the relevant kind of "possibility" is likely to hinge on the assumption that the beliefs and desires of certain agents are held constant.  Given political attitudes (as they currently exist in the actual world), such an amendment could not be ratified by the requisite three-quarters of the fifty state legislatures.  So from the point of view of particular political actors (e.g. an advocacy group), the constitutional-amendment option is outside the feasible choice set.  In other words, relevant to a particular agent (e.g., an advocacy group), the feasible choice set is constrained by the political attitudes of other agents.

But now suppose that we are asking a different question: is a constitutional amendment possible for the collective agent that consists of the Congress and fifty state legislatures?  From the point of view of that agent, the same legal action (the constitutional amendment) is within the political choice set--it is within the set of options that it is possible for that collective agent to choose.  In other words, practical possibility can be "agent relative"--where a choice that is infeasible for one agent is feasible for another.

I am sure that many readers of Legal Theory Blog will recognize that this aspect of legal possibility is related to what are called "collective action problems."  For an example, see the Legal Theory Lexicon entry on the prisoners' dilemma (Legal Theory Lexicon 007: The Prisoners' Dilemma).  Some actions require cooperation between multiple agents, but if we make certain assumptions about the motivations of the needed cooperators (as rational choice theory does), then cooperation and hence the collective action may be outside the feasible choice set.

Two Mistakes About Possibility

The Mistake of Reducing Possibility to Cost  Positive and normative law and economics provide powerful frameworks for thinking about the law and policy. Part of that power derives from a focus on costs and benefits. Frequently, we can understand and predict behavior by focusing on the expected costs and benefits of alternative actions. Sometimes, the action that is morally best is the action that accrues the greatest benefits or minimizes costs. If carried to an extreme, this focus on costs and benefits might lead to the conclusion that talk about possibility and feasibility can be reduced to talk about costs. We might come to believe that the sentence, “Outcome A is impossible,” can be reduced to, “Outcome A is too costly to be seriously considered.” Or “Choice B is not feasible,” might be equivalent to “Choice B is so costly that it should not be considered as an alternative.”

Possibility cannot be reduced to cost for several reasons:

First, some kinds of impossibility are unrelated to cost (in even the broadest sense of that term). The number of Senators apportioned to each state cannot simultaneously be equal and proportionate to population; given unequal population size, this would be a logical impossibility. 

Second, the attribution of costs to options is dependent upon a prior notion of possibility. Thus, if we say that option A entails the accrual of cost n, that assertion depends on the prior assumption that a state of affairs in which option A is chosen, but cost n is not accrued is not a possible state. 

Third, even when costs play a causal role in establishing impossibility, agent relativity differentiates between costs as factors to be weighed in decisionmaking and costs that make certain outcomes practically impossible. For example, if respecting the freedom of speech is costly in cases involving advocacy of terrorism, the Supreme Court (as a relevant constitutional agent) might take that fact into account. And in some circumstances, high costs might lead the court to view a given constitutional rule as “infeasible.” But this is quite different from the court reaching the conclusion that compliance with a rule would be impossible, because the costs associated with compliance would be too large for the affected governmental entity to bear. In the first case, the costs are factors to be weighed in making the decision. In the second case, the costs are causal influences that determine which outcomes are possible from the point of view of the Court.

The Mistake of Reducing Possibility to Probability  Another tempting error is to equate possibility and probability. Possibility is normally understood as a binary function. An action, outcome, or event is either possible or impossible—once we specify the “sense of possibility” or, more technically, the accessibility relationships that define the relevant set of possible worlds. Probability, however, is a scalar: a given outcome may be “more or less likely” or, more formally, its probability may assume any real value from 0 to 1. The tempting mistake is to equate “possible” with “probability greater than zero” and “impossible” with “probability equal to zero.” Given this move, an even more serious error becomes tempting: one might then say that assertions of “impossibility” are actually assertions of “extreme improbability,” with the consequence that the concept of impossibility would turn out to be confused or mistaken. But the equation of possibility and probability is, in fact, based on conceptual confusion. The nature of the error is easiest to see in the case of logical possibility. It simply does not make sense to assert that it is merely improbable that the following two statements are both true: (1) this article was written entirely in the twenty-first century, and (2) this article was not written entirely in the twenty-first century. It is logically impossible that both statements are true, and the concept of improbability has no application to this kind of case. If someone were to assert the following: “The probability of both statements being true is zero,” we would understand that they were using probability in a figurative or metaphorical sense. There may be cases where “impossible” means “probability of zero,” but not all cases are like this. In some cases, talk of probabilities is simply inappropriate.

Avoiding Double Standards

One last point before we conclude.  Arguments about legal possibility should avoid double standards. That is, if one argues against a legal alternative on the ground that it is outside the feasible choice set, then one is obligated to show that the preferred option or options are inside the set—on the basis of the same criteria and in light of available evidence.

The possibility of a double standard can be illustrated by reference to a hypothetical dispute between advocates of constitutional originalism and Dworkin’s view of law as integrity. Originalists might claim that their approach is superior because it provides objective standards for correct constitutional interpretation. A Dworkinian might attempt to refute this claim by arguing actual judges are incapable of discerning the original public meaning of the Constitution; in the actual world, the argument might go, judges and justices lack both the historical chops and the capacity to set aside their own preferences. But if the Dworkinian (or quasi-Dworkinian) were then to appeal to Dworkin’s ideal judge, Hercules, when the feasibility of law as integrity was assessed, a double standard would have been imposed. In the actual world, the same judges who lack historical chops may lack Hercules’s capacity to construct the theory that best fits and justifies the law as a whole; in the actual world, the same biases that distort originalist judges could distort the method of law as integrity. Of course, we can easily imagine that the tables are turned and that it is the originalists who deploy a double standard.

Conclusion 

The concepts of "possibility" and "necessity" do a lot of work, but legal theorists frequently make arguments about feasibility without a theory.  This leads to confusion and creates the possibility of double standards.  The aim of this entry in the Legal Theory Lexicon has been to give you the tools to think clearly and consistently about legal possibilities.

Resources on the Internet

• Christopher Menzel, Possible Worlds, Stanford Encyclopedia of Philosophy

Related Lexicon Entries

• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 062: Path Dependency
• Legal Theory Lexicon 070: Uncertainty, Risk, and Ignorance

References

• John Divers, Possible Worlds  (Rutledge 2002).
• David Lewis, On the Plurality of Worlds  (new ed. Wiley-Blackwell 2001).
• Lawrence B. Solum, Constitutional Possibilities, 83 Indiana Law Journal 307 (2008).

(This entry was last revised on February 17, 2024.)

Legal Theory Lexicon: Efficiency, Pareto, and Kaldor-Hicks

Introduction

Almost every law student receives some introduction to normative law and economics in their first year of law school.  One of the basic ideas of normative law and economics is that the law should be "efficient."  But what does efficiency mean?  For economists, "efficiency" is a technical idea--with only a tangential connection to the use of "efficiency" in ordinary speech.  In order to understand economic efficiency, we will look at what are called the Pareto principles and a related idea that is sometimes called Kaldor-Hicks efficiency.

In addition to explicating the idea of efficiency, we will take a quick look at some of the criticisms that might be made of this concept.  Although many economists operate on the assumption that "efficiency" is an uncontroversial good, that assumption is controversial both inside and outside of the discipline of economics.

As always, the Legal Theory Lexicon is aimed at law students, especially first-year students, with an interest in legal theory.  This is very much a "quick and dirty" look at a topics upon which whole books can be written.

The Idea of Utility and the Problem of Measurement 

There are several plausible formulations of normative economics, but almost all of normative economics begins with the fundamental idea of utility as a conception or measure of the good. Economists may disagree about the nature of utility, the relationship of utility to social welfare, and the role of welfare in public policy, but most (but not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing.

Historically, one of the most important interpretation of utility is associated with the great English philosopher and legal theorist Jeremy Bentham.  Bentham defined utility in terms of pleasure (and the absence of pain).  Bentham argued that laws and policies could be evaluated by a "hedonic calculus"--the best policy produces the greatest number of "hedons"--units of pleasure.  But Bentham's idea did not provide a workable basis for the science of economics, because there has been no workable method for measuring hedonic values.  This assumption has been undermined reliance by the work of some economists and psychologists, who have been trying develop workable measures of "happiness."  (For discussion of this development, see Legal Theory Lexicon 068: Welfare, Well-Being, and Happiness.)

Contemporary economists have interpreted the idea of "utility" as a function of preferences--the subjective values that individuals place on states of affairs.  If individual I prefers state of affairs X to state of affairs Y, then X produces more utility for I than does Y.

The move to preferences as the basis for utility offered economists the possibility of solving the problem of measurement.  How can we measure preferences?  In order to understand the way that economists answer this question, we need to distinguish between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual I prefers possible world X to possible world Y, but it doesn’t tell us whether X is much better than Y or only a little better.  A cardinal utility function yields a real-number value for each possible world. If we assume that utility functions yield values expressed in units of utility or utiles, then individual I’s utility function might score possible world (or "state of affairs") P at 80 utiles and possible world Q at 120 utiles.

The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, "utilitarianism" can be stipulated to refer to the view that an action is the best action if and only if the action maximizes utility when compared with all possible alternative actions. For technical reasons, utilitarianism requires both cardinality and full interpersonal comparability.  But both cardinality and interpersonal utility comparisons are problematic.  It is difficult to measure cardinal utilities for even a single individual.

And it is even more difficult to compare utilities among different persons.  How can we compare the value that one individual, I1, assigns to consuming a glass of fine wine with the value that another individual, I2, assigns to imbibing a fine single-malt scotch?  And some things seem even more incommensurable: how do we compare the value that Ben derives from viewing a beautiful photograph by Ansel Adams to the joy that Alice takes in serving meals to the homeless on Thanksgiving Day?  Or Ben's satisfaction from solving difficult math problem with Alice's pleasure in a new pair of Jimmy Choo's?  These examples suggest that the problem of interpersonal comparison may be compounded by the problem of incommensurability--the idea that some preferences may not be comparable on the same scale.

This point about the difficulties faced by utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory. Both cardinality and interpersonal comparability pose measurement problems for economists. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require cardinal and interpersonally-comparable utilities.

The Pareto Principles

This is the point at which the Pareto principles arrive on the scene. Suppose that all the information we have about individual utilities is ordinal and not interpersonally comparable.  In other words, each individual can rank order states of affairs, but we (the analysts or policymakers) cannot compare the rank orderings across persons. The weak Pareto principle suggests that a state of affairs P is socially preferable to state of affairs Q, if everyone’s ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn’t get us very far, because such unanimity of preferences among all persons is rare.

The strong Pareto principle suggests that state of affairs P is socially preferable to state of affairs Q, if at least one person ranks P higher than Q and no one ranks Q higher than P.  Or to put it more colloquially: strong Pareto says that it is good to make one person better off if no one will be made worse off. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions. The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals I1 and I2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient—and hence satisfies the strong Pareto principle. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient.  (A "negative externality" here simply means that at least one person, e.g., individual I3, prefers the the state of affairs in which the trade does not place.)

From Pareto to Kaldor-Hicks

Because Pareto efficiency assumes no negative externalities, it has significant limits as a normative concept.  For example, there are many questions of legal policy in which externalities are particularly important--pollution is a classic example.  If I operate a factory that pollutes the air or water, my action may cause harms to my neighbors.  If even one person would lose (as measure by that person's preferences) by the move from state P to state Q, then that move is not Pareto efficient.  So if Pareto efficiency were the only normative principle available to law and economics, the consequence would be that economics would have nothing to say about many of the most important legal questions, e.g. many questions of environmental law.  (The point in this paragraph connects to the Coase Theorem, which suggests that the Pareto efficient outcome will be reached so long as it isn't precluded by transaction costs. See Legal Theory Lexicon 002: The Coase Theorem).

Kaldor-Hicks is a technique for extending the normative implications of economic analysis.  Here is how it works.  We take a situation in which their are externalities, e.g. pollution that affects third parties. Let's assume that markets can't reach a Pareto-efficient outcome.  That assumption might be accurate because of high transactions costs, as in the case where the pollution impacts on so many individuals that bargaining is impractical or costly.  Counterfactually, however, we can imagine that there were zero transaction costs.  We can then ask what outcome would occur if those who were effected by the externality (the pollution) entered into a Pareto-efficient bargain that compensated them for their losses.  Outcomes that would be Pareto-efficient if there were zero transaction costs are Kaldor-Hicks efficient.

Kaldor-Hicks extends normative law and economics to a wide range of situations in which externalities and transaction costs prevent markets from reaching Pareto-efficient outcomes.

Criticisms of Efficiency

Does efficiency (either Pareto or Kaldor-Hicks) provide an attractive normative yardstick by which legal policies may be judged?  That's a complex question, but we can quickly explore a few critical ideas:

Wealth Effects  When Pareto is applied to market transactions, preferences (or utility) is interpreted as a function of willingness to engage in market transactions (or willingness to pay).  But willingness to pay is a function of wealth.  Thus, someone who is very poor may be willing to engage in degrading or dangerous work, because they have no real alternative.  But this does not mean that the efficient transaction is better than non-Pareto-efficient alternatives, which might involve a redistribution of wealth that would obviate willingness to engage in degrading work. (These alternatives will not be Pareto efficient, assuming that redistribution would not be preferred by all, including those whose wealth is being redistributed.)

Bad Preferences  Pareto and Kaldor-Hicks assume that state A is better than state B on the basis of individual preferences.  But preferences aren't fixed.  Preferences can change for a variety of reasons and some preferences may be better than others.  For example, the preference to sexually abuse children is considered evil--satisfying it is not a moral good.  Efficiency takes preferences as a given: it can't tell us whether the law should attempt to shape or alter preferences.  But outside of the discipline of economics, there is almost universal agreement that satisfaction of evil preferences is intrinsically bad.  And many people believe that society has a legitimate interest in undertaking measures that will change such preferences.

Kaldor-Hicks and Rights  Kaldor-Hicks characterizes a move from state P to state Q as efficient even if a third party is injured by the move.  That injury may involve unfairness or a violation of the third party's rights.  From a consequentialist perspective, rights violations may have no significance in themselves, but deontological normative theories do afford moral signficance to rights.  From a deontological point of view, taking rights seriously may require government to forbid some Kaldor-Hicks efficient transactions.

Efficiency & Social Welfare Functions

Some economists move beyond Pareto and Kaldor-Hicks and embrace what are called "Bergson-Samuelson Social Welfare Functions."  There is a separate entry on this idea (Social Welfare Functions) in the Legal Theory Lexicon, but the general idea is to reintroduce interpersonal comparability for individual utilities.  The key difference between Kaldor-Hicks and Bergson-Samuelson arises in cases where the hypothetical compensation seems unusually large, and an extreme version of this would be the case of someone who would not accept any level of compensation--the hold out problem.  Bergson-Samuelson permits us to assign an interpersonally comparably utility value to the welfare that the "hold out" would lose, and that value may be much lower than the demanded compensation would suggest.

Conclusion

Efficiency is one of the bedrock ideas for normative law and economics.  The point of this Lexicon entry is to give you the tools to understand what economists mean by efficiency.

Related Entries

• Legal Theory Lexicon 002: The Coase Theorem
• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 025: Social Welfare Functions
• Legal Theory Lexicon 068: Welfare, Well-Being, and Happiness

References

• Lawrence B. Solum, Public Legal Reason, 92 Virginia Law Review 1449 (2006).
• Daniel M. Hausman & Michael S. McPherson, Economic Analysis, Moral Philosophy and Public Policy (2d. ed. Cambridge University Press 2006).
• Klaus Mathis, Efficiency Instead of Justice?: Searching for the Philosophical Foundations of the Economic Analysis of Law (Deborah Shannon trans., Springer 2009)
• Walter J. Schultz, The Moral Conditions of Economic Efficiency (Cambridge University Press 2008)

Resources on the Internet

• Lewis Kornhauser, The Economic Analysis of Law, Stanford Encyclopedia of Philosophy (2006).

(This entry was last revised on January 27, 2024.)

Legal Theory Lexicon: Functional Explanation in Legal Theory

Introduction

In a prior installment of the Legal Theory Lexicon, we explored the difference between Positive and Normative Legal Theories. Positive legal theory attempts to explain and predict legal behavior, especially the content of legal rules. Normative legal theory makes claims about what those rules should be. This week's post is about an important and familiar concept in positive legal theory--the idea of a functional explanation.

Why do legal rules have the form and content that they do, in fact, have? One answer to this question is based on the idea that the function of a rule can be part of a causal explanation of the content of the rule. Why does corporations law limit the liability of stockholders? One kind of answer to that question might begin: "That rule is the way it is, because it serves the interest of the capitalist class." Or, "The rule is that way, because that is the efficient rule, and common law adjudication selects for efficient rules." In other words, the content of the rule is explained (causally) by the function that the rule serves.

The Idea of a Functionalist Explanation

Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait--why male peacock's have their colorful feathers or why elephants have trunks--we appeal to the function that the trait serves. Male peacock's have colorful feathers because that trait serves to attract female peacocks and hence the genes produce this trait are favored by evolution. Elephants have trunks, because they enable elephants to eat and drink more efficiently.

In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates.

Functionalist Explanation in the Social Sciences

Functionalist explanations are not limited to biology. Sociologists frequently explain (or, perhaps, "formerly explained") social behavior on the basis of the social function that the behavior serves. Why does this group do a "rain dance"? Because the rain dance ritual serves to create social cohesion in times of stress.

There is, however, a significance difference between functionalist explanation in biology and functionalist explanation in the social sciences. In biology, functionalist explanations are underwritten by a well-confirmed theory of the causal mechanism by which evolution functions. In social science, the causal mechanisms are murkier. What causal law explains how the social cohesion function of rain dances leads to their perpetuation across generations? Without an answer to questions like this, we have at least prima facie reason to be suspicious of functionalist explanations in the social sciences. This suspicion is enhanced because functionalist explanations can easily become nonfalsifiabile. In the case of biology, because evolutionary theory is well confirmed, we more or less know in advance that some functionalist explanation has got to be right--the question is which functionalist explanation is correct. In the case of social science, there is no well-confirmed general theory of social evolution (or similar nonevolutionary but functionalist theory), so it isn't necessarily the case that there is always a true functionalist explanation for any given social behavior.

Functionalist Explanations in Legal Theory

And that brings us to law. Functionalist explanations are frequently invoked in positive legal theory. That is, when we ask the question, "Why does the law have such and such content?", the answer frequently is, "Because such and such a rule functions in thus and so way." Here are some examples:

Marxist Explanations of Law--Marxist social theory relies heavily on functionalist explanation in general, and so it is not surprising that many Marxist explanations of law are functionalist in nature. "The law is such and such, because that rule serves the interest of the capitalist class." "Feudal law governing rights in land gave way to modern property law with free alienability, because that change was required by the transition from the feudal mode of production to the capitalist mode of production."

Legal Evolution--Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes"). The idea that legal systems evolve is very common, but there is not general theory of legal evolution that has the well-confirmed status of the corresponding theory of biological evolution. Be on the watch for claims about legal evolution; such claims frequently are not well thought out and almost always lack empirical support.

Efficiency--Another example of functionalist explanation in legal theory is the claim that the common law rules are efficient. "Why did the common law adopt the Learned Hand formula as the standard for negligence?" "Because that is the efficient standard." Sometimes these claims are accompanied by an account of the mechanism by which a common law system moves towards efficient legal rules. For example, it might be argued that inefficient legal rules will be subject to continuous litigation pressure; whereas efficient legal rules, once adopted, tend to facilitate settlement of disputes.

Microfoundations and Methodological Individual

When you are thinking about particular functionalist explanations in positive legal theory, it is particularly helpful to ask the question whether the explanation has "microfoundations." That is, does the functionalist explanation for a particular legal rule (or change in legal rules) incorporate a specific account of the causal mechanism by which the function caused the rule or change. It is always possible that a particular functionalist explanation is true, even if microfoundations cannot be provided, but the absence of causal mechanisms is a reason to be suspicious.

The idea of microfoundations is related to another important idea, "methodological individualism."  Methodological individualism can be understood as a general principle that guides the development of explanations for social phenomenon.  The idea is that explanations at the social (or group) level must have microfoundations at the level of individual action.  For example, in legal theory we may seek to explain the actions of groups like corporations, legislatures, or collegial courts.  So to explain the actions of the Supreme Court, we need to be able to explain the actions of individual justices.

The Elster-Cohen Debate

For a very lucid explanation of the role of microfoundations in social science, I highly recommend Jon Elster's brilliant book Making Sense of Marx. And for an equally brilliant defense of functionalist explanations, consult G.A. Cohen's Karl Marx's Theory of History. (The debate between Cohen and Elster is one of the most interesting and important debates in contemporary philosophy of the social science: if you are interested in the foundations of positive legal theory, I highly recommend reading these two books.)

Conclusion

Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory--setting aside the introductory course to law and economics (which may or may not focus on methodology and is unlikely to cover methodology outside economics itself). That's bad. Real bad.

Related Lexicon Entries

• Legal Theory Lexicon 016: Positive and Normative Legal Theory

Bibliography

• G.A. Cohen, Karl Marx's Theory of History  (expanded ed., Princeton University Press 2000).
• Jon Elster,  Making Sense of Marx  (Cambridge University Press 1985).
• Jon Elster, Nuts and Bolts for the Social Sciences (1989).
• Jon Elster, Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (2007).
• Harold Kincaid, Philosophical Foundations of the Social Sciences 101-141 (Cambridge, UK: Cambridge University Press, 1996).
• Philip Pettit, Functional Explanation and Virtual Selection, 47 British Journal of the Philosophy of Science 291-302 (1996).

Internet Resources

• Functionalist Explanation, Online Dictionary of the Social Sciences (2002).
• Joseph Heath, Methodological Individualism, Stanford Encyclopedia of Philosophy (2010).

PDF Version

• Lawrence B. Solum, Legal Theory Lexicon 040: Functionalist Explanations in Legal Theory (2013).

(This entry was last updated on September 30, 2023.)

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 false, because the sidebar to Legal Theory Blog actually does no longer has links to other blogs and hence no 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: Second Edition (William James Lectures) , 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" entry in the Stanford Encyclopedia of Philosophy
• Barry Smith, Towards a History of Speech Act Theory
• Guy Longworth, "John Langshaw Austin" entry in the Stanford Encyclopedia of Phiosophy

(Last modified on May 19, 2023.)

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 
• Normative 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 about facts 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: Descriptive Theories--The first kind of legal theory that is called "positive" is quite simply a theory that describes the law in some way.  There many different subgenres of descriptive legal theories, but one of the most important is doctrinal: a doctrinal theory describes in general and abstract terms 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."  Another subgenre is descriptive and historical, usually in the form of a narrative that describes change with respect to some legal phenomenon--for example, a history of tort law.

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. The Legal 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. The Legal 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 011: Second Best
• 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 April 16, 2023.)

Legal Theory Lexicon: The Veil of Ignorance

Introduction

This installment in the Legal Theory Lexicon is intended to introduce law students (especially first years) to "the veil of ignorance"--an idea from political philosophy that has had an important influence on legal theory.
 

From the Ex Ante Perspective to the Veil of Ignorance

Law students quickly learn that law school focuses more about the normative ("Is it a good rule?") than the descriptive ("What is the rule?").  "Just give me the black letter law!" is a cry in the wilderness.  Once you've learned that lesson, another one quickly follows. (Either it creeps up on you, or perhaps it just hits in one of those glorious a ha moments!) The legal academy (and hopefully your section) is full of diverse (radically different) perspectives on normative questions about the law. The ex ante/ex post distinction is all about normative perspective. We can look at legal rules ex post (backwards from the present), and ask, "Does this rule provide a fair resolution of this particular controversy?" Of we can look at legal rules ex ante (forward from the present) and ask, "Will the adoption of this rule produce good consequences if applied to similar situations in the future?" The move to the ex ante perspective is the crucial move made by consequentialist legal theories--and in particular, by normative law and economics.

But there is another important perspective on legal rules that is not captured by the the distinction between ex post/ex ante perspectives. This alternative perspective is frequently associated with the twentieth century's most important political philosopher, the late John Rawls. Rawls is famous for his book, A Theory of Justice, which argued for two principles of justice (the liberty principle and the difference principle) using a striking thought experiment called "the original position." The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance. That is, the representatives are deprived of information about the talents, abilities, and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the "state of nature" that Hobbes, Rousseau, and Locke used as the choice situation for the adoption of a social contract. Rawls's basic intuition was that the state of nature allowed morally irrelevant factors--e.g. the strategic advantages of the strong and cunning--to determine the content of the social contract. The point of the veil of ignorance is to filter out these factors, yielding a fair choice situation. Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chosen in the original position from behind the veil of ignorance?

Going Behind the Veil, Part One

So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to that question (in Part One), then we will introduce some objections and clarifications, and give a more complicated answer (n Part Two). So here goes.

"Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't possess such and such information." Right away, you see that we must fill in the blank! What information is placed behind the veil of ignorance. Let me give some examples:

• Position as plaintiff or defendant. In evaluating procedural rules, we might want to ask, "What rules would be chosen by the parties if they didn't know whether they were the plaintiff or the defendant?
• Wealth and income. And we might make the veil a bit thicker. My choice of procedural rules might be affected by my knowledge of my wealth and income. (For example, if I am wealthy, I might prefer rules that allow wealth and income to influence the outcome of litigation by making the quality of privately financed representation (e.g. buying a good lawyer) a major determinant of the chance of success.  If I were poor, I might prefer rules that minimized the role of wealth.

So, if we placed these two kinds of knowledge behind the veil of ignorance, the question becomes, "What system of procedural rules would I want if knew that I was a litigant in a civil action, but I didn't know whether I was a plaintiff or a defendant and I didn't know whether I was rich or poor?" Let's get really, really simple. Suppose I have a choice between four legal regimes with respect to the provision of counsel:

(1) Each side pays for its own lawyer. This is the so-called American rule.

(2) The government pays for all lawyers. Some socialist systems provide for this rule.

(3) If the plaintiff wins, the defendant pays for both the plaintiff's and the defendant's lawyer, but if the defendant wins, each side pays for its own lawyer. This is the rule that currently prevails under several statutes, e.g. 28 U.S.C. Section 1983.

(4) The loser pays for its own lawyer and for the winner's lawyer. This is the so-called English rule.

Which of these rules would you select if you were behind a veil of ignorance and you didn't know whether you were a plaintiff or defendant, rich or poor? Obviously, we would need to know a lot about consequences to answer this question, but already, gentle reader, you are running ahead of me, and drawing certain conclusions. For example, you might be thinking that from behind the veil of ignorance, you might reject the rule that makes the defendant pay if the plaintiff wins but does not make the plaintiff pay if the defendant wins. "Why would I accept that rule?," you might say to yourself, "if I can could end up as a defendant?"  Of course, it isn't as simple as that, but you get the idea.

Objections

The veil of ignorance is a controversial tool. So its worth our while to briefly scan some of the objections to its employment:

• Impoverished conception of the person. Michael Sandel made this objection famous. In Rawls's original position, the veil of ignorance is very thick indeed. The representative parties in the original position are placed behind a very thick veil that excludes knowledge of the actual interests (life plans and conceptions of the good) of the represented citizens. So when the representatives compare various options they do so based on the shares that citizens will receive of the primary goods (basic rights, wealth, income, etc.). In the real world, people have complex plans of life and they often care as much or more about what other people get as they do about their own share of the primary goods. Frankly, this objection misses the boat as applied to Rawls's theory, but it is also completely irrelevant to most uses of the veil of ignorance by legal theorists. That's because when we use the veil to compare legal rules, we almost always employ a much thinner veil of ignorance--taking people more or less as they are, concealing only information about their relative positions with respect to the legal dispute (or general class of legal disputes) at hand.
• The veil of ignorance produces utilitarian reasoning. This objection is associated with the economist, John Harsanyi and in legal theory, with Louis Kaplow and Steve Shavell. Here is the idea. Behind the veil of ignorance, you don't know who you are, and therefore, you will take the interests of all persons into account. If we assume that behind the veil of ignorance, you will try to maximize expected utility, then persons behind the veil of ignorance will always choose the legal rule that maximizes utility. (The original version of this objection was aimed at Rawls, so substitute "theory of justice" for "legal rule" to get Harsanyi's argument.) Once again, as applied to Rawls this objection has been more or less trounced, but it has even less relevance to the use of the veil in the context of legal theory. Legal theorists rarely need to impose a veil so thick that the parties behind the veil will judge legal policies solely on the basis of "expected utilities." Rather, parties behind the veil can take into account the full range of their interests and concerns, including their interests in being treated fairly.
• One cannot go behind the veil. One final objection: sometimes it is argued that it is just plain impossible to go behind the veil. How can one shed one's knowledge of one's identity? I have to admit that the sheer silliness of this objection leaves me gasping for breath! Of course, going behind the veil of ignorance doesn't literally mean forgetting who you are! In fact, veil of ignorance thought experiments are usually performed by third parties, e.g. by a legal theorist imagining that they were a member of a certain legally-relevant group. And the kind of thought experiment demanded by the veil is very familiar to ordinary people as a means of moral deliberation. Suppose your eldest daughter is hitting her younger sister, and you say to her, "How would you feel if your sister did that to you?" I'm sure, gentle reader, that are galloping ahead of me. This kind of thought experiment is simply a less formal version of the veil of ignorance. There is nothing fancy or mysterious about going behind the veil of ignorance--it is simply good, old-fashioned counterfactual reasoning applied to moral problems.

Going Behind the Veil, Part Two

Something important can be learned by considering the objections to the veil of ignorance. You can learn a lot more from going behind the veil, if you are very clear about the set up of your thought experiment. Here are some particular questions you might want to answer when you devise a veil of ignorance thought experiment:

• Who is going behind the veil? The parties to a particular dispute? Or representatives of the general class of persons involved in the generic set of similar disputes? Or all citizens or persons?
• What information is allowed behind the veil and what information is excluded? Usually, you will want to deprive those behind the veil of knowledge of their position in the particular dispute. (E.g. behind the veil, they will not know whether they are the plaintiff or the defendant, or the victim of the accident versus the person who caused the accident, etc.) But you may want to exclude other information as well. For example, you may want to deprive the parties of information about their wealth, their gender or ethnicity, their skills and abilities, and so forth.
• When are the parties located in time? At the beginning of the lawsuit? Before the events that triggered the legal dispute had even occurred? At a sort of timeless moment, when we are choosing legal rules to govern our society?
• How do parties behind the veil of ignorance deliberate? For the most part, legal theorists will want to leave the deliberative processes relatively untouched. Huh? By that I mean that unlike Rawls, legal theorists do not need to specify that the parties pursue some particular goal (maximizing their share of the primary goods) but can leave the parties with the interests they have before the veil descends. Rawls specified a particular decision rule for the parties--the maximin rule--which required the parties to maximize the share of the primary goods that would be held by the worst-off group. Again, legal theorists may not need this very strong assumption about how the parties deliberate.

Another Objection

And this brings us to yet another objections to Rawls's original position. The objection is simple: what comes out of the original position depends entirely on what goes into its set up. Of course! But by itself, this is no objection. Think of the analogous case of "How would you feel if your sister did that to you?" Of course, asking the question in this way is designed to elicit a certain outcome. But the question is nonetheless morally salient, because the norm of reciprocity that it brings to the fore is itself morally salient. The veil of ignorance is not some magical divining rod that allows us to discover ex nihilo moral intuitions that otherwise would be undiscoverable. The point of the veil is to enable us to think in a clear and rigorous way about what is fair and what isn't. So here is the important point, when you answer the who, what, when, and how questions about the set up of your veil of ignorance thought experiment, you are making explicit to yourself the factors that you think are morally relevant to judgments of fairness. In a sense, it is doing that work that is the whole point of the veil of ignorance. The fact that behind the veil thought experiments also elicit powerful moral intuitions is, in a sense, just a wonderful side benefit.

Back to the Classroom

So if you are a theoretically inclined first-year law student, how can you use the veil of ignorance. Here is my suggestion. At least some of the time, when you are reading and thinking about a morally interesting case--one where you say, this case involves questions about fairness--ask yourself the following three questions: (1) ex post, which rule provides the fair resolution of this controversy; (2) ex ante, which rule would produce the best consequences if applied to similar cases in the future, and (3) from behind the veil of ignorance, which rule would I choose if I didn't know whether I was the plaintiff or the defendant? Sometimes, as you begin to answer that third question, you will find yourself interested by the questions as to who is behind the veil of ignorance, what they know, when they decide, and how they deliberate. Spend a few minutes thinking about those questions, and you may find that you have a deeper understanding of the concerns of principle or fairness that are relevant to the case.

A cautionary note: The veil of ignorance is controversial. In some classrooms, an attempt to introduce the veil into a classroom discussion will be welcomed; in others, you will draw a withering stare or a dismissive comment. Go with the flow!

Related Lexicon Entries

• Legal Theory Lexicon 001: Ex Ante/Ex Post
• Legal Theory Lexicon 069: Reflective Equilibrium
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

Online Resources

• Samuel Freeman, Samuel Freeman, Original Position, Stanford Encyclopedia of Philosophy (2008).
• Fred D'Agostino, Contemporary Approaches to the Social Contract, Stanford Encyclopedia of Philosophy (2011).
• Ann Cudd, Contractarianism, Stanford Encyclopedia of Philosophy (2007).
• Elizabeth Ashford & Tim Mulgan Contractualism, Stanford Encyclopedia of Philosophy (2007).

Bibliography

• John Rawls, A Theory of Justice Revised Edition edition (revised edition, Harvard University Press 1999) & & A Theory of Justice: Original Edition (1971).
• Samuel Freeman, Rawls (The Routledge Philosophers) (Routledge 2007) 
• John Harsanyi,  Cardinal Utility in Welfare Economics and in the Theory of Risk-Taking, 61 Journal of Political Economy 434-5 (1953).
• Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge University Press 1998).
• T.M. Scanlon, Rawls on Justification in The Cambridge Companion to Rawls (Cambridge Companions to Philosophy)  Freeman ed., Cambridge University Press 2002).

(This entry was last revised on February 5, 2023.)