May 21, 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.

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(Last modified on May 19, 2023.)

Posted by on May 21, 2023 at 09:00 AM in Legal Theory Lexicon |

April 16, 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!

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(This entry was last revised on April 16, 2023.)

Posted by on April 16, 2023 at 09:00 AM in Legal Theory Lexicon |

February 05, 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!

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

Posted by on February 05, 2023 at 10:42 AM in Legal Theory Lexicon |

January 29, 2023

Legal Theory Lexicon: Holdings

Introduction

 It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So, here we go!

 Holding, Dicta, and Stare Decisis

 It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents!  Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision?  The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision."  This is as good a place as any to mention that "dictum" is the singular (one unnecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements.

Vertical and Horizontal Stare Decisis

 So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for the doctrine of "precedent." Here are some very basic points:

Vertical stare decisis refers to the power of higher courts to bind lower courts. All courts in the United States are bound by vertical precedent to follow the holdings of decisions by the United States Supreme Court.

Horizontal stare decisis refers to the power of a court to bind itself. The United States Supreme Court does not consider itself bound by its own prior decisions, although it says that it gives them "substantial weight" in its deliberations. The intermediate appellate courts in the federal system are called the United States Courts of Appeal (USCA). When a USCA sits in an ordinary three judge panel, the panel is bound by the prior decisions of the Court. (The USCA is divided into circuits, e.g. the First Circuit, Second Circuit, etc.) However, each Circuit is free to overrule its own prior decisions if it is constituted as an en banc court--that is, the full complement of judges on the Circuit sit on a panel. (The Ninth Circuit is different for reasons I won't explain here.)

A Loss of Faith in the Existence of the Holding

 Law students are generally introduced to holdings very early in their law school careers. The professor may play some Socratic games with early cases, manipulating students into giving broader and narrower formulations of the holdings of the cases. It is quite likely, however, that these games will stop long before the class has a very clear idea of what a holding even is. One of the reasons for this is that the very idea of a holding best makes sense in the context of legal formalism but most law professors (consciously or unconsciously) have adopted some form of legal realism--they no longer believe in holdings in the old-fashioned sense. And when you don't believe that holdings really exist, it hardly makes sense spending a lot of class time trying to master what they are.

This loss of faith extends to some degree to the bar and bench.  But very few judges would own up to believing that there is no distinction between holdings and dicta.  Especially when it comes to vertical stare decisis, most judges seem to accept the idea that they are bound by the holdings of superior courts.  And some judges seem to be committed to the doctrine of stare decisis.

Three Theories of Holdings

In fact, there are several different theories as to what constitutes the holding of a case.  For simplicity's sake, we will focus on three of these. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:

The Ratio Decidendi Theory. The formalist view is that the holding of a case is its ratio decidendi. What in the world does that mean?  The ration decidendi is the rule implied by the reasoning necessary to reach the outcome--on the basis of the issues contested by the parties or raised by the court and the legally salient facts that were before the court. Early in law school, you might get a professor who tries to whittle the holding of a case down to its ration decidendi by asking questions which force the student to see that the rule that she has formulated as the "holding" is broader than the facts of the case. It is very important to understand that identifying the ratio decidendi of a case involves judgments of legal salience. Thus, if the case involves an automobile accident, we know that some facts (the car was red, the accident happened on a Tuesday) are not legally salient and hence are irrelevant to the holding. Other facts (the driver was speeding or the driver was intoxicated) may be legally salient and hence are candidates for inclusion int he holding. Even on the formalist theory of holdings, identification of a holding requires the exercise of practical judgment. If someone tells you that formalists believed that holdings could be identified mechanically, then that person is trying to caricature legal formalism--likely for the purpose of dismissing it.

The Legislative Theory of Holdings.  Another theory of holdings is based on the idea that judge-made law is really a form of legislation.  The holding of the case is like a statute, a legal norm that is enacted via a judicial decision.  On this theory, statements that begin "We hold that" or "The rule is" are the holding of a case, even if the rule that is announced goes far beyond the facts of the case presented.

The Salient Legal Factual Characteristics Theory of Holdings.  One of the common views of the legal realists was that legal decisions are fact-responsive.  Judges decide cases based on their response to the facts of the particular case.  This general view has consequences for the notion of a holding.  Some legal realists maintained that the holding of a case is limited to the the legally salient facts of the case.  Any case with different legally salient factual characteristics would not be controlled by a prior case.  This view means that a single case cannot generate a broad holding; because in any one case, there will be a large number of legally salient facts.  Broad rules could emerge, however, from many cases, as some facts become legally non-salient as the body of cases grows.  The salient facts approach is similar to the ratio decidendi approach, but they are not the same.  The ratio approach focuses on the reasoning, whereas the salient facts approach considers only the facts themselves.

What is the debate between realists and formalists really about?

So there are different theories about holdings, realist and formalist. What is the debate between these three theories about? There are two answers to that question. First, there is a descriptive debate. Formalists may be claiming that when judges use the term "holding" they are, in fact, referring to the ratio decidendi of a case. Realists may be claiming that when judges use the word "holding" they are, in fact, enacted a legal or norm or identifying the facts are legally salient.

But in addition to the descriptive debate, there is a normative controversy. Legal formalists may acknowledge the existence of legislative style holdings, but argue it wrong to give courts the power to legislate in this way. Likewise, legal realists may be willing to concede that some courts still use holding in its "old-fashioned," ratio decidendi sense, but argue that judges should employ legislative style holdings, in order to produce good consequences.  Other realists might reject both of those positions, because they believe that judges ought to be fact responsive on a case-by-case basis.

The normative debate between the advocates of broad (legislative) holdings and narrow (case-bound) holdings may be connected with another big controversy--the debate between particularists and the champions of moral rules (or decision procedures).  Particularists believe that good moral judgments are focused on particular cases--and from that premise, one could argue that good legal decisions should be narrow in scope.  Those who believe in general moral rules (that correspond to moral rights) might argue that for holdings to protect these rights they must be as broad as the rights are.  Consequentialists will have their own arguments for broad (or narrow) holdings--such arguments will depend of course on the consequences of having broad or narrow legal rules.  Another set of normative consideration can be found in the rule-of-law values of publicity, predictability, certainty, and stability of legal rules.

It is always important to sort out the descriptive and prescriptive strands in this sort of debate.  It is easy to slide from descriptive arguments to normative ones, and vice versa.

Judge Posner's Radical Critique of Stare Decisis

Judge Richard Posner suggests a radical reworking of the distinction between holdings and dicta that seems to imply that he would do away with the idea of binding stare decisis altogether.  Here is what he wrote in United States v. Crawley, 837 F.2d 291 (7th Cir. 1988):

What is at stake in distinguishing holding from dictum is that a dictum is not authoritative. It is the part of an opinion that a later court, even if it is an inferior court, is free to reject. So instead of asking what the word "dictum" means we can ask what reasons there are against a court's giving weight to a passage found in a previous opinion. There are many. One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion--it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered. Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers, and indeed that it may not have been part of the decision that resolved the case or controversy on which the court's jurisdiction depended (if a federal court).

Posner's position is not completely clear, but the basic idea is that we ought to be assessing judicial statements of the law for their epistemic value.  Well reasoned and carefully considered statements should be given substantial weight, but if a statement was not the result of careful deliberation, then it ought to be set aside.  As is frequently the case with Judge Posner, his position is thought provoking and idiosyncratic.  If taken to its logical conclusion, Posner's view seems to imply that we should abolish the idea of a "holding" altoghether.

Conclusion

The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least three holdings when you read a case. First, look for the true ratio decidendi, the rule that is implied by the reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court.  Finally, identify all of the legally salient factual characteristics and then construct a rule that limits the holding of the case to those facts.

And then you might compare the three holdings that emerge from these two injuries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?"

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(This entry was last revised on January 29, 2023.)

Posted by on January 29, 2023 at 09:00 AM in Legal Theory Lexicon |

January 22, 2023

Legal Theory Lexicon: The Reasonable Person

Introduction

Today's Legal theory Lexicon is about the "reasonable person."

The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory.

A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law.

The Reasonable and the Rational

This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls.

When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end.

When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not?  Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent.

So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due.

Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones.

Subjective and Objective Reasonableness

One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard.

Learned Hand and the Reasonable Person as Cost-Benefit Analyst

The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.

[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.

United States v. Carroll Towing Co., 159 F.2d 169, 173, reh'g denied, 160 F.2d 482 (2d Cir.1947); see also The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.).

The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.)

Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis.

Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others

Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons.

Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person

Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.

And the winner is . . .

As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then?

Conclusion

If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory.

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Bibliography

  • Heidi Li Feldman, Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law, 74 Chi.-Kent L. Rev. 1431 (2000).
  • Stephen Gilles, On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury, 54 Vand. L. Rev. 813 (2001).
  • John Gardner, The Mysterious Case of the Reasonable Person, 51 U. Toronto L. J. 273 (2001).
  • Kyron Huigens, Virtue and Criminal Negligence, 1 Buff. Crim. L. Rev. 431, 447-58 (1998).
  • Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. Rev. 249 (1996).
  • Gregory C. Keating, Pressing Precaution Beyond the Point of Cost-Justification, 56 Vand. L. Rev. 653 (2003).
  • Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996).
  • Mayo Moran's Rethinking the Reasonable Person: An Egalitaraian Reconstruction of the Objective Standard (Cambridge, UK: Cambridge University Press, 2003).
  • Stephen Perry, Cost Benefit Analysis and the Negligence Standard, 54 Vanderbilt L. Rev. 893 (2001).
  • Richard Posner, Economic Analysis of Law (6th ed. 2002).
  • John Rawls, Political Liberalism (Paperback ed. 1995).
  • Steven Shavell, Economic Analysis of Accident Law, (December 2002). Harvard Law and Economics Discussion Paper No. 396. http://ssrn.com/abstract=367800.
  • W.M. Sibley, The Rational and the Reasonable, 62 Phil. Rev. 554 (1953).
  • Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inquiries in Law 283 (2002).
  • Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values, 54 Vanderbilt L. Rev. 901 (2001).
  • Kenneth W. Simons, Negligence, 16 Social Philosophy and Policy 52 (1999).
  • Kenneth W. Simons, Deontology, Negligence, Tort, and Crime, 76 Boston U. L. Rev. 273 (1996).
  • Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law 249 (David G. Owen ed., 1995).

(This entry was last revised on January 22, 2023.)

Posted by on January 22, 2023 at 09:00 AM in Legal Theory Lexicon |

January 08, 2023

Legal Theory Lexicon: The Coase Theorem

Introduction

This week the Legal Theory Lexicon investigates the Coase theorem. Ronald Coase is a member of the law and economics faculties at the University of Chicago and a winner of the Nobel Prize in Economics. The idea that we call the Coase Theorem was advanced in a very famous paper:

Coase, R.H., The Problem of Social Cost, Journal of Law and Economics 3, 1-44 (1960).

Externalities

To understand the Coase theorem, we first need to introduce another idea, the externality. Roughly speaking, an economic externality is cost imposed by an activity that is not accrued by the person or firm who engages in the activity. That's a mouthful. Here's an example:

The Reading Railroad has track that goes by Farmer Jones's farm. The locomotives cast off sparks that cause a fire that damages Farmer Jones's crop, imposing a cost on Jones of $100. That cost is an externality.

If the Reading Railroad owned the farm, then it would bear the cost, and there wouldn't be an externality. Before Coase, we thought that the existence of externalities justified some kind of government intervention. For example, we could create a liability rule that required the Reading Railroad to pay for the damage to his crops. Without a liability rule, the railroad wouldn't have any incentive to prevent the damage if there was a cost-effective means of doing so. Let's add a fact to our hypothetical:

The Reading Railroad can purchase and install a 100% effective spark arrestor for $50.

We want the railroad to install the spark arrestor for $50 to prevent $100 worth of damage.

Before Coase, we said, "internalize the external diseconomies!" Really! That is, use tort law to transform the external cost imposed by the railroad into an internal cost.  Tort law can do this by imposing damages equal to the external costs of the sparks.

Transaction Costs

This is where Coase came in. But to understand what Coase said, we need to add another bit of economic jargon. By transaction cost, we mean the cost of reaching a bargain. In the real world, lawyers are frequently part of transaction costs, but the time and expense that it takes to strike a deal are transaction costs as well--even if you don't actually lay out any cash. One more little move, if we assume that there are zero transaction costs, we are simply assuming that it costs absolutely nothing to strike a deal--no time, no effort, no lawyers, not even any paper on which to write it up.

Coase said, "Let's assume zero transaction costs!" Okay, what next! 

The Result

If we assume zero transaction costs, then when there are externalities, the market will reach the efficient outcome irrespective of how entitlements are assigned. Another mouthful! Let's go back to our hypo:

If we assign the entitlement to the farmer, the railroad will pay $100 in damages to the farmer for vioalting the farmer's right to be spark free. The railroad will realize that it can save this $100 cost by investing $50 in a spark arrestor. So the railroad will buy the spark arrestor.

If we assign the entitlement to the railroad, the farmer will incur $100 in costs from the fire. The farmer will realize that he can save this $100 cost by entering into a contract whereby he pays $50 (plus some extra enducement, say $51 total) to the railroad in exchange for the railroad installing the spark arrestor. Since we have assumed zero transaction costs, the railroad and the farmer both benefit from this deal.

Assuming zero transaction costs, it doesn't matter whether the law assigns the right to generate sparks to the railroad or the right to be free from sparks to the farmer. Why not? Let's work it out. There are two possibilities:

That's it! It doesn't matter whether we assign the right to the farmer or the railroad. Either way, we get the efficient outcome.

If you are a first year law student, the Coase theorem is a very powerful analytic tool for understanding the economics of tort law. When you study a new rule or problem, ask yourself, "How would this come out assuming zero transaction costs?" Then ask, "If we assume positive transaction costs, how does the problem change?"

But what if there are positive transaction costs?

Of course, in the real world, there will almost always be positive transaction costs.  In some cases, when transaction costs are low, the assignment of the entitlement will not affect the outcome, because an efficient bargain can still be struck.

In other cases, however, the assignment of the entitlement will determine whether we can reach the efficient outcome.  When transaction costs are high, there may be one allocation of the entitlement that will permit an efficient outcome, and another allocation that will not.  A good deal of the action in law and economics concerns situations of this type.

"Transaction costs economics" explores these issues.  This approach is also sometimes called "the new institutional economics."

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(This entry was last revised on January 7, 2023.)

Posted by on January 08, 2023 at 09:00 AM in Legal Theory Lexicon |

October 23, 2022

Legal Theory Lexicon: Discretion

Introduction

Law students are likely to encounter the concept of discretion early in the first year of law school.  Judges make decisions.  Some of these decisions are constrained by law, but others are made in contexts in which the law permits the judge a range of choice or discretion.  Likewise, sometimes executive officials carry out legal duties, but other executive actions are discretionary.  This Lexicon entry provides a brief introduction to the idea of discretion.  As always, the Lexicon is aimed at law students with an interest in legal theory.

The Idea of Discretion

The word "discretion" is ambiguous.  One sense of "discretion" refers to good judgment; another to being circumspect or cautious.  The sense of "discretion" that is discussed in this Lexicon entry is associated with this definition from Merriam-Webster: "power of free decision or latitude of choice within certain legal bounds."  In this sense, "discretion" is contrasted with constraint.  A decisions is constrained if the actor making the decision is bound by law to take a certain action.

The word "discretion" is usually used to refer to actions where the law confers a power within a limited sphere of action.  Kent Greenawalt expressed this idea when he wrote, "When a person's choice is not constrained at all we would not ordinarily use the term “discretion.” We say an official has “discretion” to pick employees for a company, but we do not say a child has “discretion” to choose the flavor of ice cream he wants." (Greenawalt 1975, p. 365)

In the law, we use the word "discretion" in situations in which a legal norms confers legal authority or power on some agent or institution.  Judicial decisions about the number of witnesses that will be allowed to testify on a given issue are said to be discretionary: there is no rule that specifies the number of witnesses or provides a formula for the calculation of such a number.  Presidents are legally empowered to choose the members of the staff; these decisions are discretionary, because there is no rule or standard that governs the President's decision.  Legislatures as institutions have wide discretion to choose what laws to make and to define the content of such laws.

But the existence of discretion does not imply an absolute power without outer limits.  For example, a judge could not limit the number of witnesses in order to exclude witnesses of a certain race or gender: although this is a discretionary decision, the law prohibits making the choice for some reasons.  Similarly, a decision may be discretionary, but there may be a requirement that the decisionmaker take certain factors into account in making the decision.  Thus, a judge may be obliged to consider the impact of limiting the number of witnesses on the ability of the parties to prove their case, even though there is no rule or standard that governs the decision.

Judicial Discretion and Interstitial Lawmaking

One realm in which the idea of judicial discretion operates is in the realm of interstitial judicial lawmaking.  The idea that judges possess a discretionary power to make law was articulated by Benjamin Cardozo in The Nature of the Judicial Process:

The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law .... None the less, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom. (Cardozo 1921, pp. 113-15)

Cardozo then uses the idea of discretion to contrast interstitial lawmaking with cases in which judges are bound or constrained by existing law: “[i]n countless litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps.” (Cardozo, 1921, pp. 129).

The idea that judges have discretion in the realm of interstitial lawmaking is controversial.  Ronald Dworkin's Right Answer Thesis is the claim that even common-law judges have a legal duty to reach a legally correct answer in cases in which there is no prior case with a binding holding.  Unlike Dworkin, many legal realists believe that interstitial lawmaking involves discretion: when there is no controlling prior decision, the role of the judge is essentially the same as that of a legislator.

Even more controversial is the claim that judges, on courts of last resort like the United States Supreme Court, always possess quasi-legislative discretion.  For example, originalist constitutional theory holds that judges are bound by the original meaning of the constitutional text, but some living constitutionalists deny this.  For example, a common law constitutionalist might take the position that the constitutional text does not bind the Supreme Court, and that the Court has a discretionary power to make constitutional law that is inconsistent with the text.

Discretion Granting Language

Sometimes the law uses the word "discretion" to signal that a power conferring legal norm creates discretion.  But this is not always the case.  For example, the word "may" is frequently used to confer a discretionary power, whereas the word "must" is used to create a legal duty.  For example, Federal Rule of Civil Procedure 13 distinguishes between compulsory and permissive counterclaims.  The word "must" is used in Rule 13(a) to convey the idea that such counterclaims must be brought by a defendant.  The word "may" is used in Rule 13(b) to indicate that defendants have discretion to decide whether or not to bring permissive counterclaims.

Abuse of Discretion and Appellate Review

Another context in which the idea of discretion arises involves standards of appellate review.  When a trial court judge makes a decision of law (e.g., granting or denying a motion for summary judgment), the standard of appellate review is de novo; the trial judge has no discretion.  But many trial court decisions are discretionary, including, for example, trial management decisions about the number of witnesses or the time allotted for questioning of a particular witness.  When an appellate court reviews these decisions, the standard of appellate review is "abuse of discretion."  Consideration of an improper factor (such as a bribe or personal animus) or the failure to consider a mandatory factor may render a decision an abuse of discretion--even if the decision would have been proper if it had been reached on the basis of proper reasons.

Executive and Legislative Discretion and Judicial Review

Another context in which the idea of discretion plays an important role is provided by judicial review of executive and legislative actions.  There are many actions by legislatures and executives that are discretionary: there is no legal duty that specifies what must be done.  One clear example is prosecutorial discretion.  In the United States (but not everywhere else), prosecutors have discretion to refrain from brining criminal charges, even if the prosecutor is aware of criminal conduct and the evidence of guilt is so overwhelming that no case could be made for reasonable doubt.  On the other hand, prosecutors do not have discretion to bring criminal charges where there is no evidence of guilt.

Similarly, lawmakers have substantial discretionary power in the legislative process.  There is no legal duty to enact the Green New Deal, even if there are overwhelming good reasons to do so.  Likewise, there is no legal prohibition on enacting a repeal of the Clean Air Act, even if this decision were demonstrably against the public interest.  But the discretion of lawmakers is nonetheless bounded, both by the scope of lawmaking authority (i.e., the enumerated powers of Congress) and by rights conferring provisions (i.e., the freedom of speech).

Thus, judicial review of executive or legislative action necessarily involves the idea of discretion.  Courts will defer to decisions that are within the discretionary powers of executive officials or legislative institutions.  Judicial review that invalidates an action by an executive official or legislature is proper when discretion runs out.

Discretion and Other Forms of Legal Norms

Discretion is a form of legal norm, but there are many other forms as well.  At the other end of the spectrum from discretion are legal rules--legal norms that provide bright lines sorting official conduct into prohibited and permitted categories.  Standards provide officials with a set of mandatory considerations and may also provide procedure for weighing or combining these considerations: balancing tests are the paradigm case of a legal norm in the form of a standard.  Legal principles provide mandatory considerations, but may be consistent with the exercise of discretion, so long as the principle is taken into account in cases in which it is relevant.

The question whether to give a legal actor is one of institutional design.  Discretion might be granted because it is believed that the legal actor or institution granted discretion will make better decisions on a case-by-case basis than would be made if a legal rule or standard were to govern the decision.  The decision not to grant discretion may entail judicial review, which has costs and benefits.

De Facto and De Jure Discretion

The question whether discretion exists has at least two dimensions.  We might use the phrase "de jure discretion" to designate cases in which the legal rules explicitly confer discretion on a given official or institution.  But it might be the case that even though a decision is, in theory, governed by a rule or standard, it is, in fact, discretionary, because violations of the rule are not effectively subject to correction.  For example, it might be argued that in theory, the Supreme Court is bound by the constitutional text, but in practice, the Court has discretion, because the decisions of the Supreme Court on constitutional questions are final.  Thus, the Court might have de facto discretion to make constitutional law, even though it has not de jure power to do so.

Conclusion

Discretion is a complex subject, and this Lexicon entry has only scratched the surface.  Nonetheless, I hope that I have provided an introduction to this important concept and some of the contexts in which it is important.

Related Lexicon Entries

Bibliography

  • Aharon Barak, Judicial Discretion (1989).
  • Benjamin Cardozo, The Nature of the Judicial Process (1921).
  • Ronald Dworkin, Judicial Discretion, 60 J. Phil. 624 (1963).
  • Kent Greenawalt, Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges, 75 Colum. L. Rev. 359 (1975).

(Last revised on October 22, 2022.)

Posted by on October 23, 2022 at 01:48 PM in Legal Theory Lexicon |

August 21, 2022

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

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 August 20, 2022.)

Posted by on August 21, 2022 at 09:00 AM in Legal Theory Lexicon |

May 08, 2022

Legal Theory Lexicon: The Priority of the Particular

Introduction

One kind of legal theory attempts to relate the mass of legal materials (cases, clauses, statutes, etc.) to a systematic set of principles.  Such theories may be normative: that is, some legal theories are frameworks for the prescriptive evaluation of legal rules.  Or the theory might be doctrinal: some legal theories attempt to describe the results in particular cases through the articulation of a set of general rules or principles.  Finally, there are legal theories that combine the normative and the descriptive: Dworkin's interpretive theory of law aims at producing a general theory of law that best "fits" and "justifies" the legal materials.  In each of these three cases, there is a metatheoretical question: what role do particulars (e.g., judgments about or the outcomes of individual cases) play in relationship to the more abstract, general, and universal propositions that make up the theory?

Once we begin to focus on this general theoretical question, it becomes apparent that many legal theorists assume that we must move from the particular to the general and that our general theories have priority over our particular judgments in cases of conflict.  But is this true?  This entry in the Legal Theory Lexicon examines "particularism"--the general view that particulars have priority over the general (or universal) in positive, normative, or interpretive legal theory.  As always, the Lexicon is written for law students, especially first year law students with an interest in legal theory.

The Basic Idea

Simplifying greatly, we can imagine two different relationships between the particular and the general in legal theory.

First, we might think that general propositions have priority, and that recalcitrant particulars must give way.  On this view, the legally correct outcomes in individual cases are determined by general propositions of law--for doctrinal theories.  And our moral intuitions about individual cases must give way to general moral propositions--for normative theories.  

Second, we might think that the particular has priority, and that general theories are falsified if they conflict with individual cases.  On this view, the legally correct outcomes in individual cases are determined by the way that legal actors (e.g., judges) have treated those cases: if a general statement of the law (in a court's reasoning or a statute) conflicts with particular judgment, then the general statement must be abandoned or qualified--for doctrinal theories.  Similarly, for normative legal theories, the priority of the particular implies that normative legal theory must answer to intuitions (or perhaps considered judgments) about particular cases.  This second view of the relationship between the general and the particular is sometimes summarized by the phrase, "the priority of the particular."

A Puzzle About Particulars in Legal Theory

At this point, you might be thinking, "What is all the fuss about?" or "Why should we care about
the priority of the particular?"  Particularism is a metatheoretical view--it goes to two highly abstract question: (1) how are theories about law confirmed or validated?, and (2) what is the relationship between normative theorizing and normative perceptions, intuitions, or judgments?  

In moral theory, these questions are in the domain of metaethics; we might call the equivalent realm of legal theory "metajurisprudence."  Lawyers and legal scholars rarely focus explicitly on these meta questions.  Even legal theorists rarely engage in systematic debate or discussion of this kind of question.  Nonetheless, there are some obvious puzzles about the relationship of particulars to general legal theories.  Consider the role of particulars (data or observations) in the empirical sciences.  If well-confirmed data conflict a scientific theory, there is a sense in which the theory is in serious trouble.  Of course, observation may be theory laden, and the interpretation of data is subject to revision.  But in some sense, we believe scientific theories are answerable to our particular beliefs about the world, and we don't think is is good scientific practice to "revise the data" in order to "fit the theory."

But in legal theory, the data does not seem recalcitrant in quite the same way.  If we have a powerful normative theory, then perhaps our intuitions are in error.  If we have a doctrinal theory that fits most of the cases, then perhaps the rest of the cases are in error.  Perhaps, but this sort of revision is called into question by the priority of particular.  Particularism suggests that our beliefs about individual cases are more reliable than our general theories.

Pragmatism and Anti-Theory

Particularism in legal theory may be related to another big idea--"pragmatism" or "legal pragmatism."  Pragmatists tend be skeptical about the value of big theories, and for that reason may be attracted to particularism.  A similar set of attitudes about the value of abstract theorizing underlies what is sometimes called "anti-theory."  Perhaps we can do without general, abstract, and universal theories altogether.  A strong version of particularism would seem to imply some kind of anti-theoretical view--at least at the view of first order normative, descriptive, or interpretive theories.

Alternatives to Particularism: The Method of Geometry and Reflective Equilibrium

What are the alternatives to particularism?  One possibility is what Rawls called "the method of geometry."  We start with normative axioms, normative propositions that are self-evidently true.  In the case of descriptive legal theory, it seems obvious that this method faces difficulties, because it is not clear what the set of legal axioms would be.  Indeed, the idea of "description" seems to assume that our starting point must be actual legal particulars and not a set of legal axioms.

The method of geometry seems more promising in the case of normative legal theory.  We would start with moral truths and then deduce the standards for normal evaluation of legal norms from those truths.  The difficulty with this method in a pluralist society is that the set of "moral truths" that are the subject of agreement may not be sufficiently rich to generate a normative legal theory that is both complete and capable of generating support.  For example, if we start with consequentialist axioms, deontologists will reject the theory--and vice versa.  Likewise, with religious and secular premises.

Another alternative to particularism is the method of reflective equilibrium, which is the subject of a separate entry in the Legal Theory Lexicon.

Conclusion

The issues raised by the priority of the particular are deep ones, and this Lexicon post hardly limns their surface--much less resolves them.  If you are interested in these issues, there is a substantial literature on particularism in moral philosophy--that's a good place to begin a more systematic investigation of particularism.

Related Lexicon Entries

Online Resources

Bibliography

(Last modified on May 8, 2022.)

Posted by on May 08, 2022 at 09:00 AM in Legal Theory Lexicon |

April 24, 2022

Legal Theory Lexicon: The Nature of Law

Introduction

What is the nature of law?  This question has occupied center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurisprudence.  This entry in the Legal Theory Lexicon aims to give an overview of the "What is Law?" debate.

Historically, the answer to the question, "What is law?," is thought to have two competing answers.  The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice.  The modern answer is provided by legal positivism, which, as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

Contemporary debates over the nature of law focus on a revised set of positions.  Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Scott Shapiro. There is another strand of legal positivism that is represented by Hans Kelsen; this version is very influential in Europe and elsewhere, but not as prominent in Anglophone legal philosophy.

The natural law tradition is defended by John Finnis.  And a new position, interpretivism is represented by the work of the late Ronald Dworkin.

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

This Lexicon entry maps the territory of the "What is Law?" controversy, and provides introductory sketches of the major positions.  As always, the Lexicon is written for law students, especially first-year law students, with an interest in legal theory.

Natural Law Theory

Natural law theory is strongly associated with classical and medieval thought, especially Aristotle, Roman jurisprudence, and St. Thomas Aquinas.  There are several challenges associated with the task of explicating natural law theory, and one of the most important tasks of this introductory entry is simply to identify these challenges.

First, there are two interrelated but distinct views that are called "natural law theory."  One is a view about the nature of morality: this view asserts that there are natural moral laws, and it is not essential to this view that it take any particular stand on the "What is law?" debate.  A second view that is called "natural law theory" is a theory about "law" as an institution or practice--that is the view that is implicated in the "What is law"" controversy.

Second, contemporary understandings of "natural law theory" have been strongly influenced by the legal positivists critique.  When the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition.  When Holmes referred to a "brooding omnipresence in the sky" he was not offering a sympathetic or charitable reading of the natural law tradition.

For the purposes of this broad overview, we might use the latin phrase lex injusta est non lex as a starting point.  Natural law theory could be understood as affirming something like the following:

An unjust "law" is not a true law.

This formulation differs from a literal translation--an unjust law is not a law.  Formulated in that way, natural law theory seems to be committed to a contradiction: something which is a law (but also is unjust) is not a law.  The quotation marks around "law" and the phrase true law make it clear that natural law theory is asserting something else, that something which might be called a "law" is not in fact a law if it is unjust.  Usually, this notion is accompanied by some explication of the characteristics that are required for status as a "true law," a "focal case of law," or perhaps "valid law."

Legal Positivism

It is difficult to know where the positivist tradition begins.  Hobbes's theory of law shares some characteristics with the theories offered by Jeremy Bentham and John Austin--both of them clearly in the positivist tradition.  Jeremy Bentham developed a very sophisticated version of legal positivism, but for a variety of reasons, the more influential and widely known view was that of Bentham's student, John Austin, the author of The Province of Jurisprudence Determined (1861).

Austin's theory was that a given rule was a law if and only if the rule was the command of the sovereign to subjects of that sovereign backed by the threat of punishment.  A sovereign is some person or institution who is habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.

Austin's positivist theory does an excellent job of explaining the rules of criminal law, which forbid certain actions and impose punishments on those who engage in the forbidden actions.  But this theory has a difficult time accounting for other aspects of law, and especially for those rules that create legal powers, such as the power to create contracts, trusts, wills, and so forth.  This difficulty is most acute with respect to rules that define the basic institutional arrangements that define the sovereign itself, e.g., the rules of constitutional law in the United States.

These deficiencies in Austin's theory prompted H.L.A. Hart to develop a more sophisticated version of legal positivism.  One feature of that theory is the distinction between primary rules (which would include criminal prohibitions) and secondary rules (which allow for the creation, alteration, and termination of primary rules).  Hart replaced the notion of a sovereign with that of a rule of recognition--a social rule that specifies what counts as a law and what does not.

Moral Facts, Social Facts, and Legal Content

The contemporary approach to these issues is the product of almost sixty years of thinking within the tradition that is sometimes called "analytic jurisprudence."  Beginning with the work of H.L.A. Hart in the 1950s, through is publication of The Concept of Law in 1961, and extending through Ronald Dworkin's critique of Hart, and the reformulation of the positivist tradition by both Joseph Raz and Jules Coleman, the basic issues and questions have gone through several transformations.

One useful way to get get at the heart of these developments is to conceive of the debate about the nature of law as centrally concerned with the relationship between social facts, moral facts, and legal content.  Our question is "What determines legal content?," where "legal content" is simply understood as the content of the legal norms.

  • One answer to this question takes the form: It is necessarily the case that only social facts determine legal content.  This is exclusive legal positivism--a view that is strongly associated with Joseph Raz.
  • A second answer to this question takes the form: It possibly the case that moral facts determine legal content, but only if social facts give the moral facts this role.  This is inclusive legal positivism--and this view is most strongly associated with Jules Coleman.
  • A third answer to the question takes the form: It is necessarily the case that moral facts determine legal content.  This view would include natural law theory and interpretivism--the view that is strongly associated with Ronald Dworkin.

By framing the "What is law?" debate in terms of the relationship between social facts, moral facts, and legal content, the conceptual space we get precise mapping of the conceptual space.  In the rest of this Lexicon entry, we will take a somewhat less shallow look at the three options.

Inclusive and Exclusive Legal Positivism

Exclusive legal positivism is the view that only social facts can determine legal content.  Joseph Raz famously argued for exclusive legal positivism based on the premise that law claims authority, that authority consists in displacing other reasons for actions, and therefore law must displace moral reasons for action.  (That was a very short and inadequate summary of a long and complex argument.)

Inclusive legal positivism is the view that moral facts can play a role in determining legal content, but only if there are some social facts that give the moral facts this role.  For example, a constitution might include an clause that make a moral conception of human equality a legal rule.  This would give the morality of equality a role in determining legal rights, but this role would exist because a social fact (the Constitution) made it so.

Contemporary Natural Law Theory

The positivist critique of classical natural law theory resulted in a major restatement by John Finnis.  Finnis's theory is subtle and complex and no thumbnail sketch can do it full justice, but for the purpose of the Lexicon, one of his ideas can serve to illustrate the flavor of his theory.  Finnis argues that the natural-law claim that an unjust "law" is not a true law can be explicated via the idea of the "focal meaning" of "law."  This argument that concedes that unjust enactments are "laws" in a sense, but that that the focal sense of "law" is limited to laws that are not unjust.  Finnis's position has both critics and defenders, but his magisterial book Natural Law and Natural Rights is must reading for anyone interested in contemporary natural law theory.

Interpretivism

The final view is "interpretivism," strongly associated with Ronald Dworkin.  For Dworkin, social facts, such as constitutions, statutes, and court decisions, do not directly determine legal content.  Instead, Dworkin believes that the content of the law is given by the theory that best fits and justifies the legal materials.  Dworkin makes this theory vivid by imagining a judge, Hercules, who is able to construct a grand theory of political morality that provides a constructive interpretation of the entire institutional history of a given society.  Because this theory is a theory of that institutional history, it is constrained.  For example, the best constructive interpretation of the institutional history of the United States will have to acknowledge that our federal legislature is bicameral and that it includes a Senate with equal representation of each state.  But this constraint does not require a perfect match between a literal interpretation of every legal text and the content of the law.  So some precedents may be categorized as mistakes, and some statutory or constitutional provisions may be given a constructive interpretation that makes them morally more attractive but does not follow every jot and tittle of the text.

Conclusion

This very brief introduction to the "What is law?" debate is necessarily incomplete and shallow.  But I hope that it gives you a general sense of the various positions that have been taken on the nature of law.

Related Legal Theory Lexicon Entries

Bibliography

Resources on the Internet

(This entry was last revised on April 24, 2022.)

Posted by on April 24, 2022 at 01:43 PM in Legal Theory Lexicon |

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