Legal Theory Blog

Legal Theory Lexicon: Overlapping Consensus & Incompletely Theorized Agreements

Introduction

As law students become more sophisticated, they begin to notice that certain debates seem to repeat themselves over and over again. Disagreements about disparate subjects--in procedure, criminal law, torts, property, and constitutional law--frequently seem to turn on the really big questions of ethics and political theory. On the one hand, the proponents of inviolate individual rights appeal to deontological premises in moral theory or to liberal (or libertarian) ideas in political philosophy. On the other hand, the proponents of balancing argue from premises rooted in utilitarianism or welfarism (the economic version of utilitarian moral philosophy).  In some classes, a third approach (virtue ethics) may enter these grand debates.

For a short time, the ability to see this pattern may be exhilarating. You begin to see the big disputes that transcend courses and doctrines. But after a while, exhilaration may give way to ennui. If all the great debates in legal theory boil down to debates about the deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?" Because it sure doesn't look like the debates among deontology and consequentialism and virtue ethics are going to be decisively resolved any time soon.

And that is where today's Legal Theory Lexicon comes into the picture. Even if the deep debates of moral and political philosophy are irresolvable, there may be other ways to make progress in normative legal theory. In particular, we may be able to use the ideas of "incompletely theorized agreements" (associated with Cass Sunstein) or "overlapping consensus" (associated with John Rawls) to break the impasse on the deep questions.

The basic idea is simple. We cannot agree on the truly ultimate questions, but we might be able to narrow the range of disagreement on mid-level issues. That is, we might be able to find the level at which those who disagree on the deep can nonetheless find common ground. John Rawls calls the idea of common ground by the name "overlapping consensus." Cass Sunstein calls a similar idea, "incompletely theorized agreement." But both Sunstein and Rawls express a similar intuition. When you cannot reach agreement at the deep end of the pool of ideas, move a few steps towards the shallow end!

Deep and Shallow

I suspect that you've already gotten it! But just to make sure, let's work through the ideas one by one. The first idea we need is the one that I have expressed by the metaphor of deep and shallow reasons. The metaphor is based on the idea that particular applications (e.g. particular questions of legal doctrine) are at the surface, they are in the shallow end of the pool of ideas. Beneath the surface of particular issues in legal doctrine and legislative policy are deeper disagreements. Disagreements about the a surface level question (e.g. the precise contours of the mailbox rule in contract law) lead to beneath-the-surface issues (e.g. the nature of offer and acceptance) and then to still-deeper issues (e.g. the basis for contractual obligation) and finally to the deepest questions (e.g. the nature of moral obligation). You might picture a chain of reasons, stretching from the surface of legal doctrine down to the depths of political and moral philosophy.

Overlapping Consensus

John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness), the guarantee of basic liberties would mean that individual citizens would be free to adopt their own views about morality and religion. As a result, Rawls argued, it was likely that a variety of comprehensive religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom? Rawls's answer to this question was based on the idea that divergent moral and religious conceptions of the good could (despite their diversity) converge on some common ground. That is, citizens who held a plurality of religious and moral beliefs could nonetheless agree on the constitutional essentials--the basic constitutional principles necessary for a society to satisfy the demands of justice as fairness.

This meant that different citizens would support justice as fairness for different reasons. Catholics might affirm justice as fairness for reasons found within the Catholic natural law tradition, while secular humanists might affirm the same (or similar) ideas about justice for different reasons. Although a deep consensus might on justice as fairness might be impossible, an "overlapping consensus," Rawls argued, is possible.

Rawls's notion of overlapping consensus is closely related to his idea of public reason, which is discussed in a separate entry in the Legal Theory Lexicon (see below for Related Lexicon Entries).

Incompletely Theorized Agreements

Cass Sunstein has a related but different idea, which he calls "incompletely theorized agreements." Here is a summary from his article in the Harvard Law Review:

Incompletely theorized agreements play a pervasive role in law and society. It is rare for a person, and especially for a group, to theorize any subject completely -- that is, to accept both a highly abstract theory and a series of steps that relate the theory to a concrete conclusion. In fact, people often reach incompletely theorized agreements on a general principle. Such agreements are incompletely theorized in the sense that people who accept the principle need not agree on what it entails in particular cases. People know that murder is wrong, but they disagree about abortion. They favor racial equality, but they are divided on affirmative action. Hence there is a familiar phenomenon of a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.

This sort of agreement is incompletely theorized in the sense that it is incompletely specified -- a familiar phenomenon with constitutional provisions and regulatory standards in administrative law. Incompletely specified agreements have distinctive social uses. They may permit acceptance of a general aspiration when people are unclear about what the aspiration means, and in this sense, they can maintain a measure of both stability and flexibility over time. At the same time, they can conceal the fact of large- scale social disagreement about particular cases.

There is a second and quite different kind of incompletely theorized agreement. People may agree on a mid-level principle but disagree both about the more general theory that accounts for it and about outcomes in particular cases. They may believe that government cannot discriminate on the basis of race, without settling on a large-scale theory of equality, and without agreeing whether government may enact affirmative action programs or segregate prisons when racial tensions are severe. The connections are left unclear, either in people's minds or in authoritative public documents, between the mid- level principle and general theory; the connection is equally unclear between the mid-level principle and concrete cases. So too, people may think that government may not regulate speech unless it can show a clear and present danger, but fail to settle whether this principle is founded in utilitarian or Kantian considerations, and disagree about whether the principle allows government to regulate a particular speech by members of the Ku Klux Klan.

My special interest here is in a third kind of phenomenon -- incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them. These terms contain some ambiguities. There is no algorithm by which to distinguish between a high-level theory and one that operates at an intermediate or low level. We might consider Kantianism and utilitarianism as conspicuous examples of high-level theories and see legal illustrations in the many (academic) efforts to understand such areas as tort law, contract law, free speech, and the law of equality to be undergirded by highly abstract theories of the right or the good. By contrast, we might think of low-level principles as including most of the ordinary material of legal doctrine -- the general class of principles and justifications that are not said to derive from any particular large theories of the right or the good, that have ambiguous relations to large theories, and that are compatible with more than one such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995).]

Applications

How can you use the idea of an overlapping consensus or incompletely theorized agreement? These conceptual tools are useful when you believe that you have reached a theoretical impasse at some deep level. You've identified an issue, and you can see how the issue can be traced to a deep disagreement in moral or political theory. Now, you have some choices to make. On the one hand, you can try to resolve the deep disagreement. But there is a problem with this option. The deep debates in moral and political philosophy are both ancient and persistent. The world's great thinkers have worked on these problems. If Aristotle, Kant, and Bentham were unable to come up with a knock down argument in favor of their respective moral theories, then it does seem unlikely that you will be able to resolve these debates in an article or book that is mostly focused on another topic or idea. Moreover, the current state of the art in moral and political theory involves a complex field of interconnected arguments. If you need to master these debates before you can complete your work in legal theory, then the work may never be completed.

The alternative is to see whether you can find a different level at which the dispute can be resolved. One possibility is that you can find convergence at the surface level. It seems as if deontologists and utilitarians disagree, but perhaps you can craft consequentialist arguments that converge with the arguments of fairness. Another possibility is that you will be able to find converged on what Sunstein calls "mid-level principles." For example, both consequentialists and deontologists might be able to agree that contract formation (normally) requires that both parties manifest and intention to be bound--although they would have different reasons for affirming this proposition.

Conclusion

The move to "overlapping consensus" or "incompletely theorized agreements" is one of the niftiest and most useful in contemporary legal theory. Add it your personal legal theory toolbox!

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 009: Public Reason
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics

Bibliography

• John Rawls, Political Liberalism (2d ed. 2005, Columbia University Press).
• Cass Sunstein, Incompletely Theorized Agreements, 108 Harvard Law Review 1733-1772 (1995).
• Rex Martin, Overlapping Consensus in The Cambridge Rawls Lexicon (Jon Mandle & David A. Reidy eds. 2015).

Resources on the Web

• Michael Donnan, Rawls’s Notion of Overlapping Consensus 
• Leif Wenar, John Rawls, Stanford Encyclopedia of Philosophy (2008).

(Last revised on April 12, 2025.)

Legal Theory Lexicon: Persons and Personhood

Introduction

Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? Could an artificial intelligence be a legal person? At least some of these questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory. 

Persons and Humans

The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":

a bipedal primate mammal (Homo sapiens)

And person is sometimes defined as a "human" or "individual". But "person" has another meaning, one that distinguishes the concept of person from the concept of human. Suppose, for example, an intelligent alien species were to arrive on Earth (or humans were to encounter them elsewhere). If the members of the alien species displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans. That is, the aliens iight be considered moral and legal persons.

Consider, for example, the aliens Chewbacca and Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.

Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative (legal, moral, or ethical) term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans.  "Human persons," then are members of the biological species with the relevant capabilities.

The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons," although they would be "potential persons" or "potential human persons."

There is more to be said about terminology, but I will conclude with two observations.  Some of the debates about "persons" and "personhood" may reflect an ambiguity in the word "person."  But it is at least possible that one of the senses of person (roughly the moral sense) is a contested concept--that is, there may be competing conceptions of the concept person.  (See the Legal Theory Lexicon entry on the concept-conceptions distinction.)

Legal, Moral, and Natural Persons

So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons.

Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons.  (More precisely, the claim that corporations are moral persons would be controversial.)  A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts.

The discussion in the prior paragraph assumes that only individual humans are natural persons, but this assumption is controversial.  If groups can have agency, then there might be persons constituted by groups of humans.  This entry of the Legal Theory Lexicon simply brackets the assumption that groups of humans are not natural persons.

Legal Personhood

The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued.

Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone has recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities.

Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will."

Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists.

Moral Personhood

"Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot or disembodied artificial intelligence) a moral person? Here are some of the possibilities:

Intelligence--One possibility is that the possession of "intelligence" (at some threshold level) is the criterion for moral personhood. Of course, "intelligence" itself is hardly a transparent concept.

Autonomy--Another idea is that persons must be capable of autonomy. But what is autonomy? One notion is that autonomous beings must be capable of second-order beliefs and motivations. That is, autonomy requires that one be able to have beliefs about one's beliefs and desires about one's desires.

Communication--Yet another possibility is that personhood requires the ability to communicate with others or to use language. On this criterion, it is possible that some higher primates might qualify for personhood--although the empirical evidence on primate use of human language is disputed.

Self-Awareness--Finally, some have argued that the criterion for moral personhood should be self-awareness or reflexive consciousness. To be a person, I must be aware of the my own consciousness.

This is not an exhaustive list of the criteria for moral personhood. Moreover, these criteria might be combined in various ways. For example, it might be argued that only an intelligent, autonomous, language-using, self-conscious being would be a full moral person.

Legal Personhood for Artificial Intelligences

In recent years artificial intelligences (AIs) have displayed the ability to use language in ways that seem to resemble the use of language by human persons. Large Language Models (LLMs) such as ChatGPT and Claude successfully emulate many aspects of human intelligence. Would it be possible for an AI to be granted the status of a legal person? In an article entitled Legal Personhood for Artificial Intelligences written in the early 1990s, I explored these issue via a thought experiment involving an AI that could perform all of the function that a human performs when serving as a trustee. If an AI were able to invest trust funds, follow the instructions of the settlor, and make payments to beneficiaries, would it make sense for the law to recognize the AI as a limited purpose legal person? The article argued that the answer to this question would or should depend on the functional capacities of the AI and not on the question whether the AI was conscious or sentient.

Conclusion

"Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography.

Related Lexicon Entries

• Legal Theory Lexicon 028: Concepts and Conceptions

Bibliography

• John Chipman Gray, The Nature and Sources of the Law (Roland Gray ed., MacMillan 1921).
• Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 North Carolina Law Review 1233 (1992).
• Christopher Stone, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972).
• Richard Tur, The 'Person' in Law in Persons and Personality: A Contemporary Inquiry  (Arthur Peacocke & Grant Gillett eds., 1987).

Resources on the Internet

• Lori Gruen, The Moral Status of Animals, Stanford Encyclopedia of Philosophy (2010).

Link to Permanent Version

• Legal Theory Lexicon 027: Personhood

(Last revised on February 1, 2025)

Legal Theory Lexicon: Virtue Ethics

Introduction

The Legal Theory Lexicon already includes posts on Deontology and Utilitarianism--representing two important families of ethical theory. This week, the Lexicon provides an introduction to virtue ethics. As always, the Lexicon provides a quick and dirty summary with an eye to law students (especially first-year law students) with an interest in legal theory. Together, these three posts provide a rough and ready introduction to the three most prominent approaches to normative ethics.

What is virtue ethics?  Obviously, virtue ethics has something to do with virtue, which in this context is closely related in meaning to the English word "excellence," the Latin "virtu," and the Greek, "arete." Sometimes "virtue ethics" is also called "aretaic moral theory," using the adjectival form of arete.

In moral philosophy, the virtues are the human excellences. Here is the definition offered by the distinguished moral philosopher, Rosalind Hursthouse:

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximize well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.

It might be illuminating to compare virtue ethics to deontology and utilitarianism via the following simplified formulas:

• Utilitarianism: An action is right if and only if the action will produce the best consequences as compared to the alternative actions that could be undertaken by the agent.
• Deontology: An action is right if and only if the action is either (a) required by a moral duty, or (b) allowed by a moral permission, and not (c) forbidden by a moral prohibition.
• Virtue Ethics: An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances.

Formulas are tricky, and I haven't tried to get these formulations exactly right. Instead, my aim was to paint broadly to give a sense of the basic structure of these three approaches to moral theory. Whereas, utilitarianism makes consequences (or states of affairs) and the central idea of moral theory and deontology focuses on actions and moral rules, virtue ethics focuses on character and human excellence.

Modern Moral Philosophy

 Historically, virtue ethics finds its roots in ancient Greek philosophy, particularly in the work of Plato and Aristotle, but the contemporary revival of virtue ethics can, in a sense, be traced to G.E.M. Anscombe's article, Modern Moral Philosophy published in the journal Philosophy in 1958. Anscombe's famous article noted the well-known deficiencies and problems associated with utilitarianism and deontology and suggested that a return to Aristotle's moral philosophy might provide a fruitful alternative. This marks the beginning of what might be called the aretaic turn in moral philosophy--initiating both a return to Aristotle's theory of the virtues and the development new varieties of virtue theory.

The Virtues

What are the virtues? One good way to answer this question is to examine Aristotle's account of human excellence. For Aristotle, the virtues are acquired dispositional qualities; they are potentialities or powers which are states of character or of mind. Aristotle characterizes the virtues as intellectual or moral, and his views can be sketched by examining these two categories.

The moral virtues are states of character concerned with choice; examples include courage, temperance and justice. Aristotle thought that virtues such as courage related to human emotion in a particular way. In the case of courage, there is a morally neutral human emotion--fear. The disposition to excessive fear (fear that is disproportionate to the situation) is the vice of timidity. The disposition to insufficient fear is the vice of recklessness. Courage is the disposition to feel fear that is proportionate to the actual threat or danger. Hence the virtue of mean is a mean between two opposed vices, timidity and recklessness. Moral virtues, says Aristotle, are acquired as a result of habit; one must act courageously in order to become courageous.

The intellectual virtues are practical and theoretical wisdom. Practical wisdom or phronesis is excellence in deliberation: the person of practical reason is able to choose good ends and the means to achieve those ends. Practical wisdom operates in realm of praxis: action in particular situations. Theoretical wisdom or sophia, on the other hand, operates in the realm of theoria; abstract thinking, science, and theory. The intellectual virtues are initially developed by teaching and mature through experience.

A fully virtuous agent, then, would be someone who possesses the full complement of the moral and intellectual virtues. This may be rare, as most humans lack some of the virtues and possess others in an imperfect form.

Virtue Ethics and Human Good

What are the implications of virtue ethics for human ends and actions? Here is a very simple (and simplified) answer. Virtue ethics counsels us to cultivate virtue--to acquire the human excellences insofar as that is possible. Virtuous agents will then aim at the right goals in life, because their intellectual and emotional makeup naturally points them towards a just and flourishing life. Thus, a fully virtuous human will characteristically act in the right way for the right reasons.

And what about those who lack full virtue? Many humans, however, lack fully virtuous characters. What counsel does virtue ethics offer those who lack the full complement of human excellence? The answer to this question can be developed in at least two ways. First, we might ask ourselves, "How would a virtuous human act in these circumstances?" This is, of course, part of ordinary human deliberation. When faced with a difficult choice situation, sometimes we think of someone whose character we admire, and ask, "How would she (or he) deal with this?" Second, we might ask ourselves, "What do the virtues counsel in this situation?" That is, we can take our understanding of the human excellences, and ask questions like, "What action would be courageous?" or "What action would accord with the virtue of justice?"

Particularism and Phronesis

Contemporary virtue ethics is distinctive in part, because it denies something that both deontology and utilitarianism seem to affirm--that there is a decision procedure for ethics. Utilitarianism claims that there is a very simple rule (which if correctly applied) yields the morally correct action for each situation: act so as to produce the best consequences. Deontology has a similar claim: to do the right thing, simply consult the moral rules, and perform that action which is required or if no action is required, choose from among those that are permissible. Virtue ethics characteristically denies that there is any mechanical rule that generates the morally correct action. Why not? One answer to that question lies in Aristotle's idea of the phronimos, the person who possesses the virtue of practical wisdom. The phronimos has the ability to respond to the complexities of particular situations, to see what is morally salient, and to choose an action that will work given the circumstances.

Behind the virtue of phronesis or practical wisdom is an assumption about the complexity of life. Virtue ethics characteristically argues that life is more complicated than our theories and rules. It would be impossible, the virtue ethicist might argue, to write a code of rules for moral conduct. No matter how complicated the rules, situations would inevitably arise that were not covered or in which the rules produced a perverse and unintended result. Acting morally requires more than a knowledge of moral principles; it requires a sensitivity to particular situations. One way of putting this is use the metaphor of moral vision, the ability to size up a real-world choice situation, perceiving the morally relevant circumstances.

Virtue Politics and Virtue Jurisprudence

 What are the implications of virtue ethics for the questions that legal theorists ask? One starting point for an answer might be the development of "virtue politics," i.e. a political theory that builds on the foundations of virtue ethics. A virtue politics might begin with the idea that the goal of the state should be the establishment of the conditions for the development of human excellence. Thus, the aim of the legislator might be described as the establishment of a political and legal framework within which individual citizens can realize their full potential for human excellence. A virtue politics might also consider the implications of virtue theory for the design of political institutions. For example, institutions might both seek to counteract the fact that both citizens and office holders will frequently be less than fully virtuous and also to establish conditions under which legislators, executives, and judges are selected at least in part for their possession of the virtues.

What about the implications of virtue ethics for legal theory? We might call an aretaic approach to legal theory "virtue jurisprudence." Among the topics that aretaic legal theory might explore is a virtue-centered theory of judging, which describes the particular excellences required by judges. A virtue-centered theory of judging offers an account of the characteristics or excellences that make for a good judge. These include: (1) judicial temperance, (2) judicial courage, (3) judicial temperament, (4) judicial intelligence, (5) judicial wisdom, and (6) justice. We might say that a virtuous judge is a judge who fully possesses the judicial virtues. Although every theory of judging can incorporate some account of judicial virtue, a virtue-centered theory of judging makes the distinctive claim that the judicial virtues are central, i.e. that they have basic explanatory and normative significance.

In particular, a virtue-centered theory of judging would contend that a correct legal decision is a decision that would characteristically be made by a virtuous judge in the circumstances relevant to the decision. Thus, the central normative thesis of a virtue-centered theory of judging is that judges ought to be virtuous and to make virtuous decisions. Judges who lack the virtues should aim to make lawful or legally correct decisions, although they may not be able to do this reliably given that they lack the virtues. Judges who lack the judicial virtues ought to develop them. Judges ought to be selected on the basis of their possession of (or potential for the acquisition of) the judicial virtues.

One of the judicial virtues is "judicial wisdom," the judicial form of the phronesis. If the world is too complex for a complete code of moral rules, then what about the law. Aristotle suggested that justice according to law would inevitably fall short in at least some particular cases, because the legislature must speak in relatively general and abstract language which sometimes will produce unintended consequences that are contrary to the purposes of the law. Here is Aristotle's discussion from Chapter 10 of Book V of the Nicomochean Ethics:

What causes the difficulty is the fact that equity is just, but not what is legally just: it is a rectification of legal justice. The explanation of this is that all law is universal, and there are some things about which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessary to make a general pronouncement, but impossible to do so rightly, the law takes account of the majority of cases, though not unaware that in this way errors are made. And the law is nonetheless right; because the error lies not in the law nor in the legislator but in the nature of the case; for the raw material of human behavior is essentially of this kind.

Thus, the particularism that characterizes virtue ethics may translate into a concern with equity in virtue jurisprudence.

Conclusion

 While utilitarianism and deontology are well-known to legal theory, virtue ethics is only beginning to have an influence on contemporary jurisprudence. Most contemporary American legal theorists were trained before virtue ethics reached its full flower in the 1980s and 1990s, and many law professors who have broad theoretical interests are only vaguely aware of the substantial impact that virtue ethics has had on contemporary moral philosophy. Nonetheless, a theoretically inclined law student can bring virtue ethics to bear on a variety of legal problems. One good example concerns the use of the "reasonable person" standard in tort law. It is interesting that tort law frames the standard of care in negligence cases with reference to the concept of an agent (the reasonable person)--and does not use the "reasonable action" or "reasonable consequences" as the fundamental idea.

If thinking about the reasonable person in tort law is a good place to begin, virtue ethics can be applied to a variety of legal problems. Here is one suggestion. Sometimes, you will find that a strict application of the rules leads to a result that is manifestly unfair and unintended. Ask yourself: "Is this a case where a virtuous judge might choose to depart from the rule on equitable grounds?" And here is another suggestion: Whenever you find yourself dissatisfied with consequentialist or deontological approaches to the moral problems that law addresses, ask yourself, "What would virtue ethics say here?" What character traits or virtues are relevant to this problem? When you start to list the relevant virtues, you will be on your way to a virtue-theoretic analysis of the legal problem!

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 031: Virtue Jurisprudence
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography

• Anscombe, G.E.M., Modern Moral Philosophy, 33 Philosophy 1-19 (1958), reprinted in G.E. M. Anscome, Ethics, Religion and Politics: Collected Philosophical Papers (1991).
• Crisp, Roger (ed.), How Should One Live?: Essays on the Virtues (Oxford: Clarendon Press 1996).
• Crisp, Roger and Michael Slote (eds.), Virtue Ethics (Oxford Readings in Philosophy) (Oxford: Oxford University Press 1997).
• Foot, Philippa, Virtues and Vices (Oxford: Blackwell 1978).
• Paula Gottleib, The Virtue of Aristotle's Ethics (Cambridge University Press 2009).
• Hursthouse, Rosalind, On Virtue Ethics (Oxford: Oxford University Press 1999). The single best one-volume statement of virtue ethics.
• Solum, Lawrence B., Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003).
• Solum, Lawrence B., Natural Justice, 51 American Journal of Jurisprudence 65-105 (2006).
• Statman, D. (ed.), Virtue Ethics: A Critical Reader (Edinburgh: Edinburgh University Press 1997).

Links to Online Resources

• Virtue Ethics in the Stanford Encyclopedia of Philosophy by Rosalind Hursthouse. I highly recommend this as a starting point for further reading on virtue ethics.
• Internet Encyclopedia of Philosophy Entry on Virtue Theory
• Wikipedia Entry on Virtue Ethics
• Wikipedia Entry on Virtue Jurisprudence

(This entry was last revised on December 28, 2024.)

Legal Theory Lexicon: Common Law

Introduction

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

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

A Rough Typology & the Hierarchy of Authority

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

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

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

Two Approaches to the Common Law

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

The Discovery Theory

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

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

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

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

The Judicial Legislation Theory

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

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

Another View: Dworkin's Theory of the Common Law

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

The Doctrine of Stare Decisis

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

General and Local Common Law

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

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

Normative Criticism of Common Law

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

Conclusion

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

Related Lexicon Entries

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

Bibliography

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

(Last modified on August 31, 2024.)

Legal Theory Lexicon: Reasoned Elaboration

Introduction

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

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

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

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

Between Realism and Formalism

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

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

Relationship to Dworkin's Theory

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

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

Criticisms of the Method of Reasoned Elaboration

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

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

The Continued Influence of Reasoned Elaboration

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

Conclusion

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

Related Lexicon Entries

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

Bibliography

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

(Last revised on June 15, 2024.)

Legal Theory Bookworm: "Reclaiming the Public" by Dorfman

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

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

And from the reviews:

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

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

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

Introduction

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

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

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

Three Concepts

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

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

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

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

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

Three Theories of the Human Good

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Experience Machine

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

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

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

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

Why Does the Human Good Matter to Legal Theory?

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

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

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

Conclusion

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

Related Entries in the Lexicon

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 025: Social Welfare Functions
• Legal Theory Lexicon 028: Concepts and Conceptions
• Legal Theory Lexicon 041: Metaethics
• Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

Other Resources on the Web

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

Bibliography

• Adler, M., (2019) Measuring Social Welfare: An Introduction.
• Bentham, J., (1789), An Introduction to the Principles of Morals and Legislation.
• Feldman, F. (2004) Pleasure and the Good Life (Oxford: Clarendon Press).
• Griffin, J. (1986) Well-being (Oxford: Clarendon Press).
• Kraut, R. (2007) What Is Good and Why: The Ethics of Well-Being (Cambridge: Harvard University Press).
• Mill, J.S., (1863), Utilitarianism.
• Nozick, R., (1974), Anarchy, State, and Utopia (Oxford: Basil Blackwell).
• Nussbaum, M and A. Sen (ed.) (1993) The Quality of Life, Oxford: Clarendon Press.
• Scanlon, T. (1998) What Do We Owe to Each Other?, Harvard: Belknap Press.
• Sumner, W. (1996) Welfare, Happiness, and Ethics (Oxford: Clarendon Press).

(This entry in the Legal Theory Lexicon was last revised on March 17, 2024.)

Legal Theory Lexicon: Possibility and Necessity

Introduction

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

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

Modality 

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

Possible Worlds Semantics 

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

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

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

Varieties of Possibility 

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

Practical Possibility  

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

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

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

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

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

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

Practically Accessible Possible Worlds

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

Epistemological Accessibility 

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

The Feasible Choice Set  

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

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

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

Agent Relativity & Collective Action

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

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

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

Two Mistakes About Possibility

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

Possibility cannot be reduced to cost for several reasons:

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

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

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

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

Avoiding Double Standards

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

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

Conclusion 

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

Resources on the Internet

• Christopher Menzel, Possible Worlds, Stanford Encyclopedia of Philosophy

Related Lexicon Entries

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

References

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

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

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

Introduction

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

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

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

The Idea of Utility and the Problem of Measurement 

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

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

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

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

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

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

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

The Pareto Principles

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

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

From Pareto to Kaldor-Hicks

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

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

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

Criticisms of Efficiency

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

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

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

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

Efficiency & Social Welfare Functions

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

Conclusion

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

Related Entries

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

References

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

Resources on the Internet

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

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

Legal Theory Lexicon: Functional Explanation in Legal Theory

Introduction

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

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

The Idea of a Functionalist Explanation

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

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

Functionalist Explanation in the Social Sciences

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

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

Functionalist Explanations in Legal Theory

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

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

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

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

Microfoundations and Methodological Individual

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

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

The Elster-Cohen Debate

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

Conclusion

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

Related Lexicon Entries

• Legal Theory Lexicon 016: Positive and Normative Legal Theory

Bibliography

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

Internet Resources

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

PDF Version

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

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