Legal Theory Blog

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 live lifes 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 "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:  Alice 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, as things turned out, she has what she wants.

The Life of Accomplishment:  Phillipa 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 illiness 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 exerience 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 there 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 prominent 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 probably 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, Standford Encyclopedia of Philosophy

Bibliography

• 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).
• 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 May 31, 2009.)

Waldron on Basic Equality

Jeremy Waldron (New York University - School of Law) has posted Basic Equality on SSRN.  Here is the abstract:

This is a three-part study and defense of the idea of basic human equality. (This is the idea that humans are basically one another's equals, as opposed to more derivative theories of the dimensions in which we ought to be equal or the particular implications that equality might have for public policy.) Part (1) of the paper examines the very idea of basic equality and it tries to elucidate it by considering what an opponent of basic human equality (e.g. a philosophical racist) might hold. It explores the idea of there being no morally significant fundamental divisions among humans (of the kind that some people insist on as between humans and others animals). Part (2) considers whether basic human equality must be based on some descriptive similarity among us (naturalistic or metaphysical); it considers the positions of a number of thinkers who have denied this. Part (3) considers John Rawls's conception of basic equality in terms of range properties. (Being in Ohio is a range property; Columbus and Cincinnati are both equally in Ohio even though even though Columbus is in the center of the state, while Cincinnati is just over the river from Kentucky.) It explores the application of this Rawlsian idea to the descriptive properties that might be thought relevant to human equality. This three part paper is a rather technical philosophical exploration. And it is just a beginning; we need much more work on the idea of basic equality. Some of the energy that has gone into discussions of equality as a policy aim (e.g. in the Dworkin/Sen literature or in the literature surrounding Rawls's Difference Principle) needs to be devoted to this more fundamental conception.

And from the paper:

The idea of a "range property" should be understood as an intensional relation between properties. Instead of saying that R is a range property if R is binary and there is a scalar property, S, such that R applies to a range of cases covered by S, we say something like this:

RP*: R is a range property with respect to S if R is binary and there is a scalar property, S, such that R applies to individual items in virtue of their being within a certain range on the scale connoted by S

The advantage of this formulation is its emphasis on the point that the relation between R and S is essential to the understanding of R.

And:

Suppose one were to emphasize something like the capacity for reason as the relevant range property. One might deal with the case of infants, not by expanding oneís notion of reason to include the mental operations of a month-old baby, but by defining a relation between an infantís capacities (both actual and potential) and the capacities indicated within the ambit of a somewhat narrower range property focused on mature reason. This is what John Locke does in regard to reason. Locke says: 

Children, I confess, are not born in this full state of Equality, though they are born to it. Their Parents have a sort of Rule and Jurisdiction over them, when they come into the World, and for some time after; but it is but a temporary one. ... The Power, then, that Parents have over their Children, arises from that Duty which is incumbent on them, to take care of their Off-spring, during the imperfect state of Childhood. To inform the Mind, and govern the Actions of their yet ignorant Nonage, till Reason shall take its place, and ease them of that Trouble, is what the Children want, and the Parents are bound to. ... Thus we are born Free, as we are born Rational; not that we have actually the Exercise of either: Age, that brings one, brings with it the other too. And thus we see how natural Freedom and Subjection to Parents may consist together, and are both founded on the same Principle.

Despite its complexity, an account like this is much more sensible than the sort of Peter Singer approach which insists on asking, "What is the relevant difference in actual capacity between an adult chimpanzee and a human infant (or a severely intellectually disabled human adult) in virtue of which the human has more value and commands more respect than the chimpanzee?"

This is an important paper.  It addresses a fundamental and thorny problem in political morality and normative legal theory--the fundamental basis for equality of persons or humans.  Download it while its hot!

Simons on "Creeping Consequentialism"

Check out Ken Simons's Creeping consequentialism and insidious economics, part I over at Prawfs.  Here's a taste:

You are teaching or analyzing legal rule A.  Suppose rule A seems to express an underlying standard of undesirable or impermissible conduct C.  For example, the legal rule is: "D must pay compensatory damages to P when D's unreasonably risky conduct harms P."  The underlined phrase expresses a norm of impermissible conduct.

Unthinking consequentialism can creep in at both levels of this analysis--in your analysis of what counts as creating an unreasonable risk to others, and in your analysis of whether a legal rule expressing this standard of conduct is normatively desirable.  This danger is especially pronounced in analyzing tort doctrine, but it arises elsewhere, too.

Harrison on Happiness, Decisional Equity, and Normative Legal Theory

Jeffrey Lynch Harrison (University of Florida - Fredric G. Levin College of Law) has posted Happiness, Efficiency, and the Promise of Decisional Equity: From Output to Process on SSRN. Here is the abstract:

Those who resist the teachings of law and economics are rightfully concerned that economic efficiency is largely based on the predictions of relatively acquisitive people about what will make them feel or be better off. Due to a variety of factors, these predictions often turn out to be wrong The explosion in happiness research would appear to have the potential to close the link between choices and actual outcomes and, consequently, make the concept of efficiency more meaningful. This Article explores this promising advance. It concludes that direct focus on one concept or another of happiness or "better-off-ness" does not fully address the limitations of law and economics and may raise additional issues. For example, which is more important, feeling better off or being better off? In addition, when does happiness count? Is it at the time of the activity or as one remembers it? The Article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. It then makes the case that law would be more usefully applied to the process of decision-making. To this end, it examines the extent to which law can be devoted to a decision-making idea or "decisional equity." The ideal of decisional equity requires addressing three areas - information imbalances, psychic biases, and adaptations to social conditions.

Edmundson on Embodiment & the Future of Humanity

William A. Edmundson (Georgia State University) has posted Posterity and Embodiment on SSRN.  Here is the abstract:

Our concern for the future and our conception of human nature have both a philosophical dimension and a public policy dimension. Which would be the better way to spend our next dollar: on life-extension or on artificial intelligence? Manned space-exploration or robotic space-exploration? Answering such public-policy questions involves confronting some deep philosophical mysteries. If you were only concerned for your own survival, would you prefer to have your brain transplanted into another body, or have your brain scanned and its information realized in the hardware of a durable, Turing-testable robot? Would it be better to live one long life without offspring, or a short life leaving generations of descendants? If personal superlongevity and normal fertility would lead to overcrowding, which should we choose? Does considering "existential threats" change how we should answer? This article explores the conceptual and empirical interdependencies of these seemingly disjoint questions.

A deep and deeply interesting paper from Edmundson.  Highly recommended.  Plus it is short and fun to read!

Is & Ought and Legal Theory

There is a nice (but introductory) discussion of the Is-Ought distinction at Prawfs, with contributions from Jeff Lipshaw & Rick Hills.  For a slightly deeper discussion, see Legal Theory Lexicon 014: Fact and Value.  And here are four relevant entries from the Stanford Encyclopedia of Philosophy: Rachel Cohon, Hume's Moral Philosphy, Richard Joyce, Moral Anti-Realism, Michael Ridge, Moral Non-Naturalism, & Mark van Roojen, Cognitivism vs. Non-Cognitivism.

Singer on Normative Methods for Lawyers

Joseph Singer posted Normative Methods for Lawyers back in February, but I missed it.  Here is the abstract:

How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists.

Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.

And from the paper:

Normative methods structure human judgment but they also are constructed by human beings, who are fallible, who have a partial perspective on the world, who easily misunderstand, but who (hopefully) are also eager to do the right thing. Our best practices combine plural considerations and multiple methods; in particular, they combine impartial procedures with fundamental values, narrative elaboration, and situational contextualization. Our best practices in making normative arguments to resolve hard cases make assertions that express evaluative judgments about why certain values outweigh other values in particular contexts in light of the appropriate way to understand the meaning of the situation, the events that led up to it, the relations among the parties, and the contours of our way of life. The goal is to show respect for all persons affected by the dispute. Although there may not be a unique, mechanically derivable "right answer," the decision maker is still obligated to come up with her best formulation of the right answer.181 At some point, the decision maker actually has to decide, and then has to justify the decision by the best reasons the decision maker can offer which show respect to the loser and which affirm the attempt to treat the loser with equal concern and respect.

Highly recommended.  It will come as no surprise to those familiar with Singer's work, the he sees ineliminable contradictions at the hear of normative argument, and no surprise to readers of LTB that I disagree.  Marvelous essay!

Legal Theory Lexicon: Procedural Justice

Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the division of shares in social benefits and burdens; thus, many questions of tax policy are questions of distributive justice. Corrective justice involves the rectification of injustice, and thus includes a variety of topics from criminal law, torts, and contracts, among many others. Supplementing Aristotle's account, let us say that "procedural justice" is concerned with the means by which social groups (including governments, private institutions, and families) institutionalize the application of requirements of corrective and distributive justice to particular cases. This entry in the Lexicon provides an introduction to the idea of procedural justice for law students (especially first years) with an interest in legal theory.

Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.

Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,

two characteristic features of perfect procedural justice. First, there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give that desired outcome.

Rawls argues that our rule for the slicing of cakes is an example of perfect procedural justice. The person who slices picks last; Rawls believes that this procedure insures the equal division of shares. "Equal shares for each" is the independent criterion of a fair division; the slicer-picks-last rule is the procedure that reliably produces that outcome.
In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:

Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to achieve this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time.

Thus, imperfect procedural justice incorporates the notion of an independent criterion for accuracy but adds the notion of "other ends of the law," e.g., considerations of cost that may be balanced against accuracy. The final notion is "pure procedural justice." Rawls writes:

[P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed. This situation is illustrated by gambling. If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.

Pure procedural justice rejects an underlying assumption of both perfect and imperfect procedural justice--the assumption that there is an independent criterion for what constitutes the correct outcome. There are not criteria for the correct outcome except for an ideal (or actual) set of procedures.

Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:

The Accuracy Model We can begin with the utopian hypothesis that the current doctrine is structured by an implicit conception of perfect procedural justice?the accuracy model?corresponding to the idea of perfect procedural justice. The core idea of this model is that the aim of procedure is a search for truth?e.g. conclusions of law that are correct and findings of fact that are true.

But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy.

The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:

[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Beginning with the emphasis on balancing in doctrine, we could construct a utilitarian conception of imperfect procedural justice. This effort is complicated, however, because there are many forms of utilitarianism; for our purposes, we might consider ideal rule utilitarianism, in which an act is right if and only if it is conformity with the system of rules, which if universally followed would produce the best consequences. Let us make a further simplifying assumption: that all of the relevant costs can be expressed as prices. The resultant approach will be roughly similar to some law and economics approaches.

Consider for example, Richard Posner's economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs.

The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures.

On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:

At an intuitive level, a dignity approach is appealing. We all feel that process matters to us irrespective of result. This intuition may be a delusion. We may be so accustomed to rationalizing demands for improvement in our personal prospects, in the purportedly neutral terms of process fairness, that we can no longer distinguish between outcome-oriented motives and process-oriented arguments. * * * Yet there seems to be something to the intuition that process itself matters. We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.

In recent years, the question whether participation has value that is independent of outcomes has been enormously controversial. The participation model reflects the view that participation matters for reasons other than cost and accuracy. Most advocates of the balancing model deny that participation has independent value--other than a subjective taste for participation which can be weighed in a cost-benefit analysis.

Conclusion Of course, procedural justice is a very large topic, and we have only begun to scratch the surface. Law students encounter ideas about procedural justice in a variety of courses: Civil Procedure, Criminal Procedure, and Administrative Law are among the classes in which procedural justice may become an important focus of discussion. I hope this Lexicon post gives you a lively sense of the basic structure of legal thinking about procedural justice.

Online Resource

Lawrence Solum, Procedural Justice (PDF)

Bibliography

• Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488-89 (2003).
• Mathews v. Eldrige, 424 U.S. 319 (1976).
• Jerry L. Mashaw, Due Process In The Administrative State (1985).
• Richard Posner, Economic Analysis Of Law (1992).
• John Rawls, A Theory Of Justice (1971)

(This entry was last revised on April 13, 2004.)

Hockett on Distributive Justice in Normative Legal Theory

Robert C. Hockett (Cornell University - School of Law) has posted Taking Distribution Seriously on SSRN. Here is the abstract:

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as "counting" for purposes of socially aggregating and maximizing.

To attend systematically to the inter-translatability of maximization language on the one hand, equalization and identification language on the other, is to "take distribution seriously." It is to recognize explicitly, and to trace the important normative consequences that stem from, the fact that all law and policy are as distributive and citizen-defining as they are aggregative. It is also to recognize therefore that all law and policy treat us as equals in some respects - respects in terms of which they identify and "count" us as politically relevant - and as non-equals in other respects. Attending explicitly to these "respects" brings transparency about the degrees to which our laws and policies identify, "count," and treat us as equals in the right respects.

This Article accordingly seeks to lay out with care how to take distribution seriously in legal and policy analysis. It does so by two means, keyed to the principal guises in which distribution is typically implicated in legal and policy analysis: First, by careful attention to the internal structures of the social welfare functions favored by most present-day legal theorists and policy analysts. And second, by systematic reference to what linguists call the "cognitive grammar" of non-formal distributive language, a structure that mirrors the structure of distribution itself. The payoffs include both a workable method by which systematically to test proposed maximization norms for their normative propriety, and an attractive distributive ethic that can serve as an ethically intelligible normative touchstone for legal and policy analysis.

Lot's of interesting stuff in this paper, which is recommended.  Because this paper covers so much ground, I have a number of questions that Hockett may intend to address in subsequent work.  For example, Hockett moves quickly through the major options for answering the "equality of what?" question, and leaves some positions off the table: especially noteworthy is his omission of the Sen-Nussbaum capacities approach--which is, in my opinion, the most promising theoretical line on the fundamental question of the proper shape of political equality.

Here is another passage to which I reacted.  Hockett is discussing Rawls's theory, justice as fairness, and he argues:

Rawls allows even the matter of “first bests” to remain undetectedly underspecified. We are left wondering whether there’s any “here” here. The theory so underdetermines its own implementation that we don’t know what to make of the theory itself – or, perhaps better put, what to make with it. How much is it actually telling us if it is equally realizable in any number of possible polities with radically divergent property, tort, contract, and other legal arrangements? Put differently, how do we recognize a Rawlsian society upon seeing one?

There is a lot of hand waving going on in this passage.  If Hockett means to assert that there are no criteria by which compliance with the two principles could be judged, then his claim is surely false.  It is indisputable that a wide variety of actual historical socities and imaginable forms of social organization would not comply with the two principles.  Perhaps what Hockett means to claim is that the two principles do not determine even the details of private and public law: if that were his claim it would be true of Rawls's theory, but it would also surely be true of Hockett's own view and every other general theory of distributive justice.

My own understanding of how Rawls stands with respect to private law is as follows.  The two principles of justice apply to the basic structure--to the constitutional essentials and other institutions such as the choice of the basic economic structure (socialism, welfare-capitalism, etc.).  So long as the basic structure satisfies the two principles, the details of these institutions can vary within broad limits.  For example, the institution of tort law would have to be designed so that they were consistent with the two principles.  Tort systems that would result in violations of the basic liberties or that would undermine the ability of the basic structure to satisfy the difference principle would be out of bounds, but this would allow for a wide range of variation on matters of detail.  The reason such variations are permitted is that the society has satisfied the requirements of justice as fairness: this means that other values, including decisions made through democratic processes and choices made by individuals and communities of voluntary association, take the stage.

So, "how do we recognize a Rawlsian society upon seeing one?"  The answer is that we would examine the operation of the basic structure in light of the two principles.  Our specific inquiries would include questions like: (1) does the constitution contain all of the consitutional essentials such as procedural due process, liberty of conscience, and an equal franchise? (2) does the basic form of economic organization satisfy the difference principle?  If we are satisfied on this score, then the work of justice as fairness has been done.  Of course, many important moral and political questions remain, but if Rawls's arguments for the basic structure as subject is correct, then these questions are not questions of distributive justice.  Or to put it different, the society is distributively justice however it answers the additional questions.

Read Hockett.

Marmor on the Ideal of the Rule of Law

Andrei Marmor (University of Southern California - Law School) has posted The Ideal of the Rule of Law (BLACKWELL COMPANION TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Blackwell Publishing, Forthcoming) on SSRN. Here is the abstract:

In this short essay I argue that the ideal of the rule of law is based on the thesis that it is good, morally speaking, to be governed by law. I present a structured argument in support of this thesis, which is not based on any controversial assumptions about the nature of law. Finally, I propose a reply to Raz's argument that the values of the rule are basically functional, and to the extent that there is any moral worth associated with these functional values they are only negative values.

Highly recommended.