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Legal Theory Lexicon 049: Distributive Justice

Introduction Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at "risk spreading"? Should the Equal Protection Clause of the United States Constitution be read as guarantee of the equal distribution of rights or resources? In order to answer these and similar questions, we need to have some account of distributive justice? What makes the distribution of liberties, income, and wealth fair? Should the law aim at equality? And if it should, what sort of equality?
This entry in the Legal Theory Lexicon will provide a brief introduction to distributive justice. As always, the Lexicon is aimed at law students (especially first-year law students) with an interest in legal theory.
Context A prior entry in the Lexicon provided a brief overview of the idea of Justice. (Legal Theory Lexicon 018: Justice) In that entry, we divided the general topic of justice into four parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. Corrective justice is concerned with the righting of wrongs: so, in criminal law, we might be concerned with punishing crimes, and in tort law, we could focus on the rectification of wrongfully inflicted harms. Political justice is concerned with issues such as voting rights, democracy, legitimacy, and authority. Procedural justice addresses questions about the fairness of civil and criminal proceedings. Our topic today is distributive justice. As a rough and ready starting point, let's say that distributive justice addresses questions about the distribution or allocation of liberties, wealth, and income. As we shall see, one of the major debates about distributive justice will call this rough and ready starting point into question, because "liberties, wealth, and income" may be the wrong target for theories of distributive justce. But let's put that concern aside for now.
Rawls's Theory of Distributive Justice: Justice as Fairness Discussions of distributive justice usually start with the work of John Rawls--the most influential political philosopher of the 20th century. It really isn't possible to do justice to Rawls's theory in a paragraph or two, but I'm going to try.
Let's start with the historical roots of Rawls's theory. Rawls saw his theory as an extension of the social contract tradition--associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Traditional social contract theory posits a state of nature--in which there is no government--and then asks what would be the content of a social contract--an agreement to enter civil society. If we assume that the state of nature and the social contract are hypothetical (not actual), we can then ask the question: is an agreement reached in the state of nature fair? The answer to this question might be, "No, a social contract reached in the state of nature would not be fair, because it would favor those who are advantaged by the conditions of the state of nature, e.g. the strong, the smart, and the powerful." Rawls attempted to correct that problem with classical social contract theory by positing what he called the "original position." In the original position, the parties are to agree on principles of justice to govern the basic structure of society. Unlike the state of nature, however, the original position includes a "veil of ignorance," which prevents the parties from knowing the specific characteristics of those whom they represent.
Rawls argues that the parties to the original position would choose two principles of distributive justice:
1. The Equal Liberty Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.
2. The Difference Principle: Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society.
The first principle has priority over the second in cases of conflict.
In this very short introduction, we won't try to recreate the reasoning that would lead the parties to the original position to adopt the two principles. The basic idea of Rawls's argument is that the parties behind the veil of ignorance would have to take into account the possibility that they represent the least fortunate members of society. To protect the interest of those who are worst off, they would first make sure that everyone's basic rights--liberty of conscience, freedom of speech, due process--were protected: that is the role of the equal liberty principle. Then, the parties in the original position would attempt to make sure that wealth and income (and other basic goods) were were distributed so as to make the worst-off members of society as well off as they could be made: that is the role of the difference principle.

Rival Approaches to Distributive Justice What are the alternatives to justice as fairness? Let's take a quick look at four rivals to Justice as Fairness: (1) utilitarianism, (2) egalitarianism (or "strict equality"), (3) desert, and (4) libertarianism.
Utilitarianism Classical utilitarianism suggests that we should maximize the sum total of utility--Jeremy Bentham's slogan was "the greatest good for the greatest number." For classical utilitarians, the distribution of goods and resources doesn't matter in and of itself. What matters is how much good can be produced, not how it is distributed. This does not mean, however, that utilitarians do not care about the distribution of wealth and income. For example, a utilitarian might argue that wealth and income have "diminishing marginal utility." That is, the first $1000 of income is very important--it allows you to buy essentials like food and shelter. But the difference between $100,000 and $101,000 may be very minor--it allows you to buy a nicer car. Therefore, the utilitarian might argue that egalitarian distributions of resources will tend to increase total welfare--unless there is some countervailing reason such as increased incentives to produce useful goods and services that might result from unequal distributions of wealth and income.
Utilitarians are frequently criticized on the ground that they lack a princpled objection to gross inequalities. Suppose, for example, that the total welfare of society could be improved by enslaving a small group. If this were the case, then utilitarians would be committed to the consequence that such slavery is "just" or "good," but this seems counter intuitive. Utilitarians can reply to this point in many ways, but one argument is that, in fact, slavery does not increase total utility, but actually is quite harmful. Critics are likely to say that this may usually be the case, but that utilitarianism falters on the exceptional cases where gross inequalities lead to net welfare gains. Of course, the argument can be extended by both sides, but you get the general idea.
Utilitarians are likely to object to Rawls's second principle--the difference principle--on the ground that it requires that we pay a huge penalty in total welfare to produce a small benefit for those who are least advantaged. For example, suppose that the average income could be increased by $10,000 per year if the income of the worst-off group were decreased by $10 per year. Utilitarians argue that it is wrong to deprive a large group of a very substantial amount of income in order to preserve a small amount of income for a small group. Once again, the arguments will go back and forth, but you can see how the issue is framed.
Egalitarianism Another rival of justice as fairness is "strict egalitarianism." The difference principle permits inequalities of wealth and income if those inequalities benefit the worst-off group in society. For example, it it could be shown that private ownership of capital was required to produced economic growth that benefits even the poorest members of society, the difference principle might allow Bill Gates to accumulate billions of dollars while the poorest members of society subsisted on a tiny fraction of that. Strict egalitarians maintain that distributive justice requires that each person recieve the same share--even if the consequence is that everyone (including the worst-off) gets less than they could if inequalities were permitted.
Desert Yet another view of distributive justice would link distributive shares with desert or deservingness. In a very broad sense, one might say that all theories of distributive justice are desert-based. Egalitarian theories simply say that everyone deserves the same share. Fair enough! But I want to focus on a special kind of desert-based theory--one that focuses on merit or effort or some other quality as the basis for desert. For example, one might believe that wealth and income ought to be distributed in proportion to social contribution. If I work hard and create valuable goods or services, then I deserve a greater share of wealth and income, as compared with someone who makes a lessor contribution.
This kind of desert-based theory is quite different from justice as fairness, utilitarianism, or egalitarianism. This difference could be expressed in one of two ways. We might say that these other theories have a different conception of desert: for example, egalitarians may believe that each person is equally deserve of resources. Or we might say that the other theories deny the relevance of deserve; for example, egalitarians may believe that contribution-based desert is morally irrelevant.
Libertarianism Libertarianism represents another approach to distributive justice. On the one hand, libertarians are likely to endorse some version of what Rawls called the equal liberty principle. That is, libertarians are likely to believe that each individual should have an equal right to basic liberties (or autonomy). On the other hand, most libertarians reject that the idea that there should be any principles that govern the distribution of resources. For libertarians, the distribution of wealth and income flows from the free choices made by individuals. That might result in relatively equal distribution of wealth and income, or it might result in massive inequalities. For the libertarian what matters is whether the transactions or transfers are themselves just. If I freely choose to sell you Whiteacre, and I gamble away the proceeds while you grow rich, then the resulting inequality is just because it result from voluntary transactions.
In a sense, then, libertarians reject the idea of "distributive justice" as applied to the distribution of wealth and income. At the same time, however, libertarians tend to be strict egalitarians when it comes to the distribution of basic liberty rights, because most libertarians believe that the basic liberties (freedom of conscience, self-ownership) cannot themselves be alienated.
The Equality-of-What Debate One of the most interesting debates in contemporary political philosphy has been a debate among egalitarians about the proper subject of equality. Suppose you are an egalitarian. You believe that each person should recieve an equal share of whatever is truly valuable. The question is: what is it that should be divided equally?
One possibility is "wealth and income." That is, we might believe that each person should be entitled to the same annual income. That answer becomes problematic, however, because different persons have different needs. Suppose that strict equality of income would produce a share of $20,000 per person per year. You are young and in good health, and can do quite well on that sum. I am elderly and in poor health; $20,000 per year will not even pay for the medical care necessary to sustain my life.
Here is another possibility. We might aim for equality of "welfare." Of course, we would need to define welfare, and that's a tough job. Let's assume that welfare is a subjective state, produced by the satisfaction of preferences. Equality of welfare might require substantial disparities in the distribution of resources. Those who are ill or developmentally disable might require a larger share of resources to produce an equal share of welfare. Even that might be problematic. For example, those with really severe needs might require enormous resources--the possibility of very expensive high technology medicine has hightlighted this possibility.
There is, however, another problem with equality of welfare. Suppose that you have simple tastes, and I have expensive tastes. You are happy with a modest house, simple food, and vacationing in the countryside. For me to achieve the same welfare level, I need a personal Gourmet chef, the finest wines and caviar, a mansion, and vacations at the Ritz in Paris. It seems quite odd to say that distributive justice requires that I get more resources than you, simply because my tastes are more expensive than yours.
I think you can alreay see how interesting and exciting the equality-of-what debate can be. Let me just mention some additional moves, and then stop. Another step would be to introduce the idea of equal opportunity. Thus, we might decide that it is not "equality of welfare" but "equality of opportunity for welfare" that should be the criterion for distributive justice. Another important theory, associated with the economist Amartya Sen focuses on the "capacities for valuable functionings" as the subject of equality.
Conclusion This is another Lexicon entry that is both too long and too short. Too long because it is a bit much to swallow in one quick read, but too short because the topic of distributive justice requires many multiples of the words devoted to it here--for even a short treatment. Nonetheless, I hope I have provided enough of an introduction to get you thinking!
I've included a short bibliography and some links to other resources on the Internet! Bibliography
Ackerman, Bruce, Social Justice in the Liberal State (1980)
Joh Locke, Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought) (1988)
Robert Nozick, Anarchy, State, & Utopia (1974)
John Rawls, Justice as Fairness: A Restatemetn (2001)
John Rawls, A Theory of Justice (1971)
Jean-Jacques Rousseau,'The Social Contract' and Other Later Political Writings (Cambridge Texts in the History of Political Thought) (1997)
Links
Fred D'Agostino, Contemporary Approaches to the Social Contract, Stanford Encyclopedia of Philosophy
Ann Cudd, Contractarianism, Stanford Encyclopedia of Philosophy
Julian Lamont, Distributive Justice, Stanford Encyclopedia of Philosophy
Fred D'Agostino, Original Position, Stanford Encyclopedia of Philosophy
Amartya Sen, Equality of What (PDF)

Legal Theory Lexicon 048: Libertarian Theories of Law

Introduction The dominant approaches to normative legal theory in the American legal academy converge on fairly robust role for the state and government subject to the constraints imposed by an equally robust set of individual rights. Normative legal theorists of all stripes--conservatives and liberals, welfarists and deontologists—tend to agree that the institution of law is fundamentally legitimate and that the legal regulation has a large role to play. There is, however, a counter-tradition in legal theory that challenges the legitimacy of law and contends that the role of law should be narrowly confined. This entry in the Legal Theory Lexicon will examine libertarian theories of law. As always, the Lexicon is aimed at law students—especially first year law students—with an interest in legal theory.
The libertarian tradition of social, political, and legal thought is rich and varied, no brief summary can do it justice. So the usual caveats apply. This is a brief introduction to libertarian thought with an emphasis on its role in normative legal theory. Debates about the true meaning of the term “libertarian” will largely be ignored, and will disputes over the advantages of “liberalism,” “classical liberalism,” and “libertarianism” as the best label for libertarian ideas. Enough with the caveats, here we go!
Historical Roots of Contemporary Libertarianism One good way to approach contemporary libertarian legal theory is via its historical roots. A good place to begin is with John Locke’s conception of the social contract.
John Locke and the Social Contract The idea of a “social contract,” by which individuals in a state of nature contract with each other (or with a sovereign) to enter a “civil society” is one of the most important in all of political philosophy. Hobbes, Rousseau, and Locke all have distinctive theories of the social contract, but Locke’s version is important—both to libertarian theory and American constitutionalism. For the purposes of this discussion, the important idea is that a legitimate (or perhaps just) civil society has authority that is limited to those powers that the citizens-to-be would agree to delegate to the government in a social contract. Locke himself argued that the inconveniences of the state of nature would motivate a social contract that delegated to the government the power to protect property—understood in a broad sense that encompasses personal security and liberty—and the power to resolve disputes. But the Lockean social contract would not authorize government to restrict fundamental liberties or to take property from one citizen and transfer it to another. Of course, there is much more to day about Locke, but we are concerned here only with getting the gist of those Lockean ideas that are historically important to libertarian theory. Kant and Spheres of Autonomy Kant also made an important contribution to libertarian theory via his ideas of autonomy. There is no good way to summarize Kant’s theory of autonomy in a sentence or two, but the gist of his notion is the humans, as rational beings, have an interest in being autonomous in the sense of “self governing.” The role of law is to protect individual “spheres of autonomy” or “zones of liberty” in which individuals can act without interference from others. Suppose then, that our theory of proper legislation was that the laws should create maximum equal liberties for each, consistent with the same liberty for all. These two Kantian ideas—autonomy and maximum equal liberty—have played an important role in libertarian thinking about law.
John Stuart Mill and the Harm Principle John Stuart Mill was a liberal utilitarian, and so, in a sense, it is odd that he is also the author of one of the most important works in the libertarian tradition, On Liberty, a rich, complex, and easily misunderstood work. I am afraid I may be contributing to the misunderstanding by emphasizing just one idea from On Liberty--the so-called “harm principle.” Here is how Mill states the principle:
. . . the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right...The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
The harm principle is almost as controversial as it famous. In particular, there is a persistent worry about the problem of the baseline against which “harm” as opposed to “lack of advantage” might be measured.
Theoretical Foundations of Libertarianism This very brief introduction to the historical roots of libertarianism in Locke, Kant, and Mill prepares the way for a discussion of the theoretical roots of libertarian legal theory. Libertarianism operates at the level of political theory: it is a view about questions like “What is the proper role of government?” and “When is coercive legislation legitimate?” Theories at this level of abstraction need foundations of some sort, either deep foundations in comprehensive moral theories like utilitarianism or shallow foundations that explain why deeper foundations are unnecessary. Let’s take a look at both sorts of foundations for libertarian legal theories.
Consequentialist Foundations The consequentialist case for libertarianism is contingent—it depends on empirical and theoretical questions about the effects that various legal regimes have. Consequentialist libertarians believe that minimum government interference with individual liberty and free markets produces better consequences that extensive government regulation or redistribution of income. Historically, both John Stuart Mill and Adam Smith are associated with both libertarianism and consequentialism.
There are many different flavors of consequentialism, but in the legal academy, the most prominent strands of consequentialist thinking are associated with law and economics and assume a preference-satisfaction (or “welfarist”) notion of utility. Even among theorists who accept welfarism, there are major disagreements about how much and when government should regulate. But the general idea behind the consequentialist case for libertarianism is that markets are more efficient than regulation. This conclusion follows from fairly straightforward ideas in neoclassical microeconomics. Markets facilitate Pareto-efficient (welfare enhancing) transactions; regulations thwart such transactions.
Markets may lead to substantial disparities in wealth and income, but from the consequentialist perspective, such inequalities may not justify legislation that redistributes wealth and income. First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor. Of course, there is a well-known utilitarian argument for the redistribution of wealth and income based on the idea of diminishing marginal utility, but this argument might be outweighed by the massive utility losses caused by redistributive programs—providing a utilitarian argument against government-mandated redistribution of wealth and income. Second, even consequentialists who believe in some form of egalitarianism might believe that the worst off members of society will be better served by a libertarian regime than by a social-welfare state. We are already on a tangent, so I’m going to leave the topic of redistribution—noting that this is an issue upon which consequentialists themselves many differ in a variety of ways.
In contemporary legal theory, Richard Epstein is the “libertarian” thinker who is most strongly associated with consequentialist foundations. Because he is a consequentialist, Epstein may not be a pure libertarian, but on a variety of issues (e.g. antidiscrimination laws), Epstein takes strongly libertarian positions.
Deontological Foundations Although some libertarians are consequentialists, many others look to deontological moral theory for the foundations of their libertarianism. There are many different strategies for arguing for libertarianism based on deontological premises. One method starts with the idea of self-ownership or autonomy. Each of us has a moral right to control our own bodies, free of wrongful interference by others. This might imply that each individual has a right against theft, battery, false-imprisonment, enslavement, and so forth. Of course, these rights might justify a certain kind of government—one that protects us against invasions of our rights. But when government goes beyond the protection of these rights, then government itself operates through force or threats of force. For example, the redistribution of income might be accomplished by taxing income to finance a welfare system. Taxes are not voluntary; tax payments are “coerced” via threats of violence and imprisonment. Without consent, it might be argued, these threats are wrongful actions.
In my mind, the deontological approach to the foundations of libertarian political theory is most strongly associated with the late Robert Nozick and his magnificent book, Anarchy, State, and Utopia (see reference below).
Pluralist Foundations There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of utilitarianism, because we reject the foundations. One alternative would be to try to argue for libertarianism on the basis all of the different moral theories, but that is obviously a very time-consuming and difficult task. Another approach would be to articulate shallow foundations for utilitarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian.
One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- have good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.
Libertarian Agendas for Legal Reform (or Revolution!) Even thought this is “Legal Theory Blog,” we should say something about the practical agendas of various libertarian legal theories. Let’s begin with modest libertarianism and proceed to its most radical (anarchist) forms.
Modest Libertarian Reforms: Deregulation, Privatization, and Legalization At the very least, libertarians favor less government—as measured against the baseline of the current legal order in the United States. So, libertarians are likely to be in favor of more reliance on markets and less reliance on government. Hence, libertarians are likely to support programs of deregulation and privatization. Deregulation might include measures like abolition of consumer product safety regulations and the elimination of rent control laws. Privatization might include the federal government selling off the national park system or the Tennessee Valley Authority.
A libertarian reform agenda might also include the legalization of various forms of conduct that are currently prohibited. Examples of this kind of reform might include the legalization of recreational drugs, the end of prohibitions on various consensual sexual activities, and the elimination of restrictions on gambling and prostitution.
Comprehensive Libertarian Reform: The Night-Watchman State A more ambitious libertarian agenda might be the establishment of what has been called the night-watchman state. The idea is that government would limit its role to the protection of individual liberty. Government would continue to provide police protection, national defense, and a court system for the vindication of private rights (property, tort, and contract rights, for example), but nothing else. In other words, the function of law would be limited to those activities that are necessary for the protection of private property and liberty.
The difference between the advocacy of modest and comprehensive libertarian reform may be more a matter of tactics than of principle. One might believe that there is no realistic chance of a transition to a night-watchman state. Those who advocate such comprehensive reform may undermine their own political effectiveness by sounding “radical.” So as a matter of practical politics, it may be that libertarians are most effective when they advocate marginal reforms that move the system incremental in libertarian directions.
Libertarian Revolutions: Anarchy and Polycentric Constitutional Orders Some libertarians advocate an agenda that is even more radical than the night-watchman state. One might question whether there is a need for the nation state at all. One version of this more radical approach is pure anarchism—the view that no government is necessary because individuals can coexist and cooperate without any need for state action. Another variation of this idea is sometimes called a “polycentric constitutional order.” The idea is that individuals could subscribe to private firms that would provide the police and adjudication functions of the night watchman state. Such a society would have entities that functioned like governments in some ways—with the important exception that individuals would enter into voluntary agreements for their services.
The Rivals of Libertarian Legal Theory Libertarian theory can be criticized in a variety of ways. Sometimes the disagreement is mostly empirical: libertarians believe that life without the state would be better, and anti-libertarians believe it would be worse. But sometimes the critics of libertarianism have a radically different vision of the fundamental purposes of government. One such rival is egalitarianism—the view the distributive justice requires that goods (let’s leave the definition of good at the abstract level) should be divided equally, and that the creation of social equality is the primary aim of government. Some libertarians might accept this goal, but argue that maximum liberty is the best way to achieve it. Other libertarians might argue that liberty is the good that should be equally divided. But many libertarians see equality as the wrong goal for government. That is, sometimes libertarians and egalitarians differ fundamentally over the purpose of government.
Another rival to libertarianism is the view that legislation should aim at the promotion of virtue in the citizenry. If one believes that the aim of government is to make humans into better people, then one is likely to see a variety of restricts of liberty as justified. (Let’s call views that see virtue as the end of government “aretaic political theories.”)
Aretaic political theorists are likely to disagree with libertarians over what might be called “moral legislation.” For instance, one might believe that legal prohibitions on gambling, drugs, and prostitution are justified because they help promote a moral climate where most citizens don’t want to engage in these activities. Many libertarians would say it is simply not the business of government to decide that a taste for gambling is a bad thing; whereas many virtue theorists are likely to say that this is precisely the sort of work that governments should be doing.
Conclusion Libertarian legal theory is interesting on the merits—as one of the most significant normative theories of law. But there is another important reason for legal theorists to be interested in libertarianism even if they ultimately reject it. Libertarian legal theories call into question the very purpose of law and government. A really careful evaluation of libertarianism requires that one form views about the function of law and the purposes of government, and to confront a variety of criticisms of conventional views about those topics. For that reason, thinking about libertarian legal theory is an excellent way of thinking about the most fundamental questions in normative legal theory.
Once again, this entry is bit too long, but I hope that I’ve provide a good starting point for your investigations of libertarianism. I’ve provided a very brief set of references for further exploration.
References
Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Oxford University Press, 1998).
Richard A. Epstein, Skepticism and Freedom : A Modern Case for Classical Liberalism (Chicago: University of Chicago Press, 2003).
Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1977).

Legal Theory Lexicon 047: The Counter-Majoritarian Difficulty

Introduction The counter-majoritarian difficulty may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous book The Least Dangerous Branch. Whatever Bickel actually meant by the phrase, it has now taken on a life of its own. The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after Bickel’s naming of this problem, it dominated constitutional theory.
This entry in the Legal Theory Lexicon explores the counter-majoritarian difficulty, efforts to solve the problem and to dissolve it. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. As is frequently the case with the Lexicon, we will explore a very big topic in just a few paragraphs. Many articles and books have been written about the counter-majoritarian difficulty; we will only scratch its surface. Moreover, any really deep discussion of the counter-majoritarian difficulty would lead (sooner or later) to almost every other topic in constitutional theory. The Lexicon is “quick and dirty,” and definitely not deep, comprehensive, or authoritative.
Democracy and Majoritarianism The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacy (see the Legal Theory Lexicon entry on Legitimacy ). We all know the basic story: the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.” Of course, it isn’t that simple. Among the complexities are the following:
• There are many different theories of democratic legitimacy, and only some of them emphasize “majoritarianism” as the key factor.
• Some theories of democratic legitimacy rely on the idea of “consent of the governed,” but it is very difficult to mount an argument for actual consent to existing majoritarian institutions or their actions.
• The idea of “legitimacy” is itself deeply controversial and might even be called obscure. What legitimacy is and why it is important are themselves deep and controversial questions.
Despite these complexities, most of us have a rough and ready appreciation for the idea that actions by democratic majorities have some kind of legitimacy that is lacking in the actions of unelected judges. At any rate, that idea is the normative foundation of the counter-majoritarian difficulty.
Constitutional Limits on Majoritarianism The counter-majoritarian difficulty is sometimes characterized as a problem with the institution of judicial review, but it could also be understood as a difficulty for any constitution that constrains majority will. Of course, there could be constitutions that impose no limits at all on the will of democratically elected legislatures. For example, a regime of unicameral parliamentary supremacy might be said to have a constitution that allows a parliamentary majority to pass any legislation that it pleases and to override the courts or executive whenever the legislature is in disagreement with their actions. Of course, even this simple constitution might constrain the legislature in a certain sense. For example, legislation that attempts to constrain the action of a future legislature might be “unconstitutional.” Another example might be legislation that abolishes elections and substitutes a system of self-perpetuating appointments. Similarly, a legislature might pass a “bill of rights” that purports to bind future legislatures, even in the absence of an institution of judicial review.
The Institution of Judicial Review Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for a regime that incorporates the institution of judicial review incorporating judicial supremacy. In the United States, for example, the courts have the power to declare that acts of Congress are unconstitutional, and if the Supreme Court so declares, the Congress does not have the power to override its decision.
The institution of judicial review is counter-majoritarian in part because federal judges are not elected and they serve life terms. Presidents are elected every four years; members of the House of Representatives every two years; and Senators serve staggered six year terms. Of course, judges and justices are nominated by the President and confirmed by the Senate and these features create some degree of democratic control of the judiciary. Nonetheless, on the surface, it certainly looks like judicial review is an antidemocratic institution. Unelected judges strike down legislation enacted by elected legislators: that is certainly antidemocratic and antimajoritarian in some sense.
The counter-majoritarian difficulty is compounded by the nature of judicial review as it has been practiced by the modern Supreme Court. If the Supreme Court limited itself to enforcing the separation of powers between the President and Congress or to the enforcement of the relatively determinate provisions of the constitution that establish the “rules of the game” for the political branches, then the counter-majoritarian difficulty might not amount to much. But the modern Supreme Court has been involved in the enforcement of constitutional provisions that general, abstract, and seemingly value laden—examples include the freedom of speech, the equal protection clause, and the due process clause of the constitution. The counter-majoritarian difficulty seems particularly acute when it comes to so-called “implied fundamental rights,” like the right to privacy at issue in cases like Griswold v. Connecticut and Roe v. Wade.
Answering the Countermajoritarian Difficulty How have constitutional theorists attempted to answer the counter-majoritarian difficulty? The problem with answer that question is that there are so many answers that it is difficult to single out three or four for illustrative purposes. So remember, the “answers” that are discussed here are arbitrary selections from a much longer list.
Discrete and Insular Minorities One famous answer to the counter-majoritarian difficulty focuses on the idea of “discrete and insular minorities.” The background to this answer is the premise that in the long run, most individuals win some and lose some in the process of democratic decision making. Shifting coalitions among various interest groups “spread the wealth” and the pain—no one wins all the time or loses all the time. Or rather, normally wins and losses are spread across the many different groups that constitute a given political society. However, there may be some groups that are excluded from the give and take of democratic politics. Some groups may be so unpopular (or the victims of such extreme prejudice) that they almost always are the losers in the democratic process. The famous “Footnote Four” of the United States Supreme Court’s decision in the Carolene Products case can serve as the germ of an answer to the counter-majoritarian difficulty. Judicial review is arguably legitimate when it serves to protect the interests of “discrete and insular minorities” against oppressive actions by democratic majorities.
Anti-Democratic Political Theory Another answer to the counter-majoritarian difficulty admits that judicial review is antidemocratic but seeks to justify this feature by appeal to some value that trumps democratic legitimacy. This isn’t really just one answer to the difficulty—it is a whole lot of answers that share a common feature—the appeal to anti-democratic political values. For example, it might be argued that “liberty” is a higher value than “democracy” and hence that judicial review to protect liberty is justified. Or it might be argued that “equality” is a higher value, or “privacy,” or something else. Obviously, there is a lot more to be said about this kind of answer to the counter-majoritarian difficulty, but for the purposes of this Lexicon entry, this incredibly terse explanation will have to suffice.
Dualism and High Politics Yet a third approach to the counter-majoritarian difficulty attempts to turn the problem upside down—arguing that judicial review is actually a democratic institution that checks the antidemocratic actions of elected officials. Whoa Nelly! How does that work? This third approach is strongly associated with the work of Bruce Ackerman—perhaps the most influential constitutional theorist since Alexander Bickel. Ackerman’s views deserve at least a whole Lexicon entry, but the gist of his theory can be stated briefly. Ackerman argues for a view that can be called “dualism,” because it distinguishes between two kinds of politics—“ordinary politics” (the kind practiced every day by legislators and bureaucrats) and “constitutional politics.” What is “constitutional politics”? And how is it different from “ordinary politics”? Ackerman’s answers to these questions begin with the idea that ordinary politics isn’t very democratic. Why not? We all know the answer to that question. Ordinary politics are dominated by self-interested politicians and manipulative special interest groups. The people (or “We the People” as Ackerman likes to say) don’t really get involved in ordinary politics, and therefore, ordinary politics are not really very democratic. Constitutional politics, by way of contrast, involve extraordinary issues that actually “get the attention” of the people. For example, the ratification of the Constitution of 1789 caught the attention of ordinary citizens, as did the Reconstruction Amendments (the 13th, 14th, and 15th) following the Civil War. When “We the People” become engaged in constitutional politics, we are giving commands to our agents—Congress and the President—and the Courts are merely enforcing our will when they engaged in judicial review—so long as they are faithful to our commands.
Whew! That was a lot of “We the People” talk. I need a break from channeling Ackerman, before I can finish this entry! OK. I’m back!
Ackerman’s theory emphasized the idea of distinct regimes that resulted from “constitutional moments”—periods of intense popular involvement in constitutional politics. Recently, Jack Balkin and Sandy Levinson have advanced a similar theory—which emphasizes that idea of “high politics”—the great popular movements that seek to influence the decisions of the Supreme Court on issues like abortion or affirmative action. I can’t do justice to their theory here, but the idea is that the Supreme Court may be responding to democratic pressures when it makes the really big constitutional decisions.
Dissolving the Counter-Majoritarian Difficulty So far, I’ve been discussing responses to the counter-majoritarian difficulty that operate within normative constitutional theory. There is another important line of attack, however. The counter-majoritarian difficulty rests on a positive (factual) assumption—that the Supreme Court does, in fact, act contrary to political majorities. Some political scientists have argued that this positive assumption is incorrect—that the Supreme Court rarely, if ever, acts contrary to the wishes of the dominant political faction. There could be many reasons for that—one of them being the Supreme Court’s awareness that if it were to buck Congress and the President, it is vulnerable to a variety of political reprisals. Congress might strip the Court of jurisdiction. Ultimately, the President might simply refuse to cooperate with Court’s decisions.
There is another side to this story. There may be reasons why elected politicians prefer for the Supreme Court to “take the heat” for some decisions that are controversial. When the Supreme Court acts, politicians may be able to say, “It wasn’t me. It was that darn Supreme Court.” And in fact, the Supreme Court’s involvement in some hot button issues may actually help political parties to mobilize their base: “Give us money, so that we can [confirm/defeat] the President’s nominee to the Supreme Court, who may cast the crucial vote on [abortion, affirmative action, school prayer, etc.].” In other words, what appears to be counter-majoritarian may actually have been welcomed by the political branches that, on the surface, appear to have been thwarted.
Conclusion Once again, I’ve gone on for too long. I hope you will forgive me, and I hope that this Lexicon entry has given you food for thought about the counter-majoritarian difficulty. Below, I’ve included a list of references to articles that focus on the difficulty itself and also to some of the authors who have attempted to give answers to Bickel’s famous problem.
References This is a very incomplete list, emphasizing the works that are focused on “the counter-majoritarian difficulty” in particular and omitting many important works of constitutional theory that deal with the counter-majoritarian difficulty as part of a larger enterprise.
Bruce Ackerman, We the People: Foundations (1993) & We the People: Transformations (1998).
Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045 (2001).
Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-18 (2d ed. 1986).
Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 Geo. Wash. L. Rev. 1373 (1998); Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. Rev. 933 (2001).
Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 334 (1998).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part II: Reconstruction's Political Court , 91 Geo. L.J. 1 (2002).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Three: The Lesson Of Lochner, 76 N.Y.U. L. Rev. 1383 (2001).
Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. Pa. L. Rev. 971 (2000).
Barry Friedman, The Birth Of An Academic Obsession: The History Of The Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002).
Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004).
Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995).

Legal Theory Lexicon 046: Legitimacy

Introduction Legitimacy. It’s a word much bandied about by students of the law. “Bush v. Gore was an illegitimate decision.” “The Supreme Court’s implied fundamental rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not have a legitimate basis in international law.” We’ve all heard words like these uttered countless times, but what do they mean? Can we give an account of “legitimacy” that makes that concept meaningful and distinctive? Is “legitimacy” one idea or is it several different notions, united by family resemblance rather than an underlying conceptual structure.
This entry in the Legal Theory Lexicon theory will examine the concept of legitimacy from various angles. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
Normative and Sociological Legitimacy Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs--about what attitudes people have. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false empirical beliefs or incorrect value premises. The opposite can be true as well: a controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been a legitimate decision.
Conceptions of Legitimacy
Concepts and Conceptions The distinction between normative and sociological legitimacy is important, but, by itself, it doesn’t get us very far. What does “legitimacy” mean? How is “legitimacy” different from “justice” or “correctness”? Those are deep questions—deserving of a book-length answer. My general policy in the Lexicon series is to steer a neutral course—avoiding controversial assertions about debatable matters of legal theory. But when it comes to legitimacy, it is difficult to stick to this plan. The difficulty is not so much that legitimacy is the subject of a well-defined debate; rather, the problem is that the concept of legitimacy is usually ill-defined and undertheorized.
So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization. Let’s take a look at four different notions of legitimacy.
Four Conceptions of Legitimacy
Legitimacy as Democratic Process One very important and influential idea of legitimacy is connected with democratic procedures. Let’s begin with a simple example. Suppose you belong to a small-scale organization of some kind—maybe a law-school faculty. The executive of the organization can take various actions on her own authority, but there are some matters that must be decided by democratic procedures. For example, suppose the Dean of a law school decided that all first-year classes should be taught in small-groups with cooperative-learning techniques and without the traditional case method and Socratic questioning. This might be a marvelous innovation. (I’m not saying it would be.) But if the Dean made the decision without the input of the faculty (or a vote of the faculty), then it is quite likely that there would be vociferous opposition to the new organization of the curriculum on the grounds that the Dean’s decision lacked democratic legitimacy.
Let’s take a more familiar example. Federal judges are not directly elected. They are appointed for life terms. Although the President (who nominates federal judges) and the Senate (which confirms them) are both elected bodies, the judges who sit at any given time have an indirect and diffuse democratic pedigree. Moreover, there life terms make them relatively insular. So there is a question of legitimacy about the institution of judicial review. Does the fact that Supreme Court Justices are not elected make it illegitimate for them to invalidate actions taken by elected officials? Of course, that’s a big question. For our purposes, the important point is that the question itself is one of democratic legitimacy.
Legitimacy as Legal Authority Another conception of legitimate seems to focus on legal authority. For example, when President Truman ordered the seizure of the steel mills during the Korean War, there was not question but that he had been elected in 1948. But despite the fact that Truman was elected democratically, there was still a question about the legitimacy of his action. Even if his action was democratic, it may not have been legal. When an official acts outside her sphere of legal authority, we sometimes say that here decision was “illegitimate.” When we use “legitimacy” in this way, we seem to be relying on the idea that legitimacy is connected to legal authority. Actions that are not legally authorized are frequently called “illegitimate” whereas actions that are lawful are sometimes seen as legitimate for that reason.
Legitimacy as Reliability Yet another theory ties legitimacy to the reliability of the process that produces the decision. To see the point of the “reliability conception” of legitimacy, we need to step back for a moment. There is a difference between the “correctness” or “justice” of a decision, on the one hand, and its “legitimacy” on the other. Indeed, this seems to be a crucial feature of “legitimacy.” We think that an incorrect decision can nonetheless be legitimate, whereas a correct decision can lack legitimacy.
Reliability theories acknowledge this “gap” between legitimacy and justice, but insist that there is nonetheless a strong connection between the two. The idea is that legitimacy requires a decision making process that meets some threshold requirement of reliability. So tossing a coin would not be a legitimate method for deciding legal disputes. Even if the coin toss came out the right way and the party that would have won in a fair trial did win the coin toss, the decision that resulted from the flip of a coin would be criticized as illegitimate.
One important example of a reliability theory of legitimacy is found in Randy Barnett’s book, Restoring the Lost Constitution. Barnett argues that the legitimacy of a constitution depends on its reliability in producing just outcomes. A legitimate constitution guarantees a tolerable level of justice. A constitution that does not provide such a guarantee is illegitimate—or so Barnett argues.
The Liberal Principle of Legitimacy Let’s do one more theory of legitimacy. John Rawls’s has advanced what he called “the liberal principle of legitimacy.” Here is how Rawls states the principle:
[O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.”
Unpacking Rawls’s principle could take a whole article, but let me make three observations:
• The distinctive feature of the principle is that it makes reasons count. That is, the principle bases legitimacy on reasonable endorsement “in the light of principles and ideals acceptable to . . . common human reason.” Readers of past lexicon entries will note that Rawls’s is referring her to his idea of public reason.
• The principle does not require that citizens actually endorse the constitutional essentials. Rather, the requirement is that citizens “may reasonably be expected to endorse” the constitutional essentials. In other words, the constitutional essentials must be justified by public reasons in such a way that the justification is one that reasonable citizens could be expected to accept.
• Citizens are asked to endorse the constitutional essentials “as free and equal”. That is, the principle assumes a certain political conception of citizens as free and equal members of society. The reasons are addressed to citizens conceived in this way, and not to citizens as they are, if that includes their rejection of the notion that each and every citizen should be regarded as a free and equal member of society.
Rawls’s liberal principle of legitimacy point us in the direction of a whole family of ideas about legitimacy. Rawls’s principle is tied to his idea of public reason, but we can imagine other theories of legitimacy that include particular kinds of reasons as legitimating or exclude categories of reasons as illegitimate.
Competing versus Complementary Conceptions We began our investigation of various conceptions of legitimacy with the working hypothesis that these would be “competing conceptions,” i.e., that only one of these theories of legitimacy could be correct for a given domain of application. Now, let’s take a second look at that assumption.
Is it really the case that the various conceptions of legitimacy compete with one another? There is another possibility—that some (or all) of these conceptions are complementary. For example, we might say that a given judicial decision has legitimacy in the sense that it was made by legally authorized officials, but that the same decision lacks democratic legitimacy, because it was made by unelected judges contrary to the will of democratically elected legislators. If this way of talking is sensible, then it may be the case that the various conceptions of legitimacy do not compete with one another, but rather exist in some sort of complementary relationship.
Conclusion We’ve barely scratched the surface, but I hope this entry has given you food for thought about the idea of “legitimacy.” My own sense is that one should be very wary about deploying the idea of legitimacy. Because legitimacy has different senses and is undertheorized, it is very easy to make claims about legitimacy that are ambiguous or theoretically unsound.

Legal Theory Lexicon 045: The Attitudinal Model & the New Institutionalism

Introduction The legal academy is not the only locus for serious study of the law. Legal phenomena are examined in a variety of other disciplines—ranging from philosophy and sociology to history and anthropology, but political science (or “politics” or “government”) is the academic discipline that is most strongly associated with the study of law outside of the law schools. This entry in the Legal Theory Lexicon introduces two distinctive traditions for the study of the law from the perspective of political science. The first of these is the so-called “attitudinal model”—an approach that views courts—especially the United States Supreme Court—as policymaking institutions that are similar to legislatures and administrative agencies. The second approach is sometimes called “the new institutionalism” and it integrates a concern for legal doctrine and rules with other social science tools.
As always, this entry in the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Many of you were political science majors, and this may be “old hat” to you, but others will be exposed to these ideas for the first time. A word of warning: the dominant response of the legal academy to the study of law by political scientists is ignorance. It may seems strange, but it is nonetheless true that many law professors have barely heard of the attitudinal model and would have to guess what the “new institutionalism” might be. Don’t make this mistake. Political scientists bring a rich set of tools and concepts to legal theory, and the legal academy has much to learn from them. One more thing: this entry discusses only a small portion of the political science that is relevant to the study of law. Political science includes many different approaches—including rational choice and game theoretic approaches that have much in common with what is called “law and economics” in the legal academy.
The Legal Model and the Attitudinal Model Suppose you were a political scientist and you wanted to explain and predict the behavior of a court—for example, the United States Supreme Court. What variables would serve as the best predictors? One possibility is that you would seek to predict Supreme Court decisions using legal concepts. For example, you might use the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation. Let’s call this approach to the explanation and prediction of legal decisions, the “legal model.”
Even first-year law students are likely to see that the legal model may not do a very good job of predicting the outcome of appellate cases. Once you study constitutional law, you are likely to learn that decisions of the contemporary Supreme Court are rarely based on a simple application of preexisting legal rules to the facts (as they are presented to the Court given the procedural posture of the case). Instead, contemporary legal education is likely to emphasize the political dimension of the Supreme Court—with liberal, moderate, and conservative Justices lining up in more or less predictable patters, especially with respect to certain politically-charged issues—implied fundamental rights, federalism, and criminal procedure, for example.
Within the legal academy, the connection between judicial decisionmaking and politics is associated with American legal realism (and, more recently, with the Critical Legal Studies movement). But in political science, this same insight has been developed in an empirically more rigorous way, and frequently is called “the attitudinal model.”
The basic insight of the attitudinal model is that judicial decisions can, in at least some circumstances, be explained and predicted by the attitudes of judges. Thus, a simple attitudinal model might code each justice as occupying a point on a real line from left to right. A judge at the left-most point on the line would be very liberal. A judge on the right-most point of the line would be very conservative. The model might then predict how a judge’s attitudes (or position in attitudinal space) would correlate with positions on particular issues. Conservative judges are likely to vote against a right to abortion; liberal judges may be likely to uphold assertions of national power against challenges on federalism grounds.
Which model does a better job of predicting judicial behavior? If we limit our attention to the United States Supreme Court, it looks, at first blush, like the attitudinal model “beats the pants” off the legal model. But appearances may be deceiving. The United States Supreme Court does not hear very many “easy cases”—cases in which the application of preexisting legal rules control the outcome of the dispute. Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. Instead, the Court tends to focus on those cases in which the law is uncertain, the lower courts are divided, or there is a perceived need for a change in the law. Moreover, cases which are controlled by clear rules of law are usually settled. It is extremely rare for a party to spend the hundreds of thousands of dollars required to litigate a case to the Supreme Court on a sure-fire loser!
There is another reason why we would not expect the Supreme Court’s decisions to be predicted by a simple “legal model.” The Court does not consider itself bound by its own prior decisions. Given that the Court has the legal power to depart from precedent, it is hardly surprising that the Court does not behave as if it were so bound.
When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. For example, defendants will rarely pay large sums to settle claims that have no legal merit. Of course, this point needs to be qualified in various ways. If a case has sufficient merit to get to a jury, it may have settlement value, even if an “ideal” jury would find against the plaintiff. Similarly, litigation itself is costly, and meritless claims may have “nuisance value” so long as they cannot be thrown out of court at an early stage—by a demurrer or motion to dismiss for failure to state a claim upon which relief can be granted.
More broadly, most legal practitioners (lawyers and judges, for example) are likely to think that a very simple attitudinal model is missing something. Even if politics is important and legal doctrine is not the only important factor that shapes legal behavior, any story about legal institutions that leaves the law out of the story seems to be missing something that is crucially important—both to the understanding of the law and to understanding American politics.
The New Institutionalism And that brings us to what is sometimes called “the new institutionalism,” a somewhat eclectic movement within political science that seeks to integrate legal doctrine and the distinctive character of legal institutions in political-science approaches to the study of law. When I say “somewhat eclectic,” I mean that there is no single methodology or doctrine that characterizes all of the work that fits under the “new institutionalism” umbrella. And of course, the name of this approach, the new institutionalism, points backwards to an old institutionalism—the approach commonly associated with figures like Corwin and McCloskey (and more recently with Martin Shapiro). One way to look at the work in the “new institutionalist” tradition is to use the distinction between internal and external perspectives that is familiar to legal theorists.
From the internal perspective, new institutionalist work is work that takes “the law,” broadly defined to include legal institutions, concepts, categories, and doctrines seriously. But new institutionalist work is not the same as doctrinal legal scholarship. The new institutionalists situate “the law” in political contexts. Where a doctrinalist analysis aims at producing a restatement of a legal rule, institutionalists are more likely to be focused on an elaboration of the development of legal thought in a wider social context.
From the external perspective, new institutionalists are interested in the causal influences on and of legal phenomenon. Some new institutionalists embrace the attitudinal model as a starting point for their analysis, whereas others may be more critical of attitudinalism, but any work that looks at law from the external perspective will step outside of legal doctrine and ask questions about the causal influences that shape legal institutions.
Conclusion It is hardly surprising that a brief Lexicon entry cannot do justice to a whole body of work. The best way to learn about the attitudinal model and the new institutionalism is to read some work. If I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law!
Bibliography
Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).
Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993).
Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).
Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964).
Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001).
Rogers Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 American Political Science Review 89-108 (1988). (available on JSTOR, follow this link.)
Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999).
The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999).

Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law

Introduction The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is “jurisprudence” a synonym for “philosophy of law” or are these two overlapping but distinct fields? Is “legal theory” broader or narrower than jurisprudence? And why should we care about this terminology?
As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory.
Who Cares About Terminology Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.”
Disciplinary Lines and Theorizing About Law Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many philosophers of law have formal philosophical training, but some were trained in law or political theory.
So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovery John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that.
Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory has never died out. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view.
What can we say about our three terms—jurisprudence, philosophy of law, and legal theory?
Jurisprudence My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root.
Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory.” Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other.
Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links).
The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy.
Legal Theory Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic.
Conclusion When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use.

Legal Theory Lexicon 043: Formalism and Instrumentalism

Introduction American law students learn about formalism instrumentalism early on—although those particular terms may not be introduced. Many law students hunger for “black letter law,” for legal rules that can be applied to the facts in a more or less determinate fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences—perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice.
In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.
But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.
In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.
Legal Formalism What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following
Legal formalism? That’s “mechanical jurisprudence,” when a judge decides a case without thinking about the consequences or the purpose of the rule.
In other words, “legal formalism” is sometimes used as pejorative label for unthinking and unintelligent legal reasoning.
We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:
• Judges should apply the law and not make it.


• There are legal rules that constrain what legal actors may lawfully do.


• There is a difference between following the law and doing what you think is best.


• Judges should decide cases in accord with the text of the applicable constitutional or statutory provision or with the holding of controlling precedents.
This list go on and on, but you get the general idea. The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not). That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:
1. The law consists of rules.
2. Legal rules can be meaningful.
3. Legal rules can be applied to particular facts.
4. Some actions accord with meaningful legal rules; other actions do not.
5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.
Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.
Legal Instrumentalism Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.
The Realist Critique of Legal Formalism It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty.
The Modern Revival of Legal Formalism Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.
Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.
Conclusion The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.
Related Entries
The Rule of Law
Originalism
Rules, Standard, and Principles
Textualism

Legal Theory Lexicon 042: Consent

Introduction Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery—unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and not actionable, even if it results in serious harm. Intercourse without consent is the very serious crime of rape; intercourse with consent is quite something else.
The basic legal structure is easy to grasp. But what is consent? Why does it have the legal and moral force that it does? When is it valid and when is it invalid?
This entry in the Legal Theory Lexicon is about the idea of consent in legal contexts involving interpersonal (but not political) relationships. The entry will explore what consent is and why consent is important, both legally and morally. Our investigation will also explore the conditions under which consent might be said to be “invalid,” e.g. in cases where consent was obtained through deception, coercision, or in which the consenting person lacked capacity to give consent. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
The Ontology of Consent What is consent? We all know about paradigm cases of consent and its absence. Consent is clearly present (ceteris paribus) when someone says “I consent” and really means it. Consent is absent when someone says, “I object” and really means it. But the ability to distinguish clear cases of consent and its absence is not sufficinet for a theory of consent.
In general, there are two families of theories about the nature of consent. One theory is that consent is a mental state—either an affective state such as desire or a volitional state such as choice. The second theory is that consent is a performative—a speech act in which one person agrees to something by communicating with another person (or persons). Each of these two approaches to consent requires some additional explanation.
Consent as a Mental State The first possibility is that consent is a mental state. But what kind of mental state? Is a consent a willing, a wish, a desire, a choice, a preference, or something else? We can investigate two possibilities:
Consent as an Affective Mental State One possibility is that when Alice consents to be kissed by Ben, her consent consists in a certain attitude towards the kiss. For example, if Alice wants (or desires) Ben to Kiss her, then we might be tempted to say that Alice has consented to the Kiss. Another candidate for the relevant affective mental state might be preference. We might say that Alice consents to Ben’s kiss if Alice prefers Ben’s kissing her to the alternative.
Consent as a Volitional Mental State There is another possibility. It might be that consent is not attitude but a decision, choice, or willing. Thus, we might say that Alice consents to Ben’s kiss if Alice had chosen that Ben kiss her.
Affective mental states like desires or preferences are not identical to volitional mental states like choosings or decisions. To want something is different than to having chosen to do it. Of course, there may be a close relationship between affective and volitional states. For example, you might believe that when you have an all-things-considered desire to be kissed, then the choice—the choosing to be kissed—follows more or less automatically. These are deep waters that we can elide for the purposes of this bare-boned introduction to the idea of consent.
Consent as a Performative Most American jurisdictions define legal consent as a mental state, but it is not clear that our ordinary language conception of consent can be reduced to a mental state. Consent is both a noun and an intransitive verb. Thus, we say things like, “I consent” or “He consented to having his name put forward in nomination.” When used in this way consent seems to be some kind of action, accomplished through communication.
Consent could be a performative--a communicative act in which the speaker communicates permission for or agreement to a course of action.
So which is it? Is consent a mental state or a communicative action? This is not the sort of question that can be resolved by a Legal Theory Lexicon entry. My opinion is that the performative theory best captures the ordinary language conception of consent. One reason I think so is that the idea of secret consent—which would be a perfectly alright if consent is a mental state—doesn’t seem to comport with our usual way of talking about consent. “I consented to the operation, but I didn’t tell anyone”—sounds quite odd to my ear. The law goes both ways, however, and most jurisdictions use a mental state conception of consent for the purposes of defining “legal consent.”
The Moral and Legal Force of Consent Assuming we knew what consent is, we can ask the further question, “What legal and moral effect does consent have and why?
The Moral and Legal Significance of Consent Sometimes it is said that consent works moral magic. What does that mean? The idea is that consent has a tranformative moral power: consent can tranform a wrongful action into a rightful action. Batteries are both morally wrong and and subject to legal sanctions (both criminal and civil), but consent somehow drains the punch of its moral and legal offense. Taking my property with the intent of permanently depriving me of use and enjoyment is theft, but taking my property with consent is simply accepting a gift.
Why Does Consent Have Moral and Legal Force Once we recognize that consent does have some kind of transformative moral and legal force, the next question we might ask is why? There are lots of way to approach the question why consent has moral force. For example, we might approach the question from the perspectives of the major families of moral theories. Let’s give that a whirl.
Autonomy and Consent Some moral theories make “autonomy” a central moral idea. Of course, autonomy isn’t easy to describe—especially in a sentence or so. We might say that the core idea of autonomy is self-direction or self control. An autonomous person is one who directs her own life, and not someone whose life is controlled by others. Of course, we can’t all do whatever we would like without running the risk of interfering with each other. Hence, from the idea of autonomy, we might derive the idea of moral rights and duties that create for each individual a sphere of autonomous action, in which each individual can direct her own life without interfering with the like freedom of others to do the same. The moral force of consent comes naturally if one accepts autonomy as a central moral value. Consent allows others to enter one’s sphere of autonomy. So long a consent is freely given, consented-to rights violations seem perfectly consistent with the idea that rights protect a sphere of individual choice.
Utility and Consent Can utilitarians account for the moral force of consent? Of course, for a utilitarian, consent really can’t be said to be “moral magic.” For utilitarians, the bottom line question is whether a particular state of affairs involves greater utility than the alternatives. So, on the surface, it might seem like consent is not, per se, morally relevant. Consent is just a fact; only good and bad consequences are morally significant.
But it is more complicated than that. There are many possible forms of utilitarianism, and one dimension of variation concerns the various conceptions of utility. One important form of utilitarianism holds that there utility consists in the satisfaction of preferences. Suppose that one also believed that consent was the mental state of preferring the consented-to action to the alternatives. If no third parties were affected (and assuming that consent was freely given on the basis of adequate information), then the consented-to activity would maximize utility. So for at least some utilitarains, consent would be presumptive evidence that the consented-to action would maximize utility and hence be the morally best action.
Virtue and Consent Consent will also be relevant to aretaic (or virtue-based) moral theories. One of the virtues is justice, and humans with this virtue will not violate the rights of others without their consent. Virtue ethics differs from deontological and utilitarian theories in part because virtue ethics denies that there is any decision procedure for ethics. That is, a virtue ethicist is unlikely to believe that consent can work “moral magic,” but instead is likely to believe that the moral salience of consent is contextual—depending on the particular circumstances of the case. Virtue ethics is also likely to ask the question whether the person given the consent is a virtuous agent. Humans without the virtues are likely to give consent when they shouldn’t—when, for examploe, the consented-to action might actually cause unjustified harm to the fortunes or capacities of the consenting agent. In such circumstances, virtue ethics might deny that consent works moral magic. A virtuous agent might regard herself as obligated not to take advantage of consent—despite the fact that the consent was freely given by an agent who meets the legal standard of competence in circumstances without coercion or deception.
Valid and Invalid Consent We have one more important topic to consider. Consent may be invalid. Let’s explore three kinds of reasons for concluding that consent is invalid, and hence that consent does not transform the legal or moral situation: (1) deception, (2) coercion, and (3) incapacity.
Deception Consent obtained by deception may be invalid, either morally or legally or both. For example, if Alice consents to Ben’s kiss, because Ben tells Alice that he likes her very much, but Ben in fact does not like Alice at all, then Alice’s consent may not be morally valid. Because Ben obtained Alice’s consent by deception, Ben is not morally authorized to kiss Alice. In this case, however, the law would not consider Alice’s consent to be legally invalid. Although Ben may be morally wrong if he kisses Alice, he will not have committeed the crime of sexual assault or the tort of battery. Legally, this kind of deception is not sufficient to invalidate Alice’s consent.
Outright fraud—intentionally making false statements about something materially relevant to the decision at hand—is the most obvious form of deception. But deception may involve nondisclosue as well as lying. If Ben fails to disclose to Alice that Ben is married, then Alice’s consent may not be morally transformative—although once again, the law will still treat Alice’s consent as legally valid.
Coercion Consent may also be invalid because it is coerced. For example, if Alice consents to Ben’s kiss because Ben has threatened to harm her if she does, then her consent is invalid. And this is true, both morally and legally. Because consent was coerced, Ben should not kiss Alice and if he does, he will have acted tortiously and perhaps criminally as well.
One problem with coercion is distinguishing threats from offerss and warnings. Consent is not invalidated because it is induced by an offer or warning, but it will be invalidated if induced by a threat. How do we differentiate threats from offers and warnings. One strategy is to specify a baseline of legal and/or moral entitlement. We call a communication promising an action in exhange for consent a threat, if the action would move the party below the baseline of entitlements. We call a communication promising an action in exchange for consent, if the action would move the consenting party above the baseline of moral and/or legal entitlements. So if Ben promises Alice that he will let her choose the movie in exchange for a kiss, that is an offer. If he promises to force Alice to watch a movie she doesn’t like if she doesn’t consent to a kiss, that is a threat.
Warnings are neither offers nor threats. Warnings predict consequences outside the control of the party seeking consent. If Ben predicts to Alice that she will feel silly if she doesn’t consent to a kiss, then he has warned her of a consequence, but he has neither made a threat nor an offer.
Incapacity Consent requires capacity. For example, children cannot consent to sexual relations as a matter of law—hence, consent is no defence to a charge of statutory rape. On the other hand, children can consent to lots of things, including rough play such as wrestling. Other examples of incapacity include mental illness, profound developmental disability, or severe intoxication. If Ben consents to Alice’s taking Ben’s new Mini Cooper on a two-week road trip while Ben is completely blotto (and Alice knows this), then his consent may be invalid and hence Ben may be legally entitled to demand that Alice return his car.
Conclusion Consent is one of those ideas that cuts across courses and theoretical approaches. We’ve barely scratched the surface of consent, but I hope that this post has provided a very basic introduction to some of the key concepts.

Legal Theory Lexicon 041: Metaethics

Introduction Suppose that we are debating a question in normative legal theory--e.g., whether gay couples should have a constitutional right to marry or whether tort law should replace the negligence standard with strict liability. In debates about what the law ought to be, two kinds of questions can arise. There are first order questions, e.g. the conventional arguments of principle or policy for and against particular legal rules. These first order questions involve issues of political morality; that is, normative legal theory involves first-order questions of normative ethics. Sometimes, however, a different sort of issue arises. Second order questions might include the following: "What do statements about what the law should be mean?" or "Are the propositions of normative legal theory objective?" These second order questions of normative legal theory are a subclass of the more general class of second order questions of moral and ethical theory. This is the domain of metaethics.
"Metaethics" may sound rather esoteric, but, in fact, metaethical argumentation is very common, both in ordinary life and in legal theory. Perhaps the most familiar example is the use of moral relativism (or similar positions) in normative argumentation. When one party in an argument asserts something like, "Homosexuality is morally wrong," the reply might be, "No, it isn't. You are mistaken," but another common (perhaps more common) reply is, "That's just a value judgment." The implication is that moral judgments are relative or subjective or just an expression of emotional reactions.
Metaethics is a very big topic, and even a cursory introduction is the subject of a whole course or monograph, but some very basic ideas and terminology can be introduced in a blog post. As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.
Metaethical Questions Metaethics includes a variety of topics, and one good way to get a basic grasp on the field is to simply list some of the questions that are encompassed by (legal)metaethics:
• What is the meaning of moral language? Do statements about what the law ought to be state facts or do they do something else?
  
• Are there moral facts or moral properties? More particularly, are there normative legal facts? If so, then can they be reduced to nonmoral properties or are they somehow different from nonmoral properties?
  
• Can we have knowledge (justified true beliefs) about what the law ought to be? If we can, how is such knowledge possible?
  
• What is the motivational role of moral propositions? Assuming there are moral facts, does the fact that X ought to be the law in any way provide a motive for making X the law?
  
• Are statements about what the law should be objective? If not, are they relative to the norms of some social group? Or subjective? Or meaningless?
Let's explore one or two of these concepts.
Cognitivism and Noncognitivism One of the most important debates in metaethics (from the point of view of normative legal theory) is the debate between cognitivism and noncognitivism. Very roughly, cognitivism is the position that moral statements (such as "There ought to be a constitutional right to privacy.") express beliefs that can be true or false. (Beliefs are "cognitive" states, hence the name "cognitivism.") Noncognitivism denies this and asserts that moral statements express noncognitive states, such as emotions or desires. Noncognitive states (emotions, desires) cannot be true or false.
I think the best way to get a handle on this debate is to take a brief look at a very simple version of noncognitivism. A noncognitivist might assert that when some says that X is morally wrong, they are simply expressing an attitude of disapproval towards X. That is, "X is wrong" means "Boo X." When someone says "X is morally good," they are expressing an attitude of moral approval towards X. The Boo-Hooray theory is a crude version of emotivism--the theory that moral statements express emotions, associated with A.J. Ayer. As I'm sure you've already guessed, contemporary noncognitivists have theories that are more sophisticated than Ayer's; examples of such contemporary noncognitivist theories include Allan Gibbard's norm expressivism and Simon Blackburn's quasi realism.
Cognitivsts assert that moral propositions express beliefs that have cognitive content and hence can be true or false (or at least correct or incorrect). The cognitivist landscape is complex. Some cognitivist theories hold that our moral beliefs track natural properties in the world; others cognitivist theories hold that our moral beliefs are about nonnatural properties: G.E. Moore had a theory like this. Still other cognitivists believe that moral statements can be true or false, but deny that they are about any states of affairs (natural or nonnatural).
A simple example of a naturalist cognitivist theory might be the following: a utilitarian might believe that statements about the rightness or wrongness of actions are about natural states of the world, e.g. the natural properties of pleasure and pain: when I say, action X is right, I mean, X will produce the greatest balance of pleasure over pain as compared the alternative courses of action. In Legal Theory Lexicon 014: Fact and Value, we explored G.E. Moore's "open question" argument against naturalist forms of cognitivism.
It goes without saying that debates over cognitivism and noncognitivism are much richer and complex than the simplified ideas that we've just explored, but the core idea--the distinction between cognitivism and noncognitivism--is accessible and hugely important.
Moral Psychology Another important set of questions in metaethics concerns the relationship between moral judgments and motivation. Suppose one makes a moral judgment that X is morally obligatory. Does it follow that one is motivated to do X? Or can one believe that X is morally required with no motivation to do X? Lot's of folks find it very plausible to think that if one affirms "X is morally obligatory," then one has got to have a motive to do X. "Internalism" is the view that there is some internal or conceptual connection between moral judgments and motivation. "Externalism" is the view that the connection between moral judgment and motivation is external or contingent.
For some forms of noncognitivism, the question whether there is an internal connection between moral judgment and motivation isn't much of a question. If moral statements simply express motivations (to take the easiest case), then it follows that the sentence X is morally obligatory would turn out just to mean, "I am motivated to do X." It will get more complicated for other forms of noncognitivism, but in general and vastly oversimplified terms, if morality is about desire or emotion and if desires or emotions motivate, then moral judgments are closely connected with motivations.
But for cognitivists, things are not so easy. Let's take our utilitarian naturalist cognitivist as an example. I know that if I stop working on my blog and start working for Oxfam, I can produce better consequences. If internalism were true, this would give me a motive to stop working on the blog. Assuming that Hume was right and motives are desires plus beliefs, at the very least, I ought to feel some sort of tug (or other motivating state) pulling in the direction of working for Oxfam. But I don't, in fact, feel such a tug. One way to square these facts (assuming they were true) with cognitivism is to deny that there is an internal connection between moral judgments and motivations. Thus, I might think that some external sanction or internalized norm must be added to the moral judgment in order to produce motivating force.
Conclusion Normative legal theory necessarily implicates metaethics. Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect). That means that most normative legal theories rest on metaethical assumptions. That doesn't mean that you need to be an expert in metaethics to be a good normative legal theorist, but it sure helps to know the very general outlines of the terrain!
Bibliography
• Alexander Miller, An Introduction to Contemporary Metaethics (2003). This is a sophisticated introductory text that outlines classic and contemporary positions in metaethical debates.
  
• A.J. Ayer, On the Analysis of Moral Judgments in Freedom and Morality and Other Essays (1984).
  
• Simon Blackburn, Essays in Quasi-Realism (1993).
  
• Allan Gibbard, Wise Choices, Apt Feelings (1990).
  
• G.E. Moore, Principia Ethica (1903).

Legal Theory Lexicon 040: 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 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 feathers or why the 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 peacock's 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 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, 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 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.
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.)
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! That's bad. Real bad.

Legal Theory Lexicon 039: Primary and Secondary Rules

Introduction Most law students begin to notice that there is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts, on the other. The rules of criminal law seem to define standards of conduct; they are about what you can and cannot do, or more precisely, rules that forbid certain conduct and then attach punishments for disobedience. The rules of contract law are different. It's true that contract remedies do provide sanctions (or prices) for breaking contracts, but most of contract law is about making contracts. In criminal law (and torts), the state makes up the rules of conduct. In contract law, the contracting parties are empowered to create their own rules of conduct.
Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
The Distinction Between Primary and Secondary Rules Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules.
More precisely, primary rules are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation.
Some more examples may help:
Examples of Primary Rules
• Criminal prohibitions.
  
• Tort rules.
  
• The individual right to freedom of speech.
  
• The provisions of contracts that define the primary obligations of the parties.
  
• The environmental law rule that forbids discharge of toxic substances in rivers and streams.
Examples of Secondary Rules
• Contract law rules that enable parties to form contracts.
  
• The rules that allow testators to create a will.
  
• The constitutional rules that confer legislative powers on Congress.
  
• The statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.
The Practical Importance of Secondary Rules One of the really nifty things about Hart's introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.
Conclusion The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments.
One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century.

Legal Theory Lexicon 038: The Internal Point of View

Introduction How can we look at a legal system? H.L.A. Hart famously deployed the distinction between external and internal perspectives on a legal system in his famous book, The Concept of Law. This post provides a very brief introduction to this distinction for law students (especially first-year law students) with an interest in legal theory.
Internal and External What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea is fairly clear. The internal point of view is the perspective of participants in the system. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system.
Here are some examples:
--Doctrinal theories (e.g. a theory of the Commerce Clause of the United States Constitution) are usually stated from the internal point of view. This is the kind of theory that law students usually encounter early in their legal education.
--Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this.
The General Significance of the Internal Point of View The idea of the internal point of view plays a particular role in H.L.A. Hart's theory of law, but this post is about a related but distinct topic--the more general role that the internal/external distinction plays in legal theory. Newbie legal theorists need to know this distinction in order to avoid a very serious mistake in theory development. That mistake is to slide between the internal and external point of view. This mistake is actually quite easy to make. The theorist is working within the internal point of view--describing a particular legal doctrine from the point of view of lawyers and judges who work within the constraints of the doctrine. Then, the theorist slides into an explanation as to how the law came to be the way it is--describing the operation of political or economic pressures--and then slides back to the doctrinal level--drawing the conclusion that the law should be interpreted differently in light of the causal explanation. Arguments like this can be made to work, but unless the relationship between the causal explanation and the doctrinal consequence is explained carefully, this kind of move can easily involve a category mistake. Causal explanations (of how the law has come to be the way it is) are usually irrelevant from the internal point of view.
Rules and the Internal Point of View The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?"
If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study.
Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view.
The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions.
Conclusion The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories

Legal Theory Lexicon 037: 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 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).
For a short time, the ability to see this pattern may be exhilarating. You begin to see big patterns that transcend courses and doctrines. But after a while, exhilaration may give way to depression. 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 between deontology and consequentialism or between libertarians and communitarians 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 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 deep questions, so go shallow. 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, head for 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.
Incompletely Theorized Agreements Cass Sunstein has a related but different idea. 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!

Legal Theory Lexicon 036: Indeterminacy

Introduction It all depends on your first year section, but many law students begin to get a sinking feeling about the law early in their first year. Does the law actually make any difference to the way cases are decided? Before law school, most of us would answer "Yes, of course." And many law students start law school with the assumption that they will "learn the rules." But in contemporary American legal education, many students encounter a thesis that goes something like this:
The laws have nothing to do with how cases come out. They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please.
This counterintuitive position is a version of the claim that law is indeterminate, or what we might call the indeterminacy thesis.
The Indeterminacy Debate The indeterminacy thesis is associated with legal realism, but in its most strident form, it is most strongly identified with the Critical Legal Studies movement--a loose and multifaceted cluster of legal scholars that became very prominent in the 1980s.
The indeterminacy debate is about the claim that the law does not constrain judicial decisions. Put differently, the claim is that all cases are hard cases and that there are no easy cases. The strongest version of the claim is the notion that any result in any legal dispute can be justified as the legally correct outcome, but the thesis can be modified or weakened in various ways.
What does the indeterminacy thesis mean? Let's call the claim that the laws (broadly defined to include cases, regulations, statutes, constitutional provisions, and other legal materials) do not determine legal outcomes the indeterminacy thesis. Because there are many different versions of the indeterminacy thesis, our approach will be to identify clearly the distinct versions of the indeterminacy thesis and then to consider each version of the thesis on its own merits.
Indeterminacy versus Underdeterminacy The next step in clarifying the indeterminacy debate is to distinguish between "indeterminacy" and "underdeterminacy" of law. Thus far, we have accepted the implicit assumption that indeterminacy and determinacy are exhaustive categories, i.e. that the decision of a case is either determined by the law or it is indeterminate. This assumption is not correct. A legal dispute may be constrained by the law, but not determined by it.
Roughly, an case is underdetermined by the law if the outcome (including the formal mandate and the content of the opinion) can vary within limits that are defined by the legal materials. This approximation can be made more precise by considering the relationship between two sets of outcomes of a given case. The first set consists of all possible results — all the imaginable variations in the mandate (affirmance, reversal, remand, etc.) and in the reasoning of the opinion. The second set consists of the outcomes that can be squared with the law — the set or legally acceptable outcomes. The distinctions between indeterminacy, underdeterminacy and determinacy of the law with respect to a given case may be marked with the following definitions:
• The law is determinate with respect to a given case if and only if the set of legally acceptable outcomes contains one and only one member.
• The law is underdeterminate with respect to a given case if and only if the set of legally acceptable outcomes is a nonidentical subset of the set of all possible results.
• The law is indeterminate with respect to a given case if the set of legally acceptable outcomes is identical with the set of all possible results.
Hard Cases The notion of a "hard case" can now be explicated with reference to the idea of underdeterminacy. A case is a "hard case" if the outcome is underdetermined by the law in a manner such that the judge must choose among legally acceptable outcomes in a way that changes who will be perceived as the "winner" and who the "loser." The point is that the outcomes of an case need not be completely indeterminate in order for it to be a hard case; a case in which the results are underdetermined by the law will be "hard" if the legally acceptable variation makes the difference between loss or victory for the litigants. The distinction between indeterminacy and underdeterminacy is rarely observed in the indeterminacy debate, but it is nonetheless important to assessing the debate. Claims that the law is radically indeterminate are implausible, but more modest claims about underdeterminacy may both be defensible and play a role in a radical critique of liberal legal theory.
Is the law radically indeterminate? The strongest (the most ambitious) claim about the indeterminacy of law is the claim that in every possible case, any possible outcome is legally correct. In other words, the strong indeterminacy thesis is the claim that the law is radically indeterminate:
The Strong Indeterminacy Thesis: In any set of facts about actions and events that could be processed as a legal case, any possible outcome — consisting of a decision, order, and opinion — will be legally correct.
To falsify the strong indeterminacy thesis one needs to establish that there is at least one possible case in which at least one possible outcome is legally incorrect. This refutation would disprove the strong indeterminacy thesis only in the sense stipulated here; it would not establish that the law is always, usually, or even frequently determinate.
The Argument from Easy Cases One way to establish that there is at least one possible case in which at least one outcome is legally incorrect has been called "the argument from easy cases" by Fred Schauer. In its simplest form, the argument from easy cases points to a hypothetical case in which at least one outcome is legally incorrect. The following discussion attempts to formulate one such easy case:
Consider the following case, consisting of facts, a legal rule, and a legal event. First, postulate the following set of events and actions: Ben visited Point Magu State Beach in Ventura County, California between the hours of 12:30 p.m. and 4:00 p.m. on Sunday, February 14, 2004. Second, consider the following legal rule: Section 2 of the Sherman Antitrust Act states, "Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . ." (26 Stat. 209 (1890)). Third, consider the following claim about a possible case: Ben's visit to the beach on the date and time specified would not constitute a violation of Section 2 of the Sherman Act. In order fully to convince you of this, I would need to tell you more about what went on at the beach on that day. The details will include Ben's looking at the ocean, speaking with friends about politics, reading a book, and so forth. Children flew kites; a friend grilled chicken and hot dogs. You might want to know whether Ben discussed any business dealings at the beach: he did not. But no matter how many questions you asked, no matter how hard you tried, you would not be able to make out a legally valid case that the Sherman Act was violated. If a prosecution were filed against Ben based only on the events specified, a verdict of guilty would be legally incorrect. This is not to deny that it is possible that things would go wrong in some way. Perjury might be committed; the judge assigned to the case might be deranged. Our system of justice is hardly foolproof, but that does not entail the further conclusion that any result is legally correct.
The upshot of this example of an easy case is this: there is at least one possible case in which at least one possible outcome is legally incorrect. Therefore, the strong indeterminacy thesis (as I have defined it) is false. Notice my argument is not that the outcome of an antitrust prosecution based on the facts I outline is predictable. Rather, my claim is that one possible outcome, i.e. conviction, would be legally incorrect. If the law is correctly applied and the witnesses testify truthfully, the prosecution should fail.
Changing the Hypothetical Of course, we can easily change the hypothetical so that the legally correct outcome would change. Just add a conspiratorial conversation at the beach that does violate the Sherman Act. But the fact that the hypothetical can be changed so as to change the legally correct outcome is not responsive to the argument from easy cases. Let us stipulate for the sake of argument that it is always be possible to add facts to an easy case such that the addition of the new facts will change the legally correct outcome of the case. This does not demonstrate that there are no easy cases. Quite the contrary, the fact that the advocate of the strong indeterminacy thesis needed to add facts to the easy case in order to change the legally correct outcome shows that as originally stated the easy case was not indeterminate. If the strong indeterminacy thesis were true, then a reasonable legal argument should be available on the facts as originally stated in the hypothetical. The additional facts should not be necessary. That facts must be added to transform an easy case into a hard one demonstrates that the law does constrain the set of legally correct outcomes.
Is a modest version of the indeterminacy thesis defensible? If the strong indeterminacy thesis cannot be supported, is there a more modest claim about indeterminacy that is defensible and has critical bite? One modest version of the indeterminacy thesis might be the following: in most (or almost all) of the cases that are actually litigated, the outcome is underdetermined by the law. This claim about indeterminacy is not refuted by the argument from hypothetical easy cases. Confirmation of the actually-litigated underdeterminacy thesis would require empirical investigation, but there are some good reasons to believe that cases which actually proceed to filing, trial, or appeal will frequently be underdetermined by the law. Litigants will rarely have an incentive to settle easy cases. For example, in a civil dispute where the law gives a determinate answer to the question of who will win and what the amount of their judgment will be, the parties to litigation will usually prefer to settle, rather than incur the expenses of litigation. Uncertainty about the law is one of the factors that selects which cases will be filed, go to trial, and be appealed. This point should not be exaggerated, however: litigation may proceed for any number of reasons, including an irrational overconfidence in a hopeless case, uncertainty about facts in a case in which the law is clear, and so forth.
Important Cases Another modest version of the indeterminacy thesis claims that while many ordinary cases are roughly determinate, all the really important cases are indeterminate. Put more precisely, the claim might be that the important issues in important cases are underdetermined by the law. If true, this claim might preserve almost all of the critical force of the strong indeterminacy thesis. Yes, there are easy cases, but those cases are unimportant.
One difficulty with the important case version of the indeterminacy thesis is its potential circularity. Our concept of what counts as an important case may have indeterminacy as a component. Part of what makes a case important is that the result is not certain or predictable; if we all knew how the case would come out, we would not be interested. Likewise, the Supreme Court may select cases in part on the basis of their legal indeterminacy.
Conclusion I have just begun to scratch the surface of the indeterminacy debate, but I hope that I've provided enough perspective so that you can begin to think about this important question on your own. As I'm sure you know by now, I am not a fan of the radical indeterminacy thesis, but I also think it is important to recognize that the law is underdeterminate in important ways.
For more on the indeterminacy debate, see Lawrence On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987). (online here)

For a complete collection of the Legal Theory Lexicon posts with a table of contents, click here.

Legal Theory Lexicon 035: Strict Construction & Judicial Activism

Introduction This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that are unimportant (or even meaningless), strict construction and judicial activism.
Strict Construction Strict construction is short hand for the idea that the United States Constitution should be strictly construed. The phrase appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised that he would appoint judges who were "strict constructionists" as opposed to the "judicial activism" that characterized the Warren Court, but the phrase has much earlier origins and may go back as far as the late eighteenth century.
The question is: what does strict construction mean? Is there really a method of constitutional interpretation described by the phrase "strict construction" or is this a mere political slogan? The confusion engendered by the term is illustrated by the following definition (offered on law.com):
strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.
This definition borders on incoherence, opposing "strict construction" to both originalism and to the notion of a living constitution--ideas that might be thought antithetical to one another. So can we offer a better definition of strict construction? One way to approach this question is via the method of separation of cases. What are the possible meanings of strict construction?
• Strict Construction as "Textualism". One possibility is that strict construction refers to textualism--the idea that all constitutional interpretations must be grounded in the text of the Constitution. There are two difficulties with this suggestion. First, almost all of the Warren Court jurisprudence to which strict constructionism was opposed was rooted in the text of the Constitution in some way. Even the "unenumerated rights" jurisprudence (e.g. the right to privacy at issue in Griswold v. Connecticut and Roe v. Wade) was grounded in the text of the 14th amendment. Second, this definition provides no content to the idea that constructions must be "strict."
  
• Strict Construction as "Literalism". Another possibility is that strict construction involves literal rather than purposive interpretations of the constitutional text. Perhaps, a strict construction is one that reads each clause of the Constitution to mean what the plain language says and nothing more. This idea is more promising than textualism, because it gives some real bite to the idea of "strictness" in construction. The difficulty is that the proponents of "strict construction" (and others) have rarely advocated a thorough-going literalism. That approach would, for example, mean that the First Amendment to the Constitution applies only to Congress (and not to the states, the executive, or to common-law doctrines). Other provisions of the Constitution don't seem to have any determinate literal meaning--the due process clause, the privileges and immunities clause, and the republican form of government clause come to mind.
  
• Strict Construction as "Originalism". Yet another possibility is that strict construction refers to some form of originalism, either original-intention originalism or original-meaning originalism. (The former looks to the intentions of the framers, whereas the latter looks to the way the text would have been understood by citizens when it was adopted.) Original-intentions originalism does not fit well with the label "strict constructionism" as it would allow courts to take into account intentions of the framers that are not "strictly speaking" in the constitutional text. The latter is a much better fit with the idea of strict construction, but the label "strict construction" is simply not very descriptive of the idea that the constitutional text should be read today in a way that fits the way it would have been read at the time it was adopted.
  
• Strict Construction as a "Presumption of Constitutionality". Yet another possibility is that the constitution should be construed against challenges to the constitutionality of legislation or executive action. The idea of a presumption in favor of the constitutionality of challenged action is certainly a coherent idea, but it is not clear why such a presumption should be called "strict construction." One might naturally assume that a strict construction of the constitution would invalidate government action that contravened the meaning of the constitutional text.
We could go on, but I think you will now see the point. It simply isn't clear what "strict construction" means. Once you actually give content to the idea of strict construction, then the label isn't particularly description and better names can be given to the view that strict construction could name. For this reason, most serious constitutional theorists avoid using the phrase "strict construction." If you think you have a good reason to continue using this phrase, you might give serious consideration to offering a very careful definition when you first introduce the term.
Judicial Activism In conservative political discourse in the United States, "strict construction" is good and "judicial activism" is bad. But what is judicial activism? Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term "judicial activism" is that it translates best as "judicial decision making with which I disagree." To see why this is so, once again let us consider the possible interpretations of the phrase:
• Judicial Activism as Nonabstention. One idea would be that activist judges decide cases, whereas passive judges abstain. This would make sense of "judicial activism," but it is completely unattractive as a normative ideal. Judges need to decide cases; they need to be active in the sense that they resolve controversies.
  
• Judicial Activism as Exercise of the Power of Judicial Review. A second possibility is that judicial activism means striking down statutes or invalidating executive action. A passive judge approves the conduct of the other branches of government; an active judge strikes such conduct down. Once again, this interpretation is coherent, but hardly anyone thinks that it is per se wrong for judges to invalidate unconstitutional governmental action. Very few critics of "judicial activism" would criticize a court that struck down a federal statute requiring every American to attend the services of a particular denomination. Nor would many critics of judicial activism endorse a judicial decision that upheld a law reestablishing slavery. So activism is not meant to be equated with "deciding to strike down a statute or executive action."
  
• Judicial Activism as Incorrect Exercise of the Power of Judicial Review. What is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches. This naturally leads to the question, "What makes an exercise of the power of judicial review wrongful?" The answer to that question is a theory of constitutional interpretation. Different theories authorize different sets of invalidations. So, adherents of different constitutional theories would apply the label "judicial activism" to different sets of decisions.
And that's the problem with the phrase "judicial activism." One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.
Conclusion This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally. For that reason, it is very important for constitutional theorists to be very careful about their use of language.
Links Chad Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide

Legal Theory Lexicon 034: Hohfeld

Introduction You need to know Hohfeld. Why? Because W.N. Hohfeld’s typology of rights from his book Fundamental Legal Conceptions is, well, fundamental. And useful!
Law students encounter the idea of right (moral or legal) early and often. But “rights talk” is frequently “loose talk.” Hohfeld is famous for exposing the ambiguity in the concept of a right and resolving that ambiguity with a typology of rights that distinguishes between claims, liberties, authorities, and immunities. This post is a quick and dirty introduction to Hohfeld for law students (especially first year law students) with an interest in legal theory.
Types of Rights and Correlative Duties Lawyers tend to mush all legal rights together into a single category. The right to privacy, the right to freedom of speech, property rights, and civil rights—these diverse legal phenomena are frequently treated as if the “right” involved in these diverse cases was a single unambiguous type. Hohfeld’s first contribution was to distinguish different types of rights. Claim rights, for example, create corresponding obligations. Thus, my right to exclusive use of my land entails a corresponding duty of noninterference. You have a duty not to enter upon my land. But my property right also entails my liberty to use my land in a wide variety of ways—to build a house, plant a garden, and so forth. Correlated to that liberty is a correlative absence of inconsistent claim rights. You have no right to prevent me from building a house or planting a garden. Some legal rights involve powers over others. Thus, an employer has a right to control and direct the employee’s actions at work, and parents have authority over their children. Finally, there are immunities from authority. Thus, when children reach the age of majority or are legally emancipated they acquire immunities that disable the authority rights of their parents.
Implicit in our discussion so far is Hohfeld’s second big idea, which is that each kind of right (claim, liberty, authority, and immunity) has a correlative legal consequence for others. Claim rights have correlative duties. Liberty rights correlate with an absence of claims. Authority rights correlate with liabilities. Immunities correlate with the absence of authority.
Four Types of Rights The following list enumerates Hohfeld’s basic schema, identifying each kind of right and the correlative legal consequence. P is the party with the right. Q represents the person or group of persons on whom the right has a legal effect. X represents the object of the right.
Claim Rights
Rights relation:
P has a claim against Q to X.
Correlative relation:
Q has a duty to P to X.
Liberty Rights
Rights relation:
P has a liberty against Q to X.
Correlative relation:
Q has no claim against P to not-X
Authority Rights:
Rights relation:
P has authority over Q to X
Correlative relation:
Q has a liability to P to X.
Immunity Rights
Rights relation:
P has an immunity against Q to X.
Correlative relation:
Q has a disability (no authority) against P to not-X.
Moral and Legal Rights Hohfeld was interested in legal rights, but we can extend his scheme to moral rights. Thus, if I have a moral claim right to performance of a promise, you have a corresponding moral duty to perform. Of course, many legal rights are identical to (or substantially the same as) similar moral rights. Contracts, for example, create both moral and legal obligations. Some moral rights, however, may not be reflected in the law. For example, I may have a moral obligation not to discriminate on the basis of race when letting a room in my home, but at the same time have a legal liberty right to engage in such discrimination.
Conclusion That’s Hohfeld in a very short nutshell!
If you are still in exams, good luck on the remainder of your tests. If you exams have ended, my best wishes for the summer. The Legal Theory Lexicon will continue throughout the summer.

Legal Theory Lexicon 033: Holism

Introduction Our topic this week is “holism,” more particularly the idea that theories of the law are (or “should be” or “can be”) holistic. Legal holism can be captured in a famous slogan, “The law is a seamless web,” and the contemporary legal theorist who is most associated with legal holism is Ronald Dworkin.
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory.
And before we get on with it, a brief digression on the origins of the phrase. The idea of the law as a seamless web seems to be derived from a related idea--that thistory is a seamless web--found in the writiings of Frederic Maitland: "Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web." Frederic William Maitland, A Prologue to a History of English Law, 14 L.QUARTERLY REV. 13 (1898).
The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region.
Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting.
Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.”
Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts.
Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull.
Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles.
At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”).
Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity.
Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level.
Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency.
Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local.

Legal Theory Lexicon 032: Fit and Justification

Introduction In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously ch 4 (Harvard University Press, 1977)). This is one of the most famous and influential articles in contemporary legal theory, and I would put it very high on my recommended legal-theory reading list. Lot's of Dworkin's ideas are very controversial, but one of his claims has become part of the way that most legal academics think about the law in general and the enterprise of judging in particular. I am referring to Dworkin's distinction between "fit" and justification" and his claim that when judges decide hard cases, they choose the interpretation of the law that best fits and justifies the existing legal landscape--the constitution, statutes, regulations, and common law.
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise.
The Basic Idea Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin's basic idea is that the process of deciding a hard case has two dimensions--fit and justification. First, the judge might ask herself, "Of all the possible interpretations of the law that I could adopt as the basis for my decision, which one is consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent." When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, "Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole.
? Fit What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification.
Justification What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of rustication? Let's continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let's suppose our judge decides that the tort of negligence is best understood as a system of compensation and "risk spreading." She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I'm sure all of you can do better.]
In other words, the judge asks the question, "What normative theory best justifies the existing law and negligence?" And then proceeds to the question, "Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?" Two Kinds of Justification: Principle and Policy In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of "principle" and "policy." As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy.
Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin's sense.
If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism.
Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial--as you could guess if, like most law students, you've heard endless discussion of policy in the classroom. But Dworkin could be right about "fit and justification," even if he is wrong that the dimension of justification is limited to principle and excludes policy.
Conclusion It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a "hard case," an aspect of the fact pattern that is intended to trigger your discussion of the question, "What should the rule be?," with respect to some controversial legal issue. If you try to answer the question, "What should the rule be?," by telling your instructor, "Here is the majority rule," or "Here are two alternative rules; I don't know which one is the law, you will have missed the point of the question!
And that's where Dworkin comes in. You can use "fit and justification" as the basis for organizing your answer to a "What should the law be?" question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, "Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts."

Legal Theory Lexicon 031: Virtue Jurisprudence

Introduction Law students with a background in philosophy are sure to notice the strong influence of moral philosophy on legal thinking. Theories like Kant's have had a profound influence on the idea of fairness in legal theory and on the conception of rights that is at the heart of deontological legal theory. Utilitarianism and the law reform agenda of Jeremy Bentham provide an important part of the normative version of law and economics. But if you recently studied moral philosophy as an undergraduate or in graduate school, you might notice that something is missing. The moral philosophy pie can be cut in many ways, but the conventional slicing divides normative moral theory into three kinds: (1) deontological moral theores (e.g. Kant), (2) consequentialist moral theory (e.g. utilitarianism), and (3) aretaic moral theory (e.g. virtue ethics). Recently, however, a variety of legal theorists have begun to consider the implications of aretaic (virtue-centered) moral theory for the law.
This entry in the Legal Theory Lexicon series provides an introduction to "virtue jurisprudence." As always, the discussion is aimed at law students, especially first-year law students, with an interest in legal theory.
Modern Moral Philosophy and Contemporary Legal Theory The Legal Theory Lexicon already includes entries on Utilitarianism and Deontology, two of the most influential approaches for moral philosophy. In an essay titled Modern Moral Philosophy, Elizabeth Anscombe famously noted persistent problems with the deontological and utilitarian approaches that dominated normative ethics when she wrote in 1958. Anscombe's suggestion was for moral philosophers to return to Aristotle, and that is just what happened. Starting in the 1960s and accelerating through the 1980s and 1990s, there was a trickle and then an avalanche of philosophical work on virtue ethics--an approach to moral theory that emphasizes character and the virtues--as opposed to right action (deontology) or good consequences (utilitarianism). A prior entry in the Legal Theory Lexicon provided an introduction to virtue ethics and you might want to review that before you continue with this post.
Modern legal theory has strong connections with modern moral philosophy. Historically, the connection is evident in the work of Jeremy Bentham: his work combined a conceptual separation of law and morality with a utilitarian program of legal reform. Contemporary legal scholarship frequently invokes general moral theories, including preference-satisfaction utilitarianism and deontological theories like Kant’s, to make arguments about what the law should be. Such normative legal theories are addressed to lawmakers (in the broad sense), including legislators and adjudicators. Developments in political philosophy, sparked by John Rawls’s A Theory of Justice and its libertarian and communitarian critics, have met with avid attention from the legal academy.
Virtue Ethics and Legal Theory There is, however, an exception to general reflection of developments in moral philosophy in legal theory. Legal philosophy (as practiced by philosophers or academic lawyers) has only recently paid attention to one of the most significant developments in moral theory in the second half of the twentieth century, the emergence of virtue ethics.
An outpouring of articles and monographs attests to the interest of philosophers in virtue ethics. In the law, the situation has been different. The hegemony of deontological and utilitarian theories prevails, at least among legal theorists working in the common-law tradition. There are, however, a growing number of exceptions to this hegemony. Kyron Huygens (of Punishment Theory) and Stephen Bainbridge (of ProfessorBainbridge.com) are just two of a growing number of legal scholars who have discussed virtue ethics in their work.
Towards a Virtue Jurisprudence A full account of the implications of virtue ethics and epistemology for legal theory is a very large topic. Among the issues raised by virtue jurisprudence are the following:
• Virtue ethics has implications for an account of the proper ends of legislation. If the aim of law is to make citizens virtuous (as opposed to maximizing utility or realizing a set of moral rights), what are the implications for the content of the laws?
  
• Virtue ethics has implications for legal ethics. Current approaches to ethical lawyering emphasize deontological moral theory, i.e. duties to clients and respect for client autonomy, and these deontological approaches are reflected in the various codes of professional conduct that have been devised for lawyers, judges, and legislators. How can we reconceive legal ethics from a virtue-centered perspective?
  
• Accounts of the virtue of justice (in particular, Aristotle’s and Aquinas’s theories of natural justice) have implications for debates between natural lawyers and legal positivists over the nature of law.
In this Legal Theory Lexicon post, however, I will discuss only one aspect of virtue jurisprudence--a virtue-centered theory of judging in general and the virtue of justice in particular. Virtue-centered theories of judging answer the question: How should judges decide the controversies that are presented to them? A virtue-centered theory of judging provides an answer along the following lines: Judges should decide cases in accord with the virtues, or judges should render the decisions that would be made by a virtuous judge.
A Virtue-Centered Theory of Judging How would a virtue-centered theory of judging go? Let’s begin with the uncontroversial idea that good judging is inconsistent with the worst judicial vices and that it requires some minimal set of judicial virtues.
The Thin Theory of Judicial Vice Begin with the assumption that humans have characters. More particularly, let’s assume that humans have dispositional traits that incline them to behave in more or less predictable ways. Our vocabulary is rich with words to describe such traits. We use terms like “coward,” “procrastinator,” “reliable,” “hard-working,” “studious,” “curious,” “sensitive,” and so forth. Following Aristotle, let’s sort the traits, picking out those which we count as human excellences, “virtues,” and those which we count as defects, “vices.” Let’s set the virtues and any traits that are neutral to the side, and focus on the defects—traits like cowardice, gluttony, avariciousness, foolishness, and so forth.
Are there judicial vices that are inconsistent with excellence in judging? Once asked, the question answers itself. Hardly anyone thinks that corruption and incompetence are consistent with excellence in judging.
We can systematize the worst judicial vices, borrowing Aristotle’s distinction between intellectual and moral character traits. There are two important intellectual vices that are inconsistent with excellent judging. The first of these is judicial stupidity. Judges who suffer from this vice in its worst form lack the intelligence (and hence also the knowledge) necessary to do the complex intellectual work required of judges. They do not know what the rules of law are, and they are unable to see how they could be applied in particular fact situations. The second intellectual vice is judicial foolishness. Even a very smart judge can have terrible practical judgment. A foolish judge may know the law, but he cannot discern the difference between the rules that are important to the case and those that are only marginally relevant. Foolish judges are likely to make impractical demands are the lawyers and parties who appear before them.
There are also moral vices that should are inconsistent with excellent adjudication. The most obvious of these is corruption. Judges should not accept bribes. Although judges are only infrequently in physical danger, they are more frequently faced with situations in which rendering the legally correct decision might injure their popularity, social standing, or opportunities for promotion or nonjudicial work. Hence we should not select civil cowards for judicial office. Judges are often placed in anger-inducing situations. A judge who is prone to fly off the handle at small provocations is not likely to be effective in the courtroom, and hence we ought not to select the hot-tempered for judicial office.
What I have offered is a thin theory of judicial vice. This is a thin theory, because it rests on very weak assumptions about what counts as bad character. So far as I can see, no sensible normative account of judicial selection provides good reasons to reject the normative implications of the thin theory of judicial vice. No one wants stupid, foolish, corrupt, cowardly, or hot-tempered judges. Of course, these vices are not always apparent when candidates are nominated and confirmed for judicial office. There are, I am afraid, some judges on the bench today who possess the full range of these vices.
The Thin Theory of Judicial Virtue The next step in our investigation of the judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of judicial virtues. Why? The basic reason is conceptual: virtue is required for the absence of vice. To select a judge who lacks the intellectual defect of judicial stupidity, you must select a candidate who has the corresponding virtue of judicial intelligence. To avoid, civic cowardice, you must select a judge with the virtue of civic courage. To avoid corruption, you must select a judge with the virtue of temperance. To avoid, ill temper, you must look for candidates who have judicial temperaments. A fully-developed virtue jurisprudence would flesh out this list of judicial virtues--specifying the character traits and mental abilities that make for good judging.
A Preliminary List of the Judicial Virtues So let's make a tentative list of judicial virtues:
Judicial Sobriety "Sober as a judge" is the say that expresses the idea that judges should have what was classically called the virtue of temperance. Good judging requires that one’s desires be in order. This is clear when the temperate judge is contrasted to the judge who lacks the ability to control her appetites. Judges who care too much for their own pleasures are prone to temptation; they are likely to be swayed from the course of reason and justice by the temptations of pleasure. A libertine judge may indulge in pleasures that interfere with the heavy deliberative demands of the office. Hence, the saying “sober as a judge,” reflects the popular understanding that excessive indulgence in hedonist pleasures would interfere with excellence in the judicial role.
Judicial Courage A second virtue, judicial courage is a form of “civic courage.” The courageous judge is willing to risk career and reputation for the ends of justice.
Judicial Temperament A third virtue, judicial temperament, corresponds to the vice of bad temper. The traditional concern in judicial selection with judicial temperament is illuminated by Aristotle's account of the virtue of good temper or proates: the disposition to anger that is proportionate to the provocation and the situation. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner.
Judicial Intelligence The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry. Of course, judicial intelligence is related to theoretical wisdom in general, but the two are not necessarily identical. The talents that produce theoretical wisdom in the law may be different from those that produce the analogous intellectual virtue in physics, philosophy, or microbiology. Or it may be that theoretical wisdom is the same for all these disciplines. If this is the case, then judicial intelligence may simply be general theoretical wisdom supplemented by the skills or knacks that produce fine legal thought combined with deep knowledge of the law.
Judicial Wisdom The final virtue on my short list is the corrective for bad judgment or foolishness. I shall use the phrase “judicial wisdom” to refer to a judge’s possession of the virtue of phronesis or practical wisdom: the good judge must possess practical wisdom in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances. The person of practical wisdom knows which particular ends are worth pursuing and knows which means are best suited to achieve those ends. Judicial wisdom is simply the virtue of practical wisdom as applied to the choices that must be made by judges. The practically wise judge has developed excellence in knowing what goals to pursue in the particular case and excellence in choosing the means to accomplish those goals. In the literature of legal theory, Karl Llewellyn’s notion of “situation sense” captures much of the content of the notion that judicial wisdom corresponds to the intellectual virtue of phronesis.
This abstract account of judicial wisdom can be made more concrete by considering the contrast between practical wisdom and theoretical wisdom in the judicial context. The judge who possesses theoretical wisdom is the master of legal theory, with the ability to engage in sophisticated legal reasoning and insight into subtle connections in legal doctrine. But even a judge who possesses judicial intelligence is not necessarily a reliably good judge, even if she employs the correct decision procedure in her judicial decision-making. Why not? An answer to this question begins by clarifying the distinction between judicial intelligence and judicial wisdom.
Beyond a Thin Theory of Judicial Virtue A thin theory of judicial virtue should prove uncontroversial because it avoids the tough questions about judging. Formalists and realists, conservatives and liberals—all can endorse a thin theory of judicial virtue, because thin theories don’t answer hard questions. We can distinguish thin theories of judicial virtue from theories that are “thick.” A thick theory of judicial virtue expands the list of judicial excellences to include characteristics of mind and will that are controversial. Corresponding to any particular normative theory of judging we can postulate a thick theory of judicial virtue that specifies those dispositions and capacities that are required for excellent judging according to the criteria provided by the particular theory.
An example may help. Consider Dworkin’s imaginary judge, Hercules, who decides cases by constructing the theory that fits and justifies the law as a whole; this task can only be accomplished by someone who is able to appreciate legal complexity and to see the subtle interconnections between various legal doctrines summarized in the slogan, “the law is a seamless web.” Moreover, Dworkin’s theory requires judges to have a special concern for the coherence of the law, a virtue we might call “judicial integrity.” But other normative theories of judging may not value this characteristic. For example, “judicial integrity” might not be important to an act-utilitarian theory of judging. Perhaps, the act-utilitarian would consider Hercules to be obsessed with consistency—the hobgoblin of a foolish mind.
Instrumental and Virtue-Centered Theories Thick theories of judicial virtue may be divided in two kinds, instrumental and virtue-centered. Instrumental theories of judicial virtue are those which begin with some independent criteria for what constitutes a good judicial decision and then selects a list of judicial virtues based on those criteria. For example, many normative theories of judging are decision (or outcome) centered. A decision-centered theory offers criteria for what should count as a good, right, just, or legally valid decision. For a decision-centered theory of virtue, the notion of a correct decision is primary and the judicial virtues are derived from it. Thus, Dworkin’s description of Hercules begins with the criteria for good decisions and then constructs the ideal judge who is able to render such decisions. By way of contrast, a virtue-centered theory does not proceed in this way. Rather, a virtue-centered theory begins with the an account of the virtuous judges as primary and then proceed to derive the notion of a virtuous decision from it.
A Virtue-Centered Theory So what would a virtue-centered theory look like? This is just a blog post, so I can only give you a brief outline. For the sake of simplicity and clarity, we can formulate a virtue-centered theory of judging in the form of five definitions:
• A judicial virtue is a naturally possible disposition of mind or will that when present with the other judicial virtues reliably disposes its possessor to make just decisions. The judicial virtues include but are not limited to temperance, courage, good temper, intelligence, wisdom, and justice.
  
• A virtuous judge is a judge who possesses the judicial virtues.
  
• A virtuous decision is a decision made by a virtuous judge acting from the judicial virtues in the circumstances that are relevant to the decision.
  
• A lawful decision is a decision that would be characteristically made by a virtuous judge in the circumstances that are relevant to the decision. The phrase “legally correct” is synonymous with the phrase “lawful” in this context.
  
• A just decision is identical to a virtuous decision.
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.
Conclusion Of course, this very short introduction raises many more questions than it answers. But I hope that even this very sketchy account of one aspect of virtue jurisprudence has sparked your interest. Some of the most interesting applications of virtue ethics to legal theory can be found in torts and criminal law, and we haven't even touched on those. Another very interesting set of questions arises from the notion that the aim of the law is to inculcate virtue--an idea that may be at odds with pluralist idea that morals is a matter of individual choice.
For a short introduction to my own work, check out Virtue Jurisprudence: An Aretaic Theory of Judging.

Legal Theory Lexicon 030: Textualism

Introduction One of the most important topics in legal theory is “legal interpretation,” the theory of the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. As always, the Legal Theory Lexicon is designed for law students—especially first year law students—with an interest in legal theory.
Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate:
• Level One: Meta Theories of Interpretation—One kind of theory examines questions like, “What does ‘interpretation’ mean?” and “How is ‘interpretation’ possible?”
  
• Level Two: Normative Theories of Interpretation—A second kind of theory addresses the normative question, “What should legal interpretations aim at?” Among the answers to this question are: (a) the morally best reading of the legal text; (b) the intentions of the authors of the legal text, and (c) the plain meaning of the legal text.
  
• Level Three: Methodological Theories of Interpretation—A third kind of theory aims to provide practical advice to legal actors (judges, lawyers, administrative officials, and citizens) about the techniques they can use to interpret various types of legal texts.
Textualism, the subject of this post, can operate at any one of these three levels. That is, textualism could be the view that what legal texts really mean is their plain meaning. Or textualism could be the view that legal interpreters ought to interpret legal texts to have their plain meaning, even if that is not their true or deep meaning according to the best meta theory of interpretation. Or textualism could simply be a practical technique—a method that judges should employ. In this post, the primary focus will be on level two—textualism as a normative theory—with some discussion of level three. Level one, metatheory, gets us into a thorny set of issues that I hope to take up in a subsequent entry in the Legal Theory Lexicon series.
The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.).
But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.
An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
Speaker’s Meaning and Sentence Meaning This idea of plain meaning assumes a distinction that can be formulated in terms of the difference between speaker’s meaning and sentence meaning. The speaker’s meaning of a given utterance (or author’s meaning of a given text) is the meaning that the speaker intended the audience to glean for the utterance (or text). This involves a reflexive set of expectations. What? When I write a text, I understand that the reader know certain things about my having authored the text. When I try to communicate, I take these expectations into account in deciding how to use language to communicate a certain meaning. For example, if I know that my readers know that I know that they know a particular convention, then I can use that convention to communicate to them. (By the way, there are no typos in the prior sentence, all those “knows” are in there for a reason.)
So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries.
In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience.
Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions about meaning.
Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning.
The Case for Textualism If we view textualism as a normative theory of interpretation, we need to ask to ask why interpreters of legal texts should aim for interpretations that yield that “plain meaning of the text.” The usual answer to this question is that plain meaning best serves the rule of law values of publicity, predictability, certainty, and stability of the law. One of the important rule of law values is publicity: the law should be accessible to ordinary citizens. Ordinary citizens are likely to interpret statutes to have their plain meaning, because ordinary folks rarely have the training to understand legislative history and even if they did have such training, it would simply be too costly to analyze the legislative history of statutes to determine their meaning.
Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history.
The same difficulties that afflict lawyers are plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.”
Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose.
Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite!

Legal Theory Lexicon 029: Public and Private Goods

Introduction One of the most powerful ideas that legal theory borrows from economics is the idea of a "public good." Sooner or later law students learn that within the framework of contemporary neoclassical economics, the standard line is that public goods (e.g. national security) should be provided by government whereas private goods (automobiles) ought to be provided by markets. For legal theorists, the line between public and private goods tracks one of the important fault lines in the law--between the private law fields of property, contract, tort, and so forth and public law fields such as environmental law, administrative law, and constitutional law. This post provides a basic introduction to the economic distinction between public and private goods for law students (especially first year law students) with an interest in legal theory.
It may be helpful to quickly preview the basic idea. So here goes:
• Public goods have two characteristics--nonrivalrousness and nonexcludability. For example, consumption of national defense is nonrivalrous (my being protected by the U.S. armed forces doesn't diminish your protection). National defense is a nonexcludable good: the Army cannot say to Mexico, "Solum hasn't paid his national defense bill, "Go ahead and attack him."
  
• Private goods are rivalrous and excludable. If I own a laptop computer, my use of it diminished your ability to use it; therefore, my consumption of the laptop rivals yours. Moreover, I can exclude you from the use of my laptop (by locking it up when I am not using it).
We use markets to provide goods like laptops (that excludable and rivalrous), but government provides goods like national defense (that are nonexcludable and nonrivalrous).
A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources." Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following:
• The phrase "public good" or "public goods" shall be used to refer to the economists’ idea of good that meets the criteria of nonrivalrousness and nonexcludability.
  
• The phrases "public interest" or "common good" shall be used to refer to the idea of goods that benefit the public at large as distinguished from goods or interests that benefit a faction (or "special interest group").
  
• The phrase "public resource" shall be used to refer to private goods that are owned by the government or held in trust for the public. National parks are indisputably public resources, but it may not be the case that they are public goods in the economic sense.
We could use the phrase "public good" to refer to the public interest or to public resources, but for the purposes of this post, let's stipulate that "public good" shall be reserved for the economic sense of the phrase.
The Criteria for Public Goods There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.)
"Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time.
"Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law.
Markets and Government The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle.
But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should.
As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed.
The Expanded Typology: Public, Private, Toll, and Common Pool Goods So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two:
1. Public goods are nonrivalrous and nonexcludable.
2. Private goods are rivalrous and excludable.
3. Toll goods are nonrivalrous and excludable.
4. Common pool goods are rivalrous and nonexcludable.
Table One shows the four categories as a two-by-two matrix:
Table One: Public, Private, Common Pool, Toll, and Club Goods.
__________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________
We've covered the first two categories, but we need to consider categories three and four. So let's do that now.
Toll Goods and Intellectual Property A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods."
One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness. For more on this, see Water Wells and MP3 Files: The Economics of Intellectual Property.
Common Pool Goods and the "Tragedy of the Commons" Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.)
Club Goods We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course.
Private Goods and the "Tragedy of the Anticommons" And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good.
Conclusions The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, they are really very simple and straightforward.

Legal Theory Lexicon 028: Concepts and Conceptions

Introduction Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.
This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory.
Essentially Contested Concepts So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher William Gallie in 1956. The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues. A quick aside. Sometimes, when there is this sort of disagreement, we want to say, "Ah, you and I are referring to different concepts." If by "cause," you mean "legal cause," whereas I use "cause" as a synonym for "cause in fact," then we are using the same word to refer to two different concepts. Back to "good." But in the case of "good," we seem to be using the same concept. I think that the good really is human flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept.
Gallie thought that some concepts were essentially contested. That is, Gallie believed that some concepts were such that we would never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application.
Two Uses of the Concept/Conception Distinction
Rawls on the Concept and Conceptions of Justice Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.
Dworkin on Concepts and Conceptions in Legal Reasoning Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts.
Conclusion The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work.
References
• Ronald Dworkin, Law's Empire (Harvard University Press 1988).
  
• W. B. Gallie, " Essentially Contested Concepts," 56 Proceedings of the Aristotelian Society 167 (1956).
  
• John Rawls, A Theory of Justice ((Revised edition, Cambridge, Massachusetts: Belknap Press, 1999).

Legal Theory Lexicon 027: 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? 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 aliens 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.
Consider, for example, the aliens Chewbacca or 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 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.
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."
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. 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.
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 recently 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) 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.
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.
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)

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Legal Theory Lexicon 026: Rules, Standards, and Principles

Introduction Early on in law school, law students begin to realize that legal norms are not all cut from the same cloth. Some rules provide "bright lines," others "fuzzy lines," and yet others, no lines at all. The "reasonable person" test in tort law constrains in a very different way than does the rule against perpetuities in property. That is, legal norms differ in extent to which they constrain those who are charged with applying them.
We can slice and dice legal norms in various ways. In this post, we will investigate the idea that legal norms can be sorted into three general classes: rules, standards, and principles. Let's stipulate to the following definitions to get the discussion off the ground:
• Rules are the most constraining and rigid. Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant.
  
• Standards provide an intermediate level of constraint. Standards guide decisions but provide a greater range of choice or discretion; for example, a standard may provide a framework for balancing several factors.
  
• Principles are even less constraining. Principles provide mandatory considerations for judges. Whereas, standards identify an exhaustive set of considerations for adjudication or policy making, a principle identifies a nonexhaustive set, leaving open the possibility that other considerations may be relevant to the decision.
This post provides an introduction to rules, standards, and principles for law students (especially first-year law students) with an interest in legal theory.
Rules Although the phrase "legal rule" can be used in a broad sense, to refer to all legal norms, whether they be case in the form of a bright-line rule, a standard that in the form of a balancing test, or even an abstract principle, there is also a narrower sense of "rule" that distinguishes rules from standards and principles.
Rules themselves vary--let's use hard and soft to refer to the poles of a continuum. A rule is harder if both the conditions for its application and the consequences that follow are defined by bright-line distinctions that admit of easy application. The rule that disqualifies persons who are not 35 years of age is quite hard or rigid. Rules become softer as they criterion for the application and/or the consequences to which they lead become fuzzier. If the constitution had limited the presidency to "adults," then there could have been cases in which the question whether a particular candidate was unclear. Twelve year olds are clearly not adults but twenty-five year olds clearly are. In between, the necessity of drawing a somewhat arbitrary line makes the "adult" rule relatively softer than the "35-year old" rule.
Standards Standards are less constraining than even "soft" rules. Whereas a rule defines a triggering condition and a consequence, a standard may define a set of relevant considerations and options. One familiar example of a standard is provided by the fairness component of the International Shoe test for personal jurisdiction. That test requires a court to find that a state's assertion of personal jurisdiction violates the Due Process Clause on the basis of a give factor balancing test, which refers to the defendant's interest, the plaintiff's interest, the interest of the forum, judicial efficiency and economy, and substantive policy concerns.
Like rules, standards themselves vary in their capacity to guide and constrain the decision-making process. Some standards give the decision maker substantial guidance, by specifying relatively specific and concrete factors the decision maker should consider and the relative weight or importance of those factors. Other standards are much more open ended, requiring consideration of factors that are general and abstract. Standards that refer to "all the circumstances," "the interests of justice," or "equitable considerations" are particularly soft. Standards that require the evaluation of "cost to the defendant" or "serious invasions of privacy" are relatively harder, providing greater constraint and guidance.
By way of illustration, consider eligibility for the presidency once again. A rule based approach might limit eligibility to persons of a certain age or to "adults." A standard might specify that the only persons who are "sufficiently mature" may occupy the office of President. This standard is relatively open-ended, and it might disqualify some sixty-year olds from the presidency but allow some 20 year olds to serve.
Principles Principles are quite different from both rules and standards--at least on the basis of the definitions that we are using. Both rules and standards provide a framework that is, in theory, sufficient for resolving a particular issue in a legal dispute. But as we are using the term, a "principle" only provides guidance for the interpretation or application of a rule or standard. Principles by themselves do not resolve legal issues.
This sense of principle is illustrated by Ronald Dworkin's example of the principle that no one should be allowed to profit from their own wrong, drawn from the case of Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). In that case, the statute of wills would have allowed a murderer to inherit from his victim, but the New York Court of Appeals concluded that the statute should be given an equitable interpretation in light of the common law principle against wrong doers profiting from their wrongs. This principle is not a rule: the law does permit wrong doers to profit from their wrongs in a variety of circumstances. Rather, this general and abstract principle provided guidance in the interpretation and construction of a rule--in Riggs, the rule provided by the statute of wills. (This example is drawn from Ronald Dworkin's famous essay Hard Cases.)
The Pros and Cons of Rules, Standards, and Principles What are the pros and cons of rules, standards, and principles? When you have identified a candidate legal norm, when should you argue that the norm should be formulated as a rule, a standard, or a principle? In his famous 1985 article, Pierre Schlag provided this example:
In one torts casebook, for instance, Oliver Wendell Holmes and Benjamin Cardozo find themselves on opposite sides of a railroad crossing dispute. They disagree about what standard of conduct should define the obligations of a driver who comes to an unguarded railroad crossing. Holmes offers a rule: The driver must stop and look. Cardozo rejects the rule and instead offers a standard: The driver must act with reasonable caution. Which is the preferable approach? Holmes suggests that the requirements of due care at railroad crossings are clear and, therefore, it is appropriate to crystallize these obligations into a simple rule of law. Cardozo counters with scenarios in which it would be neither wise nor prudent for a driver to stop and look. Holmes might well have answered that Cardozo's scenarios are exceptions and that exceptions prove the rule. Indeed, Holmes might have parried by suggesting that the definition of a standard of conduct by means of a legal rule is predictable and certain, whereas standards and juries are not. This dispute could go on for quite some time.
Here are some basic ideas about the appropriateness of rules, standards, and principles:
• Predictability and certainty. If your goal is ex ante predictability and certainty, then rules are usually the way to go. Predictability and certainty are particularly important when the law seeks to guide future conduct. For example, if we want to deter particular forms of conduct, we may do better to define the conduct in a rule (or in a set of rules) that would enable those who engage in the conduct to clearly see that the proscribed conduct is forbidden. Standards provide less guidance, and principles, almost no guidance at all.
  Fairness and sensitivity. On the other hand, if our goal is to insure ex post fairness, then standards may be the way to go. Standards permit flexibility and the consideration of mitigating circumstances. Rigid rules are likely to lead to unfairness in particular cases, because it may be difficult to define in advance all of the circumstances which should count as exceptions to the rule.
  The job of principles. Principles seem best suited for another sort of legal task. Principles cut across doctrinal fields. The same principle--one may not benefit from one's own wrong, for example--may apply in torts, contracts, and the law of wills. Thus, principles are particularly well suited to give legal form to concerns which operate in a wide variety of particular contexts.
Conclusion Legal theorists need to be able to identify rules, standards, and principles, and more importantly, to be able to argue the pros and cons of formulating legal norms in these standard forms. The main goal of this post has been to enable you to distinguish a rule from a standard and to see that principles operate in a different way than either rules or principles. I also hope that the post has provided you with some tools that will enable you to make arguments like: “this rule would better be reformulated as a standard, because . . ." And arguments, like, “that legal norm really isn't a standard at all, it is better described as a principle.” I've provided some additional references, for those who want to pursue these ideas further.
References
Baird & Weisberg, Rules, Standards, and the Battle of the Forms: A Reassessment of § 2-207, 68 Virginia Law Review 1217 (1982).
Ronald Dworkin, Hard Cases in Taking Rights Seriously (1977).
Herbert Hart & Albert Sacks, The Legal Process (unpublished manuscript tent. ed. 1958).
Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685 (1976).

• Pierre J. Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985).

Legal Theory Lexicon 025: Social Welfare Functions

Introduction One of the key ideas in contemporary economic theory in general and law and economics in particular is the social welfare function. Law students without a background in economics might be put off by the fact that social welfare functions are expressed in mathematical notation, but there is no reason to be intimidated. The basic ideas are easily grasped and the mathematical notation can be mastered in just a few minutes. This post provided an introduction to the idea of the social welfare function for law students, especially first year law students, with an interest in legal theory. Here we go!
Background
Normative Economics The idea of a social welfare function is part of normative economics. 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 (if not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing. But this apparent agreement is at a very abstract and ambiguous level. There are many different ideas about what "utility" is.
Cardinal and Ordinal Interpretations of Utility One key divide is 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 state of affairs. If we assume that utility functions yield values expressed in units of utility or utiles, then individual's utility function might score possible world P at 80 utiles and possible world Q at 120 utiles. We might represent the utility function U of individual i for P and Q as follows:
Ui(P) = 80 Ui(Q) = 120
The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, utilitarianism is 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. This point about utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory.
Measurement Problems Both cardinality and interpersonal comparability pose measurement problems for economists. Even in the case of a single individual, it is difficult to reliability measure cardinal utilities. Measurements that support interpersonal comparisons are even more difficult to justify, and cardinal interpersonal comparisons seem to require the analyst (the person making the comparison) to make a variety of controversial value judgments. Market prices won't do as a proxy for utility, for a variety of reasons including wealth effects. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require the cardinal interpersonally comparable utilities.
Pareto This is the point at which Pareto arrives on the scene. Suppose that all the information we have about individual utilities is ordinal and non-interpersonally comparable. In other words, each individual can rank order states of affairs, but we (the analysts) cannot compare the rank orderings across persons. The weak Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (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 possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if at least one person ranks P higher than Q and no one ranks Q higher than P. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions.
The New Welfare Economics 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. 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.
Weak Pareto and the Arrow Impossibility Theorem Weak Pareto plus ordinal utility information allows some social states (or possible worlds) to be ranked on the basis of everyone's preferences. A method for transforming individual utility information into such a social ranking is called a social utility function. Kenneth Arrow's famous impossibility theorem demonstrates that it is impossible to construct a social utility function that can transform individual ordinal rankings into a social ranking in cases not covered by weak Pareto, if certain plausible assumptions are made. Arrow's theorem has spurred two lines of development in welfare economics. One line of development relaxes various assumptions that Arrow made; for example, we might relax Arrow's assumption that the social ranking must be transitive (if X is preferred to Y and Y is preferred to Z, then X must be preferred to Z). The other line of development considers the possibility of allowing information other than individual, noncomparable ordinal utilities. It is this second line of development that is relevant to the use of social welfare functions in contemporary law and economics.
Social Welfare Functions Suppose that we allow full interpersonal comparability and cardinal utility information. This is sufficient to support what are called Bergson-Samuelson utility functions, which have the form:
W(x) = F (U1(x), U2(x), . . . UN(x))
Where
W(x) represents a real number social utility value for some state of affairs (or possible world) X,
F is some increasing function that yields a real number,
U1(x) is a cardinal, interpersonally comparable utility value yielded by some procedure for individual 1 for state of affairs X, and
N is the total number of individuals.
Bergson-Samuelson social welfare functions are named after Paul Samuelson and Avram Bergson.
What Are the Plausible Social Welfare Functions? There are a variety of different possible functions that can be substituted for F. Here are some of the most important possibilities:
Classical-utilitarian SWF--We could substitute summation for F, and simply add the individual utility values; this is sometimes called a Benthamite or classical-utilitarian social welfare function famously associated with Jeremy Bentham. The classical utility social welfare function can be represented as follows:
W(x)={U1(x) + U2(x) + U(3(x) . . . Un(x)}
Average-utilitarian SWF--The classical SWF adds the utilities. This raises some very interesting issues when the different states of the world (x or y) have different population sizes. When deciding whether to add additional individuals, the classical-utilitarian SWF says more is better until we reach the point where adding more actually reduces the overall level of utility. One way to avoid this implication is use the average level of utility instead of the sum, as in the following formula:
W(s){[U1(x) + U2(x) + U(3(x) . . . Un(x)]/n}
In other words, we divide the sum of utilities by the number of individuals!
Bernoulli-Nash SWF--In the alternative, we could substitute the product function (¡Ç) and multiply individual utilities. This is sometimes called a Bernoulli-Nash social welfare function, which can be represented as follows:
W(x)={U1(x) * U2(x) * U(3(x) . . . Un(x)}
Rather than adding individual utilities, we multiply them! And yes, the "Nash" in Bernoulli-Nash is John Nash of "A Beautiful Mind" fame.
What About the Problem of Interpersonal Comparison? Social welfare functions are much discussed in legal theory these days. One of the reasons for the contemporary debate over social welfare functions is that this approach has been championed by Louis Kaplow and Steven Shavell (both of the Harvard Law School). Their book, Welfare versus Fairness, has put the welfarist approach to normative economics "front and center."
One of the interesting theoretical questons about SWFs concerns the problem of interpersonal comparison. How do we get the values to plug into U1(x), U2(x), and so forth. That is, how do we compare up with a way of putting my utility and your utility on the same scale. As I understand the state of play, this is not a topic on which economists agree. Some economists believe that there is no objective way of producing interpersonally comparable cardinal utility values. But some economists believe that a third-party (the legal analyst or the economist) can do the job of assigning values to individual utilities.
Conclusion We've barely begun to scratch the surface of the many interesting theoretical issues that attend the use of social welfare functions in legal theory. Some of those issues were explored in a prior Legal Theory Lexicon entry on Balancing Tests. Even if you have absolutely no background in economics, there is no reason to shy away from the debates about social welfare functions. The notation, although at first intimidating, is actually very simple. The foundational ideas, although sometimes articulated in the jargon of economic theory, really go to fundamental questions in moral theory. I hope this post has given you the tools to begin to discuss these ideas!

Legal Theory Lexicon 024: Balancing Tests

Introduction Balancing tests are ubiquitous in American law. From the Due Process Clause to the Freedom of Speech and from the federal joinder rules to personal jurisdiction, U.S. law makes the outcome of legal disputes dependant on the balancing of various interests and factors. Law students quickly become familiar with the idea of a balancing test, and moreover, are likely to quickly develop a cynical attitude about their constraining power. "So it's just subjective?"--is a question often asked in classroom discussion when a balancing test is announced. This post provides a rough and ready introduction to the theoretical issues raised by the notion of a "balancing test." As always, my intended audience consists of law students, especially first years, with an interest in legal theory.
Case-by-Case versus Systemic Balancing The first distinction to master when thinking about balancing tests is that between case-by-case and systemic balancing. When a court adopts a case=by-case balancing test, the test is applied to each case, one case at a time. For example, in personal jurisdiction law, a case-by-case balancing test is used to determine whether assertions of personal jurisdiction are consistent with the Due Process Clause. But not all balancing is done on a case-by-case basis. For example, Mathews v. Eldridge announced a balancing test for determining whether pre-deprivation hearings are required by Due Process. This balancing test is applied to general categories (types) of deprivations. Once it has been determine that the balancing test does not require a hearing in category (e.g. Social Security disability benefit cases), the result is a categorical rule that can be applied to the category without further balancing.
There is, of course, an analogy between the difference between case-by-case versus systemic balancing and the difference between act and rule utilitarianism. Act utilitarianism makes the rightness of an action depend on the consequences of that individual action. Rule utilitarianism makes the rightness of an action depend on whether the action conforms to the system of rules that would produce the best consequences. This analogy points to a larger concept--the scope of decision problem. Many legal theories assume that the scope of decision is an individual action or case, whereas others look to individual legal rules and yet others look to types of rules.
Here is a nifty move, made famous by David Lyons (the legal philosopher who teaches at Boston University). Lyons argued that rule utilitarianism could be shown to be extensionally equivalent to act utilitarianism. His argument was beautifully simple. Take a rule and a particular action that would be required by act utilitarianism but forbidden by the utility maximizing rule. Now imagine an exception to the rule that would allow the utility maximizing action to be treated differently. The new rule-plus-exception produces more utility than the old rule. Hence rule utilitarianism requires the new rule. Lyons argued that we can iterate this move until rule utilitarianism and act utilitarianism require exactly the same results.
One more point about case-by-case versus systemic balancing. Both kinds of balancing can be done ex post (backwards looking) or ex ante fowards looking. Take the Learned Hand balancing test for negligence. This test requires us to compare the cost of safety (ex post) against the benefits (ex post). This is ex post, case-by-case balancing. But when courts decide whether to issue an injunction, they sometimes "balance the equities," ex ante, asking whether the injuries done if the injunction does not issue will outweigh those that will result if the injunction is entered--in the future. Likewise, systemic balancing can be done either ex post or ex ante.
What is Balanced? Yet another question that must be faced by any balancing test is "What is balanced?" Courts seem to think that just about any sort of interest or factor can be balanced. One kind of balancing test is represented by the International Shoe test for personal jurisdiction. This test balances interests--i.e. the interest of the plaintiff in the forum, the interest of the forum in the dispute, and so forth. Another kind of balancing test takes a varity of so-called factors into account: "prejudice to the defendant," "the impact on nonparties," and so forth in the case of tests for mandatory joinder. Properly speaking, such factors cannot really be balanced. Interests belong on the same scale--at least if they are the right kind of interests, but "factors" are usually considerations that bear in complex ways on a decision. The integration of multiple factors into a decision may involve balancing, but it also may involve reasoning that doesn’t actually weigh and compare commensurables.
The Commensurability Problem This last point about balancing tests leads to a very fundamental idea in legal theory. Some approaches to moral theory make all ultimate values commensurable. In contemporary law and economics, for example, one approach reduces all value to preference-satisfaction, which then can be weighed via a Bergson-Samuelson social utility function. W(x) = F {U1(x), U2(x), . . UN(x)}, where F is some increasing function, U1 is the utility of state of affairs X for individual number 1, and so forth. Although some forms of consequentialism have the property of making all values commensurable, many moral theories do not have this property. Deontological ethics and virtue ethics, for example, generally are interpreted as maintaining that not all values are commensurable and hence as denying that balancing is even possible in some choice situations.
The commensurability problem also provides a nifty move for legal theorists. If someone proposes a balancing test, ask yourself if the things that it requires to be weighed are such that they really can be measured on the same scale. If not, then the proposed balancing test simply will not be able to do the work assigned to it.
Balancing Tests and the Rule of Law Yet another issue concerning balancing tests is the fancy version of the law student's intuition that balancing tests are subjective. Justice Scalia, for example, has argued that balancing tests undermine the rule of law because of their subjectivity and elasticity. If we believe that the rule of law values--certainty and predictability of the law--are very great social goods, then we have a general reason to prefer categorical rules to balancing tests. On the other hand, some balancing tests may be actually be more predictable than some rules with respect to a particular problem. For example, a case could be made that the "purposeful availment" component of the International Shoe test for personal jurisdiction is more subjective than the multifactor balancing component of the Shoe test. Some rules are very fuzzy; some balancing tests are quite precise.
Conclusion Balancing tests are so common in American law, that you might begin to take them for granted, but that would be a mistake. Almost every balancing test raises interesting issues of legal theory. I hope this post has provided you with the tools to begin asking those questions.

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Legal Theory Lexicon 023: 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)

Legal Theory Lexicon 022: Intention

Introduction Was it intentional? Did he intend to kill? What were the original intentions of the framers of the United States Constitution? "Intention" is an important concept for legal theory. On the one hand, "intention" figures prominently in theories of criminal law and tort law. On the other hand, constitutional theory is interested in the idea of "the original intentions of the framers." This post provides a very rough and ready introduction to the idea of "intent" and related notions of "intentionality" for law students (especially first year law students) with an interest in legal theory.
A Note on Terminology Legal theory is most concerned with "intentions" of the ordinary sort: "The defendant intended to kill" or "The Framers intended 'commerce' to exclude 'agriculture' in the commerce clause."--uses like these involve the ordinary legal use of "intention." There are, however, two related philosophical concepts that might be confused with this sense of intention. Philosophers use the word "intentionality" to refer to the ability of mental states to represent things, properties and states of affairs: in this special sense, all mental states are intentional. And philosophers also have a more technical concept of "intensionality"--spelled with an "s" rather than a "t" after the second "n"--that is used to refer to an important logical feature of words and sentences. A sentence is an intensional context if its truth value is sensitive to the substitution of referentially equivalent descriptions: don't worry, the jargon will be explained!. Ordinary intentions exhibit intentionality, intention sentences are intensional--hence the potential for confusion.
Actions Are Intended Under a Description Jane hears a knock on the door and sees someone in the uniform of a package delivery company with a package. She invites the person in. She does not know that the person she has invited into her home is "the Westside rapist"--a serial rapist who disguises himself as a delivery person. If we ask her, did you intend to let "him" in, her answer will depend on the description we give. Did you intend to let the man in the delivery uniform in? Her answer will be "Yes." Did you intend to let the Westside rapist in? Her answer will be "No." The lesson of this example is that actions are intentional under a description. The very same individual was both "the man in the delivery uniform" and "the Westside rapist," but Jane's intentions were not the same with respect to the two different descriptions.
Transparent and Opaque Contexts Actions are intentional under a description. Because of that fact, philosophers say that intention is a referentially opaque context. Boy, that is mouthful. What does that mean? Let's take a context that does not involve intentionality. The sentence "The Westside rapist entered Jane's house" does not involve an attribution of an intention. And we can substitute a different description for "Westside rapist" without affecting the truth value of the statement. Assuming that the Westside rapist did enter Jane's house and that his name was Norman Heathcliff, then all of the following statements would be true:
The Westside rapist entered Jane's house.--True. Norman Heathcliff entered Jane's house.--True. The man in the delivery uniform entered Jane's house.--True. The man on he porch entered Jane's house.--True.
We can substitute any description that refers to "Norman Heathcliff" and the truth value of the sentence is unaffected. A sentence that has this property is called "referentially transparent" or "an extensional context."
Now, let's go back to intention. Suppose that Jane lets the man into her house, but does not know that he is the Westside rapist or that he is named "Norman Heathcliff." Truth value now will vary depending on how the man is described :
Jane intended to let the man in the delivery uniform into her house.--True. Jane intended to let the Westside rapist into her house.--False. Jane intended to let Norman Heathcliff into her house.--False. Jane intended to let the man on the porch into her house.--True.
But the four descriptions all refer to the same man. Because you cannot substitute referentially equivalent descriptions into expressions of intentions, we say that such expressions are "referentially opaque" or that they are "intensional" contexts. (Notice again that intensional was spelled with an "s".)
The distinction between opaque and transparent contexts is fundamental to the philosophy of language, and this distinction figures prominently in philosophical writing about "intention." This may all sound a bit abstract, but this distinction is worth mastering. If you don't know it, you will not be able to follow any really sophisticated discussion about intention.
What difference does the distinction between referentially transparent and opaque contexts make to the law? That's a big question, but here is one example. Some theories of constitutional or statutory interpretation assert that questions about the applicability of a legal rule can be settled by reference to the intentions of the authors of the statute. One line of attack on this view focuses on the question whether a collective body (e.g. a legislature or constitutional convention) has intentions in the same sense as does an individual. Putting that objection to the side, the distinction between opaque and transparent contexts can be used to build a different sort of objection. Suppose that we have only one legislator, Rex, and that Rex enacts a legal rule. Now a judge, Solomon, must apply the rule in a case where the meaning of the rule is either vague or ambiguous. Can Solomon simply apply the rule as Rex would intend? In some cases, the answer to this question may be "yes," but not in all. Why not? Because Rex may have intended the rule to apply to the case under some descriptions of the case, but not under others. Boy, that's abstract. Can you make your point more concrete?
Consider this example. The same Congress that enacted the 14th Amendment's equal protection clause also segregated the schools of the District of Columbia. Suppose that this Congress had the following two intentions: (1) Congress intended that the equal protection clause should prohibit discrimination on the basis of race, and (2) Congress intended that the equal protection clause should not prohibit segregation of the public schools. Now suppose that we believe a third thing: segregation of the public schools is discrimination on the basis of race. Given this situation, the "intentions of Congress" cannot directly settle a particular case, e.g. Brown v. Board of Education. Under one description, Congress would intend that the case should be decided for Brown; under another description, Congress would intend that the case should be decided for the Board. Both descriptions are true of the case.
Of course, I haven't developed this objection or the possible responses in a deep or thorough way. There is lots more to say. But the point is this. Legal rules are the product of intentional actions. Like all actions, lawmaking is intentional under a description. This means that statements about legislative intentions are referentially opaque. But when we apply a legal rule to a fact situation, we can describe the facts in many different ways. (A vast number of descriptions can refer to any particular legal dispute.) If intentions are to be used to as the basis for interpreting legal rules, it cannot be on the basis of a theory that says only, "Decide the case as the intentions of the lawmaker require." More will be required to make such a theory work.
Intention and Foreseeable Consequences Does "intending an action" make a difference to either moral or legal responsibility? The distinction between intentional and unintentional action certainly seems to be important to both tort law and criminal law. Tort law differentiates between intentional torts and torts based on negligence or strict liability. Criminal law involves what is called mens rea or the "mental state" that is an element of the crime. In ordinary morality, we differentiate between intentional infliction of harm as more culpable than mere negligence.
Most law students encounter the problem of foreseeable but unintended consequences in both criminal law and torts. Consider the following examples:
--Example One: Ben has a gun. He aims at Alice and shoots, hoping to kill her. Her death was what he was trying to accomplish.
--Example Two: Carlos plants a bomb under the bridge. He wants to destroy the bridge, but he also knows that when he triggers the bomb Dawn is on the bridge right over the powerful bomb. Carlos regrets that Dawn died, and he had hoped that by some miracle Dawn would live.
--Example Three: Edgar is holding Francis and Gertrude captive. When Edgar's demands aren't met, he executes Francis. Edgar regrets that he had to do this, but he believes this is the only way that he will be able to intimidate Francis and Gertrude's employer into paying a ransom for Francis.
--Example Four: Harry shoots in the air on New Year's Eve. The bullet goes up and comes down, killing Ingrid. Harry did not intend to kill anyone, but he did recognize that there was a small risk that his bullet might strike and injure or kill.
In all four cases, we can say that one person killed another: Ben killed Alice, Carlos killed Dawn, Edgar killed Francis, and Harry killed Ingrid. But each case differs with respect to intentionality:
In example one, Ben intended to kill Alice and her death was his end.
In example two, Carlos intended to blow up the bridge and Dawn's death was a foreseen and very likely consequence of this intentional act, but Carlos did not directly intend to kill Dawn.
In example three, Edgar intended to kill Francis, but her death was a means to a further end--payment of the ransom.
In example four, Harry did not intend to kill Ingrid, but his intentional act foreseeably resulted in her death.
Are these cases alike or different? Morally or legally? Of course, those are big questions, but we can make a little progress on them. Cases one, two, and three are usually considered to be indistinguishable so far as culpability is concerned: in all three cases, the actor intends the death of the victim. Case four is usually considered to be distinguishable from cases one, two, and three: case four involves negligence which may be culpable but is not as blameworthy as intentional killing. Case two--where the Dawn's death is foreseen as highly likely but is not desired--is sometimes said to involve "oblique intention." Even though the death in case two was not directly intended, it is nonetheless the natural and foreseeable consequence of the intended action (blowing up the bridge while someone is on it).
Trolley Problems In all four cases described above, the action that results in death is clearly wrongful. But that is not so clear in the famous "Trolley Problem." Here is a statement of the problem:
A trolley is running out of control down a track. In its path are 5 people who have been tied to the track by a mad philosopher. Fortunately, you can flip a switch which will lead the trolley down a different track. Unfortunately, there is a single person tied to that track. Should you flip the switch with the result that one will die instead of five?
Most philosophers agree that it is morally permissible to flip the switch. The philosopher and legal theorist John Mikhail has done a series of experiments that confirm that most ordinary people agree. If you pull the switch, you act intentionally and you cause the death of the one person. Now consider a second problem, "Organ Harvesting":
You are a surgeon performing elective surgery on a healthy person. Five other patients are on the verge of death, but could be saved if you killed your healthy patient and harvested her organs. Should you kill your patient?
Almost everyone (except perhaps some hard-core act utilitarians) agrees that killing the patient is morally impermissible. Both cases involve causing the death of one to save five. But in the "Trolley Problem," you do not directly intend the death; in the Trolley problem, you may hope that through some miracle the one person escapes death. In "Organ Harvesting," on the other hand, the surgeon must intend the patient's death. The organs can only be harvested if the patient is killed. Perhaps it is the intention to kill that makes the difference to our moral intuitions.
Our discussion of the Trolley Problem has been very brief and superficial. For more, you can follow this link. For our purposes, the point of the trolley problem is to suggest that intention is potentially important to questions of culpability.
Conclusion Every legal theorist needs a basic mastery of "intention." But this is a very deep topic. If you are drawn to the theory of criminal law or the theory of torts or to constitutional theory or statutory interpretation, you will want to know more about "intent." Hopefully, this entry will get you started.

Legal Theory Lexicon 021: Speech Acts

Introduction Speech act theory will forever be associated with the great J. L. Austin, the Oxford philosopher whose work in the 1950s had an enormous influence on analytic philosophy. One of Austin's core insights is reflected in the title of his William James lectures, delivered at Harvard in 1955, How to Do Things with Words. When we use language, we don't just communicate information or say things about how the world is; when we use language, we do things. We command, request, apologize, contract, convey, and admonish. Speech act theory focuses on the ways in which language (both oral and written) can be used to perform actions.
Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory.
Sentences, Propositions, Meaning, and Truth There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value.
O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values.
Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions.
Form and Function We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance.
Utterance, Locution, Illocution, Perlocution With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions:
• Utterance--We can use the term "utterance" to refer to the words (e.g. the sounds or letters) that constitute a particular use of language.
  
• Locution--We can use the term "locution" to refer to the semantic meaning of the utterance.
  
• Illocution--We can use the term "illocution" to refer to the speech act that is performed by use of a particular utterance in a particular context.
  
• Perlocution--We can use the term "perlocution" to refer to the effect that a given expression has when it is uttered in a particular context.
Take the example of the sentence, "This room is a pig sty." The utterance is simply the words that are used: suppose this is an oral statement in English made by a parent to a child on a particular occasion. The same parent could utter similar worlds in English (or another language) that have the same semantic content. "The family room is a pig sty"--would express the same propositional content as "This room is a pig sty" if "this room" was "the family room." The illocutionary force of this statement is ambiguous. If the child spoken to was responsible for the mess, then both parent and child might understand that "This room is a pig sty" is the equivalent of "Clean up this room." The same illocutionary force can be obtained by a variety of expressions. Finally, the perlocutionary effect of "This room is a pig sty" will also depend on context. The effect might be to produce shame, but it might also produce anger. Thus, one utterance has both locutionary content, illocutionary force, and perlocutionary effect.
A Typology of Speech Acts One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish:
• Constatives: affirming, alleging, announcing, answering, attributing, claiming, classifying, concurring, confirming, conjecturing, denying, disagreeing, disclosing, disputing, identifying, informing, insisting, predicting, ranking, reporting, stating, stipulating
  
• Directives: advising, admonishing, asking, begging, dismissing, excusing, forbidding, instructing, ordering, permitting, requesting, requiring, suggesting, urging, warning
  
• Commissives: agreeing, guaranteeing, inviting, offering, promising, swearing, volunteering
  
• Acknowledgments: apologizing, condoling, congratulating, greeting, thanking, accepting (acknowledging an acknowledgment)
There are other ways of slicing and dicing the types of speech acts, but Bach and Hamish's typology gives a good sense of how such a typology might work.
Speech Act Theory and Legal Theory How can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle.
Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action.
Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed.
If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below.
Links
• Kent Bach, "Speech Acts" entry in the Routledge Encyclopedia of Philosophy.
  
• Keith Allen, Speech Act Theory An Overview (pdf) (Google's html version).
  
• What Is a Speech Act?
Bibliography
• Austin, J. L. (1962) How to Do Things with Words, Cambridge, Mass.: Harvard University Press.
  
• Bach, K. and R. M. Harnish (1979), Linguistic Communication and Speech Acts, Cambridge, Mass.: MIT Press.
  
• Grice, H. P. (1989) Studies in the Way of Words, Cambridge, Mass.: Harvard University Press.
  
• Searle, J. (1969) Speech Acts: An Essay in the Philosophy of Language, Cambridge, Eng.: Cambridge University Press.
  
• Strawson, P. F. (1964) 'Intention and convention in speech acts', Philosophical Review 73: 439-60.

Legal Theory Lexicon 020: Causation

Introduction Causation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles, pedestrians, etc.), our judgments about causation rarely depend on conceptual niceties. The driver’s negligence caused the death of the pedestrian but did not cause John Kerry to win the Iowa caucuses in 2004. In these cases, various notions of causality converge. The person on the street, the scientist, and lawyer can all agree in such cases that for all practical purposes X caused Y but not Z. But sometimes the various notions of cause come apart exposing ambiguities and vagueness in both ordinary and legal talk about causes and effects. This post provides a very basic introduction to causation for law students (especially first-year law students) with an interest in legal theory.
Cause-in-Fact & Legal Cause Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks!
Cause-in-Fact What do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of this Lexicon post is to provide a set of tools that for understanding the troubles that overreliance on but-for causation can cause.
Necessary and Sufficient Causes The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. The idea of "necessary cause" is the same idea expressed by the phrase "but-for cause."
X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. This is true, even though Ben would have died anyway, because Cynthia shot him through the head at the same time Alice shot him through the heart.
The Role of Counterfactuals The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts. What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim.
What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation.
Overdetermination Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea of overdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben.
Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause.
The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation.
Coincidence Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what? Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences.
Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident.
Legal Cause What do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause.
First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law.
Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable.
Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away.
Probability Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post.
Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y.
Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events.
Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:
--The letter “p” is frequently used to represent probability. Most law students encounter this notation in Justice Hand’s famous opinion in the Carroll Towing case (B < PL or “burden less than loss discounted by probability). The notation p(x) = 0.1 can be read “the probability of x equals 1/10.” And the notation, p=0.5 can be read “probability equals one in two.”
--The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1.
Types and Tokens So far, we have been focusing mostly on cases where an individual instance of harm is caused by some particular wrongful action. But of course, we frequently think about causation as a more general relationship. For example, in science we might speak of “causal laws.” There is no standard terminology for this distinction: we might use the phrase “individual causation” and “systematic causation.” One helpful bit of terminology for getting at this idea is to differentiate “types” and “tokens.” Ben’s running the rend light at a particular time and location is an event token and it is a token of a type of events, i.e. the type “running a red light.”
Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation.
Conclusion Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn.
Bibliography
H.L.A. Hart & Tony Honore, Causation in the Law (2d ed. 1985). This is the book on causation and the law. Currently out of print, but used copies are available on Amazon.com.
Causation (Oxford Readings in Philosophy) (Ernest Sosa & Michael Tooley eds. 1993). A fine collection of essays, with contributions by J.L Mackie, Michael Scriven, Jaegwon Kim, G.E.M. Anscombe, G.H. von Wright, C.J. Ducasse, Wesley C. Salmon, David Lewis, Paul Horwich, Jonathan Bennett, Ernest Sosa, and Michael Tooley.

Legal Theory Lexicon 019: Originalism

Introduction There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism"--actually a loosely-knit family of constitutional theories. The idea that courts would look to evidence from the constitutional convention, the ratification debates, The Federalist Papers, and the historical practice shortly after ratification of the Constitution of 1789 (or to equivalent sources for amendments) is an old one. This post provides a very brief introduction to "originalism" that is aimed at law students (especially first-year law students) with an interest in legal theory.
The Originalist Revival No one scholar or judge can deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. At various points in time, both sides have claimed the upper hand, but at the level of theory, the case for originalism has always been contested.
Originalism is not an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the democrats seen as a political rejection of originalism. The current Supreme Court has at least three members who seem strongly influenced by originalist constitutional theory--Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas.
The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. Two developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court--We the People: Foundations, published in 1991. Second, Randy Barnett (along with Richard Epstein, the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. Ackerman and Barnett represent two trends in originalist thinking: (1) the political orientation of originalism has broadened from conservatives to liberals and libertarians, and (2) the theoretical structure of originalism has morphed and diversified from the early emphasis on "the original intentions of the framers." After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is more likely to hear pronouncements that "we are all originalists, now."
Original Intentions Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.
Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning.
Original Meaning The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.
The concept of original meaning originalism in its modern incarnation has been attributed to Justice Scalia, who is reported to have introduced the idea in a series of lectures in the 1980s; his essay, Originalism, The Lesser Evil, published in 1989, focuses on "original understanding" rather than "original intent." The idea has also been traced to a brief mention in Robert Bork's The Tempting of America, but Bork did not develop the idea extensively. Original-meaning originalism was develped more extensively by Justice Scalia in his opening essay in A Matter of Interpretation. Although the distinction between original meaning and original intent can be found in a variety of early contemporary sources including an article by Robert Clinton in 1987, the systematic development of original-meaning originalism is a relatively recent phenomenon. Original meaning originalism receives its most comprehensive explication and defense in Randy E. Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty--a systematic development of the original meaning approach and critique of the original intention theory.
Regime Theory Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.
Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.
Originalism and Precedent Whither originalism? Given the ups and downs of originalism over the past three decades, making long-term predictions seems perilous indeed. But I will make one prediction about the future of originalism. We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Already, originalists of various stripes are beginning to debate the role of precedent in an originalist constitutional jurisprudence. Given the conferences and papers that are already in the works, I think that I can confidently predict that the debate over originalism and stare decisis will be the next big thing in the roller-coaster ride of originalist constitutional theory.
Bibliography This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism.
• Bruce Ackerman, We the People: Foundations (Harvard University Press 1991) & We the People: Transformations (Harvard University Press 1998).
  
• Randy Barnett, An Originalism for Nonoriginalists, 45 Loyola Law Review 611 (1999) & Restoring the Lost Constitution (Princeton University Press 2004).
  
• Raoul Berger, Government by Judicary (Harvard University Press 1977).
  
• Robert Bork, The Tempting of America (Vintage 1991).
  
• Paul Brest, The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204 (1980).
  
• Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of the Constitution, 72 Iowa L. Rev. 1177 (1987).
  
• Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Northwestern Univeristy Law Review 226 (1988)
  
• Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).
  
• Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989)
  
• Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997)
  
• Lawrence Solum, Originalism as Transformative Politics, 63 Tulane Law Review 1599 (1989).
  
• Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas 1999).

Legal theory Lexicon 018: Justice

Introduction The connection between law and justice is a deep one. We have "Halls of Justice," "Justices of the Supreme Court," and "the administration of justice." We know that "justice" is one of the central concepts of legal theory, but it is also vague and ambiguous. This post provides an introductory roadmap to the concept of justice. Subsequent entries in the Legal Theory Lexicon will cover more particular aspects of this topic such as "distributive justice." As always, this post is aimed at law students (especially first-year law students) with an interest in legal theory.
A Typology of Justice What is justice? One way to approach this question is via a typology--a scheme that divides the general and abstract concept of justice into component parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. These may be deep and fundamental differences between different types of justice, or these categories may simply be heuristic devices. For now, let's lay that question to the side and focus instead on a brief exposition of each of the four types of justice:
Distributive Justice In 1971, John Rawls's book A Theory of Justice put distributive justice at the center of philosophical discussion of justice. What is the subject of distributive justice? Even this question is controversial, but one formulation is: The subject matter of distributive justice is the distribution of the benefits and burdens of social cooperation.. The burdens of social cooperation include things like taxes and obligations to provide civic service (e.g. military service, jury service, and so forth). The benefits of social cooperation might be seen as including the resources that are produced by social cooperation, which might be represented by wealth and income. Thus, questions that might be answered by a theory of distributive justice might include:
--Should the system of taxation be progressive (with a heavier burden on the wealthy than the poor)?
--Should the government adopt an incomes policy (such as a guaranteed annual income) that will provide a minimum level of resources to those who are least well off?
--should the burden of military service by distributed equally (in the form of mandatory service for all citizens) or should this burden be allocated by a volunteer army and market incentives?
This list just begins to scratch the surface. In the context of the law school curriculum, questions of distributive justice arise in a variety of course. In tort law, distributive justice may be the basis for the theory that one of the purposes of tort law is "risk spreading" or the just distribution of the costs of accidents. In contract law, questions of distributive justice may arise in cases involving contracts of adhesions or contracts with terms that may exploit the unsophisticated and economically disadvantaged.
In a future post, I will say more about particular theories of distributive justice. For now, let me just mention three approaches. The first approach is found in Rawls's theory, justice as fairness, which includes two principles of distributive justice. The first principle guarantees to every citizen a fully adequate scheme of equal basic liberties, such as freedom of conscience, the right to vote, and so froth. The second principle (the "difference principle") requires that inequalities of income and wealth work to the advantage of the least well-off group in society. The second approach is strict egalitarianism--which would not permit differences with respect to whatever good is the subject of justice. Why not equality of wealth and income? That's one option for egalitarians, but there are others such as equality of welfare or equality of resources of equality of opportunity for these things. The third approach is libertarianism--which holds that the distribution of wealth and resources is not itself a proper subject matter for justice. Rather, libertarians begin with the premise that each individual should have certain liberty rights (e.g. self-ownership, property rights, and contract rights) and that whatever distribution results from the exercise of these rights is a just distribution.
Corrective Justice Aristotle defined "corrective" or "rectificatory" justice as "Justice in transactions." That's a good place to start. With Aristotle we might divide transactions into two categories, the voluntary and the involuntary. Justice in voluntary transactions would include the topics encompassed by contract law. Justice in involuntary transactions would include both transactions that are involuntary due to force (e.g. battery) and transactions that are involuntary due to fraud (e.g. fraud, misrepresentation, etc.).
One of the great debates in contemporary legal theory concerns the status of corrective justice. This topic is especially hot in tort theory and criminal law theory. For example, some tort theories believe that the purpose of tort law is captured by the idea of corrective justice. Such theorists tend to believe that liability standards should be fault bases (e.g. intentional tort or negligence as opposed to strict liability) and that the purposes of tort damages is to make the plaintiff whole (and to force the defendant to disgorge wrongful gains) and not deterrence. Other tort theorists, e.g. welfarists or utilitarians, believe that corrective justice institutions should be judged solely by the consequences they produce. So a utilitarian might believe that the purpose of tort law is to produce optimum deterrence. Finally, some tort theorists believe that tort law serves the ends of distributive justice.
Political Justice Yet another topic of justice is political justice. In a sense, this might be seen as a subtopic of distributive justice--since political rights and responsibilities can be seen as encompassed within the general category of the benefits and burdens of social cooperation. In relationship to the law school curriculum, we might say that political justice is concerned with the foundational issues of constitutional theory. Who shall have the right to vote? What power shall be allocated to local communities as opposed to nation-states? What limitations shall there be on the power of democratic majorities (e.g. individual rights & judicial review)?
The topic of political justice shades into another important idea--"political legitimacy." Are these two ideas essentially the same or are they different? One view is that it is possible to have a legitimate political order that is nonetheless unjust (or vice versa). For example, some might say that the test of political legitimacy has to do with the origination of the political system. If a system has been accepted and endorsed by the people, this view contends, it is legitimate--even if the substance of the system (e.g. the allocation of political rights) is unjust. On this view, a religious state might be legitimate but unjust. A quite different view is that political legitimacy depends on political justice. For example, Randy Barnett has argued that the test for constitutional legitimacy is whether the constitution provides adequate guarantees of just outcomes (for Barnett, the protection of individual liberty). On this view, popular endorsement of an unjust political system does not make that system legitimate.
Procedural Justice A final form of justice is "procedural justice." The very existence of this category is controversial. Some theorists argue that the only the outcomes of procedures count. But this is not the universal view. Some theorists believe that procedures are important for reasons that are not reducible to a concern with outcomes. One helpful typology was provided by Rawls, who distinguished between perfect, imperfect, and pure procedural justice.
--Perfect procedural justice assumes that we have an independent criterion for the correctness of outcomes. For example, a correct outcome in a criminal case would be "freeing the innocent and convicting the guilty." We have perfect procedural justice if the procedure guarantees the correct outcome. In other words, perfect procedural justice requires 100% accuracy.
--Imperfect procedural justice. Of course, in the actual world, most procedures fall short of 100% accuracy. Moreover, the more accurate a procedure is, the more expensive it is likely to be. Imperfect procedural justice acknowledges these facts and therefore conceives of procedural justice as a fair balance between the benefits of accuracy and the costs of procedure.
--Pure procedural justice is based on the denial of the premise that we have an independent criterion for a correct outcome. We have a case of pure procedural justice if the procedure itself provides the criterion for judging the justice of the outcome. Rawls himself doubted there were many cases of pure procedural justice. He did see one case--a fair bet. With a fair gamble (e.g. a roll of unloaded dice), the outcome doesn't matter.
In the context of the law school curriculum, questions of procedural justice arise in connection with procedural dues process (in constitutional law, administrative law, and procedure) and especially in the courses in civil and criminal procedure.
Justice and Moral Theory Thinking about each of these four types of justice is connected with more general views about moral and political theory. Each of the three important families of normative moral theory (consequentialist, deontological, and aretaic) connects in interesting ways with thinking about justice:
Consequentialist Ideas About Justice There are many different forms of consequentialism. In moral theory, the most familiar form is utilitarianism. In law, the emphasis lately have been on wheelbarrows. Most consequentialist theories do not see justice in any of its forms as truly distinctive. For example, for act utilitarians the rightness or wrongness of an action depends on whether that action (as opposed to the alternatives) produces the most utility. Thus, the best distribution of resources is the one that maximizes utility, and the best system of tort law is the one that utility. There are different ways of expressing this idea. One expression maintains that consequentialists do not place any independent value on justice; another way of putting it is to say that for consequentialists, justice is the production of good consequences.
Deontological Ideas About Justice By way of contrast, deontological theories have a natural affinity for the idea that justice serves as an independent criterion for the rightness and wrongness of actions. Thus, it is a characteristically deontological position to maintain that unjust actions or institutions cannot be justified on the ground that they would produce good consequences. Thus, deontologists might say that it would be unjust and hence impermissible to punish an innocent persons--even if the net long-term effect of that action were to produce good consequences.
Areataic Ideas About Justice From the view point of aretaic theory, justice is primarily a virtue, an excellence of human character. One of the most difficult problems for virtue ethics has been the development of an adequate theory of the virtue of justice. One view is that justice is the disposition to take neither too much nor too little for one's self. Another view is that justice is the disposition to act in conformity with social and legal norms, tempered by equity. Yet a third view is that the virtue of justice is simply the disposition to act in accord with the right theory of what a just action is.
The Relationship Between Law and Justice What is the relationship between law and justice? That question can be tackled from many different directions. One angle of approach would be to ask whether there is some essential or necessary connection between legal validity and justice. The view that only just laws are legally valid is usually associated with natural law theory, whereas the view that there is no essential or necessary connection between law and justice is characteristically associated with legal positivism. But whether one is a natural lawyer or a legal positivism, one could say that the laws should be just. Thus, theories of justice can be seen as guiding the science of legislation.
Conclusion Contemporary legal education is, in a sense, all about justice. Natural law, legal positivism, and legal realism all go beyond the black letter law and ask the question, "What should the law be?" Law students quickly discover that their instructors are frequently more interested in questions like, "Is that a just rule?" than in questions like, "What is the rule?" As you continue your study of legal rules, you can begin to ask questions like: "Does this rule address a question of distributive, corrective, political, or procedural justice?" "Is the rule in the case (or statute or constitutional provision) just or unjust?" "What theory of justice underlies the reasoning of the court?"

Legal Theory Lexicon 017: The Rule of Law

Introduction This installment of the Legal Theory Lexicon provides a very short introduction to the idea of "the rule of law," aimed as usual at law students (especially first year law students) with an interest in legal theory.
What is the Rule of Law? The ideal of the rule of law, which can be traced back at least as far as Aristotle, is deeply embedded in the public political cultures of most modern democratic societies. For example, the Universal Declaration of Human Rights of 1948 declared that "it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law." Although the ideal of the rule of law has been criticized on the ground that it is an ideological construct that masks power relationships, even Marxist critics may acknowledge that observance of the ideal may curb abuses by the ruling class.
What is the ideal of the rule of law? An initial observation is that there are several different conceptions of the meaning of the rule of law. Indeed, the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure.
Dicey's Influential Formulation Historically, the most influential account of the rule of law was offered by A.V. Dicey. His formulation incorporated three ideas:
(1) the supremacy of regular law as opposed to arbitrary power;
(2) equality before the law of all persons and classes, including government officials; and,
(3) the incorporation of constitutional law as a binding part of the ordinary law of the land.
Rawls on the Rule of Law A contemporary elaboration of the ideal of the rule of law is provided by John Rawls. He defines the rule of law as "the regular, impartial, and in this sense fair" administration of "public rules." In schematic form and with some alterations, Rawls offered the following conception of the rule of law:
1. The Requirement that Compliance Be Possible. The legal system should reflect the precept that ought implies can.
a. The actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.
b. Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe "a" with respect to the laws and orders they promulgate.
c. A legal system should recognize impossibility of performance as a defense, or at least a mitigating circumstance.
2. The Requirement of Regularity. The legal system should reflect the precept that similar cases should be treated similarly.
a. Judges must justify the distinctions they make between persons by reference to the relevant legal rules and principles.
b. The requirement of consistency should hold for the interpretation of all rules.
3. The Requirement of Publicity. The legal system should reflect the precept that the laws should be public.
a. The laws should be known and expressly promulgated.
b. The meaning of the laws should be clearly defined.
4. The Requirement of Generality. Statutes and other legal rules should be general in statement and should not be aimed at particular individuals.
5. The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.
a. A legal system ought to make provision for orderly and public trials and hearings.
b. A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry.
c. A legal system ought to provide a process reasonably designed to ascertain the truth.
d. Judges should be independent and impartial, and no person should judge her own case.
Absent from Rawls's formulation is the notion that the rule of law requires that the government and government officials be subject to the law. Thus, a sixth aspect of the rule of law might be added to Rawls' formulation as follows:
6. The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.
a. Government officials should not be above the law.
b. The legality of government action should be subject to test by independent courts of law.
More can be said about the content of the ideal of the rule of law, but this brief exposition provides sufficient clarity for for this brief introduction.
The Values Served by the Rule of Law What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot's of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.
Another way to look at the value of the rule of law is to focus on what the world would be like if there were systematic and serious departures from the requirements of the rule of law. What if the laws were secret? What if officials were immune from the law and could act as they pleased? What the system of procedure were almost completely arbitrary, so that the results of legal proceedings were random or reflected the whims and prejudices of judges? What if some classes of people were above the law? Or if other classes were "below the law" and denied the laws protections? These rhetorical questions are intended to draw out a "parade of horribles" in your imagination. In other words, the rule of law serves as a bulward against tyranny, chaos, and injustice.
The Rule of Law and Bad Law One final question: "Is the rule of law a good thing, even if the laws are bad, unjust, or in the extreme case evil?" This question is too tough to take on in a systematic way, but here is one helpful thought. In a reasonably just society, one might believe that the rule of law is a good thing, even if some of the laws are bad. Certainty and predictability provide very great goods, which would be undermined if each judge or official picked and chose among the laws, enforcing the ones that the judge thought were good and nullifying the ones the judge thought were bad. But in a thoroughly evil society, the rule of law will be extremely problematic. Even an evil society may benefit from regularity in the enforcement of ordinary laws, but when it comes to horrendously evil laws, anarchy or revolution is likely to be preferable to the rule of law.
Conclusion Sooner or later most law students run into a reference to "the rule of law," but in my experience, this idea is rarely explained when its introduced. This entry in the legal theory lexicon is designed to give you a fairly solid foundation with respect to the content of the rule of law and to get you thinking about what functions the rule of law serves.

Legal Theory Lexicon 016: Positive and Normative Legal Theory

Introduction One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory.
The core idea of the distinction between positive and normative legal theory is simple: positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be. Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are about facts and normative legal theories are about values.
Positive Legal Theory Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:
Positive Legal Theory Type 1: Doctrinal Theories--The first kind of legal theory that is called "positive" is quite simply a theory of what the content of a particular field of legal doctrine is. Thus, a theory of the freedom of speech might simply seek to explain the shape of existing first amendment doctrine. Or a theory of hearsay rule might seek to provide an account of the rule and exceptions that explains and accurately predicts particular applications of the rule. Doctrinal legal theories are responsive to questions like, "What are the principles that shape this area of the law?" or "Can these cases be explained by some underlying theory?"
Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.
Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.
Normative Legal Theory Normative legal theories, on the other hand, are by their nature evaluative. Thus, a normative theory of products liability law would take a stand on the question whether negligence or strict liability is the better rule. Normative legal theories tend to be entwined with more general normative theories, e.g. moral or political theories, although this is not necessarily the case. The Legal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most important general normative theories that have had an influence on the law. There are two other distinctions that are important to understanding the general idea of a normative legal theory:
Ideal versus Nonideal Theory Some normative legal theories are "ideal"--that is, they are theories about what the best legal rule would be in the world in which everything was politically possible, the law could be adequately enforced, and other legal rules that interact with the subject of the theory could be adjusted to produce the best overall system. Other normative legal theories are "nonideal"--that is, they are theories that assume a variety of constraints on the choice of legal rules. For example, a nonideal theory might take into account political feasibility or it might take into account the possibility that the system would not provide an optimal level of enforcement for the rule that would otherwise be best. The Legal Theory Lexicon entry on second best explores these ideas in greater detail.
Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose. They do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.
The Intersection of Positive and Normative Theory So far, we have been assuming a fairly sharp distinction between positive and normative legal theory. And for many purposes, assuming that there is a bright line that separates normative and descriptive legal theory is a good working hypothesis. Even assuming there is such a bright line, however, there are relationships between positive and normative legal theories.
Positive Theory in the Service of Normative Theory One relationship is clear and straightforward. Many normative theories underdetermine what the legal rules should be in the absence of substantial information about the effects of the rules. This is most obvious in the case of utilitarian theories, where information about consequences does all the real work of determining which legal rule is best. For normative theories like utilitarianism, positive theory performs an essential service. Without a positive account of the effects of a given rule choice, utilitarianism has nothing to say about what rule is best.
Positive Theory as a Constraint on Normative Theory Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.
Interpretivism and "Law as Integrity" There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.
Conclusion The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both. One of the oft-repeated questions that law professors ask of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or normative. Be sure you know the answer before the question is asked!

Legal Theory Lexicon 015: Transparency

Introduction Sooner or later, most law students encounter the idea that "transparency" (as opposed to "opaqueness") is a desirable characteristic in markets, procedures, and governance institutions (both private and public). But what is "transparency" and why is it a good thing? This entry in the Legal Theory Lexicon provides a very brief introduction to the concept of transparency for law students (especially first-year law students) with an interest in legal theory. The basic idea of transparency is simple: things go better when processes are open. Markets function best when transactions are public. Judicial processes work best when they are visible to the participants and the public. Governments work best when both inputs to decisions and the meetings in which decisions are made are public. This post provides a brief introduction to the idea of transparency in a few important contexts.
Transparency and Democratic Process Why should the processes of democratic decisionmaking be transparent? There are so many different answers to this question that one hardly knows where to begin, but we might start by distinguishing between answers that rely on consequentialist reasoning and those that appeal to ideas about rights, fairness, or legitimacy. The consequentialist case for transparency in government usually rests on the idea that opaque processes are likely to facilitate corruption or capture. Corruption is more likely because secret decisionmaking facilitates rent-seeking (soliciting bribes) by public officials; transparency processes make bribery more difficult and increase the likelihood that it will be exposed. "Capture" is the term used to describe domination of a regulatory process by the interests who are supposed to be regulated. When lawmaking (or administrative rulemaking) is done in secret, there is a greater likelihood that the information flow will be one sided.
The Bush Administration's energy policy provides a good example of debates over the pros and cons of transparency in government. The administration developed its energy policy through non-transparent procedures. Vice-President Cheney met in private with a variety of interest groups, and the records of the meetings were not made available to the public. Critics charged that this secrecy allowed oil and coal interests to dominate the decision-making process to the detriment of the public interest. The administration defended the process, arguing that public processes would have inhibited free and frank discussion of the issues by the various interest groups. Whether or not this argument was correct in this particular context, it illustrates an important point. Transparency in government comes at a price. Transparent processes may be inefficient--what can be done in private in minutes may take hours in public. Transparent processes may also distort decision-making, forcing political actors to pander to public opinion at the expense of good policy.
The case for transparency in government need not rest on consequences. It might also be argued that transparent government is required by the rights of citizens to meaningfully participate in democratic self-government. If public officials conduct business in private, then it becomes more difficult for citizens to make meaningful decisions at the ballot box.
Transparency in the Market and the Boardroom The case for transparent markets is simple. Efficiency requires information. Efficient pricing, for example, requires that buyers know what they are buyng and sellers know what they are selling. "Buying a pig in a poke" is simply a colorful way of expressing the idea that a nontransparent transaction has occurred. Transparency is especially important in capital markets Securities regulation in the United States rests on the assumption that mandatory disclosure of accurate financial information will lead to investor confidence and facilitate efficient financial markets. Without transparency each investor would face either uncertainty or enormous information acquisition costs. Efficient capital markets produce enormous benefits, because they enable resources to be allocated to their highest and best use. Finally, transparency in corporate governance aims to prevent management from appropriating wealth owned by stockholders.
There are, however, situations in which transparency is inconsistent with efficient markets. Trade secret law, for example, aims at the opposite of transparency. The theory is that the ability to keep secrets creates an incentive to develop new ideas, inventions, and processes; disclosure would allow competitors to appropriate the new idea without compensation, and hence would reduce the incentives for the creation of new knowledge. Similarly, corporations are not required to disclose business strategies and tactics.
Transparent Judicial Procedures Civil litigation and criminal trials provide a final context in which transparency is an important value. When we think about the transparency of judicial procedures, there are two different groups for whom the process may be transparent or opaque. The first group is comprised of litigants (plaintiffs/defendants in civil litigation and defendants in criminal litigation). The second group consists of the public at large. Most legal systems place a higher value on transparency to participants than on transparency to the public. While it is not unusual for a hearing to be closed to the public, it is very unusual for a judicial proceeding to exclude the parties themselves. But there are important exceptions to this rule. Deliberations by both judges and juries are usually opaque. Thus, even the defendant in a criminal case is not allowed to observe the deliberations of the jury. A similar rule applies to judicial deliberations. For example, the conferences of an appellate court (e.g. the United States Supreme Court) are conducted in the strictest secrecy, as are the communications between among judges and between judges and their clerks. In these contexts, the thought is that open deliberations would actually distort the decision making process, leading to worse rather than better decisions.
Conclusion Concern with process is ubiquitous in legal theory, and processes can be transparent or opaque. As a law student, you might begin to ask yourself about the effect of legal rules on transparency. Does this rule make the process more transparent or more opaque. When you encounter rules that render processes opaque, always ask why? There may be an answer to the question, but then again, there may not.
Reference Mark Fenster, The Opacity of Transparency (March 15, 2005). http://ssrn.com/abstract=686998.

Legal Theory Lexicon 014: Fact and Value

Introduction Law students quickly learn that normative argument is an integral part of the law school experience. And sooner or later, they are likely to encounter what is called the fact/value distinction. Of course, the relationship between fact and value is a deep and complex philosophical topic. Even a survey of the basic topics would take us far afield into the heart of metaethics and across the field of normative moral philosophy. Nonetheless, we can take a quick look at three important ideas with which every legal theorist should have a basic familiarity.
Hume on Deriving an Is from an Ought The locus classicus for the distinction between fact and value is David Hume's famous observation about the derivation of an "is" from an "ought." Here is the famous passage from Hume's Treatise on Human Nature, Section 1, Book III:
I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou'd subvert all the vulgar [poorly reasoned] systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv'd by reason.
What is Hume up to? One might start with the idea that Hume's point is about the form of moral arguments. If all the premises are "is" propositions, then perhaps Hume is claiming that some sort of logical fallacy has been committed if the conclusion of the argument is an ought statement. Consider this example:
Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
Conclusion: Therefore, the United States ought to withdraw from Iraq.
We might think that there is a missing premises, which would be of the form:
Premise: The United States policy towards Iraq ought to aim at saving lives and improving the condition of the Iraqi people."
But there is a problem with this interpretation of Hume's point. One can easily produce a version of the argument that contains only is premises, but that looks more or less valid. For example:
Premise: Withdrawing from Iraq is a policy that would save human lives and improve the condition of the Iraqi people.
Premise: The policy that would save lives and improve the condition of the Iraqi people is the most choice worthy policy.
Conclusion: Therefore, the United States ought to withdraw from Iraq.
I'm sure that you, gentle reader, have run ahead of me, and are at this very point objecting that the second premise includes a covert "ought" statement. And perhaps it does, but the point of the exericse is that Hume's point is not just about the formal qualities of moral arguments. For his point to get off the ground, it must have substantive metaethical punch--it must be grounded on some theory about what counts as a fact and what counts as a value.
G.E. Moore on the Naturalistic Fallacy The second classical source for the fact/value distinction is G.E. Moore's discussion of the so-called naturalistic fallacy and his open-question argument. The core idea of the naturalistic fallacy is that one cannot identify "goodness" with any natural property. That is, it would be a mistake to identify goodness with the natural property of pleasure or happiness or health. Why is it a fallacy? Moore thought that the fallacy could be brought out by the open-question argument. So suppose, someone says that withdrawing from Iraq would be good if and only if withdrawing from Iraq would produce more pleasure than any alternative course of action, and that this is so, because goodness just is the maximization of pleasure. Moore claims that it is nonetheless an open question whether this is so. "Is pleasure good?" is an open question, as is, "I concede that withdrawing from Iraq will produce the most pleasure, but nonetheless is is a good thing to do?" Moore's point was that if these questions are open in the sense that they are not nonsensical questions, then it cannot be the case that goodness is the maximization of pleasure. Moore claimed that for any natural property that might be used to define goodness, the open-question argument will still be available. Moore's conclusion was that goodness must be a non-natural basic property that is somehow directly perceived by some human faculty of moral intuition.
The Entanglement of Fact and Value It is not uncommon for relatively sophisticated legal thinkers to accept that the fact/value distinction is a well-established truth of metaethics, but this would be a vast oversimplification. In fact, both the Humean and Moorean versions of the fact/value distinction are hugely controversial. One relatively simple demonstration of the difficulties that face any attempt to argue that facts and values belong to two mutually-exlusive realms can begin with what the distinction between thick and thin ethical terms. (Thin ethical terms would include "right" and "good," they are thin because they don't seem to carry any particular descriptive or factual content.) A good example of a thick ethical term might be "cruel." Actions can be described as cruel, and there is likely to be a good deal of intersubjective agreement on the question whether a particular action is cruel or not. Moreover, when asked why an action is cruel, the answer will certainly include a number of fact, e.g. the action caused pain, the pain was unnecessary to accomplishment of the actions purpose, and so forth. Cruel has a clear factual component. But cruel also involves moral values. So, for example, it would be quite odd to say, "His action was cruel, but it was nonetheless good." Such an assertion would naturally lead to the question: "So what was good about it that justified the cruelty." Of course, there are many possible answers to this challenge, but one of them is not: "Oh, there was nothing else that made it good; it was just a cruel action." Contrast this to, "His action was cruel, and therefore it was wrong." Imagine now the query: "Yes it was cruel, but what was wrong with that." And now the reply, "Huh? What was wrong with it was that it was cruel. Didn't you hear me?" Anyone who believes there is a sharp line that separates the realm of facts from the realm of values must produce an account of thick ethical terms, because such terms seem to straddle the line.
Of course, there are many many thick ethical terms. For law students, the really interesting thing is that many legal concepts are closely related to (or are themselves) thick ethical terms. A good example is "murder." Whether or not an action is "murder" in the ordinary, nonlegal sense of that term is clearly a question that involves the entanglement of fact and value. "Was it murder?" leads to "Was someone killed?", "Was the killing in self defense?" and so on. If we conclude that an action was murder, then ordinarily we also conclude that the action is morally wrong--even thought in rare circumstances, murder might be morally justified. Murder is a concept in which law, fact, and value all seem to be entangled. As a law student, you might begin to look for fact/value distinctions and for the entanglement of fact and value. My guess is that you will see these ideas operating everywhere, but especially in torts and criminal law!
If thick moral terms establish the entanglement of facts and values, that is only one step towards an adequate account of the fact-value distinction. For the purposes of law students with an interest in legal theory, awareness of the issues is probably sufficient. If you develop a deep interest in the foundations of normative jurisprudence, you will want to pursue these topics in much greater depth.
Conclusion Arguments about what the law should be are normative; normative legal theory might be considered a particular branch of political and moral philosophy. So legal theorists need to be aware of the fact/value distinction. As a rule of thumb, be wary of arguments that seem to confuse facts and values or to derives oughts from ises. If you do decide to cross the line, then be aware of the criticisms that may come your way!

Legal Theory Lexicon 013: Conduct Rules and Decision Rules The target audience of Legal Theory Lexicon is law students, especially first year law students, with an interest in legal theory. Best of luck on your exams! Here is a very short entry to provide a very brief break from studying:

Substantive rules of law (such as the rules of torts, contract, and property) are usually assumed to be addressed to two audiences. As conduct rules, the substantive law is addressed to everyone (citizens, officials, and noncitizens). Thus, property law tells us who has dominion over which resources. If this land is mine, then the law communicates the message that I can use my land and exclude others from its use. These very same legal rules also serve as decision rules, they tell courts how to resolve disputes. We usually assume that the content of the conduct rules are the decision rules are identical, but this need not be the case. Professor Meir Dan-Cohen of U.C. Berkeley proposed a very famous thought experiment. He asked us to imagine acoustic separation between ordinary citizens, who would only "hear" the conduct rules, and officials (such as judges), to whom the decision rules would be addressed. This leads naturally to the following thought: should decision rules and conduct rules have the same content or should they differ. And if they differ, how could the law prevent acoustic leakage, e.g. prevent ordinary citizens from learning about the content of the decision rules?
Example? Here's a pretty clear example. Suppose that we have a conduct rule that says, "Ignorance of the law is no excuse." This might be a good conduct rule, because we want citizens to inform themselves about the content of the law, and we certainly don't want citizens deliberately insulating themselves from knowledge of the law in order to create a defense if they charged with its violation. But at the same time, we might prefer that ignorance of the law would serve as an excuse, at least some of the time, when it comes to actually convicting and punishing defendants. Punishment is expensive and injurious, and sometimes no really good purpose will be served by punishing someone who is reasonably ignorant of the law's content.
But how can we excuse ignorance of the law without altering the conduct rule? One way to accomplish this goal would involve some obfuscation by judges. Opinions might state boldly: "Ignorance of the law is no excuse," while simultaneously excusing ignorant defendants on the ground that "knowledge of the legal status of the intentional content is part of the mental state that is an element of the crime." The first formulation is easily accessible to ordinary folks; the second is couched in language that may be opaque except to those trained in the law.

Thanks to the excellent new blog Punishment Theory for reminding me of this important topic. As a second year law student, I was given Meir-Dan Cohen's Decision Rules and Conduct rules: On Acoustic Separation in Criminal Law, 97 Harvard Law Review 625 (1984) to evaluate for publication in the Review. I still remember vividly the meeting of the articles office in which I advocated publication of the article. One editor took the position that the article should be published if it would have the same influence on legal theory as Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913), has produced. Rather a tough standard, don't you think?

Legal Theory Lexicon 012: 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 adjective form of the Greek word for virtue.
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) the central idea of moral theory and deontology focuses on 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!
Bibliography
Anscombe, G.E.M., 1958, "Modern Moral Philosophy", Philosophy 33:1-19.
Crisp, Roger (ed.), 1996, How Should One Live? Oxford: Clarendon Press.
Crisp, Roger and Michael Slote (eds.), 1997, Virtue Ethics, Oxford: Oxford University Press.
Foot, Philippa, 1978, Virtues and Vices, Oxford: Blackwell.
Hursthouse, Rosalind, 1999, On Virtue Ethics, Oxford: Oxford University Press. The single best one-volume statement of virtue ethics.
Solum, Lawrence B. Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003).
Statman, D. (ed.), 1997, Virtue Ethics, Edinburgh: Edinburgh University Press.
Links
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.
Ethics Updates Page on Aristotle and Virtue Ethics.
Internet Encyclopedia of Philosophy Entry on Virtue Theory
Wikipedia Entry on Virtue Ethics.
Wikipedia Entry on Virtue Jurisprudence.
Online Guide to Ethics and Moral Philosophy: Virtue Ethics

Legal Theory Lexicon 011: Second Best

Introduction The post provides a very basic introduction to the idea of "second bes." The term "second best" originated in a famous 1956 article by Lipsey and Lancaster (see bibliography), and it was originally used as a technical economic concept. Despite its technical origins, the idea behind the second best is very general: sometimes the ideal solution to a problem (or "optimal policy option") is infeasible. The best should not be the enemy of the good; so, when the first-best policy option is unavailable, then normative legal theorists should consider second-best solutions. In this post, we will take a hard look at the idea of the second best, beginning with a statement of the intuitive idea and then looking at the more formal idea of the second best in its original economic context.
As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
The Intuitive Idea The intuition behind the idea of the second best is simple. We would like to have the best possible legal system. But sometimes the best legal policies are not in the cards; that is, the best policy may be impractical. Why? In legal theory, one common reason that we cannot adopt the best policy is politics. Given the political forces that operate, the best campaign finance system may be pie in the sky. So we ask the question, of those systems that might be politically feasible, which is the "second best"?
Although I've introduced the intuitive idea by talking about "political feasibility," the idea of the second best is more general than that. First-best solutions may be unavailable because of a variety of constraints, of which politics is only one. The intuitive idea of the second best is a bit broader and less technical than the way economists define "second best," so let's turn to that now.
The Second Best in Economics Let's move from the intuitive idea of the second best to the origins of that idea in economic theory. The very general idea of the economic theory of the second best can be expressed as follows:
Assume a system with multiple variables. Take the most desirable state the whole system could assume and the associated values that all of the variables must assume to produce this state: call this condition, the first-best state of the system and call the associated values of the variables, the first-best values. Now assume that one variable will not (or cannot) assume the value necessary for the first-best state of the whole system: call this the constrained variable. Holding the constrained variable constant, consider the most desirable state the whole system could then assume and the associated values that all the nonconstrained variables must assume to produce this state: call this the second-best state of the system. There are systems in which achieving the second-best state will require that at least one variable other than the constrained variable must assume a value other than the first-best value: call these value(s) the second-best value(s).
And here is the way that Lipsey and Lancaster formulated the idea:
[I]f there is introduced into a general equilibrium system a constraint which prevents the attainment of one of the Paretian conditions, the other Paretian conditions, though still attainable, are in general, not desirable.
(If "Paretian" is unfamiliar to you, either ignore that term or click here.) Lipsey and Lancaster are making a normative (but technical( argument. They assert that if one variable is constrained and cannot assume its first-best value, then "in general" other variables should not assume their first-best values. The "in general" qualification is important. Lipsey and Steiner didn't and couldn't show that it is always (or necessarily) the case that constraint of one variable affects the most desirable value for other variables. Rather, their proof shows that this is possible. In the real world, whether nonconstrained variable should depart from their first-best variables depends entirely on the facts. In fact, if a policymaker lacks certain information about the second-best variables, it may turn out that the real world policy that will produce the best result is to try to move the constrained variable as close as possible to its optimal state, leaving the second-best variables in their first-best states. The possibility was called the "third best" by Ng (see bibliography below).
One or two additional points are necessary to complete the technical story.
First, the definition that I just gave assumes that only one variable is constrained. But there is no reason to limit the theory of the second best in this way, more than one variable may be constrained. In fact, in theory every variable could be constrained: in this limiting case, the second-best state would be the only possible state of the system.
Second, the second best is usually understood as relative to a constrained variable. We could use the phrase "second best" to refer to the second-best state the system could assume if all the variables were unconstrained, but this is not the way that Lipsey and Lancaster used that phrase.
Third, there is an important difference between the way economists understand "second best" and the way the same phrase is understood by noneconomists. What was interesting and powerful about Lipsey and Lancaster's proof is that it produced the counterintuitive result that sometimes when one variable is constrained, the best policy choice will involve moving other variables away from their first-best values.
Although technically, the definition of second best need not be limited to that special situation, that is the interesting result, and the use of the theory of the second best in economics may be limited to the special case. Outside of economics, however, the phrase "second best" tends to be used in a much looser sense. The important thing is not the terminology, but the ideas. To be clear, however, it is useful to explain what you mean by second best!
The Second Best and Nonideal Theory The idea of the second best that is used by economists is analogous to a distinction made famous by the political philosopher, John Rawls. Rawls distinguished between two ways of approaching political philosophy, ideal and nonideal theory. In ideal theory, we assume compliance with the normative requirements of our theory. Rawls used the phrase "well-ordered society" to refer to the situation that obtains in ideal theory. In a society that is well ordered by Rawls's principles of justice, citizens actually would be guaranteed a fully adequate scheme of basic liberties and the basic structure would actually work to the advantage of the least well off group in society. In nonideal theory, we relax the assumption that the society is well ordered by the principles of justice. Can you make that very abstract description more concrete? Yes, here is a really good example. In a society that is well-ordered by Rawls's principles of justice, we might assume that if there are local governmental units, they will comply with the restraints imposed by the freedom of speech. But in the real world, local governments might be more susceptible to political pressure to suppress unpopular speech than would be the central government (i.e. the national government in Washington, D.C., in the case of the United States). So, in the real world of nonideal theory, we might be very considered with constraining the jurisdiction and powers of local governments; whereas, this issue may not even arise in the case of ideal theory.
Pinpointing the Constrained Variable The notion of the second best and the related idea of nonideal theory get tossed around quite a lot in legal theory, but sometimes these terms are used carelessly or without precision. Whenever you hear or read the term "second best," ask yourself the question, "Which variable is constrained, and why is it constrained?" Because the "second best" is second best relative to a constrained variable, use of the concept of the second best doesn't mean anything unless and until the constrained variable is specified. Moreover, it is sometimes very important to know why the constrained variable is constrained. This is because it is easy to construct an argument for a second-best policy option that uses a double standard with respect to whether variables should be considered to be constrained. Here is a simple example:
Suppose our problem is racial justice with respect to the distribution of income and resources. Someone might make the case for reparations (a one time payment of a compensatory amount to descendents of the former slaves) on the ground that reparations are the second-best solution. The first-best solution would be a just economic order in which market mechanisms operate in a nondiscriminatory fashion to allocate income and wealth according to just criteria. (For this purpose, we don't need to specify what the just criteria are.) But the first-best solution is unavailable, because a just economic order is politically infeasible. Therefore, we ought to support reparations, which is the second-best policy.
So far, so good. But notice that there is a hidden assumption in this argument. The argument assumes that reparations are politically feasible. If this assumption is incorrect (which it may well be as an empirical matter), then it follows that the argument for reparations as the preferred second-best solution is fallacious. Of course, one can deploy double standards with respect to which variables are constrained (or which options are infeasible) so long as the double standard is made clear. But when the double standard is concealed and the argument is made in the context of policy evaluation, then we have either an innocent mistake or an attempt at manipulation.
The Feasible Choice Set Another way of approaching the general problem revealed by the theory of the second best is via the notion of the feasible choice set. Take all of the possible legal policy options with respect to a particular legal problem. Then lay out a set of well-defined criteria for feasibility. Apply the criteria to the set, sorting the options into the feasible choice set and the infeasible choice set. Practical policy discussion will usually be limited to the options within the feasible choice set, but legal theory is not limited to the practical. Frequently we can learn something important by considering options that are outside the feasible choice set. For example, a rule of strict liability might turn out to be the optimal rule of tort law. It could also turn out that strict liability regimes are politically infeasible--perhaps because the fault-based social norms are very strongly held. But that fact should not preclude legal theorists from examining the merits of strict liability regimes. Not only may such an examination be of intrinsic interest, but the insights gleaned from such an examination may well assist in the evaluation of the options that are within the feasible choice set.
The Bottom Line The notion of the second best, the distinction between ideal and nonideal theory, and the idea of the feasible choice set, are all essential tools for a legal theorist. As a first year student, you are likely to encounter these ideas in classroom discussion or in law review articles assigned as ancillary reading. The trick to mastering these concepts and using them effectively is to identify the constrained variable (or the nonideal conditions). Once you've done that, you can move to the next step, which is the question, "What criteria are used to identify the constrained variables?" And if you can answer that question, you are now in a position to respond in an intelligent and sophisticated way to applications of the theory of the second best!
Bibliography & Links
• R.G. Lipsey & Kelvin Lancaster, The General Theory of the Second Best, 24 REV. ECON. STUD. 11 (1956).
  
• Yew-Kwang, Ng, Welfare Economics (London: Macmillan, 1983).
  
• Karla Hoff, Second and Third Best Theories (pdf file).
  
• Steven Suranovic, The Theory of the Second Best
  
• Thomas McCarthy, Political Philosophy and Racial Injustice: From Normative to Critical Theory (explores Rawls's use of ideal and nonideal theory).

Legal Theory Lexicon 010: Deontology

Introduction Two weeks ago, the Legal Theory Lexicon explored utilitarianism, an approach to normative moral theory that has had an enormous influence on legal thought. This week, I take up one of utilitarianism's main rivals, deonotology. Deontological moral theories vary in myriad ways, but the focal point for deontology is the concept of duty with its correlative notions of rights and permission. Thus, the distinctive thesis of deontology in general might be formulated as the claim that the rightness of action is a function of whether the action is required, prohibited, or permitted by a moral duty. This is, of course, a simple formulation, and contemporary philosophical theories in the deontological tradition offer more sophisticated and nuanced formulations. This post aims to introduce the central idea of deontological moral theory with special reference to the interests of a first-year law student with an interest in legal theory. Almost every first year course will include deontological ideas. In criminal law, deontology is reflected in the notions that an action cannot be a crime unless it is the violation of a moral duty and in retributive theories of punishment. In torts, deontological theories argue against the economic analysis of tort law and for the idea that tort law is best explained by a theory of corrective justice. In property law, deontological theories emphasize the role of property in creating spheres of autonomy. In contracts, the deontological approach results in the idea that contract is fundamentally explained by the duty to keep a promise. And even in civil procedure, deontological ideas appear in the view that litigants have a right to a "day in court."
What Rights and Duties Do We Have? The idea that some actions are wrong and therefore forbidden has a strong intuitive appeal. And we can easily generate a list of action types that are at least ceteris paribus wrongful: telling lies, breaking promises, intentionally killing or injuring an innocent person, stealing, and so forth. For some purposes, a simple list of wrongs may be sufficient. But philosophers and legal theorists are unlikely to be satisfied with a list. Why not? Because the content of the list is likely to become controversial. Lying belongs on the list, but what about the failure to make a full disclosure to a stranger in an arms length commercial transaction? Battery is on the list, but should the exception for self-defense be extended to defense of property?
So what method or principle allows us to identify the list of duties, rights, and permissions that would provide the content of a fully specified deontological moral theory? One possibility is that we would identify the list by appeal to our sense of what is right and wrong. Let's give that sense a fancy name: call it "moral intuition." One possible method for identifying the content of a deontological moral theory would be to consult our moral intuitions about particular cases. But objections to this method are likely to arise immediately. For example, my intuition may not agree with your intuition. What then? Even if I consult only my own intuition, I may come to see that my intuitions about particular cases are not consistent at the level of principle. My intuition makes an exception for lies told to instructors as excuses for turning in late papers, but not for lies told to friends as excuses for extreme lateness.
Raw moral intuitions might be refined through a technique suggested by the philosopher John Rawls--the method of reflective equilibrium. We might aim to order our raw moral intuitions by positing some general principles that would explain and unify our considered judgments about particular cases. Once we have a set of general principles, it may turn out that some of our considered judgments about particular cases need to be revised. In other cases, a general principle may conflict with a considered judgment about a particular case that we hold very firmly. In such a case, we may wish to modify our general principles. If we work at it, we might eventually reach a point where our revised general principles are in agreement with our revised judgments about particular cases. Rawls call this state "reflective equilibrium." The same procedure might be used collectively to resolve conflicts between the judgments of different individuals; Norman Daniels call this interpersonal use of reflective equilibrium, "wide reflective equilibrium."
Kant Reflective equilibrium is one way to specify the content of a deontological moral theory. The German philosopher Immanuel Kant provides another. Before I proceed any further, I want to make it clear that what I am about to say does not provide anything close to even a basic introduction to Kant's moral philosophy. That would take a series of several Legal Theory Lexicon posts. Nonetheless, we can get a glimpse of one of Kant's most important ideas, the categorical imperative. Kant believed that duty was the central moral idea, and he recognized the problem of specifying duty. Kant had a particularly deep and interesting solution to that problem which begins with the idea of a good will: "Nothing can possibly be conceived in the world or out of it that can be called good without qualification except a good will." And a good will is a will that aims for the good and not merely for the objects of desire and inclination. If we act on the basis of a hypothetical imperative (if I want X, then I should do Y), we act on the basis of desire and inclination--"heteronomously" in Kant's terminology. In order to aim for the right, we must act on the basis of a categorical imperative, that is, on the basis of a reason or principle that does not include a desire or inclination. (In Kant's terminology, this would be acting "autonomously.") So what would a categorical imperative look like? Kant's answer to this question is stunningly brilliant--one of the most awesome moves in the history of philosophy. Kant suggested that one could act on the basis of a categorical imperative by consulting what he saw as three equivalent formulas:
The Formula of the Law of Nature: "Act as if the maxim of your action were to become through your will a universal law of nature."
The Formula of the End Itself: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end."
The Formula of the Kingdom of Ends: "So act as if you were through your maxims a law-making member of a kingdom of ends."
Onora O'Neill, the great Kant scholar, has a really wonderful essay called A Simplified Account of Kant's Ethics. If you are still reading this post and you haven't already read O'Neill's piece, download the word file and read it now--believe me it is worth it.
O'Neill focused on the formula of the end itself, so let me say just a few words about the formula of the law of nature by giving an example. Suppose you are deciding whether to tell a lie to a friend to get out of a lunch date. You first ask yourself, "What is the maxim (or principle) of my action?" Suppose the answer is "Lie when convenient!" Now, you imagine that if you were to lie to your friend the principle upon which you acted would become a universal law of nature--everyone would one lie when it was convenient. Could or would you do this? Arguably not, for two reasons. First, if everyone were to lie whenever it was convenient, human communication might become impossible, because no one could be trusted. The maxim--lie whenever convenient--has a contradiction in conception, because the lie would never be believed in the possible world in which the maxim of your action was a universal law of nature. Second, if one can imagine a world in which everyone lies when convenient, you might not be willing to lie on this occasion if the result of your action was that the maxim--lie whenever convenient--were to become a universal law of nature as a result. You might not want others to lie to you when they thought it was convenient--we can call this a contradiction in the will. Of course, my analysis of this example has been very sketchy and crude, but I hope that I have done enough to give you the general idea.
Some Objections to Deontology All of the main approaches to moral theory are controversial, and because the debates have been raging for centuries, the arguments are now enormously complex. So I am going to give two very simple objections to deontology, with the warning that the current state of play on these objections is now so complex and ramified that you really must be a specialist to give even a rough summary.
The Indeterminacy Objection. The first objection is that the content of a deontological moral theory is underdeveloped by the various methods for deriving a set of duties, rights, and permissions. So, for example, the method of reflective equilibrium may help us to order our considered judgments about particular rights, duties, and permissions, but it might be objected that this method is unlikely to settle any of the major disputes about what the duties, rights, and permissions actually are. Different people will arrive at different reflective equlibria. Even a single individual may come to believe that a variety of equilibriums are equally plausible or that her view of the most stable equilibrium is unstable, changing frequently in response to new examples or arguments. Kant's approach is subject to the same objection, with many critics arguing that Kant's method does not produce unique answers to particular questions about duty. Deontological moral theorists might counter that although their methods may not always produce unambiguous answers that will produce universal assent, that this is an unrealistic criterion for an acceptable moral theory. Particular deontological theories may allow the zone of moral disagreement to be narrowed and provide illuminating insights about particular cases.
The Rigor Objection. The second objection begins with the assumption that deontology does produce determinate answers to particular questions of morality, but argues that the answers are implausible, because they are too demanding or inflexible. Consequentialist critics of deontology argue that absolute rights, duties, and permissions can lead to consequences that would not be morally acceptable. One famous hypothetical, based on Kant's discussion of lying, imagines that you are in Germany before World War II and a Nazi has come to your door and inquired whether you have seen a Jew who has escaped. If there is an absolute moral duty to tell the truth, then you are not permitted to lie in response, but telling a lie may be the only way to save the life of an innocent person. Surely, the consequentialist argues, telling the lie is not only morally permissible, it is morally required. Deontologists can try to escape from examples like these in a variety of ways. For example, the deontologist might simply argue that there is no duty to tell the truth to evil doers who will use the truth for evil purposes. Or the deontologist might argue that this is a case which duties conflicts, and that some higher order principle favors the duty to protect the innocent person from evil over the duty to tell the truth. Or the deontologist might allow that duties can be overridden by consequences in some circumtances. Some deontologists may bite the bullet and argue that one is required to tell the truth, even if the consequences are horrific.
Conclusion In a sense, the battle between deontology and consequentialism is one of the great battles of contemporary legal theory. Legal theorists argue over deontological and consequentialist theories of contract, tort, property, criminal law, procedure, constitutional law, and many other doctrinal fields. As a law student, you might start to look for deontological arguments in cases and class discussion. Almost every time class discussion turns to the question, "What should the rule be?," you will be able to construct both consequentialist and deontological arguments for and/or against the various possible rules. Getting the hang of normative legal theory is, in large part, a matter of mastering a set of consequenitalist and deontological moves.
Links
• Internet Encyclopedia of Philosophy Entry on Duties and Deontological Ethics
  
• Wikipedia Entry on Deontology
  
• Ethics Updates: Kant and Kantian Ethics.
  
• Kant on the Web.
Bibliography
• Barbara Herman, The Practice of Moral Judgment Harvard Univ Pr; Reprint edition (April 1996)
  
• Onora O'Neill, Constructions of Reason : Explorations of Kant's Practical Philosophy Cambridge University Press; (March 1990).
  
• Deontology, edited by Stephen Darwall (Oxford: Blackwell, 2002). ISBN: 0631231129.

Legal Theory Lexicon 009: Public Reason

Introduction How should citizens in a modern pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate in the context of judicial opinions, legislative debate, or administrative decisionmaking? There is wide agreement that the government should not censor public debate about politics, at least not without very good reason. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, an ideal of political morality should mirror the freedom of expression: all viewpoints should contend in a marketplace of ideas. An ideal of public reason can provide guidance on these issues. This post provides a very short introduction to the idea of public reason--with a special emphasis on the role of that idea in the work of John Rawls.
Before we get into the background and complications, let's briefly state the core idea of John Rawls's idea of public reason--the version of the idea that has been most influential in legal theory. Rawls argued that public political debate about the constitutional essentials should be conducted on the basis of public reasons. His view was that public reason included common sense, the noncontroversial results of science, and public political values. Nonpublic reasons include the deep and controversial premises of particular moral and religious theorys; for example, the utilitarian idea that only consequences count would be a nonpublic reason. Rawls thought that the Supreme Court's deliberations and opinions about the meaning of the United States Constitution exemplified the idea of public reason.
Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?
For in these times, I do not know one man, that ever saw any such wondrous work, done by the charm, or at the word, or prayer of a man, that a man endued but with a mediocrity of reason, would think supernaturall: and the question is no more, whether what we see done, be a Miracle; whether the Miracle we hear, or read of, were a reall work, and not the act of a tongue, or pen; but in plain terms, whether the report be true, or a lye. In which question we are not every one, to make our own private Reason, or Conscience, but the Publique Reason , that is, the reason of God's Supreme Lieutenant, Judge; and indeed we have made him Judge already, if wee have given him a Soveraign power, to doe all that is necessary for our peace and defence. A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique ; that is to say, to God's Lieutenant.
In this passage, Hobbes uses the phrase "public reason" to refer to the reason or judgment of the sovereign.
A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:
In effect, though nature's voice is the best advice a good father could listen to in the fulfillment of his duty, for the magistrate it is merely a false guide which works constantly to divert him from his duties and which sooner or later leads to his downfall or to that of the state, unless he is restrained by the most sublime virtue. The only precaution necessary to the father of a family is that he protect himself from depravity and prevent his natural inclinations from becoming corrupt, whereas it is these very inclinations that corrupt the magistrate. To act properly, the former need only consult his heart; the latter becomes a traitor as soon as he listens to his. Even his own reason ought to be suspect to him, and the only rule he should follow is the public reason , which is the law. Thus nature has made a multitude of good fathers of families, but it is doubtful that, since the beginning of the world, human wisdom has ever produced ten men capable of governing their peers.
Rousseau's use of the phrase "public reason" is quite different than Hobbes'. Public reason is contrasted to the reason of private individuals. The latter sort of reason is self-interested; the former sort is concerned with the common good. This suggests a connection between Rousseau's idea of public reason and his notion of the general will. The general will (like public reason) is concerned with the good of all; whereas, the individual will (like private reason) is concerned with the good of the individual.
Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:
[I]t is proper that you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration . . . . [They include] the diffusion of information and the arraignment of all abuses at the bar of public reasons
Jefferson's notion of public reason seems connected to an ideal of democratic government. Information should be widely diffused so that government actions may be judged at the bar of public reason - which in this case seems to be the collective reason of the citizens of a democratic society. In this view, the quality or efficacy of public reason is connected to the freedom of speech and press.
In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:
The public use of man's reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hinderance to the progress of enlightenment. But by the public use of one's own reason I mean that use anyone may make of it as a man of learning addressing the entire reading public . What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.
As Kant uses the phrase, "public reason" is defined in terms of the audience to which reasons are given. Public reason is addressed to the entire public. Public reason should be free if the public is to become enlightened - that is, if citizens are to rely on their own reason without the guidance of another. Notice Kant's use of the phrase is, in a sense, diametrically opposed to Hobbes'. For Hobbes, public reason is reason bound by the judgment of the sovereign; for Kant, public reason is precisely that reason which is free from such constraint.
Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead.
Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":
[G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.
Although this discussion contains the core of the Rawls' position, a few additional points deserve separate discussion:
First, Rawls understands public reason as the reason of a political society. A society's reason is its "way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly." Public reason contrasts with the "nonpublic reasons of churches and of many other associations in civil society." Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial." By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and modes of reasoning that appeal to the interpretive authority of particular persons.
Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not.
Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature.
With these features in mind, we can offer a summary of the Rawlsian ideal of public reason; this ideal has three main features: (1) The ideal of public reason limits the use of reason to (a) the general features of all reason, such as rules of inference and evidence, and (b) generally shared beliefs, common- sense reasoning, and the noncontroversial methods of science. (2) The ideal applies to deliberation and discussion concerning the basic structure and the constitutional essentials. (3) The ideal applies (a) to both citizens and public officials when they engage in public political debate, (b) to citizens when they vote, and (c) to public officials when they engage in official action - so long as the debate, vote or action concerns the subjects specified in (2). With Rawls' view in mind, we proceed to two preliminary subjects: first, the role of the idea of public reason in the regulation of public discourse and, second, the ways in which a particular ideal of public reason might be justified.
Public Reason and Law How is the idea of public reason relevant to legal theory? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers.
One of the interesting features of the idea of public reason is that it provides an argument against what we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason.
The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth. For an example of a recent discussion of these issues, take a look at my post on the public reason session at Fordham's recent "Rawls and the Law" conference--here.

Legal Theory Lexicon 008: Utilitarianism

Introduction This installment of the Legal Theory Lexicon is an introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but is likely to turn to questions about what the rule should be. And in most law school classrooms, analysis of the “should” question is likely to go down one of two paths. The first path leads to fairness (which outcome in this case is fair to the parties; which rule will produce fair results in the future). The second path leads to policy (which rule will produce the best consequences in the future). Theories about fairness will be covered in future installments of the Legal Theory Lexicon; today, we focus on arguments of policy and the theoretical question, “What does it mean to say that a rule would produce the best consequences?” One answer to that question is “utilitarianism,” a theory of enormous interest and influence. But what exactly is “utilitarianism” and how might it be criticized or defended?
What is “utilitarianism”? Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill’s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entrée into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone’s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized body of rules. Common-law judges irrationally worshipped historical pedigree and had an immoral disregard of the consequences of legal rules. Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce “the Greatest Good, for the Greatest Number.” That is, we should adopt those legal rules that will maximize utility.
Consequentialism Utilitarianism is just one member of a more general family of moral theories, which we might call “consequentialist.” Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result. Thus, a consequentialist might believe that one may tell lies, break promises, or injure innocent persons in order to accomplish a greater good, whereas a deontologist might believe that such actions are forbidden--even if good consequences will result.
Disambiguating Utilitarianism Let’s pause for a moment. It turns out that “utilitarianism,” the term, refers to many different interrelated theories. “Utilitarianism” is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:
• What is utility? That is, when we say, the greatest “good” for the greatest number, what do we mean by “good?”


• What is scope of decision? That is, what should maximize utility, individual actions, general rules, principles, or something else?


• What does it mean to maximize utility?


• Does the rightness of an action depend on actual or expected utilities?
What is utility? What is utility? What is a good consequence? Or to use a bit of jargon, what is a “utile,” where the word “utile” stands for a unit of utility? There are many possible answers to this question, but here are three versions of utilitarianism that give three different answers to this question:
Hedonistic Utilitarianism. Bentham himself believed that utility was pleasure and the absence of pain. Suppose it were possible to measure and quantify pleasures and pains. We might then call one unit of pleasure a positive “hedon” and one unit of pain a negative “hedon.” Maximizing utility then, would simply be to maximize the sum of hedons. When we evaluated legal rules, we would engage in what Bentham called a “hedonic calculus.”
Eudaimonistic Utilitarianism. But is the good really just a matter of pleasures and pains? Many of Bentham’s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize “happiness”—eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still contribute to the happiness of the climber.
Preference Satisfaction Utilitarianism. But if happiness seems a better candidate for “good” than pleasure, there are difficulties with the proposition that the law should maximize “happiness.” Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute “preference” for happiness as the “good” to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an ordinal utility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a cardinal utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well.
There are other versions of utilitarianism, but you get the idea.
Scope of Decision So let’s assume we have a working conception of utility. Our next question is: What exactly is the decision that is supposed to maximize utility? Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the scope of decision question. Different forms of utilitarianism give different answers to the scope of decision question. Let’s take a quick look at some of the possibilities:
• Act Utilitarianism. (abbreviated AU) The first possibility is that each individual action should maximize utility. Given this answer to the scope of decision question, we might formulate utilitarianism as follows:
  Act so that your action maximizes utility as opposed to any alternative action that you could perform.
  Suppose, for example, that you must decide whether to break or keep a promise to have lunch with a friend. You would ask yourself, “Would keeping my promise produce greater utility than breaking it?” Thus, you would consider the costs of your decision, such as: (1) your friend will be hurt, (2) you will miss out on the satisfaction of having lunch with your friend, and (3) your friend may not trust your promises in the future if you break this promise. And you would consider the benefits, such as: (1) you will be able to use a free ticket to go to the baseball game if you break the promise, and (2) you will not have to listen to your friend's boring stories. You then add the utilities for each action, and choose the action that produces the greatest utility.
  
• Rule Utilitarianism. (abbreviated RU) The case of promises reveals a potential problem with AU. If I calculate utilities every time, I decide whether to break or keep a promise, my promises may not be viewed by others as trustworthy. And if my promises are not trustworthy, then I will not be able to use the institution of promising to coordinate my behavior with that of other people. But the ability to coordinate through promises produces good consequences. One way out of these difficulties is to shift the scope of decision from individual actions to general rules. Thus, although the individual actions of breaking my promise might maximize utility as compared to the alternative, the general rule, “keep your promises,” might produce more utility than the alternative rules, such as “keep your promises, but only when there is nothing better to do.”
  Rule utilitarianism itself has two important subvariants, and we can add a third, specifically legal, variant as well:
  Ideal Rule Utilitarianism (IRU) says that you should act in accordance with the set of “ideal rules” that would maximize utility if everyone were actually to act in conformity with the rules.
  Actual Rule Utilitarianism (ARU) says that you should act in accord with the set of “actual rules” that would maximize utility if it were adopted as the moral code of a real society in which persons will sometimes fail to live up to the requirements of the moral code.
  Legal Rule Utilitarianism (LRU) responds to an obvious fact about the application of utilitarianism to the law. The law is concerned with individual acts (e.g. an individual judge's decision in an individual case at the trial level), but it is also concerned with rule-creating acts (e.g. the decision of a legislator to vote for or against a given bill). So it is reasonable for legal theorists to advance a more specialized version of utilitarianism, which we can call "Legal Rule Utilitarianism," as a theory about legal rules. Notice, however, that LRU will have a set of variants. So we can distinguish the utility of an ideal system of legal rules (with perfect compliance) versus an actual system of legal rules (with disobedience and enforcement costs) versus a single nonideal actual rule (where the status quo system of rules is assumed and we look at the utility of changing only a single rule).
• Utilitarian Generalization (abbreviated UG) There is one more answer to the scope of decision problem that is worth mentioning. UG is the view that one should act on the basis of principles (or maxims) that would produce the greatest utility if they were generalized (e.g. we acted upon by everyone. Because this form of utilitarianism, plays very little role in legal thought, I won't discuss it further.
What does it mean to maximize utility? There is yet another ambiguity about utilitarianism that is really important to its application. What does "the greatest good for the greatest number" mean? Alternatively, what does it mean to maximize utility? This is a really complex topic. Right off the bat, it has both an intrapersonal and interpersonal dimension. To simplify, I will focus on the interpersonal problem. Let's assume we have utility values for individuals. What do we do with them? You may think the answer is obvious, "Add them up!," but it isn't so easy. Here are some alternatives:
• Classical Utilitarianism. "Add them up" is the classic answer. That is, we simply sum individual utilities. Sometimes this is called the "utilitarian social welfare function" by economists. This can lead to some confusion as this is what some economists think the term "utilitarianism" means.
  
• Average Utilitarianism. But we could average rather add. That is, we could take the sum of individual utilities and divide by the number of persons. You, gentle reader, undoubtedly have run way ahead of me and seen that this will make a big difference to things like population policy. We might have a choice between a larger population with a lower average utility but a greater sum, and a smaller population, with a higher average, but a lower sum.
  
• Bernoulli-Nash John Nash (of A Beautiful Mind fame) is associated with another alternative. We might multiply rather than add utilities. I won't go into the reasons why this might be a good idea, except to tell you that multiplication makes more sense if we our utility values for individuals are relative rather than absolute.
Actual or Expected Utilities We rarely know with certainty what consequences will result from actions or rules. Utilitarianism might look to the actual consequences of rules. If so, then some actions that looked right at the time will turn out to be very wrong, because of some unanticipated effect of the action. The alternative is to say that the rightness or wrongness of an action depends on its expected consequences. Given the phenomenon of uncertainty, a given action may lead to several different possible future states of the world. If we could assign a probability to each state, then the expected consequences of a given action could be calculated by taking the product of the utility value for the state and the probability that the state will coming into being. Take the following choice situation:
Action A has a 50% chance of producing a utility of 10 and a 50% chance of producing a probability of 0. Since .5*10 + .5*0 = 5, the expected utility of action A is 5.
Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10.
And since 10 > 5, action A has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this ex post fact is irrelevant to the moral evaluation of action A.
Some Objections to Utilitarianism Utilitarianism is an enormously controversial view, with adamant defenders and critics. It is worth our while to examine a few of the most prominent objections, but we will only be sliding across the surface of a deep and complex topic.
The Rights Objection. Utilitarianism evaluates actions on the basis of the consequences they produce, and therefore does not require respect for moral or legal rights. The literature is full of hypotheticals in which utilitarianism is alleged to justify intuitively unattractive rights violations. Suppose, for example, the slavery is contrary to a moral right, but that in a particular society, enslaving a small minority of the population would produce greater utility for the majority than it produced disutility for the enslaved minority. If these facts were true, the utilitarianism seems to say that slavery would be morally required. But most people would disagree, saying that slavery cannot be justified simply because it produces good consequences: “We have a moral right not to be enslaved." Utilitarians are likely to get quite huffy when this argument is made. They may say, “But slavery does not produce good consequences. It produces bad consequences, and that’s why we think slavery is so awful.” And then the critic might say, “But suppose slavery did produce good consequences, what then?” You can see how this debate could go on for quite some time before we made any progress. Notice, however, that act utilitarianism seems more open to the rights objection than does rule utilitarianism. Rules against rights violations may produce good consequences, even if individual acts of rights violation could be justified on utilitarian grounds.
The Self-Defeating Objection Another objection is that utilitarianism may be self-defeating. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences