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 of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don’t steal, and don’t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea.
The Impossibility of Interpersonal Utility Comparisons This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists, and one solution is simply to limit the conclusions of economics to cases that involve making everyone better off—hence obviating the need for interpersonal comparisons.
The Demandingness Objections The list of objections goes on and on, but let’s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is too demanding. Why? Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility—your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.
Utilitarianism and Legal Theory In the law, utilitarian thinking is most associated with normative law and economics. It is useful to review the various forms of utilitarianism in this context:
--Normative law and economics uses preferences rather than pleasure or happiness as its concept of utility.
--Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision.
--Normative law and economics usually assumes that utilities are to be summed—although this issue is rarely addressed in any detail.
--Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized.
If you are interested in the relationship between utilitarianism and legal theory, you will definitely want to check out Kaplow and Shavell’s book, Fairness versus Welfare. Kaplow and Shavell don’t take a stand on the question as to whether utilities should be summed, multiplied, or combined in some other way, but they do offer a trenchant defense of consequentialism as well as an attack on nonconsequentialist approaches to legal theory.
Links
• Utilitarianism Resources
  
• Ethics Updates: Utilitarianism
  
• The Bentham Project
  International Society for Utilitarian Studies
Bibliography The literature on utilitarianism is vast, but here are some good starting points:
• J.J.C. Smart & Bernard Williams, Utilitarianism: For and Against (1973)
  .
• Utilitarianism and Beyond (Amartya Sen & Bernard Williams eds., 2002)
  
• Consequentialism (Stephen Darwall ed. 2002)
  
• Robert E. Goodin, Utilitarianism as a Public Philosophy (1995)
  
• Consequentialism and Its Critics (Samuel Scheffler, ed. 1988)
And finally, on a personal note, I was privileged to take the class on utilitarianism that was taught by Greg Kavka at UCLA more than twenty years ago. Kavka's tragic early death deprived us of an excellent philosopher and a wonderful human being.

For past and future installments of the Legal Theory Lexicon, go here.