Legal Theory Lexicon

This is a collection of the Legal Theory Lexicon posts from Legal Theory Blog. A new entry appears each week on Sunday. The most recent posts appear on this page. To access older posts use the "Table of Contents" below. (Many of the Legal Theory Lexicon posts have benefitted from comments by Ken Simons of the Boston University School of Law.)

Sunday, October 19, 2003

Legal Theory Lexicon 006: The Veil of Ignorance
    Introduction This installment in the Legal Theory Lexicon is intended to introduce law students (especially first years) to "the veil of ignorance"--an idea from political philosophy that has had an important influence on legal theory.
    From the Ex Ante Perspective to the Veil of Ignorance Law students quickly learn that law school focuses more about the normative ("Is it a good rule?") than the descriptive ("What is the rule?"). ("Just give me the black letter law!" is a cry in the wilderness!) Once you've learned that lesson, another one quickly follows. (Either it creeps up on you, or perhaps it just hits in one of those glorious a ha moments!) The legal academy (and hopefully your section) is full of different (radically different) perspectives on normative questions about the law. The ex ante/ex post distinction is all about normative perspective. We can look at legal rules ex post (backwards from the present), and ask, "Does this rule provide a fair resolution of this particular controversy?" Of we can look at legal rules ex ante (forward from the present) and ask, "Will the adoption of this rule produce good consequences if applied to similar situations in the future?" The move to the ex ante perspective is the crucial move made by consequentialist legal theories--and in particular, by normative law and economics.
    But there is another important perspective on legal rules that is not captured by the the distinctin between ex post/ex ante perspective. This alternative perspective is frequently associated with the twentieth century's most important political philosopher, the late John Rawls. Rawls is famous for his book, A Theory of Justice, which argued for two principles of justice (the liberty principle and the difference principle) using a striking thought experiment called "the original position." The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance. That is, the representatives are deprived of information about the talents, abilities, and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the "state of nature" that Hobbes, Rousseau, and Locke used as the choice situation for the adoption of a social contract. Rawls's basic intuition was that the state of nature allowed morally irrelevant factors--e.g. the strategic advantages of the strong and cunning--to determine the content of the social contract. The point of the veil of ignorance is to filter out these factors, yielding a fair choice situation. Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chosen in the original position from behind the veil of ignorance?"
    Going Behind the Veil, Part One So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to that question (in Part One), then we will introduce some objections and clarifications, and give a more complicated answer (n Part Two). So here goes.
    "Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't know such and such information." Right away, you see that we must fill in the blank! What information is placed behind the veil of ignorance. Let me give some examples:
    • Position as plaintiff or defendant. In evaluating procedural rules, we might want to ask, "What rules would be chosen by the parties if they didn't know whether they were the plaintiff or the defendant?"
    • Wealth and income. And we might make the veil a bit thicker. My choice of procedural rules might be affected by my knowledge of my wealth and income. (For example, if I am wealthy, I might prefer rules that allow wealth and income to influence the outcome of litigation by making the quality of privately financed representation (e.g. buying a good lawyer) a major determinant of the chance of success.
    So, if we placed these two kinds of knowledge behind the veil of ignorance, the question becomes, "What system of procedural rules would I want if knew that I was a litigant in a civil action, but I didn't know whether I was a plaintiff or a defendant and I didn't know whether I was rich or poor?" Let's get really, really simple. Suppose I have a choice between four legal regimes with respect to the provision of counsel:
      (1) Each side pays for its own lawyer. This is the so-called American rule.
      (2) The government pays for all lawyers. Some socialist systems provide for this rule.
      (3) If the plaintiff wins, the defendant pays for both the plaintiff's and the defendant's lawyer, but if the defendant wins, each side pays for its own lawyer. This is the rule that currently prevails under several statutes, e.g. 28 U.S.C. Section 1983.
      (4) The loser pays for its own lawyer and for the winners lawyer. This is the so-called English rule.
    Which of these rules would you select if you were behind a veil of ignorance and you didn't know whether you were a plaintiff or defendant, rich or poor? Obviously, we would need to know a lot about consequences to answer this question, but already, gentle reader, you are running ahead of me, and drawing certain conclusions. For example, you might be thinking that from behind the veil of ignorance, you might reject the rule that makes the defendant pay if the plaintiff wins but does not make the plaintiff pay if the defendant wins. Why would I accept that rule?, you might say to yourself, if I can could end up as a defendant? Of course, it isn't as simple as that, but you get the idea.
    Objections The veil of ignorance is a controversial tool. So its worth our while to briefly scan some of the objections to its employment:
    • Impoverished conception of the person. Michael Sandel (Government, Harvard) made this objection famous. In Rawls's original position, the veil of ignorance is very thick indeed. The representative parties in the original position are placed behind a very thick veil that excludes knowledge of the actual interests (life plans and conceptions of the good) of the represented citizens. So when the representatives compare various options they do so based on the shares that citizens will receive of the primary goods (basic rights, wealth, income, etc.). In the real world, people have complex plans of life and they often care as much or more about what other people get as they do about their own share of the primary goods. Frankly, this objection misses the boat as applied to Rawls's theory, but it is also completely irrelevant to most uses of the veil of ignorance by legal theorists. That's because when we use the veil to compare legal rules, we almost always employ a much thinner veil of ignorance--taking people more or less as they are, concealing only information about their relative positions with respect to the legal dispute (or general class of legal disputes) at hand.
    • The veil of ignorance produces utilitarian reasoning. This objection is associated with the economist, John Harsanyi and in legal theory, with Louis Kaplow and Steve Shavell. Here is the idea. Behind the veil of ignorance, you don't know who you are, and therefore, you will take the interests of all persons into account. If we assume that behind the veil of ignorance, you will try to maximize expected utility, then persons behind the veil of ignorance will always choose the legal rule that maximizes utility. (The original version of this objection was aimed at Rawls, so substitute "theory of justice" for "legal rule" to get Harsanyi's argument.) Once again, as applied to Rawls this objection has been more or less trounced, but it has even less relevance to the use of the veil in the context of legal theory. Legal theorists rarely need to impose a veil so thick that the parties behind the veil will judge legal policies solely on the basis of "expected utilities." Rather, parties behind the veil can take into account the full range of their interests and concerns, including their interests in being treated fairly.
    • One cannot go behind the veil. One final objection: sometimes it is argued that it is just plain impossible to go behind the veil. How can one shed one's knowledge of one's identity? I have to admit that the sheer silliness of this objection leaves me gasping for breath! Of course, going behind the veil of ignorance doesn't literally mean forgetting who you are! In fact, veil of ignorance thought experiments are usually performed by third parties, e.g. by a legal theorist imagining that they were a member of a certain legally-relevant group. And the kind of thought experiment demanded by the veil is very familiar to ordinary people as a means of moral deliberation. Suppose your eldest daughter is hitting her younger sister, and you say to her, "How would you feel if your sister did that to you?" I'm sure, gentle reader, that are galloping ahead of me. This kind of thought experiment is simply a less formal version of the veil of ignorance. There is nothing fancy or mysterious about going behind the veil of ignorance--it is simply good, old-fashioned counterfactual reasoning applied to moral problems.
    Going Behind the Veil, Part Two Something important can be learned by considering the objections to the veil of ignorance. You can learn a lot more from going behind the veil, if you are very clear about the set up of your thought experiment. Here are some particular questions you might want to answer when you devise a veil of ignorance thought experiment:
    • Who is going behind the veil? The parties to a particular dispute? Or representatives of the general class of persons involved in the generic set of similar disputes? Or all citizens?
    • What information is allowed behind the veil and what information is excluded? Usually, you will want to deprive those behind the veil of knowledge of their position in the particular dispute. (E.g. behind the veil, they will not know whether they are the plaintiff or the defendant, or the victim of the accident versus the person who caused the accident, etc.) But you may want to exclude other information as well. For example, you may want to deprive the parties of information about their wealth, their gender or ethnicity, their skills and abilities, and so forth.
    • When are the parties located in time? At the beginning of the lawsuit? Before the events that triggered the legal dispute had even occurred? At a sort of timeless moment, when we are choosing legal rules to govern our society?
    • How do parties behind the veil of ignorance deliberate? For the most part, legal theorists will want to leave the deliberative processes relatively untouched. Huh? By that I mean that unlike Rawls, legal theorists do not need to specify that the parties pursue some particular goal (maximimizing their share of the primary goods) but can leave the parties with the interests they have before the veil descends. Rawls specified a particular decision rule for the parties--the maximin rule--which required the parties to maximize the share of the primary goods that would be held by the worst-off group. Again, legal theorists may not need this very strong assumption about how the parties deliberate.
    Another Objection And this brings us to yet another objections to Rawls's original position. The objection is simple: what comes out of the original position depends entirely on what goes into its set up. Of course! But by itself, this is no objection. Think of the analogous case of "How would you feel if your sister did that to you?" Of course, asking the question in this way is designed to elicit a certain outcome. But the question is nonetheless morally salient, because the norm of reciprocity that it brings to the fore is itself morally salient. The veil of ignorance is not some magical divining rod that allows us to discover ex nihilo moral intuitions that otherwise would be undiscoverable. The point of the veil is to enable us to think in a clear and rigorous way about what is fair and what isn't. So here is the important point, when you answer the who, what, when, and how questions about the set up of your veil of ignorance thought experiment, you are making explicit to yourself the factors that you think are morally relevant to judgments of fairness. In a sense, it is doing that work that is the whole point of the veil of ignorance. The fact that behind the veil thought experiments also elicit powerful moral intuitions is, in a sense, just a wonderful side benefit.
    Back to the Classroom So if you are a theoretically inclined first-year law student, how can you use the veil of ignorance. Here is my suggestion. At least some of the time, when you are reading and thinking about a morally interesting case--one where you say, this case involves questions about fairness--ask yourself the following three questions: (1) ex post, which rule provides the fair resolution of this controversy; (2) ex ante, which rule would produce the best consequences if applied to similar cases in the future, and (3) from behind the veil of ignorance, which rule would I choose if I didn't know whether I was the plaintiff or the defendant? Sometimes, as you begin to answer that third question, you will find yourself interested by the questions as to who is behind the veil of ignorance, what they know, when they decide, and how they deliberate. Spend a few minutes thinking about those questions, and you may find that you have a deeper understanding of the concerns of principle or fairness that are relevant to the case.
    A cautionary note: The veil of ignorance is controversial. In some classrooms, an attempt to introduce the veil into a classroom discussion will be welcomed; in others, you will draw a withering stare or a dismissive comment. Go with the flow!