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					The Blackwell Guide to the
Philosophy of Law
and Legal Theory
                  Blackwell Philosophy Guides
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   The Blackwell Guide to the
   Philosophy of
Law and Legal Theory
                Edited by
Martin P. Golding and William A. Edmundson
                                   © 2005 by Blackwell Publishing Ltd

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                                                      Contents



Notes on Contributors                                                                                                                          vii

Introduction                                                                                                                                    1
William A. Edmundson


Part I Contending Schools of Thought                                                                                                          13

1 Natural Law Theory                                                                                                                           15
  Mark C. Murphy
2 Legal Positivism                                                                                                                             29
  Brian H. Bix
3 American Legal Realism                                                                                                                       50
  Brian Leiter
4 Economic Rationality in the Analysis of Legal Rules and Institutions                                                                        67
  Lewis A. Kornhauser
5 Critical Legal Theory                                                                                                                        80
  Mark V. Tushnet
6 Four Themes in Feminist Legal Theory: Difference, Dominance,
  Domesticity, and Denial                                                                                                                      90
  Patricia Smith


Part II       Doctrinal Domains and their Philosophical Foundations                                                                         105

7 Criminal Law Theory                                                                                                                        107
  Douglas Husak
8 Philosophy of Tort Law                                                                                                                     122
  Benjamin C. Zipursky
9 Contract Theory                                                                                                                            138
  Eric A. Posner

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10 The Commons and the Anticommons in the Law and Theory of Property                                                                                                      148
   Stephen R. Munzer
11 Legal Evidence                                                                                                                                                         163
   Alvin I. Goldman


Part III Perennial Topics                                                                                                                                                 177

12 Legal and Moral Obligation                                                                                                                                             179
   Matthew H. Kramer
13 Theories of Rights                                                                                                                                                     191
   Alon Harel
14 A Contractarian Approach to Punishment                                                                                                                                 207
   Claire Finkelstein
15 Responsibility                                                                                                                                                         221
   Martin P. Golding
16 Legislation                                                                                                                                                            236
   Jeremy J. Waldron
17 Constitutionalism                                                                                                                                                      248
   Larry A. Alexander
18 Adjudication and Legal Reasoning                                                                                                                                       259
   Richard Warner
19 Privacy                                                                                                                                                                271
   William A. Edmundson


Part IV Continental Perspectives                                                                                                                                          285

20 Continental Perspectives on Natural Law Theory and Legal Positivism                                                                                                    287
   Jes Bjarup
21 Some Contemporary Trends in Continental Philosophy of Law                                                                                                              300
   Guy Haarscher


Part V Methodological Concerns                                                                                                                                            313

22 Objectivity                                                                                                                                                            315
   Nicos Stavropoulos
23 Can There Be a Theory of Law?                                                                                                                                          324
   Joseph Raz

Index                                                                                                                                                                     343




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                         Notes on Contributors



Larry A. Alexander is Warren Distinguished                                  Martin P. Golding is Professor of Philosophy
Professor of Law, University of San Diego. He is                            and Professor of Law at Duke University. His
editor of Constitutionalism: Philosophical Foun-                            books include Philosophy of Law (1975, Japanese
dations, An Anthology (1998) and coauthor                                   translation 1985, Chinese translation 1988),
(with Paul Horton) of Whom Does the Constitu-                               Legal Reasoning (1984), and Free Speech on
tion Command? (1988) and (with Emily Sher-                                  Campus (2000). He is also editor of Jewish Law
win) of The Rule of Rules (2001). His Is Freedom                            and Legal Theory (1994).
of Expression a Human Right? is forthcoming in
2005.                                                                       Alvin I. Goldman is Professor of Philosophy at
                                                                            Rutgers University, New Brunswick. His many
Brian H. Bix is the Frederick W. Thomas Profes-                             books include Epistemology and Cognition
sor of Law and Philosophy at the University of                              (1986), Knowledge in a Social World (1999),
Minnesota. He is author of Jurisprudence: Theory                            and Pathways to Knowledge (2002).
and Context (3rd edn. 2003) and Law, Language
and Legal Determinacy (1993).                                               Guy Haarscher is full professor (professeur ordin-
                                                                                                    ´
                                                                            aire) at the Universite Libre de Bruxelles (ULB)
Jes Bjarup is Professor in Jurisprudence, Juri-                             and visiting professor at the Duke University
diska Institutione, Stockholms Universitet,                                 School of Law and at the Central European Uni-
Stockholm, Sweden. He is author of Skandina-                                versity in Budapest. He also teaches at the College
vischer Realismus, Hagerstrom, Lundstedt, Olive-                            of Europe in Bruges. His books include L’ontolo-
crona, Ross (1978, Dutch translation 1984). His                             gie de Marx (1980), La raison du plus fort (1988),
essay, ‘‘Kripke’s Case’’ is collected in Law and                            Philosophie des droits de l’homme (4th edn. 1993),
Legal Interpretation (2003).                                                La laıcite´ (3rd edn. 2004), Le fanto
                                                                                   ¨                              ˆme de la lib-
William A. Edmundson is Professor of Law and                                erte´(1997), Philosophie du droit, with B. Frydman
of Philosophy at Georgia State University. He is                            (2nd edn. 2001), and Les de   ´mocraties survivront-
author of Three Anarchical Fallacies (1998) and                             elles au terrorisme? (2002).
An Introduction to Rights (2004), and editor of
                                                                            Alon Harel is Walter E. Meyer Professor of Law
The Duty to Obey the Law (1999).
                                                                            at Hebrew University of Jerusalem. He has been a
Claire Finkelstein is Professor of Law and Phil-                            Faculty Fellow at Harvard University and a
osophy at the University of Pennsylvania, where                             Visiting Professor at Columbia Law School and
she is Director of the Institute for Law and Phil-                          at the University of Toronto Law School. His
osophy. She is currently writing a book entitled                            article ‘‘What Demands are Rights? An Investi-
Contractarian Legal Theory. She is also the editor                          gation into the Relations Between Rights and
of a collection of essays entitled Hobbes on Law,                           Reasons’’ appeared in the Oxford Journal of
forthcoming in 2004.                                                        Legal Studies (1997).

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----------------------------------------------------------------------- Notes on Contributors ----------------------------------------------------------------------

Douglas Husak is Professor of Philosophy at                                           Joseph Raz is Professor of the Philosophy of Law,
Rutgers University, New Brunswick. He is author                                       Oxford University and fellow of Balliol College,
of Legalize This! The Case For Decriminalizing                                        and Professor of Law, Columbia University. His
Drugs (2002), Drugs and Rights (1992), and                                            many books include Practical Reason and Norms
Philosophy of Criminal Law (1987).                                                    (1975, 2nd edn. 1999), The Morality of Freedom
                                                                                      (1986), and The Practice of Value (2003).
Lewis A. Kornhauser is Alfred B. Engelberg
Professor of Law at New York University. His                                          Patricia Smith is Professor of Philosophy at
essay, ‘‘Preference, Well-Being, and Morality in                                      Baruch College and the Graduate Center, City
Social Decisions’’ appeared in the Journal of                                         University of New York. She is editor of Feminist
Legal Studies in 2003.                                                                Jurisprudence (1993) and The Nature and Process
                                                                                      of Law (1992) and is coeditor of several other
Matthew H. Kramer is Professor of Legal and
                                                                                      volumes. She is the author of Liberalism and
Political Philosophy at Cambridge University,
                                                                                      Affirmative Obligation (1998) and is currently
where he is also a Fellow and Director of Studies
                                                                                      working on a book titled Omission, Law and
in Law at Churchill College. His many books
                                                                                      Responsibility.
include A Debate Over Rights: Philosophical En-
quiries (1998) (with Nigel Simmonds and Hillel                                        Nicos Stavropoulos is University Lecturer in
Steiner), In Defense of Legal Positivism: Law With-                                   Legal Theory at Oxford University. He is the
out Trimmings (1999), and The Quality of Free-                                        author of Objectivity in Law (1996) and contrib-
dom (2003).                                                                           uted ‘‘Hart’s Semantics’’ to Hart’s Postscript (ed.
                                                                                      Jules Coleman, 2001).
Brian Leiter is Joseph D. Jamail Centennial
Chair in Law, Professor of Philosophy, and Dir-                                       Mark V. Tushnet is Carmack Waterhouse Pro-
ector of the Law and Philosophy Program, Uni-                                         fessor of Constitutional Law at Georgetown Uni-
versity of Texas at Austin; and Visiting Professor                                    versity. He was the secretary of the Conference on
of Philosophy, University College London. He is                                       Critical Legal Studies from 1976 to 1985, and is
the author of Nietzsche on Morality (2002) and                                        author of Red, White, and Blue: A Critical An-
Naturalizing Jurisprudence (forthcoming), and                                         alysis of Constitutional Law (1988), and The New
editor of Objectivity in Law and Morals (2001).                                       Constitutional Order (2003).
Stephen R. Munzer is Professor of Law at the                                          Jeremy J. Waldron is Maurice and Hilda Fried-
University of California, Los Angeles. He is the                                      man Professor of Law and Director of the Center
author of A Theory of Property (1990) and editor                                      for Law and Philosophy at Columbia University.
of New Essays in the Legal and Political Theory of                                    His many books include Liberal Rights: Collected
Property (2001).                                                                      Papers 1981–91 (1993), Law and Disagreement
                                                                                      (1999), and God, Locke and Equality (2002).
Mark C. Murphy is Professor of Philosophy at
Georgetown University. He is the author of Nat-                                       Richard Warner is Professor of Law and Faculty
ural Law and Practical Rationality (2001) and                                         Director of the Center for Law and Computers at
An Essay on Divine Authority (2002), and is                                           Chicago-Kent College of Law of the Illinois In-
editor of Alasdair MacIntyre (2003). He is cur-                                       stitute of Technology. He has edited the papers of
rently at work on Natural Law in Politics and                                         philosopher Paul Grice, and is author of Freedom,
Jurisprudence.                                                                        Enjoyment, and Happiness: an Essay on Moral
                                                                                      Psychology (1987) and ‘‘Pragmatism and Legal
Eric A. Posner is Kirkland and Ellis Professor of
                                                                                      Reasoning’’ in Hilary Putnam: Pragmatism and
Law at the University of Chicago. He is the
                                                                                      Realism (2002).
author of Law and Social Norms (2000) and the
editor of Chicago Lectures in Law and Economics                                       Benjamin C. Zipursky is Professor of Law at
(2000).                                                                               Fordham University. Among his articles in torts




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----------------------------------------------------------------------- Notes on Contributors ----------------------------------------------------------------------

and jurisprudence are, ‘‘Civil Recourse, not Cor-                                     Conceptualism’’ in Legal Theory (2000), and
rective Justice’’ in the Georgetown Law Journal                                       ‘‘The Moral of MacPherson’’ (with J. Goldberg)
(2003), ‘‘The Model of Social Facts’’ in Hart’s                                       in the University of Pennsylvania Law Review
Postscript (ed. J. Coleman, 2001); ‘‘Pragmatic                                        (1998).




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                                              Introduction
                                       William A. Edmundson



The purpose of this volume is to offer the reader a                         makers in a democratic polity. As such, legal
guide to the most important topics of current                               theory might seem to have a somewhat narrower
discussion in the closely related fields of philoso-                        set of concerns than the philosophy of law, but in
phy of law and legal theory. Each of the chapters                           fact the distinction between the two is evanescent:
attempts to convey what is currently agreed upon                            one that is no more useful than that between
with respect to its topic, what is in dispute, and                          ‘‘general’’ jurisprudence (as a separate academic
the more prominent positions that have been                                 subject) and philosophy of law. It has been the
taken in disputed areas. Each chapter also at-                              editors’ hope to rise above arbitrary divisions
tempts to assess the importance of what is in                               of academic turf and to produce a valuable refer-
dispute – the ‘‘stakes’’ – and the prospects of                             ence for philosophers and academically minded
some resolution being reached. In some in-                                  lawyers that will, in addition, be a suitable primary
stances, matters of agreement and of disagree-                              or secondary text for introductory, upper-
ment may be found to rest upon what the                                     level undergraduate and postgraduate courses in
author believes is some shared mistake. In others,                          moral philosophy, political philosophy, law, legal
the historical progress of dialogue is examined to                          philosophy, political science, political theory, and
diagnose the sources of dispute and prospects for                           government.
resolution. In every instance, the author has had
the option to take and defend a particular pos-
ition – evenhandedly of course.
                                                                                 Contending Schools of Thought
   At the outset, a remark is in order on the im-
plied contrast between ‘‘philosophy of law’’ – on
the one hand – and ‘‘legal theory’’ – on the other.                         The natural law tradition in the philosophy of law
The verbal distinction between the two has come                             can be traced back at least as far as the writings of
about largely as a historical accident. The philoso-                        Thomas Aquinas in the thirteenth century. Mark
phy of law has – as its name implies – its base of                          C. Murphy reads Aquinas as having formulated
operations within the study of philosophy, and                              the central natural law thesis that, ‘‘necessarily,
therefore shares with philosophy certain trad-                              law is a rational standard for conduct.’’ Though
itional methods of inquiry and investigative pri-                           it is not so easily refuted as many have thought,
orities. The term ‘‘legal theory’’ tends to connote                         Murphy acknowledges that natural law theory is
an enterprise having its operational base within                            nonetheless ‘‘marked by ambiguity and unclarity
the legal academy – an enterprise that has tended                           at its core’’ – a condition that he attempts to
to concentrate on rationalizing and legitimating                            correct. Murphy defines and defends an inter-
whole departments of legal doctrine – such as tort                          mediate ‘‘Weak Reading’’ of the central thesis –
and contract – and the role of unrepresentative                             one also advocated by John Finnis – according to
and typically unelected judges as de facto law-                             which irrational or insufficiently rational laws are

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--------------------------------------------------------------------------------
-------------------------------------------------------------------------------- Introduction --------------------------------------------------------------------------------
                                                                                               -------------------------------------------------------------------------------

treated as laws, but defective laws, in the same way                                      ‘‘inclusive’’ (or ‘‘soft’’) and ‘‘exclusive’’ (or
that the existence of lame cheetahs is to be recon-                                       ‘‘hard’’) schools have emerged. The two schools
ciled with the truth that, necessarily, cheetahs are                                      divide over the understanding of the fundamental
fast runners. Natural law differs from legal posi-                                        tenet of legal positivism, that there is no necessary
tivism (whose ‘‘generic thesis’’ is that the status of                                    linkage between law and morality. For exclusive
a social rule as a law is entirely independent of its                                     positivists – such as Joseph Raz, Andrei Marmor,
status as a rational standard) in holding that there                                      and Scott Shapiro – the fundamental tenet of legal
is a rational standard internal to law that makes an                                      positivism means that no moral criteria can ever
irrational law a defective though valid law.                                              be needed, nor suffice, to identify a rule as a legal
   Parting company with Finnis, Murphy argues                                             rule. For inclusive positivists – counting David
that the better line of defense of natural law                                            Lyons, Jules Coleman, and the later Hart
begins with the idea that law is a functional                                             among this group – some legal systems may as a
kind, that is, a kind of thing characterized by its                                       matter of convention incorporate certain moral
function. Murphy treats several objections to this                                        criteria among their criteria of legal validity, as
functionalist approach, and concludes that law                                            either necessary or as sufficient conditions. As
need not have a characteristic end (such as social                                        Bix points out, ‘‘the debate is still evolving’’
order, or justice) to serve as a functional kind, so                                      but, as legal positivists respond to criticisms
long as law employs certain characteristic means                                          from within their camp and from without by
to achieve what ends it serves. What remains is to                                        repeatedly adding qualifications, the theory
describe those characteristic means as essentially                                        ‘‘may be able to beat off all attacks, but the forti-
involving a background in which humans are en-                                            fied product is one that sometimes seems to be
gaged in their characteristic activity as rational                                        neither recognizable nor powerful’’ (a predica-
beings, namely, acting for reasons. Law’s charac-                                         ment akin to that in which Murphy finds contem-
teristic means, Murphy concludes, are ‘‘to pro-                                           porary natural law theory).
vide dictates backed by compelling reasons for                                               The distinction between the philosophy of law
action, and . . . law that fails to do so is defective                                    and legal theory is illustrated by the contrast be-
as law.’’                                                                                 tween American Legal Realism and its Scandi-
   Legal positivism has a shorter history than its                                        navian cousin. As Brian Leiter explains, the latter
natural law rival, as Brian H. Bix points out. The                                        resulted from the application of a wider philo-
nineteenth-century lectures of John Austin con-                                           sophical program to law, while the former grew
tain the classic statement of the legal positivist                                        out of the early twentieth-century reaction of an
project: to establish the study of law free of en-                                        influential but loosely affiliated group of lawyers
tanglement with proposals for its reform. Bix sets                                        and law professors to a dominant ‘‘formalist’’
aside the ambition (often associated with Austrian                                        ideology propagated by Christopher Columbus
legal positivist Hans Kelsen) for a ‘‘science’’ of                                        Langdell at Harvard Law School in the late nine-
law measuring up to the standard of rigor set by                                          teenth century. The ‘‘core claim’’ of the American
the physical sciences, and concludes that the more                                        Legal Realists (or ‘‘Realists,’’ here, for short) was
modest Austinian proposal to study law in a dis-                                          that an appellate decision is better understood as a
interested and scientific spirit is ‘‘neither mis-                                        response to the factual nuances of the case, rather
                 ¨
guided nor naıve,’’ even if unattainable. But this                                        than as a mechanical application of legal rules.
raises, for Bix, the question of what legal positi-                                       The Realists attacked ‘‘mechanical jurispru-
vism’s distinctiveness can consist of today, when                                         dence’’ in order to open the way to reform,
its modest aim is so widely shared, and the goal of                                       whether by encouraging a more detailed restate-
a separate science of law has been foresworn.                                             ment of the responses of courts to facts, or by
   Bix identifies various strains of contemporary                                         opening legal argument to economic and social
legal positivism, but concentrates on the strain                                          scientific facts that would not otherwise have
that derives from H. L. A. Hart and focuses on                                            been relevant. Although the Realists argued that
law as a social convention that must be grasped                                           the legal rules that formalism held to determine
from a ‘‘hermeneutic’’ or participant’s perspec-                                          outcomes were, in fact, often indeterminate,
tive. Within the Hart-inspired strain, contending                                         most were on Realism’s ‘‘Sociological Wing,’’

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---------------------------------------------------------------------- William A. Edmundson ----------------------------------------------------------------------
                                                                                            ---------------------------------------------------------------------

which found that appellate outcomes did fall into                                   theory and its technical conception of preference
predictable patterns, although these patterns –                                     to the law; but while the former treats private
according to the ‘‘core claim’’ – were to be ex-                                    individuals as self-interested preference maxi-
plained not by the rules but by looking to patterns                                 mizers, the latter treats public officials in this
within the underlying facts, whether or not those                                   manner as well. Even if ‘‘self-interestedness’’ is
facts had been deemed legally relevant. Few went                                    given a wide scope (allowing for, e.g., altruistic
as far as Jerome Frank, who believed that judicial                                  preferences), the core concept of economic analy-
responses were entirely individual, and whom                                        sis – that of preference – is at odds with the
Leiter places on Realism’s ‘‘Idiosyncratic Wing.’’                                  mainstream understanding of law as normative,
   Leiter traces the impact Realism has had on                                      that is, as purporting to obligate rather than
American legal practice, and the diminution of                                      merely to coerce. Kornhauser examines the con-
its influence on legal theory and the philosophy                                    cepts of preference and of obligation in order to
of law due to the work of the ‘‘Legal Process                                       determine how economic analysis might recon-
School’’ at Harvard in the 1950s and H. L. A.                                       cile its theories, elaborated in terms of preference,
Hart’s attack on Realism (sub nomine ‘‘rule skep-                                   with the mainstream legal theory’s insistence
ticism’’) in the early 1960s. After a detailed exam-                                upon the idea of legal obligation.
ination of Hart’s critique Leiter concludes that its                                   Another of Realism’s legacies is Critical Legal
merits do not fully justify its influence.                                          Studies (‘‘CLS,’’ for short), which, as Mark V.
   One of the legacies of Realism has been an                                       Tushnet recounts, emerged in the 1970s in the
increased interest in the economic dimension of                                     United States as a left-wing opposition to the
legal decision making. Lewis A. Kornhauser de-                                      consensus-assuming Legal Process school and
scribes how economic analysis, which was con-                                       the perceived scientism of an emerging ‘‘Chicago
fined even during the Realists’ heyday to                                           School’’ of economic analysis. The CLS slogan,
subjects of legislation, burst in the latter half of                                ‘‘law is politics,’’ reflected a rejection of institu-
the twentieth century into the precincts of the                                     tions as repositories of settled wisdom, and of law
common law, offering both descriptive accounts                                      as a reflection of some ‘‘immanent rationality.’’
of doctrine and prescriptions for its interpret-                                    CLS was largely inattentive to traditional disputes
ation, reform, or replacement. Kornhauser argues                                    about the nature of law and its relation to moral-
that the normative claim of economic analysis –                                     ity, but was instead concerned to open up avenues
that common law rules should be evaluated solely                                    of reform that were closed off by the ‘‘false neces-
by the degree to which they promote welfare (or                                     sity’’ attributed to traditional legal categories and
‘‘efficiency’’ in any of its technical economic                                     their assumed determinacy. CLS took up the
senses) – is not essential to the practice of eco-                                  Realist critique of determinacy, but innovated by
nomic legal analysis. What is, however, distinctive                                 offering explanations of the undeniable predict-
about economic analysis is its approach to the                                      ability of most legal outcomes by drawing upon
normative nature of law: while traditional legal                                    the concept of hegemony as elaborated in the work
scholarship proceeds upon the assumption that                                       of Antonio Gramsci and other humanist Marxists.
legal rules are normative (i.e., action-guiding,                                       Contrary to the widely held view that CLS was
motivating), economic analysis makes no such                                        killed by the question, ‘‘What would you do?’’
assumption, seeking instead to place legal rules                                    Tushnet points to the many policy initiatives sup-
within causal patterns that need not reflect                                        ported (if not precisely entailed) by CLS, and to
H. L. A. Hart’s ‘‘internal point of view’’ – the                                    the critical race and critical feminist theories it
point of view taken by officials and others                                         engendered. Because of its fruitfulness, it was
who regard the law as a rational standard                                           perhaps inevitable that intramural disputes
worthy of guiding conduct. The ‘‘strong’’ (unlike                                   would begin to divide CLS. Tushnet instances
the ‘‘modest’’) research program of economic                                        the ‘‘critique of rights’’: while many critical legal
analysis simply repudiates normativity.                                             scholars suspiciously view the concept of rights as
   Kornhauser distinguishes a policy analysis                                       a double-edged instrument of bourgeois indi-
school and a political economy school of eco-                                       vidualism, critical race theorists have come to
nomic analysis. Both apply microeconomic                                            the defense of the capacity of rights to counter

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-------------------------------------------------------------------------------- Introduction --------------------------------------------------------------------------------
                                                                                               -------------------------------------------------------------------------------

subordination and to advance the interests of                                             exist or deserve further attention – what Deborah
racial minorities. Critical race and critical feminist                                    Rhode has labeled ‘‘the ‘no problem’ problem.’’
scholars have also innovated by employing narra-
tive as a way of exposing and countering the
processes of hegemony, by which a persuasion of                                                     Doctrinal Domains and their
the inevitability and justice of subordinate social
                                                                                                     Philosophical Foundations
positions is instilled in the minds of those who
occupy them. CLS is not moribund, Tushnet
concludes, but an analytical technique very                                               The ‘‘general part’’ of the criminal law deals with
much at the disposal of legal scholars.                                                   issues such as culpability, voluntariness, attempt
   Four themes in feminist legal theory form the                                          liability, and defenses of justification and excuse,
subject of Patricia Smith’s chapter. The respect                                          in contrast to the ‘‘special part,’’ which treats
due differences between men and women is the                                              specific offenses such as murder, rape, or – as
first theme. Equal treatment and identical treat-                                         Douglas Husak informs us – exhibiting deformed
ment have been distinguished at least since Carol                                         animals. Both theory and law school pedagogy
Gilligan’s In a Different Voice (1982). As in the                                         concentrate on the general part almost to the
case of pregnancy leave, ignoring differences may                                         exclusion of the question: what ought to be crim-
lead to an unjust allocation of burdens. But Smith                                        inalized? Husak finds this misdirection of interest
warns against allowing the celebration of puta-                                           to be both puzzling and deplorable in light of the
tively feminine virtues, such as caring and nurtur-                                       proliferation of statutory and regulatory offenses
ing, to reinforce traditional gender roles. Care                                          in recent years, and the related explosion in the
and nurture, because valuable, are to be incul-                                           number of prison inmates over the last quarter-
cated equally in men and women, Smith argues.                                             century – much of the increase attributable to
The pervasive, socially constructed relation of                                           drug offenses unknown to the criminal law of a
male dominance and female subordination is                                                century ago. Husak devotes his chapter to an
Smith’s second theme. Drawing upon Stephen                                                effort to begin to correct this imbalance.
Schulhofer’s recent work on rape law, Smith                                                  Addressing criminalization, the basic question
argues that male dominance systematically dam-                                            of criminal law theory, presupposes an analysis of
pens the legal system’s response to the crime                                             what is distinctive of criminal law. Husak
of rape, and manifests itself in a number of                                              defends the ‘‘orthodox position’’ that punish-
‘‘futilitarian’’ responses (to borrow Peter Unger’s                                       ment is the hallmark of criminal law, and a ser-
phrase) to the persistence of male violence toward                                        viceable one despite the existence of borderline
women.                                                                                    cases. The theory of criminalization is thus tied
   Domesticity, Smith’s third theme, concerns the                                         to the task of justifying punishment – a task
institutionalization of gender roles by superfi-                                          which, under examination, is not satisfactorily
cially gender-neutral mechanisms. The stereotyp-                                          performed by standard theories, such as utilitar-
ical ‘‘perfect worker’’ and ‘‘breadwinner’’ roles                                         ianism in its modern, law-and-economics incar-
cannot readily be filled by the stereotypical ‘‘per-                                      nation, nor by Joel Feinberg’s elaboration of
fect mother,’’ who must be ever ready to answer                                           John Stuart Mill’s ‘‘harm’’ principle, nor by
the demands of children and spouse. Smith                                                 H. L. A. Hart’s hybridization of utilitarian and
argues that gender bias can masquerade as neutral                                         retributive approaches. The problem is that legis-
meritocracy only because the role of worker and                                           latures have been so prolific in enacting punitive
the criteria of evaluating workplace performance                                          statutes that no theory of punishment stands a fair
are themselves shaped by bias. Smith seconds                                              chance of fitting the law on the books. In the
Joan Williams’s proposal to allow discrimination                                          United States, the constitution allows legislatures
suits against employers who impose masculinized                                           huge latitude to criminalize conduct so long as –
norms in the design of work schedules and leave                                           as is typically the case – fundamental rights such as
policies. Threaded throughout Smith’s chapter is                                          free speech and privacy are not infringed. Husak
her fourth theme: the commonplace denial that                                             concludes by boldly proposing that legislatures
the injustices targeted by feminist jurisprudence                                         subject criminal statutes to the kind of ‘‘strict

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scrutiny’’ that courts employ in fundamental-                                       commitments when reputation and other
rights cases.                                                                       nonlegal sanctions are insufficient.’’ Normative
   The term ‘‘tort theory’’ may seem oxymoro-                                       theories of contract divide into welfarist and non-
nic, Benjamin C. Zipursky warns, because torts                                      welfarist types, with the latter further dividing
are so much a practical and everyday business.                                      into ones that stress the centrality of promising
Nonetheless, philosophical methods have much                                        to autonomy, and ones that stress instead the
to tell us about the structure of tort doctrine and,                                justice of protecting reliance. Posner focuses on
reciprocally, tort doctrine can illuminate moral                                    the descriptive adequacy of the normative theor-
philosophy. The leading problem for tort theory                                     ies currently in play, setting aside the related but
during the twentieth century was that of making                                     separable issue of whether contract doctrine can
sense of the rationale and respective domains of                                    be unified under a single conceptual theme.
the fault principle (‘‘No liability without fault!’’)                                  Welfarist or economic theory of contract por-
and the principle of strict liability, which holds                                  trays doctrine as a set of default rules duplicating
causers of harm liable irrespective of the degree                                   the efficiency that contracting parties ideally
of care they have taken. Zipursky describes                                         would achieve, were they able to completely spe-
the spectrum of leading views: from Richard                                         cify terms. Posner reviews the reasons why most
Epstein’s libertarian advocacy of strict liability to                               scholars have concluded that welfarist theory is
Ernest Weinrib’s formalist insistence on a negli-                                   descriptively inadequate, raising the question
gence regime. In the middle, allowing scope to                                      whether doctrine should be reformed on a basis
both negligence and to strict liability, fall George                                of welfarist principles. Nonwelfarist theorists
Fletcher’s account based on the idea of reci-                                       resist the economists’ call for reform, and offer
procity of risk, and the several accounts advanced                                  instead what they believe to be descriptively and
by Jules Coleman, perhaps the leading tort theor-                                   normatively superior accounts. Posner examines a
ist writing today.                                                                  variety of nonwelfarist theories: Fried’s ‘‘contract
   The debate over strict liability and fault is not                                as promise,’’ Randy Barnett’s ‘‘contract as con-
the only discussion going on in tort theory, how-                                   sent,’’ Peter Benson’s ‘‘contract as transfer,’’
ever. Zipursky instances the effort to understand                                   S. A. Smith’s ‘‘contract as property,’’ and Tim
the concept of duty, and the relative standing of                                   Scanlon’s account – all of which he finds to have
the ‘‘monadic’’ and ‘‘dyadic’’ forms it can take.                                   descriptive shortcomings. Posner then turns to
Because of tort’s nature as a microcosm of social                                   historical accounts, such as Grant Gilmore’s and
life, tort theory illuminates wider issues in legal                                 Patrick Atiyah’s, and to certain general topics
philosophy, such as the ongoing debate between                                      implicated by contract law: formalism, distribu-
instrumental and deontological normative                                            tive justice, and paternalism. He concludes with
accounts of law. Tort theory is, Zipursky observes,                                 the observation that the theories that have been
of value to philosophy ‘‘as a form of moral an-                                     brought to bear on contract doctrine may be
thropology.’’ Recent work by Coleman, Weinrib,                                      inherently too coarse to account for its distinctive
Stephen Perry, and others has, moreover, placed                                     rules, which, like rules of the road, may be
corrective justice once again in its proper position                                serviceable even though incapable of rigorous
with respect to its Aristotelian counterpart, dis-                                  derivation.
tributive justice, given such prominence by                                            Most lawyers find it congenial to think of prop-
political philosopher John Rawls. Despite its sim-                                  erty as a ‘‘bundle of sticks,’’ where the sticks
plicity, Zipursky tells us, tort law stimulates and                                 consist of the various ‘‘legal advantages’’ analyzed
sustains the philosopher’s deepest inquiries.                                       by Wesley Newcomb Hohfeld a century ago,
   Contract law forms, with torts, the doctrinal                                                                             ´
                                                                                    and later specified by Tony Honore. Stephen
area known as private law, and is the subject of                                    R. Munzer shows how the traditional under-
Eric A. Posner’s chapter. Although contract law                                     standing is intertranslatable with the framework
has affinities to the morality of promising, it di-                                 of property, liability, and inalienability rules
verges in a variety of ways, such as its doctrine of                                proposed by Calbresi and Melamed in the early
consideration: it is, Posner writes ‘‘the institu-                                  1970s. But Munzer’s focus is on ‘‘something new
tional form that gives people the power to make                                     under the sun’’ – the idea of the anticommons, an

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area (literal or figurative) from which many have a                                       the adversary system has both advantages and
nonexclusive right to exclude others, in contrast                                                             `
                                                                                          disadvantages vis-a-vis alternative ‘‘inquisitorial’’
to the commons, typically (and often confusedly)                                          systems, in which the facts are developed by neu-
conceived as an area which many have nonexclu-                                            tral agents of the court rather than by the parties.
sive rights to enjoy. The very idea of an anticom-                                           Turning to philosophical fundamentals, Gold-
mons stirs worries about wasteful underuse,                                               man explores the role of Bayesianism in the
just as wasteful overuse was the theme of Garrett                                         theory of legal evidence. Bayesianism holds that
Hardin’s 1968 article, ‘‘The Tragedy of the                                               factfinders, upon exposure to evidence, should
Commons.’’                                                                                adjust their degree of belief in a given hypothesis
   Munzer evaluates the conceptual and practical                                          according to the conditional likelihood, against
promise of the idea of the anticommons. M. Hel-                                           their background of prior beliefs, of there being
ler has proposed that private property be under-                                          such evidence if the hypothesis were true. The
stood as a middle position between a commons                                              standard interpretation of Bayes’s theorem to
and an anticommons – a proposal that Munzer                                               this effect is, however, a subjective one, taking
finds promising as a way of untangling the                                                the factfinder’s conditional probability estimates
US Supreme Court’s ‘‘takings’’ jurisprudence                                              as they are found. But the rules of evidence – and
(although, as Munzer explains, Heller and Krier’s                                         the landmark Daubert decision on the admissibil-
recent work, drawing on Calabresi and Melamed,                                            ity of expert testimony – are better served by
has advantages as well). The anticommons may                                              requiring an objective rather than a subjective
help explain the ‘‘numerus clausus’’ principle that                                       interpretation. Because subjective Bayesianism
limits the recognized forms of ownership to a                                             cannot guarantee that truth is approached, Gold-
traditional few (although, as Munzer notes, the                                           man proposes what he terms a ‘‘quasi-objective’’
idea of information costs may be just as illuminat-                                       Bayesian alternative, which requires that the fact-
ing, and it may be that the principle itself is over-                                     finder reason in Bayesian fashion upon a set of
stated). Finally, Munzer describes and assesses the                                       subjective likelihoods that are related in a certain
idea of a liberal commons – defended by Dagan                                             way to objective likelihoods, which are to be given
and Heller as a way of honoring liberal values of                                         a modal interpretation along lines suggested by
autonomy and free exit while at the same time                                             the work of the late David Lewis. This approach
securing the social benefits of cooperation – and                                         has practical implications: in particular, it favors
the application of the liberal commons to marital                                         court appointment of expert witnesses over the
property. Although these recent innovations in-                                           predominant practice of allowing the parties each
volve difficulty, they could set the agenda for both                                      to hire experts.
theoretical and doctrinal development in prop-
erty law over the coming decades.
   The topic of evidence in the law is broadly
                                                                                                                 Perennial Topics
construed by Alvin I. Goldman to include not
only the rules of evidence at trial but also civil
discovery rules and the adversary system itself.                                          As Matthew H. Kramer notes, questions concern-
Goldman defends the thesis that adjudication is                                           ing legal and moral obligation (or duty) are of
best justified and explained by reference to sub-                                         long standing. Kramer considers these questions
stantive justice as its ultimate value, while truth-                                      as they divide into three sets. The first set con-
seeking – as a necessary but subordinate value –                                          cerns whether and how legal obligations engen-
governs the law of evidence, subject to side con-                                         der moral ones or, more precisely, how there can
straints determined by values other than truth,                                           be a ‘‘prima facie, comprehensively applicable,
such as administrability and the fostering of cer-                                        universally borne, and content-independent’’
tain relationships. Despite exceptions and com-                                           duty to do what the law requires. Kramer reviews
plications, the truth rationale for the rules of                                          efforts to ground such a duty as a species of
evidence has, Goldman concludes, no serious                                               promissory obligation or consent, as an instance
competitors. Judged from the perspective of                                               of a wider duty of fairness (or, as H. L. A Hart
‘‘social epistemology,’’ Goldman points out that                                          termed it, of fair play), as a duty of gratitude, or as

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a utilitarian rule. Each of these efforts have fallen                               question Harel explores with reference to the
short, leading some to revisionism, as in the case                                  notoriously difficult ‘‘trolley’’ problem.
of Ronald Dworkin’s ‘‘associative obligations,’’                                       The second half of Harel’s discussion is an
which lack content independence and compre-                                         effort to locate rights within moral theory gener-
hensive applicability.                                                              ally. Are they foundational, or reducible to more
   A second set of questions concerns whether the                                   basic terms? Harel discusses Joseph Raz’s view
law purports to impose moral duties – an issue                                      that rights are mediary between values and
sometimes cast in terms of the nature of law’s                                      duties, and proposes instead a ‘‘nonreductionist’’
authority. Kramer examines the arguments of                                         account emphasizing that new values emerge
Joseph Raz representing law as necessarily, if only                                 from social practices that, on a superficial view,
implicitly, claiming to impose moral duties of com-                                 may seem merely to serve a more abstractly de-
pliance. Kramer concludes that Raz fails to rule out                                scribed value. Only such an account can explain
the possibility of wicked legal regimes that disdain                                why the right to free speech varies so from nation
rather than disown the moral claim. Law, for Kra-                                   to nation even though it everywhere serves, in an
mer, differs from mere coercion not by adding a                                     abstract sense, to protect autonomy. The practice
moral claim but by the generality, temporal exten-                                  of protecting speech for the sake of autonomy –
sion, and consequent regularity of its commands.                                    and not merely, say, to promote the general wel-
   Kramer’s third set of questions focuses on the                                   fare – endows speech with an intrinsic value it
logical characteristics of moral and legal obliga-                                  lacks in societies whose practices do not single
tion and, in particular, on the reach of the                                        out speech as a preferred vehicle for autonomy.
‘‘correlativity thesis’’ propounded in the early                                    Harel considers also Marxist, antineocolonialist,
twentieth century by legal theorist Wesley New-                                     communitarian, and feminist critiques of the very
comb Hohfeld. Kramer defends the view that                                          idea of rights, and finds that although it is
legal duties may lack correlate legal rights – may,                                 important that there be certain ‘‘rights-free
in that sense, be ‘‘nominal’’ – but that moral                                      zones, in which spontaneity may flourish,’’ it is
duties and moral rights are mutually entailing.                                     also true that in a world without rights ‘‘an intan-
Thus, although legal rights are not strictly tied                                   gible human sensitivity would be lost.’’
to remedies, moral rights are: where morality is at                                    The justification of punishment is a topic of
issue ‘‘there is no room for nominal duties.’’                                      perennial dispute in the philosophy of law. Claire
   Hohfeld’s analysis is taken up in the first                                      Finkelstein surveys the candidate theories –
section of Alon Harel’s chapter, but with em-                                       deterrence and retribution chief among them –
phasis on filling out the ‘‘underdefined’’ feature                                  and catalogues their strengths and weaknesses.
that distinguishes X ’s having a right (moral or                                    Deterrence theories are notoriously objection-
legal) from there merely being a duty concerning                                    able insofar as they do not require that the recipi-
X on another’s part. Harel compares the choice                                      ent be guilty of any crime – a defect that is often
theory of rights, which conceives rights as a ‘‘pro-                                assumed to be cured by ‘‘mixed’’ theories such as
tective perimeter’’ for the rightholder’s auton-                                    H. L. A. Hart’s, which fix deterrence as punish-
omy, with the interest theory, which sees rights as                                 ment’s ‘‘general justifying aim’’ while requiring
tied to the promotion of the rightholder’s inter-                                   desert as its ‘‘principle of distribution.’’ By means
ests more generally. Both theories fall short of                                    of an ingenious series of examples, Finkelstein
Harel’s criteria of adequacy for a theory of rights,                                shows that the mixed theory still violates the
in that each either contradicts or leaves unex-                                     Kantian prohibition of treating others as mere
plained certain entrenched features of rights dis-                                  means. But honoring the dignity of the punished
course. Choice theory, for example, has trouble                                     cannot be satisfied by embracing retributivism;
accommodating inalienable rights; while interest                                    for, as Finkelstein shows, retributivism is unable
theory has difficulty explaining why only some,                                     to explain the proper measure of punishment.
not all, interests generate rights. Harel considers                                    Both retributivism and deterrence provide im-
the prospects of the hybrid theory recently pro-                                    portant partial insights into the justification of
posed by Gopal Sreenavasan, before turning to                                       punishment, Finkelstein concedes, but ‘‘it is the
the question: why take rights (so) seriously? – a                                   voluntary nature of the system of punishment

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                                                                                               -------------------------------------------------------------------------------

that is required to give both deterrence and moral                                        same time, dismissing motive as irrelevant to
desert their proper place.’’ The voluntary nature                                         guilt. In light of this dissension, Golding turns
of the system of punishment can only be cap-                                              to Barbara Wootton’s proposal to dismiss mens
tured, she argues, by a contractarian account                                             rea altogether from the definition of offenses.
along broadly Rawlsian lines. Rational agents                                             Why have excuses at all? Golding concludes by
will view life under a regulated system of punish-                                        sympathetically recounting the later view of Hart,
ment as preferable to the perils of a state of nature,                                    which locates the rationale for excuses in consid-
and will not willingly gamble away the security                                           erations of fairness to individuals and respect for
that system provides. The contractarian approach                                          their capacity for choice.
can account for salient features of criminal pun-                                            Legislation is the practice by which law is made
ishment that elude competitor theories, she                                               in formal ways by institutions that present them-
argues, and it also has the not unwelcome conse-                                          selves as dedicated to that very task, Jeremy
quence that certain forms of punishment – such as                                         J. Waldron explains. This is not to deny that
torture and execution – are irreconcilable with it.                                       other institutions – courts and agencies, for
   The theory of responsibility – a major theme of                                        example – often make law. But characterizing
the ‘‘general part’’ of criminal law – is the subject                                     legislation in this way draws attention to its
of Martin P. Golding’s chapter. The focal issue is                                        special source of legitimacy: its representative-
that of how far criminal law ought to reflect our                                         ness. Legislation arouses antipathy because ‘‘the
ordinary notions of moral responsibility. In law, as                                      very thing that attracts democratic theorists – the
in everyday life, Golding points out, questions of                                        involvement of ordinary people in lawmaking –
responsibility are often the ‘‘flip side’’ of excuses                                     tends to repel the legal professional.’’ Antipathy is
offered on behalf of an agent whose conduct has                                           especially high in the United States, where stand-
caused harm or otherwise varied from relevant                                             ards of legislative craftsmanship and deliberation
norms. One approach is that of Oliver Wendell                                             are low. Antipathy or ambivalence is also found in
Holmes, Jr., who advocated imposing liability on                                          legal theory, where legislation tends to be treated
an ‘‘objective’’ basis that would ignore the men-                                         as merely an input to the judicial process. While
tality of the defendant except where the ‘‘reason-                                        H. L. A Hart depicted legislative institutions as
able man’’ would have done as the defendant did.                                          marking a society’s progress from a prelegal to a
Golding questions Holmes’s utilitarian rationale                                          legal order, Joseph Raz has argued that the es-
for curtailing the common law mens rea require-                                           sence of a legal order is not a norm-creating but
ment, which after all reflects distinctions that                                          norm-applying institution. Legal Realists and the
matter in everyday life, as Holmes well knew.                                             Legal Process School portrayed legislation as at
Aristotle’s distinction between innocently excus-                                         most a stimulus or input for other, more genu-
able ignorance of facts and inexcusably wicked                                            inely effective, organs of government, and more
ignorance of norms raises, but does not settle,                                           recently Ronald Dworkin has identified the judi-
the long-disputed question as to whether ignor-                                           ciary – rather than the legislature – as the abler
ance of fact must be objectively reasonable if it is                                      ‘‘forum of principle.’’
to excuse.                                                                                   Waldron thinks legislation deserves more
   The influential Model Penal Code effectively                                           respect. He sketches how a more affirmative
created a presumption that mistake of fact excul-                                         account of legislation will emphasize its role as
pates, but in doing so did not resolve the moral                                          mediator between democratic values and rule-
question. H. L. A Hart’s early, ‘‘negative’’ view                                         of-law values. The diversity of typical legislative
was that mental elements are in effect nothing but                                        assemblies is a feature unique to them, one which
summaries of recognized defenses. Antony Duff                                             assures a degree of representativeness that sup-
has taken the quite different position that mens                                          ports law’s claim to impose duties of obedience
rea is a positive notion, and that intention is its                                       upon ordinary citizens, and enriches the pool of
‘‘central species.’’ Duff, in turn, has been criti-                                       opinion and information upon which deliber-
cized by Alan Norrie for failing to appreciate the                                        ation operates. It is diversity, Waldron empha-
self-contradictoriness of criminal law’s emphasis                                         sizes, and not majoritarian procedure, that sets
on a formalistic notion of intention while, at the                                        legislative assemblies apart. Diversity helps to

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explain the ‘‘textual focus’’ of the legislative pro-                               issue with Jeremy Waldron’s view that the legisla-
cess, and why statutory texts must be read con-                                     ture has better moral standing than the judiciary
structively rather than as expressions of a univocal                                to decide how the constitution is to be inter-
purpose. Waldron concludes with a cautionary                                        preted. Alexander takes up a series of arguments
discussion of judicial review of legislation, espe-                                 that might favor Waldron, but finds that none of
cially where matters of constitutional interpret-                                   them rules out the possibility that the ‘‘just so’’
ation are involved – for where a judicial and a                                     story, which explained what constitutions are,
legislative body differ, it is the opinion of the                                   could be continued by settlement upon a meta-
legislative body that represents and is accountable                                 constitutional rule of judicial review rather than
to the views of the citizenry.                                                      one of majoritarian democracy.
   Larry A. Alexander explains what constitutions                                      Legal reasoning is a species of practical
are, what they can do, and why we should want                                       reasoning distinguished by the influence of
one. What constitutions are is explained by a story                                 legal rules, Richard Warner explains. We insist
that takes us through a series of steps. It begins                                  that courts confine themselves to applying legal
with whatever views about justice and politics we                                   rules, but why? A state is legitimate only if its
happen to have; it proceeds, then, by taking into                                   citizens have a duty to obey, but such a duty exists
account the ‘‘circumstances of politics,’’ that is,                                 only when the state represents the citizen.
our need to reach agreement with others who                                         Courts, however, are impartial, not representa-
hold contrary views – at which stage we agree                                       tive. Thus, valuing freedom seems to entail what
with others on second-best principles that are                                      Warner calls the ‘‘confinement claim,’’ namely
preferable to anarchy (though not, from one’s                                       that judging is legitimate only to the extent that
own perspective, to dictatorship by oneself). At                                    it enforces ‘‘obligations that have been encoded
a further stage, a distinction becomes possible                                     in laws through prior representative political pro-
between the constitution, which is the set of                                       cesses.’’ This is the heart of what turns out, how-
agreed-upon symbols, and the metaconstitution,                                      ever, to be a ‘‘Mistaken View.’’ Authoritative legal
which is the agreed-upon mode of identifying and                                    materials underdetermine outcomes, and judges
interpreting those symbols. Constitution and                                        must and do rely on moral principles in their
metaconstitution can vary independently, as Alex-                                   decisions. Since condemning judging as illegitim-
ander indicates with examples from US history.                                      ate is not attractive, one of two options must be
The task of distinguishing the constitution, the                                    chosen. The first, worked out by Ronald Dwor-
metaconstitution, and ordinary legislation is best                                  kin, broadens the confinement claim so that the
achieved by reference to degrees of entrench-                                       authoritative legal materials include the morally
ment. Although the ‘‘whole edifice’’ ultimately                                     best theory of the settled law.
rests upon acceptance, the metaconstitution most                                       The shortcomings of Dworkin’s answer lead
clearly does, and so is the least entrenched; ordin-                                to the second option, which Warner calls the
ary legislation is more entrenched; while the con-                                  ‘‘Received View’’ that abandons the confinement
stitution is the most entrenched – although the                                     claim and holds adjudication legitimate if it
picture is more intricate, as Alexander explains.                                   supplements authoritative legal materials with
   Constitutions serve to entrench rules for                                        selected moral principles no more than necessary.
making and changing ordinary law, and so serve                                      The ‘‘necessary means’’ conception of legitimacy
the vital purpose of assuring that these rules are                                  built into the Received View invites controversy
not themselves drawn continually into dispute.                                      about what is to count as necessary. Controversy
Entrenchment can also curb legislative short-                                       is unsurprising because the Received View tells us
sightedness and protect minority representation.                                    that adjudication can be legitimate even if its
But are these desiderata enough to justify curtail-                                 outcome adversely affects persons who pro-
ing democracy? The question is especially acute                                     foundly disagree with the moral principles applied
when the interpretation of the constitution itself                                  by the court. Respect for freedom counsels
is at issue. When constitutional rules are indeter-                                 that this ‘‘second-best’’ legitimacy be invoked
minate, judicial review of legislation arguably be-                                 sparingly, and courts ideally will confine them-
comes ‘‘judicial despotism.’’ But Alexander takes                                   selves to moral reasons that everyone can freely

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acknowledge as reasons even if not all agree about                                        which can be understood to formulate constitu-
those reasons’ relative weight. Warner argues that                                        tional liberty and privacy alike as decisional
the concept of a person encourages the hope that                                          privacy rights.
‘‘shared reasons’’ are typical of cases of second-
best legitimacy. To the extent that self-defining
commitments are the grounding of the reasons
                                                                                                         Continental Perspectives
that guide our lives, we have reason to acknow-
ledge others’ similar reasons, however contrary to
our own.                                                                                  For over a century, anglophone legal philoso-
   Privacy as a moral right and as a claimant for                                         phers have supposed that their ‘‘analytical’’
legal protection is the topic of William A.                                               approach gives them advantages denied to their
Edmundson’s chapter. Legal protection of priv-                                            counterparts on the European continent, Jes
acy is a modern arrival that comes by way of a                                            Bjarup writes. But the analysis of legal concepts
multifaceted cause of action in tort, by legislative                                      has not been neglected on the Continent, nor has
command, and – most controversially – by judi-                                            Jeremy Bentham’s distinction between exposi-
cial recognition of ‘‘nontextual’’ constitutional                                         tory and censorial jurisprudence – that is,
rights. Some have argued that privacy is, or                                              between ‘‘what the law is’’ and ‘‘its merit or
reflects, a univocal value, while others view it as                                       demerit,’’ as John Austin put it. Bjarup uncovers
merely instrumental to various unrelated inter-                                           strains of legal positivism in the thinking of Im-
ests. Privacy can, however, usefully be seen as                                           manuel Kant, whose influence is undimmed even
having three different dimensions. Physical priv-                                         today. Kant accepted the legal positivist’s thesis
acy consists of a right to the exclusive enjoyment                                        that law is identifiable by its source, but located
of certain areas of space. Informational privacy                                          the normativity of law not in the command of the
has to do with control over information about                                             sovereign but in the ‘‘categorical imperative’’ of
oneself. Decisional privacy is related to the right                                       practical reason, and its purpose not in securing
to liberty, and concerns the right to do some-                                            the greatest happiness, but the greatest freedom.
thing, in contrast to the right to do it in seclusion,                                    Hegel’s philosophy of law also has affinities to
or to do it without others’ knowledge.                                                    legal positivism, if only because Hegel dismissed
   A right to liberty can be distinguished from a                                         the possibility of a censorial jurisprudence
right to decisional privacy by stipulating that                                           altogether, leaving only the task of setting forth
the latter rests on the idea that the actor has a                                         the organic law of the community – a view
right to be free of interference regardless of the                                        developed by von Savigny.
moral merits of the action at issue. The consti-                                             The diminished but not extinguished torch of
tutional right to abortion is better seen as a deci-                                      natural law was carried forward into the twentieth
sional privacy right than a liberty right, for                                            century, in Germany, by the Catholic philosopher
example, in the sense that it need not be under-                                          Viktor Cathrein, but was not readily received by
stood as commending abortion. A right to                                                  Protestant hands. Rudolf Stammler’s doctrine of
decisional privacy is, in this sense, a right to do                                       law as a ‘‘social ideal’’ represented, in the 1920s,
wrong – a paradoxical notion to many, insofar as                                          an effort to go beyond ‘‘technical legal science’’
wrongness seems to connote a permission on the                                            to develop a natural law, but one with ‘‘a
part of others to impose sanctions upon wrong-                                            changing content’’ not fixed a priori in Kantian
doing. Edmundson explores the apparent clash                                              fashion. Gustav Radbruch – who endured the
between decisional privacy rights and the                                                 Nazi era – criticized Stammler’s effort and
‘‘Enforcement Thesis,’’ which holds that moral                                            proposed instead the ‘‘Radbruch formula,’’
wrongness at least pragmatically entails permis-                                          according to which law is to be identified in
sible sanctionability. Appeals to neutrality, auton-                                      legal positivist terms, subject to the proviso that
omy, dignity, and ‘‘self-defining’’ choices are                                           law that does not even attempt to do justice is to
examined, but do not relieve the conflict. This                                           be dismissed as ‘‘false law.’’ Bjarup concludes that
puzzle takes on added importance in light of the                                          the post-World War II revival of natural law think-
US Supreme Court’s Lawrence v. Texas decision,                                            ing has been a multifaceted one not usefully

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---------------------------------------------------------------------- William A. Edmundson ----------------------------------------------------------------------
                                                                                            ---------------------------------------------------------------------

analyzed in terms of ‘‘continental’’ and ‘‘noncon-
tinental’’ approaches.
                                                                                                Methodological Concerns
   Guy Haarscher similarly finds that the bound-
ary between continental and anglophone philoso-
phy of law has become harder to draw over the                                       The objectivity of law is the subject of Nicos
past 30 years – a trend that the catchphrase ‘‘glob-                                Stavropoulos’s chapter. The notion of objectivity
alization’’ does little to illuminate. Thirty years                                 (which some theorists have tried to relativize to
ago Marxism and a ‘‘deconstructionist’’ post-                                       particular domains) is itself in need of clarifica-
modernism seemed dominant in Europe; while                                          tion, he explains. One approach represents a
in English-speaking countries there reigned a                                       domain as objective to the extent that truth in
broadly pragmatist and neopositivist attitude of                                    that domain tracks the way things are in the world
trust in the sciences. Today, postmodernism and                                     independent of the mind; while another approach
neo-Marxism have made inroads in the anglo-                                         (advanced by Thomas Nagel) represents objectiv-
phone academy while, on the continent, Marxism                                      ity as a process of detachment from any particular
has been cast aside, translations of Rawls and                                      perspective on the world. Stavropoulos fixes upon
Ronald Dworkin are widely debated, and law                                          a theme common to the two: objectivity must
itself has become ‘‘a respectable, and even trendy,                                 create a logical space for the possibility of error.
philosophical subject.’’ Moreover, the global                                       Applied to law, the objectivity question becomes:
dominance of liberal ideas has been accompanied                                     ‘‘Is there an objective fact about what the law
by an ‘‘ascent of the judges’’ within civil law                                     requires?’’ – or, put differently, does the nature
systems, eroding the familiar contrast to common                                    of law admit a logical space for possible error
law systems, with the result that ‘‘the fundamen-                                   about what is legally required?
tal regulation of society becomes . . . less political                                 Stavropoulos distinguishes the objectivity
and more legal.’’ Haarscher critically assesses                                     question from a concern with determinacy. Al-
these trends but suggests that basic differences                                    though related, the two ideas are not identical:
of approach endure.                                                                 what is determinate may be subjective and what is
   Haarscher examines an argument advanced                                          indeterminate objective. He surveys leading the-
by Belgian scholars Francois Ost and Michel
                              ¸                                                     ories of law and assesses their stances toward law’s
van de Kerchove, that the shape of European                                         objectivity. H. L. A. Hart’s legal positivism, which
law no longer resembles a pyramid having the                                        is not baldly skeptical of objectivity, encourages us
sovereign state at its apex, to which all other                                     to distinguish the objectivity of the process of
norms are subordinate and have reference.                                           identifying legal norms from the objectivity of
Rather, it has transformed itself into a network                                    the application of those norms to particular
of norms continually under negotiation among a                                      facts. Both aspects are fundamentally social, for
plurality of private and public actors. Haarscher                                   Hart, and thus on his view there is space for error
argues that the structure of the law of the Euro-                                   between what law requires and any particular of-
pean Union, as shaped by the European Court                                         ficial’s judgment, but none between what law
of Human Rights in Strasbourg, seen in this                                         requires and the ‘‘settled collective judgment’’
way, poses a philosophical question about the                                       of officials. In contrast, Ronald Dworkin’s ac-
relationship of hierarchy and equality. Rather                                      count of law implicates objective values both in
than being straightforward contraries, equality                                     the identification of legal norms and in their ap-
and hierarchy may be mutually necessary com-                                        plication. Variant forms of legal positivism might
ponents of the rule of law. Via an analysis of recent                               treat norm identification as not allowing space for
freedom of expression decisions by the Stras-                                       massive social error, while allowing such space in
bourg court, Haarscher cautiously concludes                                         the matter of norm application. But, to the
that judicial ‘‘balancing’’ of rights can introduce                                 extent that such variants of legal positivism are
a perverse uncertainty into the domain of funda-                                    ‘‘inclusive’’ in the sense of allowing that official
mental values upon which the law’s legitimacy                                       practice may employ objective values, it is a live
depends.                                                                            question whether they thereby destabilize the


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                                                                                               -------------------------------------------------------------------------------

legal positivist tenet that the nature of law is                                          only with respect to societies that possess the
fundamentally social.                                                                     concept. A society need not possess our concept
   ‘‘Can there be a theory of law?’’ asks Joseph                                          of law – nor any concept of law nor, indeed, any
Raz. To succeed, a theory of law must propound a                                          legal concept – in order to possess a legal system,
set of necessary truths that explain what law is.                                         Raz argues. Hart correctly emphasized that a
But law is a human institution that varies with                                           legal system’s existence depends in a special way
place and time. Moreover, the concept of law is                                           upon people’s awareness of the role of legal rules
not unary, but is subject to similar (if less extreme)                                    in their lives, but – Raz cautions – that is not to say
variation. How, then, can any theory of law suc-                                          that they must possess a concept of law in order to
ceed? Raz undertakes the task of showing that                                             be aware of rules which, by our account, serve
admitting the parochial nature of law – and even                                          them as legal rules. Raz challenges Ronald
the parochial nature of the concept of law – does                                         Dworkin’s contrary insistence that law is an ‘‘in-
not ordain failure for the theory of law. Although                                        terpretive practice,’’ which presupposes the self-
his chapter does not purport positively to show                                           conscious possession of a concept of law. For Raz,
that such a theory is possible (much less, to ex-                                         ‘‘law can and does exist in cultures which do not
hibit the theory itself) it aims to clear away a                                          think of their legal institutions as legal.’’ Thus,
number of seductive misunderstandings that                                                various arguments from parochialism – as well as
have suggested the contrary.                                                              arguments objecting to ‘‘essentialism’’ – fail to
   The major misunderstanding proceeds from                                               reveal any serious obstacle in the way of progress
the undeniable fact that the concept of law is                                            toward a theory of law. Indirectly, Raz illustrates
parochial. General observations about the nature                                          why the pursuit of such a theory is worthwhile;
of concepts show how and why explaining the                                               for, in his words, ‘‘in large measure what we study
concept of law is secondary to the study of the                                           when we study the nature of law is the nature of
nature of law, and is a component of that study                                           our own self-understanding.’’




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        Part I
Contending Schools of
      Thought
 ----------------------------------            ----------------------------------
----------------------------------- Chapter 1 ----------------------------------

                              Natural Law Theory
                                                 Mark C. Murphy



Natural law theorists claim that, necessarily, law is                       stated as asserting a connection between human
a rational standard for conduct: it is a standard                           law and natural law. A danger with this label, of
that agents have strong, even decisive, reasons to                          course, is that one might confuse theses of Aqui-
comply with. This is the central thesis from which                          nas’s theory of practical rationality with theses of
their developed theory of law takes its starting                            his theory of law, and take objections to one of
point. My aim here is to make clear how we                                  these theories to constitute objections to the
might understand natural law theory’s central                               other. A different label might have been better
thesis, how it can be deployed in a fruitful theory                         at describing the view at the level of abstraction
of law (see C A N T H E R E B E A T H E O R Y O F L AW ?)                   that we will treat it. But the label ‘‘natural law
and why one might take it to be true. I will                                theory’’ has stuck, and I will not attempt to
proceed by first examining briefly the way that                             detach it here.
this thesis surfaces in the work of Thomas Aqui-
nas, the paradigmatic natural law theorist: aside
from providing a salutary glimpse of the history of
                                                                               Aquinas’s Theory of Natural Law
natural law theorizing, this will help us to see in
Aquinas’s work the ambiguities and tensions that
form the problematic of recent natural law                                  Brian Bix has remarked that it is, in general, a bad
thought. I will then proceed analytically, examin-                          idea to read texts on law from the distant past with
ing some of the various formulations that the                               the assumption that the concerns of the authors
natural law thesis might take, considering the                              of those texts are the concerns of contemporary
extent to which each of these formulations is in-                           analytical jurisprudence (Bix 1996: 227). Bix, and
compatible with the legal positivism (see L E G A L                         others, have suggested that this is particularly true
P O S I T I V I S M ) with which natural law theory is                      of Aquinas: Aquinas, they write, was not inter-
typically contrasted, and asking what sorts of ar-                          ested in providing a descriptive theory of the
guments can be offered for the natural law thesis.                          nature of human law; he was, rather, concerned
   It will no doubt be wondered why a thesis                                to provide a theory of political obligation (see
that concerns a connection between law and                                  L E G A L A N D M O R A L O B L I G AT I O N ), that is, an
reasons for action bears the seemingly uninforma-                           account of the source and limits of the moral
tive label ‘‘natural law theory.’’ It bears this label                      requirement to comply with the demands of
because the most historically important defender                            law (see, for example, Bix 2002:63; Soper
of this central thesis is Thomas Aquinas, and                               1983:1181). Aquinas was concerned with the
Aquinas identified the principles of rational con-                          problem of political obligation. But that does
duct for human beings as the principles of the                              not mean that he was not also concerned to pro-
natural law. Thus, given Aquinas’s theory of                                vide a correct description of what law essentially
reasons for action, the thesis in question can be                           is. Here is a helpful comparison. In the work in

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which Aquinas’s mature thoughts on law are to be                                           Law is a sort of rule and measure of acts,
found, the Summa Theologiae,1 the set of ques-                                             according to which one is induced to act or
tions that is labeled by commentators the ‘‘Trea-                                          restrained from acting, for lex (law) is said to be
tise on Law’’ (ST IaIIae 90–107) is preceded by                                            from ligare (to bind) because obligat (it binds)
                                                                                           one to act. But the rule and measure of human
sets of questions labeled by commentators
                                                                                           acts is reason, which is the first principle of
the ‘‘Treatise on Virtue’’ (ST IaIIae 55–70) and                                           human acts, . . . for it belongs to reason to order
the ‘‘Treatise on Vice’’ (ST IaIIae 71–89). These                                          things to the end, which is the first principle in
considerations of virtue and vice are primarily                                            practical matters, according to the Philosopher
descriptive – they are meant to provide an account                                         [that is, Aristotle]. However, that which is the
of the concept, nature, and causes of virtue and                                           principle of any given genus is the measure
vice. This is a speculative, not a practical, enter-                                       and rule of that genus, like unity in the genus
prise, however much one may draw upon Aqui-                                                of number and the first motion in the genus of
nas’s answers here to get a better grip on (for                                            motion. Hence it follows that law is something
example) how tasks of moral education ought to                                             pertaining to reason. (ST IaIIae 90, 1)
be carried out. So just because Aquinas later
draws practical conclusions about the law and                                         Though this argument is couched in unfamiliar
the requirement of obedience to it, that does                                         terms, its gist is, I think, plain enough. Aquinas’s
not mean that he was not trying to come up                                            idea is that, no matter what else we think about
with a theory of (human) law – an account of                                          law, we agree that it consists in rules, mandatory
law that is both necessarily true and which pro-                                      standards by which our conduct is to be assessed.
vides an explanation of it (see C A N T H E R E B E A                                 Furthermore, the sort of assessment involved is
T H E O R Y O F L AW ?).                                                              essentially practical: the standard that law sets is a
   That Aquinas is indeed concerned with the task                                     standard by which one is ‘‘induced to act or re-
of providing an adequate descriptive theory of law                                    strained from acting.’’ But the only standards that
is clear when we examine the structure of his                                         can induce rational beings to act, qua rational
argument to the conclusion that human law is a                                        beings, are rational standards. So law necessarily
rational standard for conduct. This conclusion is a                                   is a rational standard for conduct.
straightforward implication of his view that all                                          Aquinas’s full, famous definition of law is that
law is a rational standard for conduct. The thesis                                    law ‘‘is nothing other than [1] an ordinance of
that all law is a rational standard for conduct is                                    reason [2] for the common good, [3] issued
defended in the first article of the first question of                                by one who has care of the community, and [4]
the Treatise on Law (ST IaIIae 90, 1) and it is a                                     promulgated’’ (ST IaIIae 90, 4). The latter three
thesis that applies not only to human law but                                         elements of this definition are subordinate to the
to the (for the most part unknowable) eternal                                         first element, in that Aquinas employs the claim
law, that law by which God exercises providence                                       that law is an ordinance of reason to show that law
over all creation (ST IaIIae 91, 1). No practical                                     is for the common good, issued by one who has
issues are being addressed and no such issue has                                      care of the community, and promulgated. Why
even been raised. Only later does Aquinas make                                        does Aquinas write that law must be for the
the further argument that human law is capable of                                     common good? Because law is a rule not concern-
binding in conscience (ST IaIIae 96, 4), and only                                     ing an individual qua individual, but for the gov-
much later does Aquinas provide a full account of                                     ernance of group conduct; and just as what
obedience to authority, including political au-                                       determines reasonable conduct of an individual
thority (ST IIaIIae 104–105). There is little                                         is that individual’s good, what determines reason-
reason to follow Bix and others in holding that                                       able conduct for members of a group is the
Aquinas’s theory of law is primarily a theory of the                                  common good of that group (ST IaIIae 90, 2).
obligation to obey it.                                                                Why does Aquinas write that law can be made
   To return, then, to the natural law theorist’s                                     only by one who has care of the community?
central thesis, and Aquinas’s defense of it. Why                                      Because while anyone can make suggestions
does Aquinas think that all law is a rational stand-                                  about how it is reasonable to order group con-
ard for conduct?                                                                      duct, only one who is charged with making such

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                                                                                              ----------------------------------------------------------------------------

determinations can render an authoritative ruling                                       machine is functioning as designed unless you can
on what is to be done, thereby setting the stand-                                       say whether one in circumstances such as yours
ard that members of that group must follow (ST                                          has reasons to make sacrifices of this sort.
IaIIae 90, 3). Why does Aquinas write that law                                             The same holds true with law, on Aquinas’s
must be promulgated? Because rational beings                                            natural law view. In offering further claims on
cannot act on a rational standard as such unless                                        the nature of law, Aquinas draws upon a wide
they have the means to become aware of the                                              range of his normative beliefs, some already
existence of the standard, its status as authorita-                                     defended in the Summa, some later to be de-
tive, and its content, and the promulgation of the                                      fended in the Summa, some undefended in the
rule provides for this awareness (ST IaIIae 90, 4).                                     Summa but assumed in virtue of the context of
The essential character of both the nonpositive                                         the work. (The Summa is a teaching tool for
and the positive elements of law are explained                                          those training for the religious life: Aquinas’s
through the master thesis that law is a rational                                        intended primary audience consists of those who
standard for conduct (cf. Finnis 1996: 205).                                            share his Christian commitments, some of which
   Aquinas is aiming at descriptive adequacy in                                         are normative commitments.) These normative
providing his theory of law. It is not a statement                                      beliefs concern, in part, what agents have reason
that, or of the conditions under which, people are                                      to do. Aquinas relies on this stock of claims about
obligated to obey the law, but an account of what                                       reasons for action in defending more specific
law is: a rational standard. But it turns out that the                                  theses about what the essential features of law are.
content of this descriptively adequate statement of                                        Here is one example of how Aquinas draws on
what law is entails that one must draw on one’s                                         claims about reasons for action in drawing more
normative views, whether theorized or not, in                                           specific conclusions about the nature of law.
order to provide a fuller, more descriptively ad-                                       Aquinas holds that there is a ‘‘natural law,’’ con-
equate account of law (cf. Finnis 1980: 16). From                                       sisting of the fundamental principles of practical
the fact that law necessarily is a rational standard                                    rationality, which govern all human conduct, in-
for conduct it follows that (in some sense, to be                                       dividual and collective (ST IaIIae 91, 2; 94, 1–6).
explored further in the following section) a rule                                       (It is important to keep in mind that there are
that cannot be a rational standard for conduct for                                      natural law moral theories and natural law legal
beings like us cannot be law for beings like us. But                                    theories. The two are logically separable: one can
which rules can be rational standards for conduct                                       affirm either one while rejecting the other. For a
for beings like us is something that cannot be                                          quick overview of natural law moral theory, see
grasped without drawing on one’s normative                                              Murphy 2001: 1–3, and Murphy 2002.) All
views.                                                                                  reasons for action are rooted in the natural law.
   Here is an analogy. Suppose that I attempt to                                        Thus one of the conclusions that Aquinas can
build a ‘‘reason-backed rule’’ machine. When a                                          reach, given the abstract connection between
person pulls the handle of the machine, the ma-                                         human law and reasons for action previously es-
chine is supposed to display on its screen a rule, in                                   tablished, is that all human law is rooted in the
the handle-puller’s language, that the handle-                                          natural law (ST IaIIae 95, 2). This does not mean,
puller has strong reason to comply with. Now, it                                        Aquinas emphasizes, that all human law simply
is an accurate description of the machine to say                                        reproduces the contours of natural practical ra-
that its function is to exhibit rules that those who                                    tionality (ST IaIIae 96, 2–3); while some of it
operate it have strong reason to comply with. But                                       does (for example, laws against murder, rape,
if one is going to provide a fuller account of when                                     etc.), some of it goes beyond the natural law by
the machine is functioning as it is designed to                                         fixing, by making determinate, the vague require-
function and when it is not, one is going to have                                       ments of the natural law (for example, ‘‘drive no
to draw on one’s views, theorized or not, about                                         more than 65 miles per hour’’ determines the
what one has strong reasons to do. If you pull the                                      vague ‘‘when driving, proceed at a reasonable
handle on the machine and it displays ‘‘you                                             speed’’) (ST IaIIae 95, 2).
should give one-third of your income to                                                    So Aquinas is clear that the human law is not
Oxfam,’’ you will not be able to say whether the                                        just a mirror that reflects in whole or in part the

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demands of the natural law. The view that the                                            Aquinas’s natural law account of human law,
natural law theorist holds that w-ing’s being inde-                                   influential as it has been in defining the natural
pendently morally required is necessary for w-ing’s                                   law program, is marked by ambiguity and unclar-
being legally required (or, even worse, necessary                                     ity at its core. First off, how are we to understand
and sufficient for w-ing’s being legally required) is                                 the claim that law is a rational standard for con-
a common caricature of natural law theory, but                                        duct? Does it follow from this claim that – as
Aquinas’s emphasis on the way that human law                                          many critics of natural law theory have supposed
can make determinate what the principles of prac-                                     – wicked or unjust or otherwise unreasonable
tical rationality leaves indeterminate shows that he                                  rules cannot be valid law? And if it does not follow
does not hold that view. Finnis has also responded                                    from the natural law thesis that unreasonable
to this caricature explicitly (see his 1980: 28), but                                 rules cannot be valid law, what on earth does it
it continues to be attributed to the natural law                                      mean to claim that, necessarily, law is a rational
view. Consider, for example, the following argu-                                      standard for conduct? Second: against Aquinas, it
ment from Jules Coleman and Brian Leiter:                                             seems as if there are plenty of systems of rules that
                                                                                      in some way apply to rational beings for which
     [According to natural law theory,] in order to be                                there does not exist an internal connection be-
     law, a norm must be required by morality. Mor-                                   tween those standards and reasons for action.
     ality has authority, in the sense that the fact that a                           Consider, for example, rules of games, or certain
     norm is a requirement of morality gives agents a                                 outdated codes of honor; it does not seem that it
     (perhaps overriding) reason to comply with it.                                   is essential to these systems of rules that there be
     If morality has authority, and legal norms are                                   sufficient reason for rational beings to comply
     necessarily moral, then law has authority too.
                                                                                      with them. Why, then, should we think that this
     This argument for the authority of law, however,
                                                                                      particular kind of system of rules, a legal system,
     is actually fatal to it, because it makes law’s
                                                                                      exhibits this internal connection between law and
     authority redundant on morality’s. . . . Natural
     law theory, then, fails to account for the                                       reasons for action? Can we get an adequate ac-
     authority of law. (Coleman and Leiter 1996:                                      count of the warrant for claiming that there is
     244)                                                                             indeed this internal connection?

This argument assumes the premise that the nat-
ural law theorist claims that w-ing’s being inde-
pendently morally required is necessary for w-                                             The Meaning of the Natural Law
ing’s being legally required. But Aquinas rejects
                                                                                                      Thesis
this thesis, as does the natural law jurisprudential
tradition generally.
   Here is another example of how Aquinas draws                                       How should we understand Aquinas’s natural law
on independent theses about reasons for action in                                     thesis? In asking this question, I am not primarily
drawing specific conclusions about law. Aquinas                                       asking how we ought to interpret Aquinas’s texts,
accepts as a matter of Christian moral orthodoxy,                                     but rather what is the best way to formulate the
and later argues in philosophical/theological                                         connection between law and reasons for action
terms, that there are some moral absolutes,                                           that Aquinas and natural law theorists that
norms that it is unreasonable for one ever to                                         followed him were impressed by.
violate (ST IIaIIae 33, 2). There can never be                                           The formula that we are to understand is: ne-
adequate reason to kill innocent persons (ST                                          cessarily, law is a rational standard for conduct.
IIaIIae 64, 6), or to blaspheme (ST IIaIIae 13,                                       The most straightforward understanding of this
2). But it follows, given the connection between                                      thesis – and the understanding that was fixed
law and reasons for action, that a rule, promul-                                      upon by critics of the natural law view in order
gated by one who has care of the community, that                                      to expose it as absurd – is an understanding on
requires one to kill the innocent or to blaspheme                                     which necessarily, law is a rational standard for
would fall outside the definition of law that Aqui-                                   conduct is a proposition of the same form as neces-
nas offers (ST IaIIae 96, 4).                                                         sarily, a square has four and only four sides. Just as

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a figure with five sides simply is not a square, this                                   to talk stark nonsense. Again, and much more
strong reading of the natural law thesis – I will                                       recently, here is Brian Bix on the Strong Natural
henceforth call it the Strong Reading, or the                                           Law Thesis:
Strong Natural Law Thesis – holds that a rule
that is not a rational standard for conduct is no                                            The basic point is that the concept of ‘‘legal
law at all. Legality is strictly limited by rationality:                                     validity’’ is closely tied to what is recognized as
lex sine rationem non est lex.                                                               binding in a given society and what the state
   Why do I formulate the Strong Reading as lex                                              enforces, and it seems fairly clear that there are
sine rationem non est lex (that is, law without                                              plenty of societies where immoral laws are recog-
[adequate] reason is no law at all) rather than as                                           nized as binding and enforced. Someone might
                                                                                             answer that these immoral laws are not really
the better known natural law slogan, lex iniusta
                                                                                             legally valid, and the officials are making a mis-
non est lex (an unjust law is no law at all)? The                                            take when they treat the rules as if they were
latter is sometimes attributed to Augustine,                                                 legally valid. However, this is just to play games
sometimes to Aquinas, but as Kretzmann notes,                                                with words, and confusing games at that. ‘‘Legal
that precise formulation occurs in neither Au-                                               validity’’ is the term we use to refer to whatever is
gustine’s nor Aquinas’s work (Kretzmann 1988:                                                conventionally recognized as binding; to say that
100–1). It continues to be common to formulate                                               all the officials could be wrong about what is
the natural law thesis in terms of a connection                                              legally valid is close to nonsense. (Bix 2002:
between law and justice, or between law and                                                  72–3)
morality more generally. I have chosen to formu-
late the view in terms of the connection between                                        Even self-labeled natural law theorists have en-
law and reasons for action because it is clear that                                     dorsed objections of these sorts. John Finnis,
the tradition of the natural law theorizing con-                                        whose work has clearly been at the forefront of
nects law with practical rationality generally, and                                     the revival of natural law theory in the late twen-
that same tradition has treated a failure with re-                                      tieth century, has written that the Strong Reading
spect to justice as simply one way that a purported                                     is ‘‘pure nonsense, flatly self-contradictory’’ (Fin-
law can fail to be backed by decisive reasons for                                       nis 1980: 364); and Robert George has remarked
compliance. It is of course controversial to char-                                      that the fact that Aquinas was perfectly willing to
acterize injustice as simply a species of rational                                      talk about unjust laws shows that the paradig-
failure, but it is uncontroversial that this is how                                     matic natural law position does not affirm the
Aquinas saw it (ST IIaIIae 58, 4), and it is                                            Strong Reading, for to affirm the Strong Reading
because Aquinas saw unjust action as rationally                                         while being willing to refer to ‘‘unjust law’’
defective action that he was willing to affirm                                          would be inconsistent (George 2000: 1641).
claims very like ‘‘lex iniusta non est lex.’’                                               There are two distinguishable criticisms here.
   The Strong Reading of the natural law thesis is                                      One of these is the ‘‘self-contradiction’’ criticism:
the usual target of positivist criticism. As John                                       the Strong Natural Law Thesis either is internally
Austin wrote,                                                                           inconsistent or is inconsistent with other claims
                                                                                        that natural law theorists are willing to affirm.
     To say that human laws which conflict with                                         The other is the ‘‘officials’ say-so’’ criticism: the
     the Divine law are not binding, that is to say,                                    Strong Natural Law Thesis is inconsistent with
     are not laws, is to talk stark nonsense. The most                                  the practice of legal officials. How serious are
     pernicious laws, and therefore those which are                                     these criticisms for the Strong Reading?
     most opposed to the will of God, have been and                                         The ‘‘self-contradiction’’ criticism is far from
     are continually enforced as laws by judicial tribu-                                decisive. It need not be stark nonsense to affirm
     nals. (Austin [1832] 1995, Lecture V: 158)                                         claims of the form ‘‘a ___ X is no X at all.’’ David
                                                                                        Lyons has noted that ‘‘counterfeit dollars are no
Presumably Austin would say the same about the                                          dollars at all’’ is simply true (Lyons 1984: 62).
formulation of the natural law thesis under con-                                        One might also add that ‘‘glass diamonds are no
sideration here: to say that laws inadequately                                          diamonds at all’’ is simply true. The cases in which
backed by reasons for compliance are not laws is                                        ‘‘a ___ X is no X at all’’ makes perfect sense are

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those in which the blank is filled with an alienans,                                  tion, is law. (The rule of recognition might hold
a certain class of adjective (Geach 1956: 33–4).                                      that if norm N was part of the originally adopted
‘‘Fake’’ is always an alienans: fake Rolexes are not                                  constitution, then it is law; but they might all
Rolexes, fake dog doo is not dog doo, fake                                            hold a false view about whether norm N was
flowers are not flowers. ‘‘Counterfeit’’ is always                                    part of the originally adopted constitution.) If
an alienans as well. But there are some adjectives                                    Hart’s view is true, law unacknowledged by the
that count as instances of the alienans only with                                     rule of recognition is no law at all. Thus Hartian
respect to particular nouns: while ‘‘glass’’ is obvi-                                 positivism violates Bix’s constraint.
ously not always an alienans (glass sculptures are                                        Now, one might say that the actual (as opposed
sculptures), it can be (glass diamonds are not                                        to the merely possible) practice of legal officials is
diamonds). The strong natural law theorist can                                        not at odds with the Austinian or Hartian view.
hold that ‘‘unable to serve as a rational standard’’                                  While I have extremely strong doubts about the
is, when applied to ‘‘law,’’ an alienans, and thus                                    former and strong doubts about the latter, we can
avoid the charge that the Strong Reading is inco-                                     note, first of all, that the actual convergence is not
herent. (See also Kretzmann 1988.)                                                    enough to rescue the incoherence claim: whether
   The ‘‘officials’ say-so’’ objection is also far                                    the view is incoherent cannot depend on contin-
from decisive. Bix’s claim is that since the consen-                                  gent facts. The incoherence charge could be
sus of legal officials is that there are laws that are                                revised, even in the face of this sort of contin-
inadequately backed by reasons for compliance, it                                     gency, by holding that law is conventional and
would be flying in the face of the word of experts                                    that therefore to deny that officials’ say-so is dis-
and indeed courting incoherence to assert the                                         positive is to assert an incoherent view. But that
contrary. But it can hardly be a criterion for the                                    law is conventional is a substantial claim, indeed
truth of a legal theory that it make impossible                                       the substantial claim that the natural law theorist
divergence between official say-so and the impli-                                     is concerned to deny (or, better, to qualify). While
cations of that theory. On Austin’s general juris-                                    it is often hard to tell when a claim that a rebuttal
prudence, every law is a command, issued by a                                         is question-begging is warranted, this would
sovereign and backed by a sanction (Austin                                            seem to be one of those warranted cases: any
[1832] 1995, Lecture I: 21). A sanction is a cred-                                    appeal to the status of law as conventional to rescue
ible threat of harm to a subject attendant on a                                       the claim that the officials’ say-so argument is
violation of the order (Austin [1832] 1995, Lec-                                      decisive would beg the question against the nat-
ture I: 22). It follows from Austin’s view that there                                 ural law theorist. One can, of course, still make the
is no law that is not backed by a sanction. But,                                      point that the say-so of legal officials is not to be
possibly, all of the legal officials in some society                                  gainsaid in a theory of law. But that is a much
might hold that some particular norm, a norm                                          weaker point, as much weaker as an appeal to
unbacked by a sanction, is law. If Austin’s view is                                   authority is weaker than a reductio ad absurdum.
true, law without sanction is no law at all. Thus                                         Suppose though, that one continues to be sus-
Austinian positivism violates Bix’s constraint.                                       picious of the Strong Reading of the natural law
   Even on a more sophisticated view like Hart’s,                                     thesis, noting that officials’ say-so seems to run
Bix’s constraint is violated. On Hart’s general                                       contrary to the view. What alternative formula-
jurisprudence, whether something is law in a                                          tions of the view are available? One alternative is
given society depends on whether it is recognized                                     that suggested by those who would hold that the
as such by the rule of recognition, the usually                                       primary concern of Aquinas in the Treatise on
tremendously complex rule that guides legal offi-                                     Law is to provide an account of political obliga-
cials in making, identifying, and applying law                                        tion: on this view, the claim that law is necessarily
(Hart [1961] 1994: 94–5). It follows from                                             a rational standard is a disguised normative claim.
Hart’s view that there is no law that is not                                          On this formulation, what we may call the Moral
acknowledged as such by the rule of recognition.                                      Reading of the natural law thesis, the natural law
But, possibly, all of the legal officials in some                                     theorist’s central thesis is just a dramatic way of
society might hold that some particular norm, a                                       saying that one ought to obey the law only when
norm not acknowledged by the rule of recogni-                                         it is adequately reasonable. As George proposes,

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‘‘What is being asserted by natural law theorists                                       with respect to theories of law in Alexy 1998: 214
[is] . . . that the moral obligatoriness which may                                      and 1999: 24–5).
attach to positive law is conditional in nature’’                                          This seems to be the approach taken by John
(George 1996: viii). All that the natural law the-                                      Finnis, the most influential contemporary de-
orist wants to do in affirming a connection                                             fender of natural law theory. Finnis roundly
between law and reasons is to issue a reminder                                          rejects the natural law thesis in its stronger formu-
that adherence to some laws would constitute                                            lation, labeling the Strong Reading paradoxical
such a departure from reasonableness that there                                         and inconsistent and incoherent and self-
could not be adequate reason to obey them; the                                          contradictory (Finnis 1980: 364–5). But he
only law that merits our obedience is law that                                          affirms the Weak Reading. According to Finnis,
meets a certain minimum standard of reasonable-                                         regardless of whether one is inclined to take a
ness. Whatever the intrinsic merits of this claim,                                      natural law view in jurisprudence, it is a mistake
I will immediately put it to the side as a candidate                                    to look for necessary and sufficient conditions for
formulation of the natural law thesis. If the Moral                                     legality (Finnis 1980: 6, 9–11). Rather, we ought
Reading were all there is to the natural law thesis,                                    to proceed by looking for the conditions that
the natural law theorist would have almost no one                                       define the central, paradigmatic case of legality
to disagree with in the entire history of philoso-                                      (Finnis 1980: 9–11). On Finnis’s view, the para-
phy. And whatever other desiderata a formulation                                        digmatic case of legality is the rule or norm that is
of the natural law thesis must satisfy, a candidate                                     not only socially grounded but also grounded in a
formulation must be one that preserves the status                                       correct understanding of what reasons for action
of natural law theory as a contentious position.                                        agents have. While there may be laws that are
   There is, however, a contentious natural law                                         unreasonable for agents to follow, Finnis allows,
position that is nevertheless not prone to some                                         these laws are laws only in a secondary, derivative,
of the initial deep misgivings to which the strong                                      incomplete sense. Their status as laws is parasitic
formulation is prone. Recall that the strong for-                                       on the primary, fundamental, complete sense of
mulation is to be understood in such a way that                                         law, that notion of law on which laws bind rational
necessarily, law is a rational standard for conduct                                     agents to compliance (Finnis 1980: 14). (I say
is a proposition of the same form as necessarily,                                       more on Finnis’s argument for this view in the
squares have four and only four sides. A weaker but                                     final section below.)
still interesting version of the natural law thesis –                                      It might be supposed that the Weak Reading of
call it the Weak Reading, or the Weak Natural                                           the natural law thesis just is the Moral Reading
Law Thesis – affirms that necessarily, law is a                                         that I set to the side as trivial. If this were the case,
rational standard while holding that it is not of                                       it would surely be damaging to defenders of the
the same form as necessarily, squares have four and                                     Weak Reading. But these readings are not identi-
only four sides; rather, it is of the same form as                                      cal. The defender of the Weak Reading wants to
necessarily, cheetahs are fast runners. A figure with                                   make a claim about what counts as a defect in law –
only three sides is no square at all; but it is not true                                and the conditions under which some objection-
that an animal that is not a fast runner cannot be a                                    able (or even otherwise unobjectionable) aspect
cheetah. Rather, an animal that is not a fast runner                                    of a thing counts as a defect in it are very specific,
either is not a cheetah or is a defective cheetah.                                      tied to the kind of thing at stake. It is, after all, a
The necessity attaches to the kind cheetah rather                                       commonplace that a feature of some object can be
than to individual cheetahs: while one might fail                                       objectionable without that feature’s being a
to be a fast runner while remaining a cheetah,                                          defect in that thing. The flourishing of the rodent
belonging to the kind cheetah sets a standard                                           in my attic is objectionable, all right, but I
such that those that are not fast runners fall                                          wouldn’t presume to claim that its flourishing
short as cheetahs (cf. Thompson 1995 and Foot                                           makes that rodent defective. Similarly, all the de-
2001: 30; Robert Alexy makes such a distinction,                                        fender of the Moral Reading can say is that there is
which he labels a distinction between ‘‘classifica-                                     some way in which unreasonable laws are objec-
tory’’ and ‘‘qualificatory’’ connections between                                        tionable; the Moral Reading of the natural law
properties and kind-membership, and employs it                                          thesis does not itself make the further claim that

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law that is not rationally binding is defective as                                    of Austin’s and Bentham’s positivist views as it is
law. Thus the defender of the Weak Reading has                                        of Hart’s and Raz’s. But we have seen that the
an extra argumentative burden, that of showing                                        natural law view – like the positivist view – admits
that law is the kind of thing that is backed by                                       of a variety of formulations. To what extent is the
decisive reasons, so that an individual law un-                                       opposition between natural law theory and legal
backed by decisive reasons is substandard.                                            positivism a real opposition?
   We should also note that while the distinction                                        Suppose that we take as the generic legal posi-
between the Strong and Weak Natural Law Theses                                        tivist thesis the view that the status of some social
– between a view on which reasons for action are                                      rule as law is logically and metaphysically inde-
connected to the legal validity of a norm, and a                                      pendent of the status of that social rule as a ra-
view on which those reasons are connected to legal                                    tional standard of conduct. This is close to what
nondefectiveness – is very important, and thus the                                    Austin had in mind when he delivered his path-
distinction that I will focus on for the remainder of                                 breaking lectures on jurisprudence: ‘‘The exist-
this chapter, it is not the only relevant distinction                                 ence of law is one thing; its merit or demerit is
one could make. One could distinguish among                                           another’’ (Austin [1832] 1995, Lecture V: 157).
natural law theories on the basis of the strength                                     It is close to the thesis that Hart defends, in
or sort of reasons for action to which legal validity                                 contrast to the natural law position, in ‘‘Positiv-
or legal nondefectiveness is allegedly connected.                                     ism and the Separation of Law and Morals’’: ‘‘In
For example: while I have focused on how we                                           the absence of an expressed constitutional or legal
ought to understand claims like lex sine rationem                                     provision, it could not follow from the mere fact
non est lex – does it mean that unreasonable laws                                     that a rule violated standards of morality that it
really lack validity, or does it mean that while such                                 was not a rule of law’’ (Hart [1958] 1983: 55).
can be legally valid, they are in some way defective                                  It is close to Coleman’s Separation Thesis, which
as law or perversions of law? – one might also focus                                  on his view defines the positivist outlook: ‘‘There
on the nature and extent of the departure from                                        exists at least one conceivable rule of recognition
reasonableness involved. Assuming for a moment                                        (and therefore one possible legal system) that
the Strong Reading, one might ask, that is,                                           does not specify truth as a moral principle
whether any unreasonableness in law is sufficient                                     among the truth conditions for any proposition
to undermine legal validity, or whether perhaps                                       of law’’ (Coleman 1982: 141). It is, with proper
the unreasonableness must reach some extreme                                          qualifications, entailed by Raz’s Sources Thesis:
pitch before legal validity is precluded. Thus, for                                   ‘‘A jurisprudential theory is acceptable only if its
example, Gustav Radbruch’s famous formula is                                          tests for identifying the content of the law and
about legal validity but kicks in only in cases of                                    determining its existence depend exclusively on
severe injustice: on Radbruch’s view, enactments                                      facts of human behaviour capable of being de-
the injustice of which are at ‘‘an intolerable level’’                                scribed in value-neutral terms, and applied with-
have ‘‘no claim at all to legal status’’ (Radbruch                                    out recourse to moral argument’’ (Raz 1979d:
1946, cited in Alexy 1999: 16; see also C O N T I N -                                 39–40).
E N TA L P E R S P E C T I V E S O N N AT U R A L L AW T H E O R Y                       If we take this to be the generic positivist pos-
A N D L E G A L P O S I T I V I S M ). He would surely have                           ition, it is obvious that there is no incompatibility
said, though, that any level of injustice in law                                      between the Moral Reading of the natural law
makes it legally defective, even if not necessarily                                   thesis and the positivist standpoint. The positiv-
legally invalid.                                                                      ists, after all, were concerned to defend their pos-
                                                                                      ition on the nature of law not merely for the sake
                                                                                      of conceptual clarity but also for reasons of moral
      Natural Law Theory and Legal                                                    psychology: by demystifying law, one will be less
                                                                                      likely to obey simply because it is the law and
               Positivism
                                                                                      more likely to obey only when there is adequate
                                                                                      reason to do so. (For a critique of this line of
Legal positivism has defined itself by setting itself                                 argument for positivism, see Soper 1987.) This
in contrast with natural law theory. This is as true                                  is entirely consistent with, and even complemen-

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tary to, the Moral Reading’s insistence that law
                                                                                           Defending the Natural Law Thesis
is to be obeyed only when it falls within the
domain of the reasonable. (As I mentioned
above, it is the overwhelming plausibility of the                                       On the basis of what sorts of arguments can the
Moral Reading that is its undoing: it is so plaus-                                      natural law view be defended? I will put to the side
ible it is uninteresting and nondistinctive.) On                                        the Moral Reading of the natural law thesis: it is
the other hand, the Strong Reading of the natural                                       too uninteresting and uncontroversial to bother
law thesis is just as clearly incompatible with gen-                                    with. It is the Strong and Weak Readings, both of
eric positivism. For the positivist wants at least                                      which aim to provide an account of the nature of
to take a stand on legal validity: social rules can                                     law, that are of interest here. I will proceed by
be legally valid though there be far from adequate                                      pursuing two argumentative strategies: the ‘legal
reason to comply with them. Austin and Bentham                                          point of view’ argument, initially defended by
took as their primary targets Blackstone’s                                              Finnis in his 1980 Natural Law and Natural
seeming affirmation of the Strong Natural Law                                           Rights and continually reaffirmed by him since
Thesis, and it is the seeming affirmation of                                            then, and the ‘‘function’’ argument, defended
versions of the Strong Natural Law Thesis by                                            (with reservations) by Michael Moore in a couple
Radbruch and by Fuller that Hart took as his                                            of recent papers.
primary target. So the strongest version of natural                                        Finnis’s argument for the natural law thesis is
law theory is necessarily at odds with positivist                                       inspired by Hart’s methodology in The Concept of
views.                                                                                  Law (see L E G A L P O S I T I V I S M ). We should not,
   With respect to the Weak Reading, matters are                                        Finnis writes, hope to provide an account of the
less clear. One is tempted to say that the Weak                                         necessary and sufficient conditions for law, such
Natural Law Thesis, according to which any law                                          that some legal systems and individual norms and
either is an adequate rational standard for con-                                        decisions in cases will count as law through exem-
duct or is defective, is entirely compatible with the                                   plifying these conditions, whereas the remainder
positivist thesis. For the Weak Reading does not                                        will not. Rather, we should hope for an account
deny that there can be valid law that only an                                           that provides us with the central, paradigm in-
unreasonable person would comply with. It says                                          stances of law and legality. With this account, we
only that, be it valid, it nevertheless falls short of                                  will be able to classify some social systems and
some standard internality to legality. This is a view                                   social norms as clearly law, some as entirely extra-
endorsed both by Finnis and by MacCormick                                               legal, and some as simply falling short of or dis-
(who describes himself as a positivist; MacCor-                                         tinct from the central case in one or another
mick 1992: 108). But while positivists have been                                        specific way.
willing to allow that their views require them to                                          So the task of the legal theorist is to provide the
employ evaluative judgments in providing their                                          central case of law. But centrality is an evaluative
theory of law (for example, judgments about                                             notion, and this particular evaluative notion is
what phenomena are more important than others                                           always from a point of view. The question, then,
in the categorization of human institutions),                                           is whether there is a point of view that is privileged
some may be less sanguine about the notion that                                         within legal theory. Again Finnis, following Hart,
the provision of an adequate theory of law re-                                          holds that there is such a privileged point of view:
quires one to take a stand on highly disputable                                         it is the point of view of those who take the
and disputed questions of practical reasonable-                                         internal point of view with respect to a legal
ness. Thus the Weak Natural Law Thesis might                                            system. People who take the internal point of
well be taken to be a departure from the positivist                                     view with respect to a legal system are those who
program, even if it is compatible with the most                                         take its rules as such to be a guide to their con-
influential formulations – for example, Austin’s,                                       duct. Hart emphasizes that he does not mean to
Bentham’s, Hart’s, Raz’s, and Coleman’s – of                                            privilege any particular motivation or rationale
first-order positivist theses.                                                          for taking the internal point of view: those that



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treat the law as a standard for conduct based on                                      The datum does not, however, extend further to
moral considerations and those that treat it as                                       the basis on which they so treat those norms. Far
such based on ‘‘calculations of long-term inter-                                      from the internal point of view just being an
est’’ or ‘‘disinterested interest in others’’ or ‘‘an                                 ‘‘amalgam’’ of different viewpoints, Hart’s undif-
unreflecting inherited or traditional attitude’’ or                                   ferentiated take has a clear rationale, and so is not
‘‘the mere wish to do as others do’’ all equally                                      unstable; it is up to Finnis to destabilize it. But
take the internal point of view (Hart [1961]                                          nothing he says in the crucial stretch of argument
1994: 203). But Finnis argues that the internal                                       discussed above succeeds in destabilizing it. The
point of view, as characterized by Hart, is not                                       law tends not to care a whit for the motivations
sufficiently differentiated for analytical purposes.                                  that one has for complying with it; and while
The argument is by elimination: none of these                                         Finnis appeals to the great efficacy of some points
species of the internal point of view, save the                                       of view in generating a legal system, one might
point of view of the person who obeys the law                                         rightly retort both that the tasks of explaining
because it is a matter of moral requirement, can                                      how a legal system comes into being and explain-
be the privileged legal point of view, for ‘‘All these                                ing what it is for a legal system to be in place are,
considerations and attitudes are manifestly devi-                                     while interestingly related, different questions
ant, diluted or watered-down instances of the                                         and that there are some points of view that may
practical viewpoint that brings law into being as                                     have greater efficacy in generating and sustaining
a significantly differentiated type of social order                                   a legal system than that of the person of full
and maintains it as such’’ (Finnis 1980: 14). The                                     practical reasonableness – for example, that of
central legal viewpoint is that in which legal                                        the person who holds a false tribal or nationalistic
systems are seen as morally worthy, worth bring-                                      morality.
ing about and preserving, and in which the                                               By so closely identifying the task of characteriz-
demands of law are justified and binding; and                                         ing law with the task of saying what a fully prac-
indeed the clearest case of this central viewpoint                                    tical reasonable person should be interested in
is that of the person whose moral judgment is                                         when dealing with the law, Finnis’s view seems
correct (Finnis 1980: 15–16). Given this most                                         to become simply applied ethics – he is asking
privileged point of view, it is clear that law in its                                 what features of the law the fully reasonable citi-
central or ‘‘focal’’ meaning will be law that is a                                    zen, or the fully reasonable judge, should be
rational standard for conduct.                                                        interested in responding to, and in particular
    This strategy is meant only to establish the                                      what features of the law are such, when present,
Weak Natural Law Thesis, and it is obvious that                                       for the fully reasonable citizen or judge to treat
it can establish no more than that: its appeal to the                                 the law as authoritative. But this seems to make
central, paradigmatic notion of law is not meant                                      Finnis’s view too much like the uninteresting
to preclude the presence of a limited, technical                                      Moral Reading, leaving his critics to wonder
sense of legal validity, a sense explicable without                                   what all the fuss was about natural law theory
reference to moral or practical considerations.                                       (Bix 1996: 226).
But it is hard to see why we would follow Finnis                                         A more promising line of argument, to my
even this far in his extension of Hart’s method-                                      mind, takes as its starting point the common
ology on the basis of this argument. Hart has                                         notion of function. According to this line of ar-
good reason for taking the burden of proof to                                         gument, once we see that some legal systems or
be on those who wish to make some particular                                          individual legal norms have functions, and see
version of the internal point of view more privil-                                    what those functions are, we should recognize
eged. For while his arguments against the legal                                       that those systems and norms have nondefective-
realists show that legal theory must account for                                      ness conditions that include the presence of
the datum that people can take the internal point                                     reasons for action. One might worry that this
of view with respect to a system of legal norms                                       sort of argument for the natural law thesis is
(Hart [1961] 1994: 88–91), this datum just is                                         doomed to triviality: what could be easier, one
that people treat the existence of legal rules as                                     might ask, than to assign a morally charged func-
reasons or constituent parts of reasons for action.                                   tion to law, and then, on the basis of such an

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ascription, hold that law that does not perform                                         against a rock in a stream by the backwash that
this function, or perform it satisfactorily, is either                                  very stick has created may exhibit the first three
no law at all or is law only defectively? It is obvious                                 features: it is pinned against a rock, its being
that no interesting argument for the natural law                                        pinned against a rock causes the backwash, and it
thesis that proceeds from the idea that the law has                                     is pinned against the rock because its being pinned
a function can follow this pattern. But the ascrip-                                     against the rock causes the backwash. But no one
tion of a function to an object is a much more                                          would be tempted by the view that it is the stick’s
constrained matter than such an argument would                                          function to be pinned against the rock (Bedau
suggest. I cannot simply assign the function                                            1992: 786). One way to accommodate such
‘‘keeping New Haven populated’’ to law profes-                                          cases is to emphasize that functions are ascribed
sors, and then declare that law school faculty that                                     when there is, in some sense, a good realized
do not reside in New Haven are no law professors                                        through the activity: either an end sought out
at all, or are law professors only defectively. What                                    by the designer of the object, or simply the self-
are the conditions that must be met to ascribe a                                        maintenance of the thing in question, or the like.
function to some object or institution, and how                                            To show, then, that the natural law thesis is true
can these be brought to bear to show that one or                                        in virtue of the law’s function (or one of the law’s
another formulation of the natural law thesis is                                        functions) one needs to show that these various
correct?                                                                                conditions are satisfied, and that a particular legal
   Roughly, and not at all originally, and not                                          system or law fails to perform its function when it
entirely uncontroversially, we can say that for                                         fails to serve as a rational standard for conduct. An
an object or institution x to have the function of                                      instance of this strategy is the argument offered
w-ing, the following conditions must be satisfied:                                      by Moore. Moore suggests that the essence of law
                                                                                        might reside in its function rather than in any
     (characteristic activity) x is the kind of                                         distinctive set of structures. To find out what
     thing that w-s                                                                     law’s function is, we look at the sorts of cases
     (goal productivity) x’s w-ing tends to bring                                       that we pretheoretically label instances of legal
     about some end-state S                                                             systems and laws, and try to identify some dis-
     (teleology) x w-s because x’s w-ing tends to                                       tinctive good that they serve; we can then use that
     bring about some end-state S                                                       tentative identification of a distinctive end served
     (value) S exhibits some relevant variety of                                        by law to identify other instances of laws and legal
     goodness.                                                                          systems. If it turns out that there is some good
                                                                                        distinctively served by law, and that law can serve
   There is reason to think that each of these                                          this good only if those under that law are practic-
conditions is individually necessary; and there is                                      ally required to comply with it, then we have
reason to think that they are jointly sufficient.                                       reason for thinking that the natural law thesis is
A heart has a characteristic activity: it pumps. Its                                    true. Indeed, Moore suggests that this argument,
pumping tends to bring about the circulation of                                         if successful, would be sufficient to establish the
the blood; and, indeed, the heart pumps because                                         Strong Natural Law Thesis (see Moore 1992,
its pumping contributes to the circulation of the                                       2001).
blood. (This is so in two ways: in animals with                                            Moore worries about whether there is any dis-
hearts there is a feedback loop such that the cir-                                      tinctive end that law serves: he doubts that there
culation of the blood is in part what causes the                                        is any such distinctive end – though he notes
heart to be able to continue pumping; and the                                           some candidates, such as John Finnis’s notion of
very structure and activity of the heart was                                            the common good – and thinks that if there is no
selected because of efficiency in causing the circu-                                    such distinctive end, then we must give up on the
lation of the blood.) Some would take these first                                       idea that law is to be understood in terms of its
three conditions to be jointly sufficient, but it                                       function. But this is too hasty. For recall that the
seems to me that it is also important that the                                          ascription of a function to some thing brings into
circulation of the blood is beneficial for the                                          play not just the goal brought about by the
animal. As Mark Bedau has noted, a stick pinned                                         thing’s activity (S) but the characteristic activity

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of that thing (w-ing). So even if law does not serve                                     Now, one might retort: it can hardly be that it is
an end that is distinctive to it – and how could it,                                  law’s characteristic activity to provide dictates
given that all of the goods that we take to be                                        that are rational standards for conduct, when it
served by law can be served better-or-worse by                                        is clear that so many dictates of law are no such
extralegal institutions? – it might be distinctive at                                 thing. To take the low road, we can appeal to cases
least in part through the characteristic activity                                     as dramatic as the Fugitive Slave Law or as banal as
that it employs to serve those ends. And it might                                     parking ordinances. To take the high road, we can
turn out that the (or a) characteristic activity of                                   appeal to the growing literature in support of the
the law makes it the case that law that fails to serve                                claim that the law lacks authority, that its dictates
as a rational standard for conduct does not per-                                      do not in fact typically constitute decisive reasons
form its characteristic activity well and is therefore                                for agents to comply with them. (This literature is
defective or perhaps even not law at all.                                             large and growing. Influential pieces include
    One might, for example, simply argue directly                                     Simmons 1979; Raz 1979c; Smith 1973; and
that one of law’s characteristic activities is to pro-                                Green 1990. The literature has been surveyed in
vide dictates with which the agents to whom the                                       Edmundson 1999a and 1999b, and will be again
dictates are addressed have decisive reason to                                        in Edmundson forthcoming.)
comply. One might note the features of legal                                             The initial response here is just that to say that
systems to which Raz has drawn our attention,                                         w-ing is X’s characteristic activity is not to say that
that is, that they claim to be authoritative (see Raz                                 all Xs always w. It is to say that Xs are the kind of
1979b: 30) and that, characteristically, their dic-                                   thing that w, and this is compatible with there
tates go with the flow of normative reasons rather                                    being instances – even perhaps in the majority of
than against them (Raz 1985, 1986: 53-69). One                                        cases – where Xs fail to w. (Up until relatively
might further note the way that law characteris-                                      recently the activities of the medical profession
tically ties sanctions to certain activities in order                                 probably did more to undermine health than to
to give agents further reason to abstain from                                         promote it. That does not entail that the charac-
them. One might also take notice of Fuller’s                                          teristic activity of physicians, up until relatively
eight ways to fail to make law: on his view, puta-                                    recently, was the undermining of their patients’
tive legal rules can fail to achieve legality when                                    health.) But the retort does raise an important
they are ad hoc, inadequately promulgated, retro-                                     question, which is: how do we know that these
active, incomprehensible, contradictory, or re-                                       cases in which law fails to provide dictates that are
quire conduct adherence to which is beyond the                                        backed by decisive reasons for action count not as
powers of subjects, or are ephemeral, or insincere                                    counterexamples to the claim that this is law’s
(see Fuller 1964: 39). For our purposes, what is                                      characteristic activity but rather as cases in which
relevant about Fuller’s eight ways is that each of                                    law is failing to perform its characteristic activity?
them indicates some way in which law can fail to                                         With artifacts, often the answer is easy: our
serve as a reason for action for those living under                                   source of information about what kind an object
it. On the basis of such considerations, one might                                    belongs to, and what is the characteristic activity
well come to the conclusion that it is part of                                        of that kind, is determined at least in large part by
law’s characteristic activity to lay down norms                                       the maker’s intentions. But with law, as with
with which agents will have sufficient reason to                                      other large-scale social institutions, we have
comply. Even, then, if the end that law’s charac-                                     something that is not the product of some
teristic activity serves is itself not an obviously                                   thinker’s intentions. Here the more apt analogies
obligatory end – if it is, to follow Hart and Fuller,                                 are the systems of organisms. We know that a
something like that of realizing social order, or                                     heart’s characteristic activity is to pump blood,
social control – the natural law thesis could be                                      and that this is its function; and we can know
sustained if law’s characteristic activity is to pro-                                 this without appeal to a designer’s intentions.
vide dictates that are rational standards for con-                                    We can know this in spite of the fact that animals
duct and that it provides these dictates as a means                                   can have heart attacks. We say that the heart’s
to, and because they are a means to, realizing                                        characteristic activity is to pump blood not just
social order.                                                                         because of statistical frequency – again, we can

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imagine states of affairs in which heart attacks
                                                                                                                            Note
were disastrously more frequent, and this would
give us reason to say that hearts were malfunc-
                                                                                        1 Cited as ST with part, question, and article number.
tioning all over the place, not that its characteris-
tic activity had changed or that we were wrong
about what its characteristic activity is. We persist
in the judgment that the characteristic activity is                                                                    References
pumping blood because judgments of character-
istic activity are made against a background, a                                         Alexy, Robert. 1998. Law and correctness. In Michael
privileged background of normalcy. An object’s                                            Freeman (ed.), Current Legal Problems 1998: Legal
departure from its characteristic activity is to be                                       Theory at the End of the Millennium. Oxford: Oxford
                                                                                          University Press, 205–22.
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                                                                                        Alexy, Robert. 1999. A defense of Radbruch’s formula.
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                                                                                          In David Dyzenhaus (ed.), Recrafting the Rule of
   To sustain the claim that law’s characteristic                                         Law. Oxford: Hart Publishing, 16–39.
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have decisive reason to comply – even in the face                                         Determined, ed. Wilfrid Rumble. Cambridge, UK
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in such cases the privileged background for the                                         Bedau, Mark. 1992. Where’s the good in teleology?
description of institutions like the law does not                                         Philosophy and Phenomenological Research 52:
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                                                                                          son (ed.), A Companion to Philosophy of Law and
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                                                                                        Bix, Brian. 2002. Natural law theory: The modern trad-
Here is the crucial move: the background from                                             ition. In Jules Coleman and Scott Shapiro (eds.),
which human institutions are to be assessed, so far                                       Oxford Handbook of Jurisprudence and Philosophy of
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                                                                                        Edmundson, William. 1999a. Introduction. In William
were backed by adequate reasons. Thus we
                                                                                          Edmundson (ed.), The Duty to Obey the Law: Selected
should say that it is law’s characteristic activity to
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                                                                                        Finnis, John. 1996. The truth in legal positivism. In
exist: whether an object that essentially bears
                                                                                          Robert P. George (ed.), The Autonomy of Law.
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                                                                                          Oxford: Oxford University Press, 195–214.
and origin, not on its continued capacity to per-                                       Foot, Philippa. 2001. Natural Goodness. Oxford:
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functioning heart is a heart, a law that is not a                                       Fuller, Lon. 1964. The Morality of Law. New Haven,
rational standard can still be law. The ‘‘function of                                     CT: Yale University Press.
law’’ argument should aim no higher than the                                            Geach, Peter. 1956. Good and evil. Analysis 17,
Weak Natural Law Thesis.                                                                  33–42.

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                                                                                        und ubergesetzliches Recht. In Gustav Radbruch,
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----------------------------------- Chapter 2 ----------------------------------

                                       Legal Positivism
                                                      Brian H. Bix



               History and Context                                          outline the current state of legal positivism, con-
                                                                            sider major criticisms, and reflect on what may be
                                                                            necessary for this approach to remain a vibrant
The history of ideas is often written in terms of                           part of the debate about the nature of law.
schools of thought, that come in and out of fash-                              There is a danger whenever one speaks about a
ion, that prevail in struggles over particular issues,                      ‘‘school’’ or ‘‘general approach,’’ and the danger
or are defeated. In legal philosophy, as elsewhere                          may be particularly acute with discussions of legal
in the history of ideas, we have schools of thought                         positivism. The risk arises from the effort to speak
that have risen and fallen, sometimes with little                           in general terms about a wide variety of theorists,
explanation. Some have faded from the scene but                             whose views overlap but may diverge sharply on
without any obvious reason – such as historical                             any particular question. As will be mentioned
jurisprudence (whose prominent advocates in-                                later, some quite distinct approaches to law
cluded Friedrich Carl von Savigny (1779–1861)                               share the label ‘‘legal positivism,’’ and any effort
and Sir Henry Maine (1822–88)). As Joseph Raz                               to create a quick summary representation of the
has written: ‘‘Because legal theory attempts to                             approach faces the chance of constructing a
capture the essential features of law, as encapsu-                          weakened perspective and one that no single the-
lated in the self-understanding of a culture, it has                        orist would adopt in full (Raz 1998: 1). Nonethe-
a built-in obsolescence, since the self-understand-                         less, an effort will be made to speak about this
ing of cultures is forever changing’’ (Raz 1996:                            collection of theories and theorists, making all
6). While some schools of thought have faded in a                           efforts to be respectful of the differences between
matter of decades, by contrast at least one ap-                             the theorists that share this label.
proach to legal theory, natural law theory, has                                The first task is to place legal positivism into a
been around literally for millennia, yet remains                            historical context: one that refers both to its own
vibrant. See N AT U R A L L AW T H E O R Y . Legal posi-                    history of development, and to the larger history
tivism is neither thousands of years old nor the                            of ideas within which it evolved. The usual sum-
product of recent fashion. As a recognizable ap-                            mary of legal positivism comes from a few lines
proach to the nature of law, legal positivism is                            stated in 1832 by John Austin (1790–1859), the
almost two centuries old, though aspects of the                             person frequently seen as the founder of legal
approach can be traced back further, certainly to                           positivism:
Thomas Hobbes (1588–1679), and perhaps even
to Thomas Aquinas (c.1225–1274) (Finnis 1994:                                   The existence of law is one thing; its merit or
195–200). While in some circles, legal positivism                               demerit is another. Whether it be or not be is one
now seems the dominant approach to the nature                                   enquiry; whether it be or be not conformable to
of law, this dominance has never meant that the                                 an assumed standard, is a different enquiry.
approach was without critics. This chapter will                                 A law, which actually exists, is a law, though we

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     happen to dislike it, or though it vary from the                                    realists) of the early and middle decades of
     text, by which we regulate our approbation and                                      the twentieth century, when these writers
     disapprobation. (Austin [1832] 1994: 157)                                           offered ‘‘policy science’’ as the way to make law
                                                                                         ‘‘modern’’ and ‘‘objective.’’ See A M E R I C A N
If one looks at Austin’s work – and, similarly, if                                       LEGAL REALISM.
one prefers to trace the roots of legal positivism to                                                                         ¨
                                                                                            We may treat such views as naıve, or at least
the early writings of Jeremy Bentham (1748–                                              misguided; we may think that it only tends to hide
1832) (Bentham 1970; Bentham [1789] 1996)                                                or disguise the political aspects of law and the
or the work of the English political theorist                                            inevitable biases of its commentators to use a
Thomas Hobbes (Hobbes [1651] 1996) – then                                                term like ‘‘science’’ which (in English at least)
the purpose of proposing a legal positivist pos-                                         implies a level of objectivity and disinterestedness
ition seems straightforward: it is an effort to es-                                      that we are unlikely to attain in the study of how
tablish a study of the nature of law, disentangled                                       societies regulate their citizens through rules and
from proposals and prescriptions for which laws                                          institutions. However, if we consider the search
should be passed or how legal practice should be                                         for a ‘‘science’’ of law at a more general or more
maintained or reformed.                                                                  metaphorical level, the objective is simply a separ-
   One might push a little further, and discuss                                          ate study of law – a study in the ‘‘scientific spirit’’
how Austin ([1879] 2002, vol. 2: 1107–8), and,                                           of independent observation and analysis, separate
some decades later, Hans Kelsen (1881–1973),                                             from the important, but quite different, striving
emphasized the objective of making law into a                                            for legal reform and justice. And, so understood,
‘‘science’’ (though, as regards Kelsen’s work, it                                        the objective seems neither misguided nor naıve –¨
should be noted that Wissenschaft in German has                                          though it may yet turn out to be unobtainable.
a much broader extension, and fewer implica-                                                There seems less significance (and less urgency)
tions, than ‘‘science’’ in English). Kelsen was                                          today than there was two hundred years ago to an
reacting against sociologists of law; he sought a                                        argument urging the separate study of ‘‘law as it
way of studying law ‘‘as such,’’ purified of history,                                    is.’’ We are living at a time where we are sur-
social theory, and so forth (Kelsen [1934] 1992:                                         rounded by law schools – almost certainly too
7–8). Kelsen was thereby taking the concerns of                                          many rather than too few – devoted to the
Austin and Bentham a step further: to exclude not                                        graduate-level study of law and legal practice,
only practical and theoretical disquisitions about                                       and journals devoted to every aspect of law and
how governments should be organized, but also                                            every conceivable approach to its investigation. It
to exclude more academic discussions about the                                           should be remembered that things were much
history or sociology of the law, and the like. These                                     different as recently as two hundred years ago
were times when there was great optimism that                                            (around the time when legal positivism had its
the same sort of rigor and objectivity could be                                          beginnings) – a time when there was little univer-
applied to the study of human behavior that had                                          sity-based legal education, either in the United
been applied to the physical sciences, and that                                          States or in England. The first time a law school
perhaps the same level of progress could be                                              appeared as a professional school within an
made. While this sort of optimistic ‘‘delusion’’                                         American university was in 1817 (at Harvard
about the human sciences is at least as old as the                                       University). Prior to that date, law schools were
Enlightenment (e.g., Berlin 1997: 326–58), a                                             largely proprietary institutions, set up independ-
similar sort of optimism has dominated thinking                                          ent of university education – though there was a
about law at various more recent periods – not                                           professorship in law somewhat earlier, at the Col-
only in Christopher Columbus Langdell’s (1826–                                           lege of William and Mary in 1779 (Warren 1908,
1906) quasi-scientific thinking about law and                                            vol. 1: 1). In England, the first university instruc-
legal education that notoriously grounded his                                            tion in the common law came as late as 1753, with
new ‘‘case method’’ at the end of the nineteenth                                         Sir William Blackstone’s Oxford University lec-
century and the beginning of the twentieth cen-                                          tures (Holdsworth 1903–38, vol. 12: 91); the
tury (see Twining 1985: 11–12), but also in the                                          first Chair in Law outside of Oxford and Cam-
writings of American legal realists (and the post-                                       bridge was given to John Austin at University

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College London in 1826, and it was Austin’s                                                lens even when the theories do not purport to
lectures there that would eventually form the                                              touch those subjects. (This tendency to misread
foundation of modern legal positivism. (In                                                 legal theories as theories of judicial reasoning has
looking at the contemporary situation, one                                                 in fact caused misunderstandings of natural law
could comment that though there are now                                                    almost as often as it has caused misunderstand-
many institutions, academics, and journals de-                                             ings of legal positivism (cf. George 1999: 110–
voted to law, there are arguably few signs of a                                            11).) Legal positivism is a theory about the nature
‘‘pure science of law’’ or a study of law ‘‘as it is’’                                     of law, by its self-characterization a descriptive or
separated sharply from ‘‘law as it ought to be.’’                                          conceptual theory. By its terms, legal positivism
However, that is a topic for another day.)                                                 does not have consequences for how particular
   If legal positivism is not about the importance                                         disputes are decided, how texts are interpreted, or
of the separate and ‘‘scientific’’ study of law, or at                                     how institutions are organized. At most, the
least not about that today, one might wonder                                               theory may have something to say about how
what its purpose and meaning is. One suspects                                              certain ways of operating are characterized (is it
that legal positivism’s distinctiveness and its point                                      ‘‘law’’ or is it, for some reason, ‘‘not law’’?),
have become more elusive, even as it has become                                            but not on how they should be evaluated or
more established within English-language analyt-                                           reformed.
ical jurisprudence – perhaps because it has become                                            Legal positivists have also been accused of
more established in analytical jurisprudence.                                              asserting some version of ‘‘might makes right’’
Maybe ‘‘we are all legal positivists now’’ much                                            as applied to law. Or, the indictment softened
the way ‘‘we are all legal realists now’’ – in both                                        slightly upon confrontation with the facts, critics
cases the approaches to law have prevailed to so                                           sometimes claimed that if the legal positivists did
great an extent that their views have been coopted                                         not actually assert such positions, this is nonethe-
by the mainstream, leaving it hard to recall or                                            less where their views led. Legal positivism was
discern what their distinctive point is or was.                                            attacked for causing legal professionals to be too
                                                                                           deferential to the government, and thus too
                                                                                           willing to obey even unjust laws. After World
                                                                                           War II, a strong debate ensued on what role
                          Clarifications
                                                                                           German legal positivism played, if not directly in
                                                                                           the rise of the Nazis, at least in the way that
It is important, as an initial matter, to clear up                                         German lawyers and judges did so little to resist
what legal positivism is not. During the early                                             the creation and application of evil Nazi laws
decades of the twentieth century, legal positivism                                         (e.g., Paulson 1994). This too reflects, at best, a
was accused of advocating a wooden perspective                                             misunderstanding of what is claimed and what is
on judicial decision making and legal interpret-                                           at stake in the debate about legal positivism. (One
ation – a view of legal positivism that has re-                                            should remember that most of the key early fig-
emerged with regularity in the decades since                                               ures in legal positivism were law reformers, not
(e.g., Cover 1975: 28–9; Sebok 1998: 17, 107),                                             apologists for the status quo.) In the context of
though rarely with much basis in fact. This picture                                        such accusations, the famous 1958 debate be-
is a bad mischaracterization of legal positivism, or,                                      tween H. L. A. Hart and Lon Fuller (Hart
at best, a pejorative borrowing of the label for an                                        1958; Fuller 1958) was, to a large extent, a dis-
entirely dissimilar perspective in a different area                                        cussion about the role that legal positivism did
(Bix 1999b: 903–15). The mistake is arguably                                               play, and could play, in the resistance to evil laws
attributable to a certain American bias: because                                           and evil regimes. Some have even portrayed both
judicial review is so important to the legal and                                           theorists as trying to ground the arguments for
political life in the United States, American legal                                        legal positivism and the alternatives on which
theorists tend to ask of all legal theories what they                                      approach would be best, instrumentally, in en-
have to tell us about judicial reasoning in general                                        couraging the resistance to evil laws (Schauer
and constitutional interpretation in particular;                                           1994a). Hart argued for what would then have
and they tend to see legal theories through that                                           been considered a paradoxical position: that legal

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positivism is in fact better than natural law theory                                     view is exceptional among theorists writing on
in encouraging resistance to evil. The argument                                          the nature of law. The burden seems naturally to
went that a legal positivist knows that the validity                                     be placed on those who would maintain that an
of law is one thing, its merit another (pointing to                                      investigation into the (abstract) nature of a social
the roots of legal positivism in the work of the law                                     practice has immediate implications for how indi-
reformer, Jeremy Bentham), while natural law                                             viduals should live their lives, or how practitioners
theory, with its equation of legal status with                                           within a practice should resolve difficult disputes
moral status (‘‘an unjust law is no law at all’’)                                        within that practice. To claim otherwise is to
encourages a confusion among the populace be-                                            challenge, at least in this instance, many en-
tween whether a rule is moral just because it                                            trenched views about keeping ‘‘is’’ and ‘‘ought’’
happens to be treated as valid. As it happens,                                           (‘‘description’’ and ‘‘prescription’’) separate,
upon closer inspection, there are probably no                                            understanding that the second cannot be derived
strong arguments, either logical or psychological,                                       from the first. (Dworkin has arguments for why
for favoring legal positivism or natural law theory                                      these presumptions and distinctions should not
(or any other alternative) for the resistance to evil                                    be given deference in jurisprudence, but this is
law (Soper 1987; Schauer 1996). Similarly,                                               not the place to consider in detail the merits and
though one might find a political motivation                                             shortcomings of those arguments.)
behind the development of legal positivism
(Dworkin 2002: 1677–8) – however, even here,
the argument is much easier to make for Bentham
                                                                                                   Alternative Legal Positivisms
than for Austin – it remains more misleading than
helpful to evaluate legal positivism in terms of its
political motivations (or effects) rather than its                                       In Anglo-American legal theory, legal positivism
status as a theory about the nature of law.                                              has become, in a sense, merely a series of elab-
   Recently, some commentators have lamented                                             orations, emendations, and clarifications of
that legal positivism is irrelevant to important                                         H. L. A. Hart’s work, in particular his work, The
debates within law or legal philosophy (e.g.,                                            Concept of Law (1994), which was first published
Wright 1996; Dyzenhaus 2000; cf. Dworkin                                                 in 1961. Though, like the claim that modern
2002: 1678–9). The complaint is that legal posi-                                         Western philosophy is ‘‘merely’’ a series of foot-
tivism does not entail any particular answer to the                                      notes on the works of Plato and Aristotle, this
important questions of law and practical                                                 need not be seen as a dismissal, just a recognition
reasoning: questions relating to constitutional                                          of the importance of Hart’s remaking of the legal
interpretation, the proper response to evil laws,                                        positivist tradition.
the objectivity of morality, and the role of judges                                         If the dominant strand of English-language
within society. This complaint is not so much                                            legal positivism clearly follows the work of Hart
wrong as a misunderstanding. One should no                                               (subdividing into ‘‘inclusive legal positivism’’ and
more expect theories about the nature of law to                                          ‘‘exclusive legal positivism,’’ as will be discussed
guide behavior or answer difficult ethical ques-                                         below), there remain other strands in legal posi-
tions than one should expect day-to-day guidance                                         tivism that deserve mention. Historically, the first
in life from theories of metaphysics (and, many                                          strand is the command theory which both Austin
would add, an inability of general philosophical                                         ([1832] 1995, [1879] 2002) and Bentham
theories to answer mundane ethical questions is                                          (1970, [1789] 1996) offered. This approach re-
no reason to dismiss such inquiries as worthless).                                       duced law to a basic picture of a sovereign (some-
   While it is true that one prominent legal theor-                                      one others are in a habit of obeying, but who is not
ist, Ronald Dworkin, has argued that there                                               in the habit of obeying anyone else) issuing a com-
should be no sharp line between a theory of the                                          mand (an order backed by a threat). Though the
nature of law and views about legal practice in a                                        command theory (in particular, Austin’s version of
particular legal system, and that one’s jurispru-                                        it) was subjected to a series of serious criticisms by
dential theory will and should have implications                                         Hart and others (e.g., Hart 1994: 18–78), this
for daily legal practice (Dworkin 1987: 14), that                                        approach continues to attract adherents. (Moles

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1987; cf. Schauer 1994b; Cotterrell 2003:                                                  cluded trying to explain law in empirical terms: an
49–77). Its potential advantages compared to                                               empirically observable tendency of some to obey
the mainstream theories are: (1) it carries the                                            the commands of others, and the ability of those
power of a simple model of law (if, like other                                             others to impose sanctions for disobedience
simple models of human behavior, it sometimes                                              (e.g., Austin [1832] 1994: 21–6). Hart criticized
suffers a stiff cost in distortion); (2) its focus on                                      Austin’s efforts to reduce law to empirical terms
sanctions, which seems, to some, to properly em-                                           of tendencies and predictions (an effort that
phasize the importance of power and coercion to                                            would be duplicated in different ways in the
law; and (3) because it does not purport to reflect                                        work of the Scandinavian legal realists (e.g., Oli-
the perspective of a sympathetic participant in the                                        vecrona 1971); and Hart would criticize those
legal system, it does not risk sliding towards a                                           theorists for those attempts (Hart 1983:
moral endorsement of the law.                                                              161–9)); for to show only that part of law that is
   The second strand is that of Hart and his fol-                                          externally observable is to miss a basic part of legal
lowers. Hart’s approach can be summarized                                                  practice: the acceptance of those legal norms, by
under its two large themes: (1) the focus on social                                        officials and citizens, as giving reasons for action
facts and conventions, and (2) the use of a                                                (Hart, 1994: 13, 55–8, 82–4, 88–91, 99). The
hermeneutic approach, emphasizing the partici-                                             attitude of those who accept the law cannot be
pant’s perspective on legal practice. Both themes,                                         captured easily by a more empirical or scientific
and other important aspects of Hart’s work, are                                            approach, and the advantage of including that
displayed in the way his theory grew from a cri-                                           aspect of legal practice is what pushed Hart to-
tique of its most important predecessor. Hart                                              wards a more ‘‘hermeneutic’’ approach. The pos-
built his theory in a conscious contrast with                                              sibility of popular acceptance (whether morally
Austin’s command theory (Hart 1958, 1994),                                                 justified or not) is also what distinguishes a legal
and justified the key points of his theory as im-                                          system from the mere imposition by force by
provements on points where Austin’s theory had                                             gangsters or tyrants.
fallen short. Where Austin’s theory reduced all of                                            While Austin and Hart sometimes made casual
law to commands (by the sovereign), Hart                                                   references to their theories as ‘‘scientific’’ (e.g.,
insisted on the variety of law: that legal systems                                         Austin [1879] 2002, vol. 2: 1107–8) or ‘‘descrip-
contained both rules that were directed at citizens                                        tive’’ (e.g., Hart 1994: v, 1987: 37), it would be
(‘‘primary rules’’) and rules that told officials how                                      left to some of the later theorists working within
to identify, modify, or apply the primary rules                                            this tradition to work out the extent to which one
(‘‘secondary rules’’); and legal systems contained                                         could or could not claim ‘‘descriptive’’ – or at
both rules that imposed duties and rules that                                              least ‘‘morally neutral’’ – status for a legal theory.
conferred powers – conferring powers not only                                              In recent work, it has become almost a common-
on officials, but also on citizens, as with the legal                                      place that legal theory cannot be ‘‘descriptive,’’ if
powers conferred in the ability to create legally                                          by that it is meant that there is no evaluation of
binding contracts and wills.                                                               the data considered. Description without evalu-
   A key element of Hart’s theory, ‘‘the Rule of                                           ation would become, in the words of John Finnis,
Recognition,’’ will be discussed in greater detail                                         ‘‘a conjunction of lexicography with local his-
in the next section. For present purposes, it is                                           tory’’ (Finnis 1980: 4).
sufficient to understand that this is a secondary                                             Some basis is required for selection, and this is a
rule that specifies the criteria of legal validity                                         point realized even by Hart: that law should be
within a legal system. For Hart, a legal system                                            analyzed in its fullest and richest sense (not what
exists if there is a Rule of Recognition accepted                                          is universal to all instances we might be inclined to
by the system’s officials, and if the rules valid                                          call ‘‘law’’), and that the analysis of a legal system
according to the system’s Rule of Recognition                                              should take into account the perspective of some-
were generally obeyed (Hart 1994: 116).                                                    one who accepts the legal system (Hart 1994: 98;
   As earlier mentioned, Austin’s work can be                                              Finnis 1980: 6–7). Finnis recharacterizes the pro-
seen as trying to find a ‘‘scientific’’ approach to                                        cess (using ideas from Aristotle and Max Weber)
the study of law, and this scientific approach in-                                         as one of seeking the ‘‘ideal type’’ or ‘‘central

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case’’ of law (Finnis 1980: 9–11). Other theorists                                       not use other human beings merely as means to
emphasize other aspects of the process of selec-                                         an end’’) or it may be in terms of authority (‘‘do
tion within theory production: for example, that                                         whatever God commands’’ or ‘‘act according to
one should prefer theories that are simple, com-                                         the rules set down by a majority in Parliament’’).
prehensive, and coherent (Waluchow 1994:                                                 Thus, the mere fact that someone asserts or as-
19–29), and that a legal theory should strive to                                         sumes the validity of an individual legal norm
identify the ‘‘central, prominent, important’’ fea-                                      (‘‘one cannot drive faster than 65 miles per
tures of law (Raz 1985b: 735; cf. Raz 1994: 219–                                         hour’’) is implicitly to affirm the validity of the
21; Dickson 2001). Legal positivists emphasize                                           foundational link of this particular normative
that such evaluation should not be confused with                                         chain (‘‘one ought to do whatever is authorized
moral evaluation (e.g., Coleman 2001: 175–97;                                            by the historically first constitution of this
Dickson 2001); this argument, and the question                                           society’’).
of whether a morally neutral form of legal positiv-                                         Like Austin, but unlike Hart, Kelsen is a ‘‘re-
ism is possible, will be revisited below.                                                ductionist’’ in the sense that he tried to under-
    To return to the typology, the third strand of                                       stand all legal norms as variations of one kind of
legal positivism is that of Hans Kelsen (Kelsen                                          statement. In Austin’s case, all legal norms were
1967, [1934] 1992), who published much of                                                to be understood in terms of commands (of the
his work in German, and remains better known                                             sovereign); in Kelsen’s case, all legal norms are to
and more influential on continental Europe (and                                          be understood in terms of an authorization to an
in Latin America and South America) than he ever                                         official to impose sanctions (if the prescribed
has been in the United Kingdom and the United                                            standard is not met). (There is a different sense
States. Kelsen’s work has certain external similar-                                      of ‘‘reductionism’’ which applies to Austin, but
ities to Hart’s theory, but it is built from a dis-                                      not to Kelsen, in that Austin attempts to explain
tinctly different theoretical foundation: a neo-                                         the normative aspects of law in empirical terms,
Kantian derivation, rather than (in Hart’s case)                                         while Kelsen is steadfast in asserting that the nor-
the combination of social facts, hermeneutic an-                                         mative cannot be reduced to the empirical.)
alysis, and ordinary language philosophy. (Kel-                                             As Kelsen’s work comes from a different trad-
sen’s ideas developed and changed over the                                               ition and a different form of analysis than Hart’s,
course of six decades of writing; the claims made                                        Kelsen’s work is not vulnerable to the same lines
about his work here apply to most of what he                                             of criticism that are offered against Hart and his
wrote, but will generally not apply to his last                                          successors. However, Kelsen is (unsurprisingly)
works (Kelsen 1991), when he mysteriously                                                subject to a different set of criticisms, many re-
rejected much of the theory he had constructed                                           lated to the particular neo-Kantian approach he
during the prior decades (Hartney 1991: xxxvii-                                          adopts (Tur and Twining 1986; Paulson and
liii; Paulson and Paulson 1998: vii; Paulson                                             Paulson, 1998). Not least, Kelsen’s work, be-
1992a).)                                                                                 cause largely abstracted from the social facts and
    Kelsen applied something like Kant’s Transcen-                                       practices of existing legal systems, frequently
dental Argument to law: his work can be best                                             struggles with the ontological nature of (legal)
understood as trying to determine what follows                                           norms, along with the logical relations among
from the fact that people sometimes treat the                                            them. For Kelsen, the validity of legal norms
actions and words of other people (legal officials)                                      derives from a Basic Norm, and that Basic Norm
as valid norms (e.g., Paulson, 1992b). Kelsen’s                                          is in turn ‘‘presupposed’’ by those seeing legal
work can be seen as drawing on the logic of                                              orders as normative. As a legal positivist, Kelsen
normative thought. Every normative conclusion                                            does not mean to ground the normative force of
(e.g., ‘‘one should not drive more than 65 miles                                         his Basic Norm or his legal norms on their moral
per hour’’ or ‘‘one should not commit adultery’’)                                        validity, but by making his theory ‘‘pure’’ even of
derives from a more general or more basic nor-                                           sociological (or practice-based) elements, it is
mative premise. This more basic premise may be in                                        hard to see what it means to say that norms
terms of a general proposition (e.g., ‘‘do not                                           ‘‘exist’’ or are ‘‘binding’’ (e.g., Bulygin 1998).
harm other human beings needlessly’’ or ‘‘do                                             As regards the logic of norms, as the content of

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norms derives, however indirectly, from the                                                tion ‘‘will specify some feature or features posses-
actions of officials, within Kelsen’s approach                                             sion of which by a suggested rule is taken as a
there is no basis for assuming that normal rules                                           conclusive affirmative indication that it is a rule of
of logic and inference (e.g., rules of noncontra-                                          the group to be supported by the social pressure it
diction) apply (e.g., Kelsen 1973: 228–53; Conte                                           exerts’’ (Hart 1994: 94). The basic role or nature
1998; Hartney 1991: xlii-lii).                                                             of the Rule of Recognition is established by the
   As mentioned, most discussions of legal posi-                                           legal system’s being a normative system: a struc-
tivism in contemporary English-language legal                                              tured system of ‘‘ought’’ statements. Any individ-
scholarship skip over the Austinian and Kelsenian                                          ual norm stating what individuals can and cannot
strands of legal positivism, and focus solely on the                                       do according to law, must be grounded on a more
legal positivism of Hart and his successors. Unless                                        basic or more general normative statement, and
otherwise noted, this will be the focus of the                                             so the chain of normative justification goes, until
discussions in this chapter as well.                                                       one reaches a norm for which there is no further
                                                                                           justification. Under Hart’s approach, one looks at
                                                                                           the behavior of legal officials (especially judges)
                                                                                           to determine what the ultimate criteria of validity
     The Rule of Recognition and the                                                       are. (The sovereign plays a comparable role in
                                                                                           Austin’s command theory. All the valid norms in
               Basic Norm
                                                                                           the legal system, according to this approach, can
                                                                                           be traced back to a direct or indirect command by
There are roughly analogous concepts central to                                            the sovereign (indirect commands include the
both Hart’s and Kelsen’s work that have attracted                                          sovereign’s authorization that judges can make
a great deal of discussion – Hart’s Rule of Recog-                                         new law in the sovereign’s name).)
nition and Kelsen’s Basic Norm (Grundnorm) –                                                  Similarly for Kelsen: as discussed earlier, under
but the analogous general role of those concepts                                           his approach, one derives the Basic Norm from
too frequently has gotten lost in fights over the                                          the citizens’ treatment of certain acts as norma-
details. It is certainly important to note the dis-                                        tive. However, Kelsen’s Basic Norm is derived
tinctly different natures of Hart’s and Kelsen’s                                           from treating rules as legal norms, while Hart’s
theories of law (the difference between a                                                  Rule of Recognition is discovered in the actual
theory grounded on social practices versus one                                             practices of legal officials. (As earlier noted, in his
grounded in a neo-Kantian analysis of legal nor-                                           last works, Kelsen seemed to shift his views on
mativity), but there is also something to be                                               many subjects radically, and this included moving
learned from certain convergent elements in the                                            from a neo-Kantian theory of the Basic Norm, to
two theories.                                                                              one based more on Hans Vaihinger’s ‘‘as if’’
   As discussed above, H. L. A. Hart had argued                                            theory (Kelsen 1991; Paulson 1992a).)
that all (modern or mature) legal systems have                                                Both the Rule of Recognition and the Basic
secondary rules – rules about rules, rules that                                            Norm rest on the idea of chains of normative
allow for the identification, modification, and                                            validity: a particular legal norm is only valid be-
application of ‘‘primary rules.’’ As Hart saw it,                                          cause it has been authorized by a more general or
these rules are necessary, for though some small                                           more basic legal norm. This chain of validity must
or close-knit communities might survive on a set                                           end somewhere, with a foundational norm that
of primary rules alone, that community’s rule                                              carries no further justification, other than its ‘‘ac-
system would be static, and there would likely                                             ceptance’’ (Hart 1994: 100–10) or its having
be problems of uncertainty and inefficiency in                                             been ‘‘presupposed’’ (Kelsen [1934] 1992: 59).
the system, all problems that can be solved by                                             It is again important to note the difference of
the presence of secondary rules (Hart 1994: 92–                                            approach and methodology here: Hart’s theory
5). Most significantly within Hart’s analysis, legal                                       is meant as an analytical description of actual
systems have a ‘‘Rule of Recognition,’’ which                                              practices, while Kelsen sought a theory purified
comprises the basic criteria of legal validity within                                      even of sociological observation, and is best
the legal system in question: the Rule of Recogni-                                         understood as a neo-Kantian transcendental

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deduction from the fact that we treat certain rules                                      positivism) and ‘‘exclusive legal positivism’’ (also
as legal norms (e.g., Paulson 1992b).                                                    known as ‘‘hard’’ legal positivism). The debate
   Both the idea of a (single) Rule of Recognition                                       between the two camps involves a difference in
and a (single) Basic Norm derive from assump-                                            interpreting or elaborating one central point of
tions that societies’ legal regulations occur or are                                     legal positivism: that there is no necessary or ‘‘con-
viewed as occurring in a systematic way – all the                                        ceptual’’ connection between law and morality.
norms fitting within a consistent, hierarchical                                          Exclusive legal positivism (whose advocates have
structure of justification. If one does not think                                        included Joseph Raz (1994: 194–221), Andrei
that legal systems must be systematic in this way,                                       Marmor (2002), and Scott Shapiro (1998)) in-
then one could conclude that there could be                                              terprets or elaborates this assertion to mean that
more than one Rule of Recognition (Raz 1980:                                             moral criteria can be neither sufficient nor neces-
197–200) or more than one Basic Norm (Raz                                                sary conditions for the legal status of a norm.
1979: 122–45).                                                                           In different terms: exclusive legal positivism
   Hart’s Rule of Recognition may play an add-                                           states that ‘‘the existence and content of every
itional general role in his theory which is not                                          law is fully determined by social sources’’ (Raz
echoed in Kelsen’s Basic Norm. For many theor-                                           1979: 46).
ists writing about Hart’s theory, either in support                                         The most prominent argument for exclusive
or in criticism, the Rule of Recognition has come                                        legal positivism is one offered by Joseph Raz
to be equated with the ability to determine the                                          based on the relationship between law and au-
validity of a legal norm by recourse only to the                                         thority. This argument depends, in part, on
process by which it was enacted or promulgated                                           accepting Raz’s distinctive views on both the
(the norm’s ‘‘source’’ or ‘‘pedigree’’) without                                          nature of law and the nature of authority (cf.
consideration of its content. When Dworkin fam-                                          Waluchow 2000: 47–52). First, as regards law,
ously offered the existence of legal principles as a                                     Raz argues that legal systems, by their nature,
purported rebuttal to Hart’s theory of law, Dwor-                                        purport to be justified (legitimate) practical au-
kin argued that Hart’s Rule of Recognition could                                         thorities (Raz 1994: 199, 1996: 16). (He does
not account for the legal status of such principles,                                     not say that it is in the nature of law to be justified
or at least that any Rule of Recognition that could                                      practical authorities; that would be contrary to
differentiate principles that were part of the legal                                     the basic tenet of legal positivism that one can
system from those that were not would no longer                                          determine status as law without recourse to
be able to serve the purposes behind Hart’s Rule                                         moral tests; it would also be in tension with
of Recognition (Dworkin 1977: 39–45, 68–74).                                             Raz’s argument elsewhere that legal rules, even
Hart, in his posthumously published postscript,                                          in generally just legal systems, do not impose a
rejected the claim (Hart 1994: 250–4, 259–68),                                           prima facie moral obligation (Raz 1994: 325–
mostly by adopting the ‘‘inclusivist’’ interpret-                                        38).) Raz has argued for what is sometimes called
ation of his own work. As will be discussed in                                           ‘‘the service conception of authority’’: that the
the next section, this is a defense that may carry                                       ‘‘role and primary normal function [of author-
significant costs.                                                                       ities] is to serve the governed’’ (Raz 1990: 21).
                                                                                         Authorities are to consider the same reasons for
                                                                                         action that would apply to the subject, and the
The Divisions Within Contemporary                                                        subject ought to act as the authorities suggest if
                                                                                         that person ‘‘is likely better to comply with
          Legal Positivism
                                                                                         reasons that apply to him . . . if he accepts the
                                                                                         directives of the alleged authority as authorita-
In contemporary Anglo-American legal positiv-                                            tively binding and tries to follow them, rather
ism, which has focused on elaborating the Har-                                           than by trying to follow the reasons which apply
tian strand of legal positivism, much recent                                             to him directly’’ (Raz 1985a: 19 (italics re-
discussion has been on an internal debate be-                                            moved)). This analysis of authority is by no
tween ‘‘inclusive legal positivism’’ (also some-                                         means universally accepted; it has been chal-
times called ‘‘soft’’ or ‘‘incorporationist’’ legal                                      lenged both on descriptive and normative

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grounds (e.g., Lukes 1990; Dworkin 2002:                                                   the debate is still evolving. One response is that it
1671–76).                                                                                  is sufficient that the legal system as a whole make a
    Continually with Raz’s approach to authority:                                          difference in our practical reasoning, and this will
those subject to an authority ‘‘can benefit by its                                         continue to be the case if the moral criteria of an
decisions only if they can establish their existence                                       inclusive Rule of Recognition were the sufficient
and content in ways which do not depend on                                                 conditions for some of the valid norms of the legal
raising the very same issues which the authority                                           system, but not for all of them (e.g., Waluchow
is there to settle’’ (Raz 1994: 219). In the context                                       2000: 76–81).
of law, this means that with legal rules, which are                                           Inclusive legal positivism (whose advocates
meant to make authoritative decisions on matters                                           have included Jules Coleman (1982, 1998,
on which citizens would otherwise be subject to                                            2001), Wilfrid Waluchow (1994), Philip Soper
various moral (and prudential) reasons for action,                                         (1977), David Lyons (1977), and H. L. A. Hart
we must be able to ascertain their content                                                 (1994: 250–4)) interprets the separation of law
without recourse to further moral evaluation.                                              and morality differently, arguing that while there
According to Raz, law purports to play a particu-                                          is no necessary moral content to a legal rule (or a
lar role in citizens’ practical reasoning – legal rules                                    legal system), a particular legal system may, by
are to be ‘‘pre-emptive reasons’’ or ‘‘exclusion-                                          conventional rule, make moral criteria necessary
ary’’ reasons for action (Raz 1994: 199–204; cf.                                           or sufficient for validity in that system (e.g., Walu-
Raz 1990: 35–48, 73–84, 178–99). Following                                                 chow 1994; Coleman 1982). In the posthu-
this analysis, inclusive legal positivism must fail,                                       mously published ‘‘Postscript’’ to The Concept of
it is argued, because it is inconsistent with a core                                       Law, Hart indicated that he saw inclusive legal
aspect of law, the legal system’s purporting to be a                                       positivism as better reflecting his own views and
justified practical authority.                                                             intentions (Hart 1994: 247–54).
    Among the responses to Raz’s attack on inclu-                                             The strongest argument for inclusive legal
sive legal positivism have been the following: (1)                                         positivism seems to be its fit with the way both
that legal rules and legal systems may be authori-                                         legal officials and legal texts talk about the law
tative even when the content of the rules are                                              (though at least one advocate of the inclusive
sometimes determined in part by moral reasons                                              approach has disclaimed such reliance on ‘‘fit’’
(e.g., Waluchow 1994: 129–40, 2000: 47–71);                                                (Coleman 2001: 109)). Morality seems to be
and (2) Raz’s argument does not work where the                                             sufficient grounds for the legal status of a norm
moral criteria for validity (usually part of a consti-                                     in many common law cases (and decisions in
tutional standard) are different from the moral                                            which legal principles play a large role (Dworkin
reasons that would normally apply to citizens                                              1977: 14–45)), where a legal norm is justified
(e.g., the reasons for not murdering are different                                         only or primarily on the basis that morality re-
from the equality or ‘‘no cruel punishment’’                                               quires it. (Of course, exclusive legal positivists
reasons that may be the basis of invalidating a                                            have no objection to judges declaring new law
certain murder statute) (e.g., Coleman 2001:                                               based on moral considerations; it is the argument
125–7).                                                                                    that something is currently valid law because of its
    Another argument that has been offered for                                             moral merit that would run counter to exclusive
exclusive legal positivism derives from a claim                                            legal positivism.) The more familiar example for
about the nature of rules. Scott Shapiro (1998)                                            inclusive legal positivism is not about sufficient
has emphasized that it is in the nature of rules,                                          grounds for legal validity, but necessary grounds:
including legal rules, that they make a difference                                         when constitution-based judicial review of legis-
in our practical reasoning, and that inclusive rules                                       lation (e.g., in the United States and Canada)
of recognition would fail to make a difference in                                          requires or authorizes the invalidation of legisla-
this way, as they would merely point us towards                                            tion that runs afoul of moral standards codified in
moral evaluations already applicable to our                                                the constitution (e.g., regarding equality, due
choices. This claim has evoked a number of re-                                             process, or humane punishment), this appears to
sponses (e.g., Coleman 2001: 134–48; Walu-                                                 make moral merit a necessary, but not sufficient,
chow 2000; Kramer 2000; Himma 2000), and                                                   basis for legal validity.

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   Additionally, the inclusive view allows theorists                                     war. The theory may be able to beat off all attacks,
to accept many of Dworkin’s criticisms of legal                                          but the fortified product is one that sometimes
positivism without abandoning what these same                                            seems to be neither recognizable nor powerful
theorists consider the core tenets of legal positiv-                                     (cf. Dworkin 2002: 1656–65; Bix 1999a).
ism (its grounding in social facts and conven-
tions). Inclusive legal positivism accepts that
moral terms can be part of the necessary or suffi-
                                                                                                 Debates and Distinctive Views
cient criteria for legal validity in a legal system, but
insist that the use of moral criteria is contingent –
and derived from the choices or actions of par-                                          As already noted, a useful approach to under-
ticular legal officials – rather than part of the                                        standing a theory or a school of thought is to
nature of law (and thus present in all legal                                             consider its origins, seeing that to which it was
systems).                                                                                reacting or responding. For Bentham and Austin,
   Various legal positivist theorists have offered a                                     the key provocation for early legal positivism was
series of modifications and clarifications to try to                                     the sloppy natural law thinking of William Black-
secure their views against the criticisms of Dwor-                                       stone: in Blackstone’s claim (‘‘no human laws are
kin and of other legal positivists. For example, in                                      of any validity, if contrary to [the law of nature]’’
response to Dworkin’s argument that judges do                                            (Blackstone [1765–9] 1979, vol. 1: 41)), some
not have discretion, but instead are obligated to                                        discerned an implication that whatever was law
apply legal principles (which are determined in                                          (whatever rules the common law judges had de-
part by their moral content, and thus could not                                          veloped over time) was right and reasonable. In
be picked out by a Hartian Rule of Recognition),                                         response, Bentham in particular saw the need to
Joseph Raz has argued that not every norm                                                distinguish clearly between the statement of what
judges are obligated to apply in deciding legal                                          the law was, and the evaluation of its merits.
disputes is thereby ‘‘law’’ (Raz 1983: 83–85).                                           Bentham as reformer could then present a clear
Raz elsewhere (Raz 1994: 317) offers the                                                 case for changes in the law. (Bentham was thus also
example of a court being directed to resolve a                                           the strong advocate of codification and a strong
dispute by reference to the laws of another coun-                                        opponent of the common law and judicial legisla-
try or the internal rules of an association; but                                         tion; as for legal reform, Bentham was also one of
whether such an analysis can fairly be applied                                           the founders of Utilitarianism, so he had a moral
also to (e.g.) the moral standards incorporated                                          system ready to guide the lawmakers in their
in constitutional requirements may raise a more                                          reforms (Bentham [1789] 1996).)
difficult question. Another example: to Dwor-                                               The path of legal positivism in the decades after
kin’s argument that there is no Hartian Rule of                                          Austin and Bentham broadly followed this initial
Recognition in modern constitutional democra-                                            track: legal positivism as a contrast to natural law
cies that could adequately serve the purported                                           theory (see N AT U R A L L AW T H E O R Y ). However,
function of such rules – helping citizens to iden-                                       the boundary lines and conflict lines between that
tify what is and is not valid law – Jules Coleman                                        great tradition and legal positivism tend to
and Brian Leiter have argued that the Rule of                                            become elusive upon closer inspection (Bix
Recognition should be seen as having a validation                                        2000). It is hard to locate natural law theorists
function even if it does not have, within some                                           who actually disagree with the legal positivist pos-
legal systems, an identification function (Cole-                                         ition, when the position is carefully stated (cf.
man and Leiter 1996: 252). And numerous                                                  Finnis 1994). One can find some sloppy language
other epicycles have been added to the basic                                             by some peripheral figures which might be
legal positivist view to try to respond to critics                                       intended to equate legality and moral validity
within and without. The problem is that the de-                                                 ¨
                                                                                         in a naıve way (or which at least invites that mis-
fenders of legal positivism may have become too                                          reading) – John Austin ([1832] 1994: 157–9)
clever for their own good. With all the intricate                                        pounces on just such a remark by Blackstone in
modifications, clarifications, and addenda, the                                          his Commentaries (quoted earlier). However,
positivists may have won the battle but lost the                                         such examples are rare, and fighting such occa-

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sional sloppiness is hardly enough to justify a                                            the system may use to enforce its standards; in
whole school of jurisprudence. Most natural law                                            that case, it would be the sanctions, and not the
theorists are as anxious as most legal positivists to                                      legal norms themselves, that would be the reasons
separate questions of validity within a legal system                                       for action). Hart famously criticized Austin’s
and questions of moral value. Natural law theor-                                           command theory for being unable to distinguish
ists may argue that immoral laws are not ‘‘laws in                                         a legal system from a gunman’s threats, writ large
their fullest sense’’ (in that they do not create                                          (Hart 1994: 20–5). Hart’s line of argument, in
prima facie moral obligations), but that is quite                                          the context of a critique of Austin’s command
different from saying that they are ‘‘not ‘law’ at                                         theory, can be seen merely as describing better
all’’ (Kretzmann, 1988). (Nor need a legal posi-                                           and worse descriptive theories: that a good de-
tivist disagree with that conclusion – at least in the                                     scriptive theory will be one that can take into
sense that no disagreement seems required by                                               account the differences between a gangster’s im-
the ‘‘tenets’’ of legal positivism (MacCormick                                             position and a system that is (rightly or wrongly)
1992).)                                                                                    accepted as legitimate by some or most of its
   There likely still are points of disagreement                                           officials and citizens. Austin’s theory, with its
between legal positivism and natural law theory,                                           focus on the tendencies of sanction and obedi-
but they tend to come on relatively peripheral or                                          ence, cannot discern the difference; Hart’s
marginal points (for a characterization of the two                                         theory, incorporating the internal point of view,
schools of thought as more sharply divided,                                                allows for this distinction. Thus, legal positivists
see Mark Murphy’s discussion, N AT U R A L L AW                                            observe the fact of normativity, and account for it
T H E O R Y ). For example, modern legal theorists                                         only in the sense of constructing a legal theory
tend to agree that a theory of law should take                                             that can take that fact into account. Under this
into account the perspective of a participant in                                           view, legal positivists do not ‘‘explain normativ-
the legal process (Hart 1994: 89–91). The idea is                                          ity’’ in the sense of showing how such views can
that law, like other social practices, is a purposive                                      be justified or legitimate, for that sort of ‘‘explan-
activity, and an account of the nature of law that                                         ation of normativity’’ is just the type of moral or
can take into account the views of participants is                                         evaluative judgment that legal positivism leaves to
thereby a better theory than one that does not do                                          other types of analysis – for example, political
so. While natural law theorists have come to agree                                         theory or moral theory.
with that view (e.g., Finnis 1980: 3–6), natural                                              Some commentators, perhaps unwisely, have
law theorists and legal positivists disagree on                                            tried to read more into Hart’s critique of Austin
whether an ability to distinguish morally legitim-                                         (and other similar comments), and have thought
ate law and law which falls short of that mark                                             that it was legal positivism’s task to ‘‘explain nor-
should be built into that participant’s perspective.                                       mativity,’’ in the evaluative sense of explaining in
   Both advocates and critics of legal positivism                                          what sense the legal system could legitimately
sometimes discuss the way in which legal positiv-                                          give its officials and citizens additional reasons
ism succeeds or fails in ‘‘explaining the normativ-                                        for action. Such explanations, when attempted,
ity of law.’’ There is a deep ambiguity to that                                            have tried various paths, including arguments
phrase, which hides important questions about                                              about legal rules and standards as coordinating
the nature of the claims legal positivist do and                                           conventions (e.g., Coleman 1998) or as – in
should be making about law. One view, following                                            Michael Bratman’s terminology (Bratman 1992)
Kelsen and a possible interpretation of Hart, is                                           – a ‘‘shared cooperative activity’’ (Coleman 2001:
that legal positivism is best understood as                                                74–102; cf. Shapiro 2002; Bratman 2002). One
accepting the ‘‘fact’’ of normativity, that is, as                                         suspects that these sorts of explanations may be
starting from the assumption that some large per-                                          doomed to failure – for whenever they venture
centage of officials and citizens within a legal                                           from the sociological project of observing norma-
community accept the law as establishing reasons                                           tive behavior to the task of justifying such behav-
for action (people viewing the legal norms as                                              ior, they risk the error David Hume pointed out
offering reasons for action means more than                                                long ago, of improperly trying to derive an
being ‘‘persuaded’’ to act by the coercive force                                           ‘‘ought’’ from an ‘‘is’’ (cf. Finnis 2000). There

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may be interesting work to be done in trying to                                          had assumed the law to require, but the courts
ground moral obligations in the coordination of                                          insist that they are merely discovering or clarify-
behavior, but intertwining these arguments with                                          ing the existing law (e.g., Dworkin 1977: 22–31).
the core views of legal positivism may be more                                           The English tort law case, Donoghue v. Stevenson
likely to invite confusion than insight.                                                 (1932), and a comparable American case, Mac-
                                                                                         Pherson v. Buick Motor Co. (1916), are paradig-
                                                                                         matic examples. While a legal positivist (at least of
                                                                                         the ‘‘exclusive’’ variety) could simply refer to
         Critiques of Legal Positivism
                                                                                         these cases as instances of judicial legislation, the
                                                                                         judges and commentators frequently resist such
Every leading approach to law has its strong points                                      characterizations, preferring the view that the law
and its weak points, aspects of legal practice it                                        ‘‘works itself pure’’ (Omychund v. Barker 1744 at
accounts for very well and other aspects less well.                                      23), thus blurring the legal positivist’s line be-
The parts of legal practice that legal positivism (or                                    tween ‘‘what law is’’ and ‘‘what law ought to be.’’
at least ‘‘exclusive’’ forms of legal positivism, see
above), seems to account for or explain less well,                                       As the above four categories exemplify, to varying
and that sometimes motivate scholars towards                                             degrees, in general legal positivism does better
alternative theories, include the following:                                             explaining those aspects of law that derive from
                                                                                         ‘‘will,’’ the choice of some identifiable lawmaker,
   (1) Common law reasoning (e.g., Perry                                                 and less well in explaining those aspects of law
1987; Postema 1996: 95–6) – while there are a                                            that seem to derive from ‘‘reason,’’ the derivation
variety of theories of what is or should be going                                        of legal standards directly or indirectly from moral
on in traditional forms of common law reasoning,                                         standards. Alternative approaches, like Ronald
one could reasonably argue that this form of                                             Dworkin’s interpretive approach and some ver-
reasoning gives instances of a norm being valid                                          sions of natural law theory, tend to have the op-
law because of its moral content rather than being                                       posite problem: they are better with the ‘‘reason’’
based on a social source.                                                                side of law, and weakest in dealing with the ‘‘will’’
   (2) Purposive interpretation – the way that                                           (or ‘‘authority’’) aspects of law (cf. Bix 2003a:
statutes and constitutional provisions are inter-                                        133–8, 2002: 68; see N AT U R A L L AW T H E O R Y ;
preted in line with their purposes (or with the                                          A D J U D I C AT I O N A N D L E G A L R E A S O N I N G ). This
broader purposes of particular areas of law) has                                         contrast may be most sharply visible in Hans Kel-
seemed to some to be evidence that the distinc-                                          sen’s work, where a judge’s application of a gen-
tion between ‘‘law as it is’’ and ‘‘law as it ought to                                   eral norm to a particular case (e.g., ‘‘no one may
be’’ is not as sharp as legal positivists make out                                       park on this street,’’ therefore ‘‘James was not
(Fuller 1958: 661–9; cf. Hart 1958: 606–15).                                             allowed to park on this street’’) was considered
   (3) Customary law – legal systems which rec-                                          the creation of a new norm. That is, the specific
ognize ‘‘customary law’’ often characterize the                                          norm was law because, and only because, it was so
judges applying such laws as merely recognizing                                          willed by the judge; prior to that act of judicial
already existing legal standards. Again, the ques-                                       lawmaking the specific norm was not law, even
tion is whether to treat such ‘‘recognitions’’ at                                        though it might be connected to a general
face value, or to treat them as judicial legislation.                                    legal norm by the simplest of logical operations
Austin ([1832] 1994: 34–6) wrestles awkwardly                                            (Kelsen [1934] 1992: 67–8; cf. Finnis 2000:
with fitting customary laws into a system based on                                       1600–01).
commands (concluding that customary norms,                                                  Fuller summarized the will/reason distinction
because not commands, cannot be legal rules,                                             and its significance for understanding law:
but that they can become legal rules when
adopted by judges – which he then characterizes                                                When we deal with law, not in terms of defin-
as indirect commands of the sovereign).                                                        itions and authoritative sources, but in terms of
   (4) ‘‘Landmark cases’’ where courts change                                                  problems and functions, we inevitably see that it
radically what most judges and commentators                                                    is compounded of reason and fiat, of order dis-

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     covered and order imposed, and that to attempt                                        (an intentional misinterpretation of games which
     to eliminate either of these aspects of the law is to                                 have rules for when a goal has been scored but
     denature and falsify it. (Fuller 1946: 382)                                           where referees have the final word on whether a
                                                                                           goal has in fact been scored). As Hart pointed
As has been discussed elsewhere in this chapter,                                           out, it badly mischaracterizes what is going on
legal positivism can account for the ‘‘order dis-                                          to declare the relevant norm to be that a goal is
covered’’ aspect of law, on the basis that such                                            scored if and only if the scoring judge declares it
‘‘discoveries’’ do not become significant for a                                            to have occurred (Hart 1994: 141–7). This
legal system until announced by the duly ap-                                               (‘‘scorer’s discretion’’ or ‘‘what the judges say, is
pointed officials (though the debate remains                                               law’’) view of practices with final arbiters who
whether the standards should be thought of or                                              purport to apply norms misses the extent to
treated as having been valid law prior to this                                             which the ultimate decision makers consider
promulgation). Legal positivism’s focus on the                                             themselves bound by standards, and the extent
authoritative sources and officials also has the                                           to which other actors, or the same decision
virtue of accounting for the inevitable disagree-                                          makers at a later date, may criticize the initial
ment and fallibility in ascertaining what the impli-                                       decision by reference to those standards.
cit or eternal order is. On the other hand, Fuller’s
point, echoed by other critics of legal positivism,                                        There is no reason to believe that these items,
is that refusing to give equal emphasis to the                                             individually or collectively, form a conclusive case
(implicit or eternal) order which lawmakers aspire                                         against legal positivism. They are rather, as earlier
to ascertain and apply is to miss something basic                                          noted, weak points, and competing approaches to
in the nature of law.                                                                      the nature of law will have their own, different,
   To resume the list of objections:                                                       weak points. (Roger Shiner (1992) has shown
                                                                                           how the weak points in legal positivism could
   (5) Significant disagreement – as Dworkin                                               lead one towards a natural law approach, but that
has pointed out (e.g., Dworkin 1986: 120–39,                                               the weak points in natural law theories would lead
2002), the appearance of pervasive disagreement                                            one back to legal positivism.)
among legal officials and legal scholars about even
basic aspects of practice within many legal systems
(including those in the United States and Britain)
raises serious questions for a legal theory that                                              Two Critics: Ronald Dworkin and
seems to be grounded on conventional agree-                                                             John Finnis
ment.
   (6) Legal mistake – the problem of ‘‘mis-
take’’ can cause problems for legal positivism,                                            The most incisive criticisms of legal positivism in
but probably no more than for almost any alter-                                            recent years have come, first, from Ronald Dwor-
native theory. Whatever criteria one chooses for                                           kin (1977, 1985, 1986, 2002) and some other
legal validity, there will be occasions when judges                                        prominent theorists (e.g., Stephen Perry (1995,
or other legal officials seem to act contrary to                                           1996, 1998, 2002)), developing a comparable
those criteria, most frequently from a sincere but                                         line of criticism, and, second, from the natural
mistaken application of the criteria, but some-                                            law theorist John Finnis. This section will offer a
times from corruption or other wicked motives.                                             brief overview of these critiques.
The reality of such deviations can tempt theorists
to say that the only criterion of validity is the
decision of the ultimate decision maker (e.g.,                                                                     Ronald Dworkin
the most recent decision on the issue by the
United States Supreme Court or the House of                                                Dworkin’s challenge to legal positivism has had
Lords). However, this recourse has even greater                                            three general themes: (1) a challenge to the pic-
difficulties, difficulties which Hart satirized                                            ture legal positivism gave (or seemed to give) that
through his description of ‘‘scorer’s discretion’’                                         legal systems were merely systems of rules; (2) an

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argument that legal positivism was wrong in be-                                          whether a legal positivist rule or recognition can
lieving that questions of legal validity are, by their                                   account for all the valid norms within the legal
nature, separate from considerations of the con-                                         system (‘‘rules,’’ ‘‘principles,’’ or otherwise) sur-
tent or the merit of purported legal norms; and                                          vives, though it has mostly been transformed into
(3) a challenge to the general belief that law and                                       the detailed infighting between inclusive and ex-
legal validity are conceptually separate from ques-                                      clusive legal positivism, which was discussed
tions of morality and moral worth. (Dworkin has                                          above.
also argued that legal positivism is best under-                                            A more productive line of critique has been
stood as a ‘‘semantic’’ theory (Dworkin 1985:                                            offered by Stephen Perry, whose version of Dwor-
31–44) – attempting only to determine the mean-                                          kin’s nonneutrality critique argues that Hart was
ing of the word ‘‘law’’ – but this has been rejected                                     wrong to believe that a ‘‘descriptive’’ – morally
by all contemporary legal positivists as both un-                                        neutral, nonevaluative – theory of law was pos-
charitable and unwarranted. Legal positivists have                                       sible (Perry 1995, 1996, 1998, 2002). Perry’s
never been mere lexicographers: they have tried,                                         argument, in rough summary, is that in the con-
if not always with success, to say something about                                       struction of a theory of law, choices must be
a certain social institution or a certain concept                                        made; theories cannot be just an accumulation
(e.g., Hart 1994: 239–48).)                                                              of facts. These choices have often been justified
   In his earlier works, Dworkin argued that                                             by some argument regarding the purpose of law,
Hart’s version of legal positivism must be rejected                                      but different theorists have put forward different
because it assumes a view of a legal system that                                         purposes (e.g., Dworkin often refers to the justi-
consists entirely of legal rules, when legal systems                                     fication of state coercion, while a number of the
contain ‘‘principles’’ as well. Legal principles                                         legal positivists have preferred to see law’s pur-
differ from legal rules, in Dworkin’s critique, in                                       pose as guiding citizen behavior). How can one
that principles are moral propositions, grounded                                         choose between one purpose and another, a foun-
in the past actions of legal officials, that are not                                     dational question within the theory, except on the
conclusive for the cases to which they apply: in-                                        basis that one is morally superior to the other? To
stead, they add varying levels of weight to the                                          put the question differently, what morally neutral
argument for the outcome one way or the other.                                           principle, what simple principle of theory con-
There can thus be, and frequently will be, legal                                         struction, would be sufficient to adjudicate be-
principles on both sides of a difficult case                                             tween competing theories about the primary
(Dworkin 1977: 22–8). Because the questions                                              purpose of law?
of whether legal principles apply in a particular                                           There are a number of thoughtful responses as
case, and what weight they have in that case, are                                        to how neutral principles of theory construction
factors relating to the content of the principle,                                        or conceptual analysis could be sufficient (e.g.,
and not merely based on the principle’s ‘‘source’’                                       Coleman 2001: 197–207; Waluchow 1994: 19–
or ‘‘pedigree,’’ Dworkin argued that a Hartian                                           29; Dickson 2001). Whether these responses are
Rule of Recognition could not identify valid legal                                       adequate to rebut the Dworkin/Perry challenge
principles and still play the role Hart needed the                                       regarding the impossibility of a neutral theory
Rule of Recognition to play within a legal positiv-                                      remains highly contested and unsettled.
ist theory of law (Dworkin 1977: 28–31, 39–48,                                              Dworkin has raised other challenges to legal
64–8).                                                                                   positivism: in his later work (e.g., Law’s Empire
   While there was much contemporary debate of                                           (1986)), as mentioned earlier, Dworkin argued
Dworkin’s rules/principles critique of legal posi-                                       that legal positivism (at least in the Hartian trad-
tivism (e.g., Raz 1983), that discussion has largely                                     ition) could not adequately account for pervasive
fallen away, in large part because Dworkin’s later                                       disagreement within legal practice. He argued
work offered a view of the law that did not turn on                                      that the model of law based on a pedigree-based
the distinction between rules and principles, but                                        (content-neutral, no moral evaluation) Rule of
rather on a more nuanced interpretive theory of                                          Recognition could at best be understood as a
social practices (Dworkin 1986). However, vari-                                          kind of ‘‘conventionalism’’ that placed great
ations of Dworkin’s initial critique, questioning                                        value on stability and predictability within legal

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practice, and that Hart’s theory as a whole was                                            thing useful that can be stated about the nature of
most charitably understood as explicating the                                              law without purporting to evaluate legal rules and
(often unstated) shared criteria officials and citi-                                       legal systems normatively (and without being re-
zens have regarding the meaning of legal prac-                                             duced to a mere sociology of law-related behav-
tices, concepts, and propositions. Dworkin                                                 iors). This question is touched upon in the next
argued that Hart’s model of law falls short, both                                          section in a more general way, and can be sum-
descriptively and morally, compared to his own                                             marized, briefly, as follows: should a theory about
interpretive theory of law (Dworkin 1986:                                                  the nature of law focus (in a morally neutral way)
33–46, 114–50). In turn, Hart and others have                                              on law’s status as a kind of social institution, as
rejected this interpretation of legal positivism,                                          legal positivism arguably does; or should it in-
and Dworkin’s critique of legal positivism more                                            stead focus (as natural law theory arguably does)
generally (e.g., Hart 1994: 238–76; Coleman,                                               on law’s status as a reason for action that can affect
1998). Again, it is the response to this line of                                           people’s moral obligations (and is there any the-
criticism by Dworkin that has prompted the de-                                             oretical approach to the nature of law that can
velopment of ‘‘inclusive legal positivism’’ and                                            fully capture both aspects of law’s nature)?
driven much of the debate between it and ‘‘exclu-
sive legal positivism’’ (see above).

                                                                                              Methodological Questions and the
                                                                                                      Way Forward
                             John Finnis

A different line of criticism has recently emerged                                         This brief overview of the debates involving legal
from the traditional opponent of legal positivism                                          positivism connects to a question about the pur-
– natural law theory. John Finnis (Finnis 2000,                                            pose of legal theory (and of philosophy). What do
2002), the most prominent legal theorist                                                   we expect legal theory to do? How can we distin-
working within the natural law tradition, argues                                           guish good legal theories from bad ones? See C A N
that law must be understood both in terms of (1)                                           T H E R E B E A T H E O R Y O F L AW ? We cannot test
a description of the past acts of legal officials, and                                     theories about the nature of law the way we test
(2) reasons for action (for officials and citizens                                         scientific theories: by setting up controlled ex-
alike). However, a full and proper analysis of the                                         periments to see if the events predicted by the
second aspect of law, its giving reasons for action,                                       theory come about or not. Nor can we even
cannot be accomplished without a focus on what                                             apply the test of historical theories: judging the-
constitutes good (moral) reasons for action. Only                                          ories by the extent to which they match with the
a theory (like a natural law theory) that takes into                                       facts in the past. Neither conventional approach
account moral argumentation can appropriately                                              to verification or falsification works with theories
come to terms with the way that actions by offi-                                           about the nature of law, because such theories do
cials can affect the moral obligations of citizens                                         not purport to be (merely) empirical theories, but
(and why such actions sometimes fail to change                                             rather conceptual claims, claims about what is
our moral rights and duties). And once the dis-                                            ‘‘essential’’ to the concept (or ‘‘our concept’’
cussion of law becomes separated from questions                                            of) ‘‘law.’’
about the law’s (moral) authority, it can do no                                               However, if legal positivism is not about some
more than ‘‘report[] attitudes and convergent                                              simply factual claim about the systems we call
behavior’’ (Finnis 2000: 1611).                                                            ‘‘law,’’ the question returns more sharply: what
   One possible response was touched upon                                                  are the criteria of success, and how do we tell a
earlier – that legal positivists should not worry                                          good or successful theory of law from a less good
about not being able to account for the moral                                              or less successful theory?
force (if any) of law, because that was never the                                             A good theory explains. A good theory would
purpose of this approach. Finnis’s challenge                                               be one that tells us something significant – that
would remain: questioning whether there is any-                                            says something interesting about the category of

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phenomenon we call ‘‘law.’’ Even if it is not a                                          clear ‘‘right’’ or ‘‘wrong,’’ and no sense in
claim that can be verified or falsified, one can                                         which ‘‘fitting the facts’’ is a strict criterion of
still feel that a theory either does or does not                                         success, there is a temptation to ask why anyone
give us an insight into the practice or phenom-                                          should care about such things. If theorizing
enon that we did not have before. A theory that                                          about the nature of law is not a search for ‘‘the
offers to tell us something about the ‘‘nature of                                        truth,’’ narrowly understood, like pure physics,
law’’ needs, of course, to reflect, to a substantial                                     and it is not meant to respond to some particular
extent, the way citizens and lawyers perceive and                                        view of social justice, what is the point? Here one
practice law – it must ‘‘fit’’ our legal practice,                                       must assert the intrinsic value of explanation and
though the fit need not be perfect; however, sig-                                        understanding.
nificant deviations from the participants’ under-                                           The controversial claim and the interesting
standing of a practice must be justified by some                                         claim of legal positivism may be at its foundation:
insight offered. This relates to the second point: a                                     that it is both possible and valuable to offer a
theory should offer more than general descriptive                                        descriptive or conceptual theory of law. The
fit – it should also tell us something about the                                         claim that one can create a descriptive (or, at
practice that even regular participants in the prac-                                     least, morally neutral) theory of law will be met
tice might not have been able to articulate, but                                         by those (like Ronald Dworkin) who claim that
which they would recognize when confronted                                               nothing interesting can be said at the level of law
with the theory.                                                                         in general, and thus that legal theory should be
   Legal positivism, if it is to continue to be a                                        theories of particular legal systems (Dworkin
tenable and valuable theory of law, must seek                                            1987: 16). And, as already discussed, the claim
out a position that offers insight, and this must                                        that there can be a descriptive (or morally neutral)
also be a position with which reasonable persons                                         theory of law will also be met by those (e.g.,
might disagree (otherwise the theory reduces to                                          Dworkin 1986: 31–113; Perry 1995, 1996,
an everyday truth, unworthy of discussion). This                                         1998, 2002) who argue that controversial moral
is the advantage that exclusive legal positivism has                                     choices are inevitable even in a purportedly de-
over inclusive legal positivism: whatever its rela-                                      scriptive theory. (Here, though, there is a thin line
tive merits in the debates with natural law theory                                       between evaluative standards which are selective,
and Dworkinian theory, exclusive legal positivism                                        but arguably not morally evaluative, and stand-
has the advantage of a distinctive statement about                                       ards that do seem morally evaluative or political.)
the nature of law and its role in society. Exclusive                                        It is important for legal positivists – indeed, for
legal positivism emphasizes the differences be-                                          all theorists about the nature of law – to spend
tween law as it is, and law as it ought to be (a                                         more time thinking of their project in the broader
distinction Dworkin’s theory fogs, when it does                                          context of social theory, and the problem of the
not erase it entirely), and it emphasizes the con-                                       social sciences. For example, the view that there
nection between law and the role of authority in                                         can be a fully descriptive theory of law may be
governance (in democratic regimes, that officials                                        open to attack on the grounds that social theory
make choices in the name of the people, which                                            can never be neutral in that way (e.g., Lucy
other officials must then enforce). This is not a                                        1999). Legal positivists are well advised to look
conclusive argument for exclusive legal positiv-                                         to the nature of comparable debates within social
ism, but it is a significant factor in its favor (exclu-                                 theory, when making their arguments in defense
sive theorists still face the challenge that they                                        of their approach to the nature of law.
maintain a distinctive view of law at the cost of                                           While law can be seen as a subset of social insti-
too large a gap between their characterization of                                        tutions and practices on one hand, it is also, on
the practice and how practitioners understand                                            the other hand, a subset of reason-giving practices
their own legal systems).                                                                (along with religion, morality, and perhaps eti-
   If legal theories in general, and legal positivism                                    quette), as mentioned in the previous section, in
in particular, are merely a contestable way of                                           discussing John Finnis’s critique of legal positiv-
characterizing the nature of law, if there is no                                         ism. For this broader category of theorizing


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about reason-giving practices, there would be                                              have had different concepts (many of these issues
obvious tensions in any effort to create a ‘‘de-                                           are discussed by Joseph Raz (See C A N T H E R E B E A
scriptive’’ or ‘‘neutral’’ theory of an intrinsically                                      T H E O R Y O F L AW ?); see also Bix, 2003b).
evaluative practice. At the least, there are evident
arguments for preferring a perspective on reason-
giving practices that would reflect on their merits
according to their ultimate purposes (cf. Finnis,                                                                       Conclusion
2000, 2002). It may well be that law’s double
nature – as a social institution and as a reason-                                          Many people approach legal positivism with a
giving practice – makes it impossible to capture                                           strong presumption in its favor. After all, how
the nature of law fully through any one approach,                                          could one reasonably be against having a descrip-
with a more ‘‘neutral’’ approach (like legal posi-                                         tive (or at least morally neutral) study of a social
tivism) required to understand its institutional                                           institution and practice, separating what is from
side, and a more evaluative approach (like natural                                         what should be, and allowing other disciplines to
law theory) required to understand its reason-                                             discuss normative or historical or sociological
giving side.                                                                               aspects of the same social institution and practice?
   Finally, legal positivists who offer a conceptual                                       However, as this chapter has indicated, under
theory of law will be met by those (like Leiter)                                           further critical examination, there are questions
who challenge the possibility, or at least the value,                                      that can and should be asked about the possibility
of conceptual analysis (Leiter 1998a, 1998b,                                               and value of this type of inquiry. First, approaches
2002; cf. Harman 1994). Once again, the ques-                                              to the nature of law should be understood within
tion should not be seen as one peculiar to legal                                           the context of larger debates regarding theories of
theory. Brian Leiter (1998b) has rightly reminded                                          other social practices and institutions, and theor-
legal theorists that they are part of a larger world                                       ies of other reason-giving practices. Broader in-
of philosophy, and the abandonment of concep-                                              quiries will include, on the one hand, the
tual analysis elsewhere in philosophy (abandon-                                            question of the possibility of a morally neutral
ing ‘‘armchair metaphysics’’ for more empirically                                          theory, and, on the other hand, the viability of
grounded inquiries) should give legal theorists                                            ‘‘conceptual’’ theory.
pause. However, while conceptual analysis may                                                  A more precise set of questions might be de-
have been largely discarded in some areas of phil-                                         rived from the above general considerations:
osophy, like epistemology, the direct comparison                                           What does it mean to talk about the nature of
is not whether conceptual theory is still con-                                             law, and what does it mean to succeed or fail in
sidered useful for a theory of knowledge, but                                              having a theory of law? To answer these ques-
rather whether conceptual theory is still con-                                             tions, in light of the general concerns outlined,
sidered useful for social theory – for that is argu-                                       is the challenge that legal positivism must meet if
ably the closest topic in general philosophy for                                           it is going to warrant our continuing attention. If
theorists working on the nature of law. Some legal                                         this challenge is not met, legal positivism will
theorists have already offered reasons for believ-                                         become, one fears, just another interesting topic
ing that the attack on conceptual analysis in social                                       in the history of ideas, rather than a vibrant
theory generally, and jurisprudence specifically,                                          debate in our current reflections on what it
can be rebutted (e.g., Coleman 2001: 210–17).                                              means to have and maintain a legal system.1
However, even if conceptual analysis is con-
sidered appropriate for jurisprudence, there is
still work to be done to elaborate what is meant                                                                                Note
by speaking of the ‘‘nature’’ or ‘‘essence’’ of law;
to explain whether or in what way there are ‘‘ne-                                          1 I am grateful to the comments and suggestions of
cessary truths’’ about law; and to analyze whether                                           William A. Edmundson, Daniel A. Farber, Miranda
there has only been one concept of law through-                                              Oshige McGowan, Brian Z. Tamanaha, and those
out history or, to the contrary, different societies                                         who heard earlier versions of this chapter when they


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     were presented at the University of Minnesota and                                   Coleman, J. L. 2001. The Practice of Principle: In
     the University of Stockholm.                                                          Defence of a Pragmatist Approach to Legal Theory.
                                                                                           Oxford: Oxford University Press.
                                                                                         Coleman, J. L. and Leiter, B. (1996). Legal positivism.
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  Institutional Theory of Law. Dordrecht: D. Reidel.                                         Theory. Oxford: Clarendon Press, 65–78.
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----------------------------------- Chapter 3 ----------------------------------

                       American Legal Realism
                                                       Brian Leiter



                      Introduction                                          views, especially against the criticisms of legal
                                                                            philosophers, notably H. L. A. Hart.
                                                                               But Realism also bore the marks of an intellec-
American Legal Realism was the most important                               tual culture which it did share with its Scandi-
indigenous jurisprudential movement in the                                  navian cousin. This culture – the dominant one
United States during the twentieth century,                                 in the Western world from the mid-nineteenth
having a profound impact not only on American                               century through at least the middle of the last
legal education and scholarship, but also on law                            century – was deeply ‘‘positivistic,’’ in the sense
reform and lawyering. Unlike its Scandinavian                               that it viewed natural science as the paradigm of
cousin, American Legal Realism was not primarily                            all genuine knowledge, and thought all other
an extension to law of substantive philosophical                            disciplines (from the social sciences to legal
doctrines from semantics and epistemology. The                              study) should emulate the methods of natural
Realists were lawyers (plus a few social scientists),                       science. Chief among the latter was the method
not philosophers, and their motivations were,                               of empirical testing: hypotheses had to be tested
accordingly, different. As lawyers, they were                               against observations of the world. Thus, the Real-
reacting against the dominant ‘‘mechanical juris-                           ists frequently claimed that existing articulations
prudence’’ or ‘‘formalism’’ of their day. ‘‘Formal-                         of the ‘‘law’’ were not, in fact, ‘‘confirmed’’ by
ism,’’ in the sense pertinent here, held that judges                        actual observation of what the courts were really
decide cases on the basis of distinctively legal rules                      doing. Also influential on some Realists was be-
and reasons, which justify a unique result in most                          haviorism in psychology – John Watson’s version,
cases (perhaps every case). The Realists argued,                            not the later, and better known, brand associated
instead, that careful empirical consideration of                            with B. F. Skinner – which was itself in the grips of
how courts really decide cases reveals that they                            a ‘‘positivistic’’ conception of knowledge and
decide not primarily because of law, but based                              method. The behaviorist dispensed with talk
(roughly speaking) on their sense of what would                             about a person’s beliefs and desires – phenomena
be ‘‘fair’’ on the facts of the case. (We shall refine                      that were unobservable, and thus (so behaviorists
this formulation of the ‘‘core claim’’ of Realism                           thought) not empirically confirmable – in favor of
shortly.) Legal rules and reasons figure simply as                          trying to explain human behavior strictly in terms
post hoc rationalizations for decisions reached on                          of stimuli and the responses they generate. The
the basis of nonlegal considerations. Because the                           goal was to discover laws describing which stimuli
Realists never made explicit their philosophical                            cause which responses. Many Realists thought
presuppositions about the nature of law or their                            that a genuine science of law should do the same
conception of legal theory, one of the important                            thing: it should discover which ‘‘stimuli’’ (e.g.,
jurisprudential tasks for Realists today is a philo-                        which factual scenarios) produce which ‘‘re-
sophical reconstruction and defense of these                                sponses’’ (i.e., what judicial decisions). This

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---------------------------------------------------------------------------------- Brian Leiter ---------------------------------------------------------------------------------
                                                                                                 --------------------------------------------------------------------------------

understanding of legal ‘‘science’’ is most vivid in                                         reasons did not suffice to explain why judges
the work of Underhill Moore, to whom we return                                              decided as they did. Causal indeterminacy entails
below. For most of the Realists, however,                                                   rational indeterminacy on the assumption that
the commitment to ‘‘science’’ and ‘‘scientific                                              judges are responsive to applicable (justificatory)
methods’’ was more a matter of rhetoric and                                                 legal reasons. Of course, that assumption is not a
metaphor than actual scholarly practice: one sees                                           trivial one, and at least one Realist, Jerome Frank
it, for example, in the common Realist talk about                                           (1931), drew attention to the indeterminacy that
the necessity of ‘‘testing’’ legal rules against ex-                                        results from judicial incompetence or corruption.
perience to see whether they produced the results                                           From a jurisprudential point of view, of course,
they were supposed to produce.                                                              this indeterminacy is trivial, since no legal theor-
   American Legal Realism claimed Oliver Wen-                                               ist, of any school, denies that the law does a poor
dell Holmes, Jr., as its intellectual forebear, but                                         job of predicting what courts will do when courts
emerged as a real intellectual force in the 1920s                                           are ignorant of or indifferent to the law!
at two law schools in the Northeastern                                                         Realist arguments for the rational indetermin-
United States, Columbia and Yale. Karl Llewel-                                              acy of law generally focused on the existence of
lyn, Underhill Moore, Walter Wheeler Cook,                                                  conflicting, but equally legitimate, canons of in-
Herman Oliphant, and Leon Green were among                                                  terpretation for precedents and statutes. Llewel-
the major figures in Legal Realism associated with                                          lyn demonstrated, for example, that courts had
these two schools (though Green ultimately spent                                            endorsed both the principle of statutory construc-
most of his career at Northwestern and Texas,                                               tion that, ‘‘A statute cannot go beyond its text,’’
while Cook soon departed Columbia for Johns                                                 but also the principle that ‘‘To effect its purpose a
Hopkins). Not all Realists, however, were aca-                                              statute must be implemented beyond its text’’
demics. Jerome Frank – who has had a dispropor-                                             (Llewellyn 1950: 401). But if a court could prop-
tionate impact on the long-term reception of                                                erly appeal to either canon when faced with a
Realism – was a lawyer with considerable trial                                              question of statutory interpretation, then the
experience, who (like many Realists) later worked                                           ‘‘methods’’ of legal reasoning (including prin-
in President Franklin D. Roosevelt’s ‘‘New Deal’’                                           ciples of statutory construction) would justify at
Administration during the 1930s, and eventually                                             least two different interpretations of the meaning
served as a federal judge; he never held an aca-                                            of the statute. In that case, the question for the
demic appointment. Among legal theorists, the                                               Realists was: why did the judge reach that result,
Realists are certainly notable for the sizable                                              given that law and legal reasons did not require
number who also enjoyed distinguished careers                                               the judge to do so?
in the practice of law, including, for example,                                                Llewellyn (1930a) offered a similar argument
William O. Douglas (appointed to the US Su-                                                 about the conflicting, but equally legitimate, ways
preme Court by Roosevelt), and Thurman                                                      of interpreting precedent. According to Llewel-
Arnold, founder of a prominent Washington,                                                  lyn’s (incautiously) strong version of the argu-
DC law firm that still bears his name.                                                      ment, any precedent can be read ‘‘strictly’’ or
                                                                                            ‘‘loosely,’’ and either reading is ‘‘recognized, le-
                                                                                            gitimate, honorable’’ (1930a: 74). The strict in-
                                                                                            terpretation characterizes the rule of the case as
                  Legal Indeterminacy
                                                                                            specific to the facts of the case; the loose inter-
                                                                                            pretation abstracts (in varying degrees) from the
The Realists famously argued that the law was                                               specific facts in order to treat the case as standing
‘‘indeterminate.’’ By this, they meant two things:                                          for some general norm. But if ‘‘each precedent
first, that the law was rationally indeterminate, in                                        has not one value [that is, stands for not just one
the sense that the available class of legal reasons                                         rule], but two, and . . . the two are wide apart,
did not justify a unique decision (at least in those                                        and . . . whichever value a later court assigns to
cases that reached the stage of appellate review);                                          it, such assignment will be respectable, tradition-
but second, that the law was also causally or ex-                                           ally sound, dogmatically correct’’ (Llewellyn
planatorily indeterminate, in the sense that legal                                          1930a, 76), then precedent, as a source of law,

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cannot provide reasons for a unique outcome,                                         jective and malleable. There are certainly reasons
because more than one rule can be extracted                                          to think the Realists were right, and Dworkin
from the same precedent.                                                             wrong, in this regard (cf. Leiter 2001), but the
   One difficulty with these Realist arguments is                                    topic is, unfortunately, unaddressed by the Real-
that they rely on a tacit conception of legitimate                                   ists themselves.
legal argument. The assumption is that if lawyers                                        One final point about the Realist indetermin-
and courts employ some form of argument – a                                          acy thesis bears emphasizing. Unlike the later
‘‘strict’’ construal of precedent, a particular                                      Critical Legal Studies writers, the Realists, for
canon of statutory construction – then that form                                     the most part, did not overstate the scope of
of argument is legitimate in any and all cases. Put                                  indeterminacy in law. The Realists were (gener-
this incautiously, the assumption cannot be right:                                   ally) clear that their focus was indeterminacy at
not every strict construal of precedent will be                                      the stage of appellate review, where one ought to
legally proper in every case. Even Llewellyn                                         expect a higher degree of uncertainty in the law.
must recognize this, as suggested by his famous                                      Cases that have determinate legal answers are,
– but clearly facetious – example of the ‘‘strict’’                                  after all, less likely to be litigated to the stage of
reading that yields, ‘‘This rule holds only of red-                                  appellate review. Thus, Llewellyn explicitly quali-
headed Walpoles in pale magenta Buick cars’’                                         fied his indeterminacy claim by saying that, ‘‘[I]n
(1930a: 72). But that is hardly likely to ever be a                                  any case doubtful enough to make litigation re-
legitimate construal of a precedent, barring some                                    spectable the available authoritative premises
bizarre scenario in which all these facts turned out                                 . . . are at least two, and . . . the two are mutually
to be legally relevant, and Llewellyn surely knows                                   contradictory as applied to the case at hand’’
as much. The claim cannot be, then, that any                                         (Llewellyn 1931: 1239). And Max Radin noted
strict or loose construal of precedent is always                                     that judicial ‘‘decisions will consequently be
valid. It must only be that lawyers and judges                                       called for chiefly in what may be called marginal
have this interpretive latitude often enough to                                      cases, in which prognosis is difficult and uncer-
inject a considerable degree of indeterminacy                                        tain. It is this fact that makes the entire body of
into law.                                                                            legal judgments seem less stable than it really is’’
   There is a related difficulty, pertaining to an-                                  (Radin 1942: 1271).
other suppressed assumption of the Realist argu-
ment. For notice that the Realist argument for
the indeterminacy of law – really the indetermin-
acy of law and legal reasoning – is based on an                                         The Core Claim of American Legal
implicit view about the scope of the class of legal
                                                                                                    Realism
reasons: that is, the class of reasons that judges
may properly invoke in justifying a decision. The
Realists appear to assume that the legitimate                                        All the Realists agreed that the law and legal
sources of law are exhausted by statutes and pre-                                    reasons are rationally indeterminate (at least in
cedents, since they focus, almost exclusively, on                                    the sorts of cases that reach the stage of appellate
the conflicting but equally legitimate method for                                    review), so that the best explanation for why
interpreting statutes and precedents in order to                                     judges decide as they do must look beyond the
establish law’s indeterminacy. Unfortunately, the                                    law itself. In particular, all the Realists endorsed
Realists themselves never gave arguments for this                                    what we may call ‘‘the Core Claim’’ of Realism: in
assumption. Later writers, like Ronald Dworkin,                                      deciding cases, judges respond primarily to the
have argued that much indeterminacy in law dis-                                      stimulus of the facts of the case, rather than to
appears once we expand our notion of what con-                                       legal rules and reasons. It is possible to find some
stitute legitimate sources of law to include not                                     version of the Core Claim in the writings of all the
only statutes and precedents, but also broader                                       major Realists.
moral and political principles. The Realists, con-                                      Oliphant, for example, gives us an admirably
sistent with their positivist intellectual culture,                                  succinct statement when he says that courts ‘‘re-
largely presumed that moral principles were sub-                                     spond to the stimulus of the facts in the concrete

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cases before them rather than to the stimulus of                                            accepted rule and judicial behavior’’ but then
over-general and outworn abstractions in opin-                                              demands that what that relation is requires empir-
ions and treatises’’ (1928: 75). Oliphant’s claim is                                        ical investigation, since it is not always the relation
confirmed by Judge Joseph Hutcheson’s admis-                                                suggested by the ‘‘logic’’ (or content) of the rule
sion that ‘‘the vital, motivating impulse for the                                           (1930b: 444). As he puts the point elsewhere:
decision is an intuitive sense of what is right or                                          realists deny that ‘‘traditional . . . rule-formula-
wrong for that cause’’ (1929: 285). Similarly,                                              tions are the heavily operative factor in producing
Frank cited ‘‘a great American judge,’’ Chancel-                                            court decisions’’ (1931: 1237, emphasis added).
lor Kent, who confessed that, ‘‘He first made                                               But to deny only this claim is to admit that rules
himself ‘master of the facts.’ Then (he wrote) ‘I                                           play some causal role in decisions.
saw where justice lay, and the moral sense dictated                                            Third, many of the Realists advanced the Core
the court half the time; I then sat down to search                                          Claim in the hope that legal rules might be refor-
the authorities . . . but I almost always found prin-                                       mulated in more fact-specific ways: this, more
ciples suited to my view of the case’ ’’ (Frank 1930:                                       than anything, accounts for the profound impact
104 note). Precisely the same view of what judges                                           Realism had on American law and law reform.
really do when they decide cases is presupposed in                                          Thus, for example, Oliphant (1928) spoke of a
Llewellyn’s advice to lawyers that, while they                                              ‘‘return to stare decisis,’’ the doctrine that rules
must provide the court ‘‘a technical ladder’’ jus-                                          laid down in prior cases should control in subse-
tifying the result, what the lawyer must really do                                          quent cases that are relevantly similar. Oliphant’s
is ‘‘on the facts . . . persuade the court your case                                        critique was that the ‘‘legal rules,’’ as articulated
is sound’’ (Llewellyn 1930a: 76). Similarly, Frank                                          by courts and scholars, had become too general
quotes approvingly a former ABA President                                                   and abstract, ignoring the particular factual con-
to the effect that ‘‘ ‘the way to win a case is                                             texts in which the original disputes arose. The
to make the judge want to decide in your favor                                              result was that these rules no longer had any
and then, and then only, to cite precedents which                                           value for judges in later cases, who simply ignore
will justify such a determination’ ’’ (Frank 1930:                                          the abstract official doctrine in favor of a situ-
102).                                                                                       ation-specific judgment appropriate to the par-
   Several points bear noting about how we                                                  ticular facts of the case. Oliphant argued that a
should understand the Core Claim of Realism.                                                meaningful doctrine of stare decisis could be re-
First, it is not simply the trivial thesis that judges                                      stored by making legal rules more fact-specific.
must take account of the facts of the case in                                               So, for example, instead of pretending that there
deciding the outcome. Rather, it is the much                                                is a single, general rule about the enforceability of
stronger claim that in deciding cases, judges are                                           contractual promises not to compete, Oliphant
reacting to the underlying facts of the case,                                               suggested that we attend to what the courts are
whether or not those facts are legally significant,                                         really doing in that area: namely, enforcing those
that is, whether or not they are relevant in virtue                                         promises, when made by the seller of a business to
of the applicable legal rules. Second, the Core                                             the buyer; but not enforcing those promises,
Claim is not the thesis that legal rules and reasons                                        when made by a (soon-to-be former) employee
never affect the course of decision; rather it is the                                       to his employer (1928: 159–60). In the former
weaker claim that they generally have no (or little)                                        scenario, Oliphant claimed, the courts were
effect, especially in the sorts of cases with which                                         simply doing the economically sensible thing
the Realists were especially concerned: namely,                                             (no one would buy a business, if the seller could
that class of more difficult cases that reached the                                         simply open up shop again and compete); while in
stage of appellate review. Llewellyn is representa-                                         the latter scenario, courts were taking account of
tive when he asks, ‘‘Do I suggest that . . . the                                            the prevailing informal norms governing labor
‘accepted rules,’ the rules the judges say that                                             relations at the time, which disfavored such
they apply, are without influence upon their                                                promises. (The 2nd Restatement of Contracts,
actual behavior?’’ and answers, ‘‘I do not’’ (Lle-                                          produced by the American Law Institute (ALI),
wellyn 1930b: 444). The Realist approach, says                                              later codified something very close to Oliphant’s
Llewellyn, ‘‘admits . . . some relation between any                                         distinction.)

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                                                                                        Influenced by Freud’s idea that the key to the
            Two Branches of Realism
                                                                                     personality lay in the buried depths of the uncon-
                                                                                     scious, however, Frank felt that it would be im-
Although all Realists accepted the Core Claim,                                       possible for observers of judicial behavior to
they parted company over the question of how                                         discover the crucial facts about personality that
to explain why judges respond to the underlying                                      would determine a judge’s response to the facts of
facts of the case as they do. The ‘‘Sociological’’                                   a particular case. As a result, Frank concluded that
Wing of Realism – represented by writers like                                        prediction of judicial decision would be largely
Oliphant, Moore, Llewellyn, and Felix Cohen –                                        impossible; the desire of lawyers and citizens to
thought that judicial decisions fell into predictable                                think otherwise, Frank suggested, reflected
patterns (though not, of course, the patterns one                                    merely an infantile wish for certainty and security.
would predict just by looking at the existing rules                                     Frank’s skepticism about our ability to predict
of law). From this fact, these Realists inferred that                                how judges will decide cases flies in the face of the
various ‘‘social’’ forces must operate upon judges                                   experience of most lawyers. While the outcome of
to force them to respond to facts in similar, and                                    some cases is hard to fathom, most of the time
predictable, ways.                                                                   lawyers are able to advise clients as to the likely
   The ‘‘Idiosyncracy Wing’’ of Realism, by con-                                     outcome of disputes brought before courts: if
trast – exemplified most prominently by Frank                                        they weren’t, they’d be out of business! Yet des-
and Judge Hutcheson – claimed that what deter-                                       pite the fact that Frank’s skepticism sits poorly
mines the judge’s response to the facts of a par-                                    with practical experience, a striking feature of
ticular case are idiosyncratic facts about the                                       the long-term reception of Realism is that Frank’s
psychology or personality of that individual                                         view is often taken as the essence of Realism (cf.
judge. Thus Frank notoriously asserted that                                          Leiter 1997: 267-8, and the sources cited
‘‘the personality of the judge is the pivotal factor                                 therein). This ‘‘Frankification’’ of Realism does
in law administration’’ (1930: 111). (Note, how-                                     justice neither to the majority of Realists who felt
ever, that no Realist ever claimed, as popular                                       that judicial decision was predictable – because
legend has it, that ‘‘what the judge ate for break-                                  its determining factors were identifiable social
fast’’ determines his or her decision!) Or as Frank                                  forces, not opaque facts about personality – nor
formulated the point elsewhere: the ‘‘conven-                                        to those Realists who envisioned a refashioned
tional theory’’ holds that ‘‘Rule plus Facts ¼                                       regime of legal rules that really would describe
Decision,’’ while his own view is that ‘‘the Stimuli                                 and predict judicial decisions, precisely because
affecting the judge’’ plus ‘‘the Personality of the                                  they would take account of the particular factual
judge ¼ Decision’’ (1931: 242). It is, of course,                                    contexts to which courts are actually sensitive.
Frank’s injection of the ‘‘personality of the                                           Recall Oliphant’s example of the conflicting
judge’’ into the formula that puts the distinctive                                   court decisions on the validity of contractual
stamp on his interpretation of the Core Claim:                                       promises not to compete. Oliphant claims that
drop that and you have the Core Claim itself.                                        in fact the decisions tracked the underlying facts
   Now notwithstanding the behaviorist rhetoric                                      of the cases:
in the preceding formulation, Frank was, in fact,
primarily influenced by Freudian psychoanalysis,                                          All the cases holding the promises invalid are
a doctrine anathema to behaviorists since it dis-                                         found to be cases of employees’ promises not
penses with the behaviorist prohibition on refer-                                         to compete with their employers after a term of
ence to what goes on in the ‘‘black box’’ of the                                          employment. Contemporary guild [i.e. labor
                                                                                          union] regulations not noticed in the opinions
mind: beliefs and desires – unconscious ones no
                                                                                          made their holding eminently sound. All the
less! – are the very stuff of psychoanalysis. Despite
                                                                                          cases holding the promises valid were cases of
that difference, Freudianism retains the scientistic                                      promises by those selling a business and promis-
self-conception characteristic of behaviorism, and                                        ing not to compete with the purchasers. Con-
so Frank could still think of his approach as con-                                        temporary economic reality made these holdings
tributing to a science of law.                                                            eminently sound. (Oliphant 1928: 159–60)


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Thus, in the former fact-scenarios, the courts                                              the relevant institutions in the locality of the
enforced the prevailing norms (as expressed in                                              court’’ (Moore and Sussman 1931: 1219). Put
guild regulations disfavoring such promises); in                                            differently: what judges respond to is the extent
the latter cases, the courts came out differently                                           to which the facts show a deviation from the
because it was economically best under those fac-                                           prevailing norm in the commercial culture.
tual circumstances to do so. Llewellyn provides a                                              The thesis of Sociological Wing Realists like
similar illustration (1960: 122–4). A series of                                             Llewellyn, Oliphant, and Moore – that judges
New York cases applied the rule that buyers who                                             enforce the norms of commercial culture or try
reject the seller’s shipment by formally stating                                            to do what is socioeconomically best on the facts
their objections thereby waive all other objec-                                             of the case – should not be confused with the idea
tions. Llewellyn notes that the rule seems to                                               that judges decide based, for example, on how
have been rather harshly applied in a series of                                             they feel about the particular parties or the
cases where the buyers simply may not have                                                  lawyers. These ‘‘fireside equities,’’ as Llewellyn
known at the time of rejection of other defects                                             called them (1960: 121), may sometimes influ-
or where the seller could not have cured anyway.                                            ence judges; but what more typically determines
A careful study of the facts of these cases revealed,                                       the course of decision is the ‘‘situation-type,’’
however, that in each case where the rule seemed                                            that is, the general pattern of behavior exempli-
harshly applied, what had really happened was                                               fied by the particular facts of the disputed trans-
that the market had fallen, and the buyer was                                               action and what would constitute normal or
looking to escape the contract. The court in                                                socioeconomically desirable behavior in the rele-
each case, being ‘‘sensitive to commerce or to                                              vant commercial context. The point is decidedly
decency’’ (1960: 124), applied the unrelated rule                                           not that judges usually decide because of idiosyn-
about rejection to frustrate the buyer’s attempt to                                         cratic likes and dislikes with respect to the indi-
escape the contract. Thus, the commercial norm –                                            viduals before the court (cf. Radin 1925: 357).
buyers ought to honor their commitments even                                                So, for example, Leon Green’s groundbreaking
under changed market conditions – is enforced by                                            1931 textbook on torts was organized not by the
the courts through a seemingly harsh application                                            traditional doctrinal categories (e.g., negligence,
of an unrelated rule concerning rejection. It is                                            intentional torts, strict liability), but rather by the
these ‘‘background facts, those of mercantile                                               factual scenarios – the ‘‘situation-types’’ – in
practice, those of the situation-type’’ (Llewellyn                                          which harms occur: for example ‘‘surgical oper-
1960: 126) that determine the course of decision.                                           ations,’’ ‘‘traffic and transportation,’’ and the
   Underhill Moore tried to systematize this ap-                                            like. The premise of this approach was that there
proach in what he called ‘‘the institutional                                                was no general law of torts per se, but rather
method’’ (Moore and Hope 1929). Moore’s                                                     predictable patterns of torts decisions for each
idea was this: identify the normal behavior for                                             recurring situation-type that courts encounter.
any ‘‘institution’’ (e.g., commercial banking);                                                But why would judges, with some degree of
then identify and demarcate deviations from this                                            predictable uniformity, enforce the norms of
norm quantitatively, and try to identify the point                                          commercial culture as applied to the underlying
at which deviation from the norm will cause a                                               facts of the case? Here we must make an inference
judicial decision that corrects the deviation from                                          to the best explanation of the phenomenon: there
the norm (e.g., how far must a bank depart from                                             must be features of the ‘‘sociological’’ (as op-
normal check-cashing practice before a court will                                           posed to the idiosyncratic psychological) profile
decide against the bank in a suit brought by the                                            of the judges that explain the predictable uni-
customer?). The goal is a predictive formula: de-                                           formity in their decisions. The Realists did little
viation of degree X from ‘‘institutional behavior                                           more than gesture, however, at a suitable psycho-
(i.e., behavior which frequently, repeatedly, usu-                                          social explanation. ‘‘Professional judicial office,’’
ally occurs)’’ (1929: 707) will cause courts to act.                                        Llewellyn suggested, was ‘‘the most important
Thus, says Moore: ‘‘the semblance of causal rela-                                           among all the lines of factor which make for
tion between future and past decisions is the                                               reckonability’’ of decision (1960: 45); ‘‘the office
result of the relation of both to a third variable,                                         waits and then moves with the majestic power to

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shape the man’’ (1960: 46). Echoing, but modi-                                       ality that bore no relation to the fact-specific ways
fying, Frank, Llewellyn continued: ‘‘The place to                                    in which courts actually decided cases. Where it
begin is with the fact that the men of our appellate                                 was impossible to formulate situation-specific
bench are human beings. . . . And one of the more                                    rules, the Realists advocated using general
obvious and obstinate facts about human beings                                       norms, reflecting the norms that judges actually
is that they operate in and respond to traditions.                                   employ anyway. This formed a central part of
. . . Tradition grips them, shapes them, limits                                      Llewellyn’s approach to drafting Article 2 of the
them, guides them. . . . To a man of sociology or                                    Uniform Commercial Code in the United States
psychology. . . this needs no argument. . . . ’’                                     – an undertaking that would seem pointless if
(1960: 53). Radin suggested that ‘‘the standard                                      Realists didn’t believe in legal rules! Since the
transactions with their regulatory incidents are                                     Sociological Wing claimed that judges, in any
familiar ones to him [the judge] because of his                                      event, enforced the norms of commercial culture,
experience as a citizen and a lawyer’’ (1925: 358).                                  Article 2 tells them to do precisely this, by impos-
Felix Cohen, by contrast, simply lamented that                                       ing the obligation of ‘‘good faith’’ in contractual
‘‘at present no publication [exists] showing the                                     dealings (Sec. 1–203). ‘‘Good faith’’ requires,
political, economic, and professional background                                     besides honesty, ‘‘the observation of reasonable
and activities of our judges’’ (1935: 846), pre-                                     commercial standards of fair dealing in the trade’’
sumably because such a publication would                                             (Sec. 2–103). For a judge, then, to enforce
identify the relevant ‘‘social’’ determinants of de-                                 the rule requiring ‘‘good faith’’ is just to enforce
cision. ‘‘A truly realistic theory of judicial deci-                                 the norms of commercial culture – which is pre-
sion,’’ says Cohen, ‘‘must conceive every decision                                   cisely what the Realists claim the judges are doing
as something more than an expression of individ-                                     anyway! (For discussion, see White 1994.)
ual personality, as . . . even more importantly. . . a
product of social determinants’’ (1935: 843), an
idea taken up at length in recent years by political
                                                                                                Naturalized Jurisprudence?
scientists studying courts (cf. Cross 1997).
    In sum, if the Sociological Wing of Realism –
Llewellyn, Moore, Oliphant, Cohen, Radin,                                            Sociological Wing Realists – who were, recall, the
among others – is correct, then judicial decisions                                   vast majority – thought that the task of legal
are causally determined (by the relevant psycho-                                     theory was to identify and describe – not justify
social facts about judges), and at the same time                                     – the patterns of decision; the social sciences were
judicial decisions fall into predictable patterns be-                                the tool for carrying out this nonnormative task.
cause these psychosocial facts about judges (e.g.,                                   While the Realists looked to behaviorist psych-
their professionalization experiences, their back-                                   ology and sociology, it is easy to understand con-
grounds) are not idiosyncratic, but characteristic                                   temporary law-and-economics (at least in its
of significant portions of the judiciary. Rather                                     descriptive or ‘‘positive’’ aspects) as pursuing
than rendering judicial decision a mystery, the                                      the same task by relying on economic explan-
Realists’ Core Claim, to the extent it is true,                                      ations for the patterns of decision. See E C O -
shows how and why lawyers can predict what                                           NOMIC          R AT I O N A L I T Y     IN    THE       ANALYSIS          OF
courts do.                                                                           LEGAL RULES AND INSTITUTIONS.
    We can now see, also, that only the Sociological                                    As a result of this Realist orientation, there is a
Wing Realists could hold out the hope of crafting                                    sense in which we may think of the type of
legal rules that really would ‘‘guide’’ decision, or                                 jurisprudence the Realists advocated as a natur-
at least accurately describe the course of decision                                  alized jurisprudence, that is, a jurisprudence that
actually realized by courts. This is precisely why                                   eschews armchair conceptual analysis in favor of
Oliphant, for example, spoke of a ‘‘return’’ to                                      continuity with a posteriori inquiry in the empir-
stare decisis: the problem for Oliphant, as for                                      ical sciences (cf. Leiter 1997, 1998). Just as a
most of the Realists in the Sociological Wing,                                       naturalized epistemology – in Quine’s famous
wasn’t that rules were pointless, but rather that                                    formulation – ‘‘simply falls into place as a chapter
the existing rules were pitched at a level of gener-                                 of psychology’’ (Quine 1969: 82), as ‘‘a purely

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descriptive, causal-nomological science of human                                            then we might expect – except in cases of inepti-
cognition’’ (Kim 1988: 388), so too a naturalized                                           tude or corruption – that legal rules and reasons
jurisprudence for the Realists is an essentially de-                                        would be reliable predictors of judicial outcomes.
scriptive theory of the causal connections be-                                              But the law in many cases is indeterminate, and
tween underlying situation-types and actual                                                 thus in those cases there is no ‘‘foundational’’
judicial decisions. (Indeed, one major Realist,                                             story to be told about the particular decision of
Underhill Moore, even anticipates the Quinean                                               a court: legal reasons would justify just as well a
slogan: ‘‘This study lies within the province of                                            contrary result. But if legal rules and reasons
jurisprudence. It also lies within the field of                                             cannot rationalize the decisions, then they surely
behavioristic psychology. It places the province                                            cannot explain them either: we must, accordingly,
within the field’’ (Moore and Callahan                                                      look to other factors to explain why the court
1943: 1).) There are, of course, competing con-                                             actually decided as it did. Thus, the Realists in
ceptions of what it means to naturalize some                                                effect say: ‘‘Why not see how the construction of
domain of philosophy, and we cannot enter here                                              decisions really proceeds?’’ The Realists, then, call
the debates on their merits and demerits (see                                               for an essentially naturalized and hence descrip-
Leiter 1998, 2002). What bears emphasizing is                                               tive theory of adjudication, a theory of what it is
that the method that the Realists bring to bear in                                          that causes courts to decide as they do.
legal theory (at least, in the theory of adjudica-                                             We should not overstate, though, the force of
tion) might, fruitfully, be thought of as a                                                 the analogy (though it will prove helpful in seeing
naturalistic method, akin to Quine’s proposal                                               shortly where later legal philosophers have gone
for naturalizing epistemology.                                                              wrong in assimilating Realism to the paradigm of
    Notice, in particular, that both Quine and the                                          philosophy-cum-conceptual-analysis). For one
Realists can be seen as advocating naturalization                                           thing, we should not think that the Realists are
for analogous reasons. On one familiar reading,                                             committed to proto-Quinean doctrines across
Quine advocates naturalism as a response to the                                             the boards. We can see this at two places. First,
failure of the traditional foundationalist program                                          as we will see shortly, the Realists end up presup-
in epistemology, from Descartes to Carnap. As                                               posing a theory of the concept of legality in
one commentator puts it: ‘‘Once we see the ster-                                            framing their arguments for law’s indeterminacy;
ility of the foundationalist program, we see that                                           thus, while they may believe the only fruitful
the only genuine questions there are to ask about                                           account of adjudication is descriptive and empir-
the relation between theory and evidence and                                                ical, not normative and conceptual, they them-
about the acquisition of belief are psychological                                           selves need a concept of law that is not itself
questions’’ (Kornblith 1994: 4). That is, once we                                           empirical or naturalized. The analogy with natur-
recognize our inability to tell a normative story                                           alized epistemology, in other words, must be lo-
about the relation between evidence and theory –                                            calized to the theory of adjudication, and not the
a story about what theories are justified on the                                            whole of jurisprudence.
basis of the evidence – Quine would have us give                                               Second, the crux of the Realist position (at least
up the normative project: ‘‘Why not just see how                                            for the majority of Realists) is that nonlegal
[the] construction [of theories on the basis of                                             reasons (e.g., judgments of fairness, or consider-
evidence] really proceeds?’’ (Quine 1969: 75).                                              ation of commercial norms) explain the decisions.
    So, too, the Realists can be read as advocating                                         They, of course, explain the decisions by justifying
an empirical theory of adjudication precisely be-                                           them, though not necessarily by justifying
cause they think the traditional jurisprudential                                            a unique outcome (i.e., the nonlegal reasons
project of trying to show decisions to be justified                                         might themselves rationalize other decisions as
on the basis of legal rules and reasons is a failure.                                       well). Now clearly the descriptive story about
For the Realists, recall, the law is rationally inde-                                       the nonlegal reasons is not going to be part of a
terminate; that is, the class of legitimate legal                                           nonmentalistic naturalization of the theory of
reasons that a court might appeal to in justifying                                          adjudication: a causal explanation of decisions in
a decision fails, in fact, to justify a unique outcome                                      terms of reasons (even nonlegal reasons) does
in many of the cases. If the law were determinate,                                          require taking the normative force of the reasons

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qua reasons seriously. The behaviorism of Quine                                      Claim) is just an irremediable fact about what
or Underhill Moore is not in the offing here, but                                    they do: it would be idle to tell judges they ought
surely this is to be preferred: behaviorism failed as                                to do otherwise. The strongest form of this doc-
a foundation for empirical social science, while                                     trine is apparent in Frank, who views hunch-based
social-scientific theories employing mentalistic                                     decision making as a brute fact about human
categories have flourished. Moreover, if the non-                                    psychology: ‘‘the psychologists tell us,’’ he says,
legal reasons are themselves indeterminate – that                                    that ‘‘no human being in his normal thinking
is, if they do not justify a unique outcome – then                                   process arrives at decisions by the route of any. . .
any causal explanation of the decision will have to                                  syllogistic reasoning . . . ’’ (1930: 108–9). (No
go beyond reasons to identify the psychosocial                                       actual psychological evidence is cited.) Similarly,
facts (e.g., about personality, class, gender, social-                               Frank says regarding what he dubs ‘‘Cadi justice’’
ization, etc.) that cause the decision. Such a ‘‘nat-                                – essentially justice by personal predilection – that
uralization’’ of the theory of adjudication might                                    ‘‘the true question . . . is not whether we should
be insufficiently austere in its ontology for Qui-                                   ‘revert’ to [it], but whether (a) we have ever
nean scruples, but it is still a recognizable attempt                                abandoned it and (b) we can ever pass beyond
to subsume what judges do within a (social) sci-                                     it’’ (1931: 27). Advocating a ‘‘ ‘reversion to
entific framework.                                                                   Cadi justice’ ’’ – as some critics wrongly accuse
                                                                                     Realism of doing – ‘‘is as meaningless as [advo-
                                                                                     cating] a ‘reversion to mortality’ or a ‘return to
                                                                                     breathing’ ’’ (1931: 31). This is because ‘‘the
  How Should Judges Decide Cases?
                                                                                     personal element is unavoidable in judicial
                                                                                     decisions’’ (1931: 25).
The naturalism of the Realists – as manifest in the                                     Alas, Frank had no sound empirical support for
Core Claim and their desire to achieve a sound                                       his strong assumptions about hunch-based deci-
empirical understanding of how courts really                                         sion making and the role of the ‘‘personal elem-
decide cases – leaves unaddressed the normative                                      ent.’’ Indeed, the Sociological Wing of Realism,
question that has most often interested legal the-                                   as we have seen, criticized Frank precisely on the
orists in recent years: how ought courts to decide                                   grounds that these assumptions weren’t plaus-
cases? The Realists do not speak univocally on this                                  ible, given the predictability of much of what
score, but two dominant themes do emerge.                                            courts do.
Some Realists (Holmes, Felix Cohen, Frank on                                            A more subtle version of quietism, however, is
the bench) think judges should simply adopt,                                         apparent in Llewellyn’s work. Here the Realists
openly, a legislative role, acknowledging that, be-                                  are not entirely silent on normative questions;
cause the law is indeterminate, courts must neces-                                   they simply give as explicit advice that judges
sarily make judgments on matters of social and                                       ought to do what it is that they largely do anyway.
economic policy. These Realists – let us call them                                   So, for example, if judges, as a matter of course,
‘‘the Proto-Posnerians,’’ to mark their anticipa-                                    enforce the norms of commercial culture, then
tion of a view familiar in our own day (Posner                                       that is precisely what Realists tell them they
1999: 240–2) – would simply have courts make                                         ought to do. That, as we have seen, is exactly
these judgments openly and candidly. Rather                                          the view that informed Llewellyn’s approach to
than engaging in the facade of legal reasoning,                                      the Uniform Commercial Code (cf. White 1994
judges would tackle directly exactly the kinds of                                    on this topic).
political and economic considerations a legisla-                                        This weaker version of quietism – tell judges
ture would weigh.                                                                    that they ought to do what they by-and-large do
   Another prominent strand in Realism, associ-                                      anyway – resonates with the views of at least some
ated especially with Llewellyn and Frank in his                                      of the Proto-Posnerian Realists. Holmes, for
theoretical writings, embraces a kind of ‘‘norma-                                    example, complains that ‘‘judges themselves
tive quietism,’’ according to which it is pointless                                  have failed adequately to recognize their duty of
to give normative advice to judges, since how                                        [explicitly] weighing considerations of social ad-
judges decide cases (as reported by the Core                                         vantage’’ (1897: 467). But having just noted that

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what is really going on in the opinions of judges                                           Note that the familiar, contemporary questions
anyway is ‘‘a concealed, half-conscious battle on                                           about the legitimacy of unelected judges en-
the question of legislative policy’’ (Holmes 1897:                                          gaging in this kind of policy-driven ‘‘legislating
466), it follows that this ‘‘duty’’ is in fact ‘‘inevit-                                    from the bench’’ were not questions that con-
able, and the result of the often proclaimed judi-                                          cerned the Proto-Posnerians. Indeed, they
cial aversion to deal with such considerations is                                           would likely regard such questions as pointless
simply to leave the very ground and foundation of                                           and distracting: ‘‘Legitimate or not,’’ one can
judgments inarticulate, and often unconscious’’                                             imagine Judge Frank saying, ‘‘this is what judges
(1897: 467). Thus, what Holmes really calls for is                                          are really doing – so let’s just do it openly and
for judges to do explicitly (and perhaps more                                               directly.’’
successfully, as a consequence) what they do un-                                               Of course, some Proto-Posnerians among the
consciously anyway.                                                                         Realists had no quietist pretensions. Cohen
   In a striking case of the divide between theory                                          (1935), most notably, recommended that judges
and practice, Frank on the bench was much more                                              address themselves to questions of socioeco-
clearly a Proto-Posnerian – at least of the Holmes-                                         nomic policy instead of the traditional doctrinal
ian variety – than a believer in the inevitability of                                       questions he claimed they had been addressing.
Cadi justice. For example, in his concurring opin-                                             Keep in mind, too, that the ‘‘quietism’’ of
ion in Ricketts v. Pennsylvania R. Co. (1946),                                              some Realists is quietism about normative
Judge Frank, now sitting on the US Court of                                                 guidance for judges. It is quite clear, of course,
Appeals for the Second Circuit, rejected the                                                that quietists like Llewellyn thought it was good
majority’s doctrinal analysis of the case (which                                            that judges were inclined in commercial disputes
involved an injured employee, who had, unwit-                                               to try to enforce the norms of commercial cul-
tingly, and as a result of bad legal advice, signed                                         ture. That, of course, is a normative view about
away his right to sue the railroad):                                                        how judges ought to decide cases; the quietism
                                                                                            emerges in the fact that these Realists don’t think
     I think we should . . . reject many of the finespun                                    there is any point to a normative theory that tells
     distinctions [invoked by the majority that are]                                        judges they ought to decide in some different
     made by Williston [in his treatise on contracts]                                       way. Llewellyn, like other Realists, was a New
     and expressed in the Restatement of Con-                                               Deal liberal, and offered no explicit theoretical
     tracts. . . .
                                                                                            rationale for his normative preferences. Yet, as
        As Mr. Justice Holmes often urged, when an
     important issue of social policy arises, it should
                                                                                            has been recently argued (Schwartz 2000), one
     be candidly, not evasively, articulated. In other                                      can understand Llewellyn’s preference for judges
     contexts, the courts have openly acknowledged                                          who attended to the norms of commercial culture
     that the economic inequality between the ordin-                                        as reflecting a kind of nascent appreciation of
     ary employer and the ordinary individual em-                                           efficiency norms in legal rule making.
     ployee usually means the absence of ‘‘free
     bargaining.’’ I think the courts should do so in
     these employee release cases. . . .
        Such a ruling will not produce legal uncer-                                              Legacy of Legal Realism I: Legal
     tainty, but will promote certainty – as anyone                                              Education and Scholarship in the
     can see who reads the large number of cases in
     this field, with their numerous intricate methods                                                    United States
     of getting around the objective theory [of con-
     tracts]. Such a ruling would simply do directly
                                                                                            Within American law and legal education, the
     what many courts have been doing indirectly. It is
                                                                                            impact of Legal Realism has been profound. By
     fairly clear that they have felt, although they have
     not said, that employers should not, by such
                                                                                            emphasizing the indeterminacy of law and legal
     releases, rid themselves of obligation to injured                                      reasoning, and the importance of nonlegal
     employees, obligations which society at large will                                     considerations in judicial decisions, the Realists
     bear – either [by taxes or charity]. (Ricketts v.                                      cleared the way for judges and lawyers to
     Pennsylvania R. Co. 1946 at 760, 768, 769)                                             talk openly about the political and economic

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considerations that in fact affect many decisions.                                        experts of the American Law Institute are obvi-
This is manifest in the frequent discussion – by                                          ously not to be considered as efforts to under-
courts, by lawyers, and by law teachers – of the                                          stand the legal institution as it is. When one
‘‘policy’’ implications of deciding one way rather                                        considers these ‘‘restatements’’ of the common
                                                                                          law and how they are being formulated, one
than another. The modern legal textbook is
                                                                                          remembers how the expert theologians got to-
largely an invention of the Realists as well. The                                         gether in the Council of Nicaea and decided by a
‘‘science’’ of law envisioned by Christopher                                              vote the nature of the Trinity. There is a differ-
Langdell, Dean of Harvard Law School in the                                               ence between the two occasions. The church
late nineteenth century, was to be based exclu-                                           fathers had far more power than does the Law
sively on a study of the opinions issued by courts:                                       Institute to enforce belief in their conclusion.
from these, the scholar (or student) could formu-                                         (Robinson 1934: 260–1)
late the rules and principles of law that governed
decisions. The Realists, who very much shared                                        Yet the real worry of these Realists was the one
the ambition of making the study of law ‘‘scien-                                     articulated by Oliphant (1928), discussed earlier.
tific,’’ disagreed profoundly with Langdell over                                     The Realist critics of the ALI feared that the
what that entailed. For if the Realists were correct                                 Restatements would simply codify ‘‘over-general
that judges’ published opinions at best hint at and                                  and outworn abstractions’’ (Oliphant 1928: 75)
at worst conceal the real nonlegal grounds for                                       that courts might recite but which shed no light
decision, then the study only of cases could not                                     on what they were doing. Yet, in practice, the
possibly equip a lawyer to advise clients as to what                                 Restatements have been pursued in precisely the
courts will do. To really teach law, the Realists                                    spirit in which Oliphant called for a return to stare
thought, it was necessary to understand the eco-                                     decisis: namely, as a way of restating legal doc-
nomic, political, and social dimensions of the                                       trines in ways that were more fact-specific, and
problems courts confront, for all these consider-                                    thus more descriptive of the actual grounds of
ations figure in the decisions of judges. Thus,                                      decision. (Recall that the 2nd Restatement of
the modern legal teaching materials are                                              Contracts in fact incorporates something very
typically titled, ‘‘Cases and Materials on the                                       close to Oliphant’s distinction between different
Law of . . . ,’’ where the materials are drawn from                                  kinds of promises not to compete.)
nonlegal sources that illuminate the various                                            The paradigm of scholarship established by the
nonlegal factors relevant to understanding what                                      Realists – contrasting what courts say they’re
the courts have done.                                                                doing with what they actually do – is one that
   Realism has also had a significant impact upon                                    has become so much the norm that distinguished
law reform, including the work of the American                                       scholars practice it without even feeling the need,
Law Institute. This may, at first, seem surprising,                                  any longer, to self-identify as Realists. Consider
since the Realists were famously hostile to the ALI                                  the classic modern debunking of what courts call
at its inception. Leon Green declared that, ‘‘The                                    ‘‘the irreparable injury rule’’ (Laycock 1991).
undertaking to restate the rules and principles de-                                  The irreparable injury rule states courts will not
veloped by the English and American courts finds                                     enjoin misconduct when money damages will
in the field of torts a most hopeless task’’ (1928:                                  suffice to compensate the victim. According to
1014). And no student of Legal Realism or the                                        Professor Laycock, however:
American Law Institute can forget Yale psycholo-
gist Edward Robinson’s impassioned denunci-                                               Courts do prevent harm when they can. Judicial
ation in the pages of the Yale Law Journal in 1934:                                       opinions recite the rule constantly, but do not
                                                                                          apply it . . . When courts reject plaintiff’s choice
     And so the American Law Institute has thought                                        of remedy, there is always some other reason, and
     that it can help simple-minded lawyers by giving                                     that reason has nothing to do with the irrepar-
     an artificial and arbitrary picture of the principles                                able injury rule. . . . An intuitive sense of justice
     in terms of which human disputes are supposed                                        has led judges to produce sensible results, but
     to be settled. . . . [But] [s]uch bodies of logically                                there has been no similar pressure to produce
     consistent doctrines as those formulated by the                                      sensible explanations. (Laycock 1991: vii)


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Like the Realists, Laycock finds a disjunction be-                                          and legal reasoning were essentially indetermin-
tween the ‘‘law in the books’’ and the ‘‘law in                                             ate. (Within Anglo-American jurisprudence, the
action,’’ and, also like the Realists, he invokes as                                        work of Ronald Dworkin is usefully understood
an explanation for that disjunction the decision                                            as a philosophical defense of the Legal Process
makers’ ‘‘intuitive sense of justice.’’ Like Oli-                                           conception of adjudication.)
phant before him, Laycock seeks, in turn, to                                                   The decisive blow for Legal Realism as a juris-
reformulate and restate the rules governing in-                                             prudential movement, however, was dealt by the
junctions to reflect the actual pattern of decisions                                        English legal philosopher H. L. A. Hart. In his
by the courts following this intuitive sense of                                             seminal 1961 work, The Concept of Law (2nd edn.
justice.                                                                                    1994), Hart devoted a chapter to attacking ‘‘rule-
                                                                                            skeptics,’’ by whom he meant the Realists
                                                                                            (though he did not, unfortunately, distinguish
                                                                                            carefully between the American and Scandinavian
    Legacy of Legal Realism II: Legal                                                       versions of Realism). Early on, Hart characterizes
                Theory                                                                      rule-skepticism as ‘‘the claim that talk of rules is a
                                                                                            myth, cloaking the truth that law consists simply
                                                                                            of the decisions of courts and the predictions of
Although the Realists profoundly affected legal                                             them’’ (1994: 133). Indeed, much of the discus-
education and lawyering in America, they have                                               sion is devoted to attacking this version of rule-
had less influence within recent Anglo-American                                             skepticism. But Hart identifies a second type of
jurisprudence. The history of Realism in this re-                                           rule-skepticism: ‘‘Rule-scepticism has a serious
spect is complex. With the advent of World War                                              claim on our attention, but only as a theory of
II, many scholars (especially at Catholic univer-                                           the function of rules in judicial decision’’ (Hart
sities) criticized the Realists on the grounds that                                         1994: 135). This second rule-skeptic claims, in
their attacks on the idea of a ‘‘rule of law’’ simply                                       particular, ‘‘that it is false, if not senseless, to
gave support to fascists and other enemies of                                               regard judges as themselves subject to rules or
democracy. At the same time, scholars at Yale                                               ‘bound’ to decide cases as they do’’ (135).
(notably Harold Lasswell and Myres McDougal)                                                Let us call the former doctrine ‘‘Conceptual
propounded a watered-down version of Realism                                                Rule-Skepticism’’ and the latter ‘‘Empirical
under the slogan of ‘‘policy science.’’ These                                               Rule-Skepticism.’’
writers emphasized the Realist idea of using social                                            Conceptual Rule-Skepticism proffers a skep-
scientific expertise as a way of enabling legal offi-                                       tical account of the concept of law. The account
cials to produce effective and desired results.                                             is skeptical insofar as it involves denying what we
‘‘Policy science’’ is now, happily, defunct, since                                          may call, for ease of reference, ‘‘the Simple View’’
it had far more to do with rationalizing American                                           of law. This is the view that certain prior official
imperialism than it did with science.                                                       acts (like legislative enactments and judicial deci-
   In the 1950s, American legal education was                                               sions) constitute ‘‘law’’ (even if they don’t ex-
swept by the ‘‘legal process’’ school, which                                                haust it). (The view is simple to be sure, but not
largely suppressed the lessons of Realism. The                                              false!) A Conceptual Rule-Skeptic offers an ac-
Legal Process School, associated with the work                                              count of the concept of law which denies the
of Henry Hart and Albert Sacks at Harvard, iden-                                            Simple View: according to this rule-skeptic,
tified the distinctive institutional competence of                                          rules previously enacted by legislatures or articu-
judges as providing ‘‘reasoned elaboration’’ for                                            lated by courts are not law. This follows from the
their decisions; this could be done well or poorly,                                         skeptic’s own account of the concept of law,
and it was the business of legal scholars to moni-                                          according to which, ‘‘The law is just a prediction
tor the performance of judges in this regard, and                                           of what a court will do’’ or ‘‘The law is just
thus to help ensure that judicial opinions would                                            whatever a court says it is on the present occa-
provide a reliable guide to the future course of                                            sion.’’ Positivism, by contrast, is a nonskeptical
decision. Absent in all this was any principled                                             account, since the Legal Positivist notion of a
response to the Realist argument that the law                                               Rule of Recognition – a rule constituted by a

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practice among officials of deciding questions of                                    chronistic reading suggests an affirmative answer.
legal validity by reference to certain criteria – is                                 The idea that philosophy involves ‘‘conceptual
fully compatible with the insight captured in the                                    analysis’’ via the analysis of language is an artifact
Simple View. See L E G A L P O S I T I V I S M .                                     of Anglo-American analytic philosophy of the
   Empirical Rule-Skepticism, by contrast, makes                                     twentieth century; indeed, as practiced by Hart,
an empirical claim about the causal role of rules in                                 it really reflects the influence of fashionable views
judicial decision making. According to this skep-                                    in philosophy of language current at Oxford in the
tic, rules of law do not make much (causal) differ-                                  1940s and 1950s. The Realists were not philoso-
ence to how courts decide cases. In Hart’s version                                   phers, let alone analytic philosophers, let alone
of this type of skepticism, skeptics are said to                                     students of G. E. Moore, Russell, and Wittgen-
believe this because of their view that legal rules                                  stein, let alone colleagues of J. L. Austin. The idea
are generally indeterminate, an argument to                                          that what demands understanding about law is the
which we return below.                                                               ‘‘concept’’ of law as manifest in ordinary language
   Hart’s refutation of Conceptual Rule-Skepti-                                      would have struck them as ludicrous. While the
cism is swift and devastating, as a modified version                                 Realists had much to say about adjudication and
of just one of his counterexamples will illustrate.                                  how legal rules work in practice, they had nothing
Suppose a judge must decide the question                                             explicit to say about the concept of law.
whether a franchiser can terminate a franchisee                                         How, then, do we understand their talk about
in Connecticut with less than 60 days’ notice.                                       ‘‘predicting’’ what courts will do? Frank (1930:
The judge would presumably ask herself some-                                         47 note) cautions the reader early on that he ‘‘is
thing like the following question: ‘‘What is the                                     primarily concerned with ‘law’ as it affects the
law governing the termination of franchisees in                                      work of the practicing lawyer and the needs of
this state?’’ But according to the Conceptual                                        the clients who retain him.’’ Holmes begins ‘‘The
Rule-Skeptic, to ask what the ‘‘law’’ is on termin-                                  Path of the Law’’ by emphasizing that he is
ation and notice is just to ask, ‘‘How will the                                      talking about the meaning of law to lawyers who
judge decide this case?’’ So a judge who asks                                        will ‘‘appear before judges, or . . . advise people in
herself what the law is turns out – on the skeptic’s                                 such a way as to keep them out of court’’ (1897:
reading – to really be asking herself, ‘‘What do I                                   457). Against this background, infamous state-
think I will do?’’ But this is clearly not what the                                  ments like Llewellyn’s – ‘‘What these officials do
judge is asking, and so the skeptical account has                                    about disputes is, to my mind, the law itself’’
missed something important about our concept                                         (1930a: 3) – make perfect sense. This is not a
of law. As Hart puts it: the ‘‘statement that a rule                                 claim about the ‘‘concept’’ of law, but rather
[of law] is valid is an internal statement recogniz-                                 a claim about how it is useful to think about law
ing that the rule satisfies the tests for identifying                                for attorneys who must advise clients what to do.
what is to count as law in [this] court, and consti-                                 For your client the franchisee in Connecticut
tutes not a prophecy of but part of the reason for                                   doesn’t simply want to know what the rule on
[the] decision’’ (1994: 102; cf. 143).                                               the books in Connecticut says; he wants to know
   Now one of the American Legal Realists argu-                                      what will happen when he takes the franchiser to
ably was a Conceptual Rule-Skeptic: Felix Cohen.                                     court. So from the practical perspective of the
(Some of the Scandinavian Realists were also                                         franchisee, what one wants to know about the
Conceptual Rule-Skeptics, but that was a conse-                                      ‘‘law’’ is what, in fact, the courts will do when
quence of their commitments in metaphysics and                                       confronted with the franchisee’s grievance. That
semantics.) But Cohen is nowhere cited by Hart;                                      is all the law that matters to the client, all the law
Hart’s Realism is an amalgamation, largely, of                                       that matters to the lawyer advising that client.
Frank, Holmes, and Llewellyn. It is undeniably                                       And that is all, I take it, the Realists wanted to
true that these writers, like most Realists, talk                                    emphasize.
about the importance of ‘‘predicting’’ what                                             In fact, there is a deeper theoretical reason why
courts will do. The question is whether, in so                                       the Realists could not have been Conceptual
talking, they are fairly read as offering an analysis                                Rule-Skeptics. For the Realist arguments for the
of the concept of law. Only Hart’s grossly ana-                                      indeterminacy of law – like all arguments for legal

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indeterminacy (cf. Leiter 1995) – in fact presup-                                           ments are not? It is certainly not Ronald
pose a nonskeptical account of the concept of law.                                          Dworkin’s theory, let alone any more robust nat-
Indeed, they presuppose an account with distinct                                            ural law alternative. Rather, the Realists are pre-
affinities to that developed by the Legal Positiv-                                          supposing something like the Positivist idea of a
ists. The central claim of legal indeterminacy,                                             Rule of Recognition whose criteria of legality are
recall, is the claim that the ‘‘class of legal reasons’’                                    exclusively ones of pedigree: a rule (or canon of
fails to justify a unique outcome in some or all                                            construction) is part of the law in virtue of having
cases. The ‘‘class of legal reasons’’ is the class of                                       a source in a legislative enactment or a prior court
reasons that may properly justify a legal conclu-                                           decision. The Realists, in short, cannot be Con-
sion (and thus ‘‘compel’’ it insofar as legal actors                                        ceptual Rule-Skeptics, because their arguments
are responsive to valid legal reasons). So, for                                             for the indeterminacy of law presuppose a non-
example, appeals to a statutory provision or a                                              skeptical account of the criteria of legality, one
valid precedent are parts of the class of legal                                             that has the most obvious affinities with that
reasons, while an appeal to the authority of Pla-                                           developed by some legal positivists.
to’s Republic is not: a judge is not obliged to                                                That leaves us with Hart’s attack on Empirical
decide one way rather than another because                                                  Rule-Skepticism. Hart’s version of the doctrine
Plato says so. Any argument for indeterminacy,                                              (1994: 135) involves two claims: (1) legal rules
then, presupposes some view about the boundar-                                              are indeterminate; and, as a result, (2) legal
ies of the class of legal reasons. When Oliphant                                            rules do not determine or constrain decisions.
argues, for example, that the promise-not-to-                                               Notice that Hart’s way of framing the skeptical
compete cases are decided not by reference to                                               argument makes it depend upon a philosophical
law, but by reference to uncodified norms preva-                                            claim about law, namely, that it is indeterminate.
lent in the commercial culture in which the dis-                                            But (2) could be true even if (1) were false (that
putes arose, this only shows that the law is                                                would be pure Empirical Rule-Skepticism, we
indeterminate on the assumption that the norma-                                             might say). Yet Hart is surely correct that most
tive reasons the courts are actually relying upon                                           Realists (Moore may be the main exception) argue
are not themselves legal reasons. So, too, when                                             for both (1) and (2). But he is wrong about the
Holmes chalks up judicial decisions not to legal                                            Realist argument for (1), and thus underestimates
reasoning but to ‘‘a concealed, half-conscious                                              the amount of indeterminacy in law.
battle on the [background] question of legislative                                             Hart’s central strategic move is to concede to
policy’’ (1897: 467) he is plainly presupposing                                             the skeptic, right up front, that legal rules are
that these policy concerns are not themselves                                               indeterminate, but to argue that this indetermin-
legal reasons. The famous Realist arguments for                                             acy is a marginal phenomenon, one insufficient to
indeterminacy which focus on the conflicting, but                                           underwrite far-reaching skepticism. The skeptic is
equally legitimate, ways lawyers have of interpret-                                         portrayed, accordingly, as having unrealistically
ing statutes and precedents only show that the law                                          high expectations for the determinacy of rules,
is indeterminate on the assumption either that                                              as being ‘‘a disappointed absolutist’’ (1994:
statutes and precedents largely exhaust the au-                                             135). The strategy depends, however, on Hart’s
thoritative sources of law or that any additional                                           account of the source of indeterminacy, an ac-
authoritative norms not derived from these                                                  count that is, in fact, quite different from the
sources conflict. It is the former assumption that                                          arguments given by the Realists.
seems to motivate the Realist arguments. Thus,                                                 According to Hart, legal rules are indetermin-
Llewellyn says that judges take rules ‘‘in the main                                         ate because ‘‘there is a limit, inherent in the
from authoritative sources (which in the case of                                            nature of language, to the guidance which general
law are largely statutes and the decisions of the                                           language can provide’’ (1994: 123). Language is,
courts)’’ (1930a: 13).                                                                      in Hart’s famous phrase, ‘‘open-textured,’’ in the
   What concept of law is being presupposed here                                            sense that while words have ‘‘core’’ instances –
in these arguments for legal indeterminacy: a                                               aspects of the world that clearly fall within the
concept in which statutes and precedent are part                                            extension of the word’s meaning – they also
of the law, but uncodified norms and policy argu-                                           have ‘‘penumbras,’’ cases where it is unclear

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whether the extension includes the aspect of the                                     vides – is mediocre lawyering. Skillful lawyers
world at issue. (A Mercedes-Benz sedan is clearly                                    know exactly what Llewellyn describes: that the
a ‘‘vehicle’’; but what about a motor scooter?) In                                   ‘‘rule’’ of a prior case can be stated at differing
cases in which the facts fall within the penumbra                                    degrees of specificity, and so made to do very
of the key words in the applicable legal rule, a                                     different rhetorical work depending on the
court ‘‘must exercise a discretion, [since] there                                    needs of the case at hand.
is no possibility of treating the question raised                                       Now there does remain a genuine point of
. . . as if there were one uniquely correct answer                                   dispute between Hart and the Realists. While
to be found, as distinct from an answer which is a                                   both acknowledge indeterminacy in law, and
reasonable compromise between many conflict-                                         while both acknowledge, accordingly, that rules
ing interests’’ (Hart 1994: 128).                                                    do not determine decisions in some range of
    The Realists, however, located the indetermin-                                   cases, they clearly disagree over the range of
acy of law not in general features of language                                       cases about which these claims hold true. Theirs,
itself, but – as we saw above – in the existence of                                  in short, is a disagreement as to degree, but it is a
equally legitimate, but conflicting, canons of in-                                   real disagreement nonetheless. While Hart would
terpretation that courts could employ to extract                                     locate indeterminacy, and thus the causal irrele-
differing rules from the same statutory text or the                                  vance, of rules ‘‘at the margin,’’ Realist skepticism
same precedent. Indeterminacy, in short, resides                                     encompasses the ‘‘core’’ of appellate litigation.
for the Realists not in the rules themselves, but in                                    So how does Hart, in the end, respond to the
the ways we have of characterizing what rules                                        Realist contention that, at least in appellate adju-
statutes and precedents contain. Thus, even if                                       dication, rules play a relatively minor role in caus-
we agreed with Hart that the open texture of                                         ing the courts to decide as they do? Here is, I take
language affects rules only ‘‘at the margins,’’ the                                  it, the crux of Hart’s rejoinder:
Realists have now given us an additional reason
(beyond Hart’s) to expect indeterminacy in law. If                                        [I]t is surely evident that for the most part deci-
the Realists are right, then not only do legal rules                                      sions . . . are reached either by genuine effort to
suffer from the open texture that Hart describes,                                         conform to rules consciously taken as guiding
but statutes and precedents will frequently admit                                         standards of decision or, if intuitively reached,
of ‘‘manipulation’’ – legally proper manipulation,                                        are justified by rules which the judge was antece-
of course – and thus be indeterminate in this                                             dently disposed to observe and whose relevance
additional respect as well. The combination of                                            to the case in hand would generally be acknow-
sources of interdeterminacy (the open texture of                                          ledged. (Hart 1994: 137)
language, and the conflicting canons of interpret-
ation) seems sufficient to move indeterminacy                                        Alas, the argument here consists in just four
from the margins to the center of cases actually                                     words: ‘‘it is surely evident.’’ But that is no argu-
litigated.                                                                           ment at all. Hart simply denies what the Realists
    Hart, of course, is not entirely insensitive to the                              affirm, but gives no reason for the denial other
Realist arguments, though he treats them ex-                                         than his armchair confidence in the correctness of
tremely cursorily. In response to Llewellyn’s                                        his own view. Of course, Hart may be correct, but
point, for example, that a court can interpret a                                     given the devastating impact Hart’s chapter had
precedent both ‘‘loosely’’ and ‘‘strictly’’ and thus                                 upon Realism among legal philosophers, it is
extract two different rules from the same prior                                      surely more than ironic that on the crucial point
decision, Hart says simply this: ‘‘in the vast ma-                                   of dispute with Realism – to what extent rules
jority of decided cases there is very little doubt [as                               matter in appellate adjudication – Hart never
to the rule of the case]. The head-note is usually                                   offers any argument at all.
correct enough’’ (1994: 131). But every first-                                          Meritorious or not, Hart’s critique had the
year litigation associate knows that this approach                                   effect of turning the attention of professional
to precedent would be a recipe for disaster. To                                      philosophers away from Legal Realism. In the
extract ‘‘holdings’’ without regard to the facts of                                  1970s, and continuing into the 1980s, nonphilo-
the case – which is all a head-note typically pro-                                   sophers associated with the Critical Legal Studies

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(‘‘CLS’’) movement brought the Realists back to                                             tral to the CLS version of Legal Realism (a version
prominence within American legal thought. CLS,                                              well represented by the introductory materials
however, invented its own version of Realism, one                                           and selections in Fisher et al. 1993).
more congenial to its distinctive theoretical
ambitions. See C R I T I C A L L E G A L T H E O R Y . For
example, while claiming to embrace the Realist                                                                              References
claim that the law is indeterminate, CLS writers
went beyond Realism in two important respects.                                              Cohen, Felix. 1935. Transcendental nonsense and the
First, unlike the Realists, many CLS writers                                                  functional approach. Columbia Law Review 35:
claimed that the law was ‘‘globally’’ indetermin-                                             809–49.
                                                                                            Cross, Frank B. 1997. Political science and the new legal
ate, that is, indeterminate in all cases (not just
                                                                                              realism: A case of unfortunate interdisciplinary ignor-
those that reached the stage of appellate review).
                                                                                              ance. Northwestern University Law Review 92:
Second, unlike the Realists, CLS writers generally                                            251–326.
grounded the claim of legal indeterminacy not in                                            Fisher, W. W., Horwitz, M. J., and Reed, T. A. (eds.).
the indeterminacy of methods of interpreting                                                  1993. American Legal Realism. New York: Oxford
legal sources, but rather in the indeterminacy of                                             University Press.
all language itself. Here they took their inspir-                                           Frank, Jerome. 1930. Law and the Modern Mind. New
ation – albeit very loosely (and often wrongly) –                                             York: Brentano’s.
from the later Wittgenstein and deconstruction-                                             Frank, Jerome. 1931. Are judges human? Parts I & II.
ism in literary theory.                                                                       University of Pennsylvania Law Review 80: 17–53,
   CLS writers also made much out of an argu-                                                 233–67.
                                                                                            Green, Leon. 1928. The duty problem in negligence
ment against the ‘‘public–private’’ distinction,
                                                                                              cases. Columbia Law Review 28: 1014–45.
due to the Columbia economist Robert Hale
                                                                                            Green, Leon. 1931. The Judicial Process in Torts Cases.
and the philosopher Morris Cohen. (Both were                                                  St. Paul, MN: West Publishing.
marginal figures in Realism; indeed, Cohen was                                              Hart, H. L. A. 1994. The Concept of Law, 2nd edn.
primarily known at the time as a critic of Realism!)                                          Oxford: Clarendon Press.
The argument runs basically as follows: since it is                                         Holmes, Oliver Wendell, Jr. 1897. The path of the law.
governmental decisions that create and structure                                              Harvard Law Review 10: 457–78.
the so-called private sphere (i.e., by creating and                                         Hutcheson, Joseph. 1929. The judgment intuitive: The
enforcing a regime of property and contractual                                                function of the ‘‘hunch’’ in judicial decision. Cornell
rights), there should be no presumption of ‘‘non-                                             Law Quarterly 14: 274–88.
intervention’’ in this ‘‘private’’ realm (i.e., the                                         Kim, Jaegwon. 1988. What is ‘‘naturalized epistemol-
                                                                                              ogy’’? Philosophical Perspectives 2: 381–405.
marketplace) because it is, in essence, a public
                                                                                            Kornblith, Hilary. 1994. Introduction: What is natural-
creature. There is, in short, no natural baseline                                             istic epistemology? In H. Kornblith (ed.), Naturaliz-
against which government cannot pass without                                                  ing Epistemology, 2nd edn. Cambridge, MA: MIT
becoming ‘‘interventionist’’ and nonneutral, be-                                              Press, 1–14.
cause the baseline itself is an artifact of govern-                                         Laycock, Douglas. 1991. The Death of the Irreparable
ment regulation. This argument has proved                                                     Injury Rule. New York: Oxford University Press.
popular with legal academics in recent years –                                              Leiter, Brian. 1995. Legal indeterminacy. Legal Theory
including non-CLS writers like Sunstein (e.g.,                                                1: 481–91.
Sunstein 1987) – yet it involves a blatant non                                              Leiter, Brian. 1997. Rethinking legal realism: Toward a
sequitur. It simply does not follow that it is nor-                                           naturalized jurisprudence. Texas Law Review 76:
                                                                                              267–315.
matively permissible for government to regulate
                                                                                            Leiter, Brian. 1998. Naturalism and naturalized juris-
the ‘‘private’’ sphere from the mere fact that gov-
                                                                                              prudence. In B. Bix (ed.), Analyzing Law: New Essays
ernment created the ‘‘private’’ sphere through                                                in Legal Theory. Oxford: Oxford University Press,
establishing a structure of rights; the real question                                         chapter 4.
is whether the normative justification for demar-                                           Leiter, Brian. 2001. Objectivity, morality, and adjudi-
cating a boundary of decision making immune                                                   cation. In B. Leiter (ed.), Objectivity in Law and
from governmental regulation is a sound one.                                                  Morals. Cambridge, UK: Cambridge University
Nonetheless, this flawed argument became cen-                                                 Press, 66–98.

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Leiter, Brian. 2002. Naturalism in legal philosophy.                                 Quine, W. V. O. 1969. Epistemology naturalized. In W.
  In E. Zalta (ed.), The Stanford Encyclopedia of                                      V. O. Quine, Ontological Relativity and Other Essays.
  Philosophy <http://plato.stanford.edu/archives/fall                                  New York: Columbia University Press, 69–90.
  2002/entries/lawphil-naturalism/>.                                                 Radin, Max. 1925. The theory of judicial decision: Or
Llewellyn, Karl. 1930a. The Bramble Bush. New York:                                    how judges think. American Bar Association Journal
  Oceana.                                                                              11: 357–62.
Llewellyn, Karl. 1930b. A realistic jurisprudence – the                              Radin, Max. 1942. In defense of an unsystematic sci-
  next step. Columbia Law Review 30: 431–65.                                           ence of law. Yale Law Journal 51: 1269–79.
Llewellyn, Karl. 1931. Some realism about realism –                                  Ricketts v. Pennsylvania R. Co. 1946. 153 F2d 757.
  responding to Dean Pound. Harvard Law Review                                       Robinson, Edward S. 1934. Law – an unscientific dis-
  44: 1222–64.                                                                         cipline. Yale Law Journal 44: 235–61.
Llewellyn, Karl. 1950. Remarks on the theory of appel-                               Schwartz, Alan. 2000. Karl Llewellyn and the origins of
  late decision and the rules and canons about how                                     contract theory. In J. Kraus and S. Walt (eds.), The
  statutes are to be construed. Vanderbilt Law Review                                  Jurisprudential Foundations of Corporate and Com-
  3: 395–406.                                                                          mercial Law. Cambridge, UK: Cambridge University
Llewellyn, Karl. 1960. The Common Law Tradition:                                       Press.
  Deciding Appeals. Boston: Little, Brown & Co.                                      Sunstein, Cass. 1987. Lochner’s legacy. Columbia Law
Moore, Underhill and Callahan, Charles. 1943. Law                                      Review 87: 873–919.
  and learning theory: A study in legal control. Yale                                White, James J. 1994. The influence of American Legal
  Law Journal 53: 1–36.                                                                Realism on Article 2 of the Uniform Commercial
Moore, Underhill and Hope, Theodore. 1929. An insti-                                   Code. In W Krawietz, D N MacCormick and G H
  tutional approach to the law of commercial banking.                                  von Wright (eds.), Prescriptive Formality and Norma-
  Yale Law Journal 38: 703–19.                                                         tive Rationality in Modern Legal Systems. Berlin:
Moore, Underhill and Sussman, Gilbert. 1931. Legal                                     Duncker and Humbolt.
  and institutional methods applied to the debiting of
  direct discounts – VI. The decisions, the institutions,
  and the degree of deviation. Yale Law Journal 40:
  1219–50.                                                                                                    Further Reading
Oliphant, Herman. 1928. A return to stare decisis.
  American Bar Association Journal 14:71–6, 107,                                     Leiter, Brian. 2001. Legal realism and legal positivism
  159–62. Also in W. W. Fisher et. al. (eds.), 1993.                                   reconsidered. Ethics 111: 278–301.
  American Legal Realism. New York: Oxford Univer-                                   Schlegel, John Henry. 1995. American Legal Realism
  sity Press, 199–201.                                                                 and Empirical Social Science. Chapel Hill: University
Posner, Richard A. 1999. The Problematics of Moral and                                 of North Carolina Press.
  Legal Theory. Cambridge, MA: Harvard University                                    Twining, William. 1973. Karl Llewellyn and the Realist
  Press.                                                                               Movement. Norman: University of Oklahoma Press.




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----------------------------------- Chapter 4 ----------------------------------

               Economic Rationality in the
               Analysis of Legal Rules and
                       Institutions
                                           Lewis A. Kornhauser

                      Introduction                                          ponents. The first, at least in part internal to the
                                                                            community of economic analysts of law, concerns
                                                                            the appropriate understanding of the term ‘‘effi-
In the first half of the twentieth century, lawyers                         cient.’’ On one interpretation, ‘‘efficient’’ simply
and legal academics referred to economic con-                               means ‘‘Pareto efficient’’; that is, a legal rule is
cepts and theories only to elucidate areas of laws                          Pareto efficient if and only if there is no other rule
such as antitrust, the regulation of public utilities,                      that would induce behavior such that no person
and taxation that had an explicit economic con-                             was worse off and at least one person in society
tent. Even the suggestion that economics should                             was better off. On a second interpretation,
play a role in the understanding of core doctrinal                          ‘‘efficient’’ means ‘‘wealth-maximizing’’ where
subjects of the common law would have been                                  ‘‘wealth’’ is the sum of the compensating or
rejected as ludicrous.                                                      equivalent variations of the individuals in society.
   In the early 1960s, however, Ronald Coase                                This second interpretation essentially adopts
(1960) and Guido Calabresi (1961) began the                                 cost–benefit analysis as an implementation of
systematic application of the techniques of micro-                          the Kaldor–Hicks welfare criterion. (On Kaldor–
economic analysis to the study of legal rules                               Hicks see Coleman 1980 or Kornhauser 1998b.)
and institutions including common law legal                                 On the third interpretation, offered most recently
rules and institutions. Within 15 years, the tools                          by Kaplow and Shavell (2002), ‘‘efficient’’ means
of microeconomics had been applied to virtually                             only that the evaluation of legal rules should be
every area of law (Posner 1973). By the end of the                          welfarist; evaluation should depend only on
twentieth century, serious scholarship in almost                            the well-being of the individuals in society.
every area of law had to address issues and argu-                           This third interpretation is the most general as
ments raised by the economic analysis of law.                               both Pareto efficiency and the maximization
   During the 1970s, Richard Posner (1973,                                  of the compensating or equivalent variations
1979, 1980) claimed first that common law                                   are welfarist criteria. (For more extensive discus-
rules were in fact efficient (the positive claim)                           sion of these claims, see Kornhauser 1998b,
and second that common law rules ought to be                                2003b.)
efficient (the normative claim). Around 1980,                                  The other focus of controversy over Posner’s
the proliferation of economic analyses spawned                              normative claim concerned its moral validity.
great controversy in the legal academy. The con-                            Various authors, for example, Dworkin (1980a,
troversy centered on the second of Posner’s                                 1980b), asserted that ‘‘wealth,’’ understood
claims: that common law rules ought to be effi-                             either as Pareto efficiency or as the ‘‘consumer
cient. The controversy has had two primary com-                             surplus’’ generated by a legal rule, was not a value

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or, at least, a value that the law ought to promote.                                  next section sets jurisprudential accounts of the
In its current incarnation, the dispute has turned                                    normativity of law. Then, in the central section of
to the more general moral issue of the validity of                                    the chapter, I elaborate and assess the resources
welfarism as the exclusive social goal.                                               available to economic analysis of law to capture
   A commitment to economic analysis of law,                                          jurisprudential conceptions of normativity.
however, does not entail a commitment to wel-
farist evaluation of legal rules and institutions.
The denial of the normative claim in any of its
three formulations does not undermine much of                                               A Characterization of Economic
the practice of economic analysis of law. Conse-                                                   Analysis of Law
quently, the dispute over the normative claim has
not much influenced either the internal develop-
                                                                                      Practitioners and critics describe a very diverse set
ment of the discipline or the acceptance of its
                                                                                      of projects as ‘‘economic analysis of law.’’ These
approach by its critics. The dispute has merely
                                                                                      projects include (1) explanations of how a legal
diverted attention from the principal difference
                                                                                      rule or institution influences individual behavior;
between economic analysis of law and more trad-
                                                                                      (2) explanations of why particular legal rules or
itional enquiries concerning legal rules and
                                                                                      institutions arose or persist; (3) the design of legal
institutions. This difference reflects distinct ap-
                                                                                      rules or institutions to accomplish particular
proaches to the normativity of law. Within the
                                                                                      aims; (4) the evaluation of legal rules or institu-
legal academy, scholars start from the premise
                                                                                      tions; and (5) the interpretation of specific legal
that legal rules are norms; they primarily study
                                                                                      doctrines.
the content and interpretation of those norms. By
                                                                                         These projects have in common the application
contrast, economic analysis of law, at its core,
                                                                                      of microeconomic theory to understanding of
analyses the causes and effects of legal rules and
                                                                                      legal rules and institutions. To begin, I briefly
institutions. Consequently, it must explain and
                                                                                      outline the core concept of these microeconomic
predict how private citizens and public officials
                                                                                      analyses, the concept of preference. I then sketch
will respond to legal rules and institutions. These
                                                                                      two distinct schools of economic analysis of law.
explanations, however, generally ignore, and
sometimes deny, the normative features of legal
rules.
   This chapter seeks to elucidate the contrasting                                                    The concept of preference
approaches to normativity and to determine the
extent to which they are incompatible. The argu-                                      ‘‘Preference’’ in microeconomic theory is a tech-
ment, however, is complex and tentative for two                                       nical term that refers to a mathematical structure
reasons. Within law and jurisprudence, the con-                                       over a domain of ‘‘objects.’’ Specifically, a prefer-
cept of the normativity of law itself is contr-                                       ence is a relation R over a domain that is symmet-
oversial and elusive. Moreover, economics has                                         ric, complete, and transitive. Symmetry means
substantial resources for modeling diverse phe-                                       that, for every x in the domain, xRx; completeness
nomena. The failure of economic analysis of law                                       means that, for every x and y in the domain, either
to account for the normative aspects of law may                                       xRy or yRx; and transitivity means that, for any x,
be a contingent rather than a necessary feature of                                    y, and z in the domain, if (xRy and yRz) then xRz.
the practice used to explain legal behavior.                                             The relation R is often expressed as ‘‘at least as
   The chapter proceeds as follows. In the                                            good as’’ or ‘‘at least as preferred as.’’ The term
following section, I formulate the question.                                          ‘‘preference’’ and these locutions suggest a psy-
I then distinguish between two distinct research                                      chological content to the concept of preference.
programs in economic analysis of law: a modest                                        This suggestion is often misleading. The inter-
and a strong one. The modest research program                                         pretation of this structure varies with the context
poses little or no challenge to traditional ques-                                     and purpose of application. The mathematical
tions concerning the normativity of law. The                                          structure has no inherent psychological content.
strong research program rejects normativity. The                                      Indeed, the mathematical structure has no inher-

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                                                                                              ------------------------------------------------------------------------

ent economic content. Many physical relations                                         preference but elaboration of ideas of normativ-
are preferences in the technical sense. The rela-                                     ity. The varying extent to which economic analy-
tion ‘‘at least as tall as’’ over the domain of moun-                                 sis of law relies on psychological interpretations of
tains on earth satisfies the formal conditions of a                                   preference also muddies discussions of the issues.
preference. Similarly, an economic interpretation                                     Third, analyses often equivocate between narrow
of this structure need not have a psychological                                       and broad interpretations of preference as self-
content, though it may.                                                               interest. Again, the consistency of an economic
   For example, in evaluating a legal institution,                                    analysis of law and a more traditional analysis may
one might interpret each agent’s preference as his                                    depend on the breadth of interpretation of the
or her well-being; moreover, one might under-                                         idea of preference. Finally, discussions generally
stand well-being as an objective list so that the                                     ignore the discrepancy between the domains of
degree of agents’ well-being may be largely inde-                                     choice and of preference.
pendent of their psychological state. On the other
hand, a model of the effects of a negligence rule
on the behavior of agents engaged in a risky activ-                                      Two schools of economic analysis of law
ity may invite an interpretation of the agents’
preference as their motivation, a psychological                                       Economic analysts of law share a commitment to
concept. As these two examples suggest, evalu-                                        the application of microeconomic theory to the
ative preferences understood as well-being may                                        analysis of legal rules and institutions. A wide
be distinct from explanatory preferences under-                                       variety of different projects and approaches are
stood as motivation. Further confusion may arise                                      nonetheless consistent with this commitment.
because the domain over which agents choose                                           One may, however, usefully distinguish two
may also differ from the domain over which either                                     schools. I shall call one school the policy analysis
their explanatory or evaluative preferences are                                       school and the other, the political economy school.
defined. Voters, for example, may have basic or                                       These two schools adopt identical assumptions
fundamental preferences over legislative pro-                                         concerning the behavior of private individuals
grams. When they vote, however, they must                                             but differ in their assumptions concerning the
choose among candidates for a single seat in the                                      behavior of public officials.
legislature. Though their choices are governed by                                        The policy analysis school investigates the
their preferences over legislative programs, they                                     effects that legal rules have on the behavior of
may not in fact have well-defined preferences over                                    private individuals. Policy analysts assume that
candidates (for further discussion see Kornhauser                                     private individuals respond to legal rules in an
2003a).                                                                               economic fashion. Private individuals, that is,
   In many applications, preferences, either ex-                                      have predominantly self-interested preferences,
planatory or evaluative or both, are assumed to                                       narrowly understood. In the most straightfor-
be self-interested. Self-interest may be understood                                   ward analyses, a legal rule on this account simply
narrowly as a concern only for the agent’s own                                        specifies some proscribed behavior or behaviors
consumption of goods and services. Or it may be                                       and a sanction that is imposed for noncompliance
understood more broadly as any concern of the                                         with the legal rule. Alternatively, a legal rule, such
agent. Interpreted broadly, then, a self-interested                                   as a farm subsidy (or a tax), may identify a permit-
agent may act out of an altruistic motivation or                                      ted behavior and attach a reward (or, respectively,
evaluate his or her well-being in part in terms of                                    a penalty), to that behavior. More sophisticated
the well-being of others. The formal concept of                                       analysis considers the role that a legal rule plays
preference, of course, is consistent with both                                        in coordinating behavior or the role it plays in
broad and narrow understandings of self-interest.                                     transmitting information among asymmetrically
   Much of the critical debate about economics                                        informed parties.
generally and economic analysis of law in particu-                                       The influence of legal rules on behavior is me-
lar suffers from the four confusions suggested                                        diated through the rational calculations of agents
here. The confusion between explanation and                                           seeking to maximize their preferences. Analysts
evaluation plagues not only the interpretation of                                     generally invoke one of two primary mediating

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paths of influence. The first, and most common,                                       citizens; the political economy school seeks also
path assumes that a legal rule directly influences                                    to explain the structure and content of the legal
behavior through the price it sets on behavior                                        rules and institutions themselves. Second, the
that does not conform to the legal rule. The                                          policy analysis school generally seeks not only to
sanction for engaging in proscribed behavior in-                                      explain the effects of legal rules and institutions
creases the cost of choosing that action. The                                         but also to influence the design of legal rules
second path assumes that the legal rule conveys                                       and institutions. This project of design adopts
information concerning the appropriate action to                                      an instrumental view of law; it sees legal rules
agents. This path might explain, for example, the                                     and institutions as tools for the promotion of
role of law in solving coordination problems. A                                       specified aims.
third, largely unexamined path that is suggested                                         The political economy school has a more
by the framework of microeconomic theory                                              equivocal attitude towards design. In some incar-
would investigate the effect of legal rules on the                                    nations, sometimes called constitutional political
preferences that the agents have. (For further                                        economy, this school proposes the design of con-
discussion, see Kornhauser 1997.)                                                     stitutional institutions. In this guise, the political
   Policy analysis assumes that public officials, in                                  economy school shares the instrumental view of
contrast to private individuals, are conscientious;                                   law of the policy analysts but the nature of the
they faithfully perform their legal obligations.                                      instrumentalism differs. While the policy analysts
When public officials face resource constraints                                       are rule instrumental, the political economists are
and cannot meet all their legal obligations, or                                       institutionally instrumental. The policy analyst
when their legal obligations are ambiguous or                                         views each legal rule as intentionally designed to
otherwise unclear, the policy analyst generally                                       promote the aim of the policy makers but the
assumes that they act to maximize social welfare.                                     constitutional political economist views only in-
Conflict with more jurisprudential approaches to                                      stitutions as intentionally designed to promote
law thus arises at two points. First, the lawyer                                      given aims. Particular legal rules produced by
objects to the presumption that conscientious                                         those institutions may not have coherent aims. A
legal officials seek to maximize social welfare;                                      constitutional designer who saw legislation as in-
the law might not have welfarist aims. The con-                                       evitably the product of interest group politics
troversy over the normative claim arose out of this                                   would still seek institutional forms that molded
objection. Second, a lawyer might object to the                                       and directed the formation of coalitions among
assumption that private individuals are solely mo-                                    interests. (For further discussion see Kornhauser
tivated by self-interest. One should note, though,                                    2000.)
that philosophers of law as diverse as Holmes                                            The logic of the political economy school,
(1897) and Hart (1961) explicitly acknowledged                                        however, argues against any design project at all
that nothing in the concept of law requires private                                   and the denial of the instrumentality of law.
individuals to have anything but a self-interested                                    Carried to its extreme, the political economy ap-
response to law.                                                                      proach thus adopts a much more radical approach
   Political economy extends the assumption of                                        to the study of legal rules and legal institutions
narrowly self-interested action by private individ-                                   than policy analysis. Constitutional designers are
uals to public officials. Public officials on this                                    not in principle exempt from the self-interested
account only meet their legal obligations if it is                                    motivations that political economists attribute to
in their (self-) interest to do so. The extension of                                  all other private and public actors. For political
the assumption of narrowly self-interested action                                     economy, then, law consists solely of a set of
from private individuals to all actors reflects both                                  incentive structures that ensure an equilibrium
a different, and perhaps more ambitious, research                                     in which both private individuals and public offi-
program and a more radical approach to law.                                           cials comply with their legal obligations. Legal
   The research programs of the two schools                                           rules are simply equilibrium phenomena that
differ in at least two respects. First, the policy                                    have no causal force. Only the structure of
analysis school seeks to explain the effects of                                       the institutions that sanction individuals have
legal rules and institutions on the behavior of                                       any explanatory power.

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   Political economy thus pursues a project radic-                                    Though legal norms might differ essentially
ally at odds with, and rejected by, the jurispruden-                                  from moral norms, an understanding of legal
tial approach to legal rules and institutions. In The                                 normativity often begins with a discussion of
Concept of Law, H. L. A. Hart (1961) attacked the                                     general conceptions of normativity.
sanction theory of duties that underlies the con-                                        Several questions arise. The first, an ontological
ception of obligation implicit in political econ-                                     one, addresses the nature of norms in general and
omy. Though citizens might regard legal rules                                         of moral norms in particular: do norms exist ‘‘ob-
simply as sanctions, Hart argued that public offi-                                    jectively’’ or not? A related question, of more
cials who apply the law required a different atti-                                    interest to social scientists, is epistemological:
tude towards the rule of recognition and to legal                                     how do individuals know what norms exist?
rules generally.                                                                         A third set of questions posed by norms and
   Hart argued that the imposition of a sanction                                      normativity is specific to law. Under what condi-
was neither necessary nor sufficient for the exist-                                   tions does law impose obligations? What is the
ence of an obligation. Violation of some legal                                        source of law’s normativity? This chapter will not
rules, such as those that structure the enabling                                      address questions about the specific nature of
regimes of contract or corporations, do not                                           legal normativity.
impose sanctions. Conversely, some rules, such                                           A fourth set of questions concerns the role that
as those that impose taxes for undertaking certain                                    norms and obligation ought to play in practical
actions, impose costs on agents without creating                                      reason. H. L. A. Hart, who traced his view back to
legal duties. The nature of legal obligation, on                                      Hobbes in Leviathan, argued that two features
Hart’s account, lies not in sanction, but in the                                      characterized the role of legal norms in practical
attitude – the ‘‘internal aspect’’ – that the public                                  reasoning: a legal norm is peremptory and it is
official holds towards the rule. See L E G A L                                        content-independent. A peremptory reason dis-
POSITIVISM.                                                                           places the agent’s normal deliberative process of
   Hart’s objections to the sanction theory of law                                    articulating and weighing all reasons for and
have most force against the project of political                                      against possible courses of action. A content-
economy if one adopts a narrow interpretation                                         independent reason derives its force and relevance
of self-interested preferences. Under the nar-                                        not from the content of the reason but from the
rowest interpretation of self-interest, public offi-                                  nature of its issuer. The peremptory nature of
cials care only about their own consumption of                                        legal rules means that a legal rule should displace
standard economic goods and services. Often,                                          an agent’s own reasons for action; the existence of
however, economic models of legal institutions                                        the legal rule itself should provide the agent with
interpret the preferences of public officials more                                    both necessary and sufficient reasons to act as
broadly. Judges, for instance, in models of judicial                                  directed.
politics are generally assumed to have preferences                                       Hart’s account of peremptory reasons in Hart
over policies. When preferences are understood                                        (1982) corresponds to Raz’s account of exclu-
this way, the force of Hart’s objection is less clear.                                sionary reasons (Raz 1975). Raz offers his analysis
The following investigates how one might recon-                                       within a more general account of practical reason
cile preference theories to Hart’s objections.                                        that distinguishes between first-and second-order
                                                                                      reasons for action. First-order reasons for
                                                                                      action bear directly on the appropriateness of
                                                                                      the options that the agent faces; second-order
                          Normativity
                                                                                      reasons guide agents in their deliberations over
                                                                                      the relevant first-order reasons. An exclusionary
Understanding the relation between law as a                                           reason is both a first- and second-order reason; it
social institution and law as a set of normative                                      gives agents a reason to act or not to act and it
requirements preoccupies legal philosophy and                                         directs agents not to consider all (or some) other
much legal theory. Much of the debate within                                          first-order reasons that bear on their decision. On
legal philosophy concerns the relation between                                        Raz’s account, all rules, including legal rules,
law and morality, another normative system.                                           function as exclusionary reasons.

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   Philosophers of ethics and practical reason do
not generally offer accounts of norms as elements                                                 Preference and Obligation
of an explanatory theory of behavior. One of
the central questions in their enterprise, however,
concerns the motivational role that reasons                                             Preference theories and practical reason
play in determining an agent’s actions. For phil-
osophers of practical reason, the key question                                        Is the logic of obligation incompatible with any
is: does an individual have a reason to act even                                      explanatory theory that relies on preference? An
if he or she has no motivation to act on that                                         inconsistency might arise from at least two differ-
‘‘reason’’?                                                                           ent sources. It might arise because obligations do
   Economists treat their preference theories of                                      not motivate agents to act. Alternatively, obliga-
action as both normative and explanatory theor-                                       tion and preference might be incompatible be-
ies. They claim both that an agent’s decisions                                        cause the structure of decision governed in part
ought to conform to the demands of maximizing                                         by obligation is logically inconsistent with the
a preference and that agents’ decisions do in                                         demands of preference theory.
fact conform to the demands of preference                                                Controversy over the incompatibility of obliga-
theory. But economists rarely address explicitly                                      tion and preference has long existed among moral
the normative or motivational questions that                                          and political philosophers. Some philosophers,
occupy philosophers because ‘‘reasons’’ play no                                       notably Plato and Hume, offer accounts of ethics
explicit role in their models. The economic                                           that are compatible with preference theory. On
models, however, do not obviously preclude a                                          these accounts, the obligations one has are dis-
discussion of reasons. As elaborated in Kornhau-                                      tinct from the springs of actions; meeting one’s
ser 1998c, we might interpret an agent’s prefer-                                      obligations, however, is in the self-interest of the
ence ordering as an integration of that agent’s                                       agent either directly or indirectly. For Plato,
reasons for action into an all-things-considered                                      acting rightly is directly in the self-interest of the
set of judgments.                                                                     agent; it is better for the agent to act justly than to
    The assumption of narrowly self-interested                                        act unjustly. Of course, the conception of well-
preferences restricts the set of reasons behind                                       being underlying this Platonic account differs
the agent’s preference ordering. When studying                                        from the subjective account of well-being and
market behavior, self-interest generally means                                        motivation that underlies the economic analysis,
that agents care only about their own consump-                                        but resolution of the question of compatibility
tion and not the consumption of others. In the                                        rests on the formal structure of preference, not
nonmarket contexts studied in the economic                                            on its interpretation.
analysis of law, the concept of ‘‘self-interested                                        For Hume, conformity to moral obligations
preferences’’ is often given a broader interpret-                                     either directly or indirectly promotes the agent’s
ation to include the ‘‘policy preferences’’ of a                                      self-interest. Some moral virtues are natural in the
public official. Though an interpretation of                                          sense that the individual has an inherent motiv-
preference as narrow self-interest is apparently                                      ation, or preference, to comply. Other moral
at odds with Hart’s and Raz’s account of pract-                                       virtues are artificial; adherence to them is benefi-
ical reason, this more expansive interpretation                                       cial to the agent conditional on others’ adhering.
seems to allow more room for obligation                                               This account is fully consistent with the economic
because the broader interpretation of self-interest                                   account of preference maximization that provides
admits a wider set of reasons that agents                                             a narrowly self-interested interpretation of the
integrate into their preference ordering under-                                       agent’s preference.
stood as a summary of their all-things-considered                                        Other philosophers, among them many legal
judgments.                                                                            philosophers (and many other legal scholars),




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deny the relevance of preference theory to the                                        already been resolved in order to construct the
analysis of obligation. This claim might have a                                       preference ordering of the agent. After all, that
strong and a weak form. The weak form of the                                          ordering summarizes the choices the agent would
claim denies only that obligation can be captured                                     make; to the extent that obligation weighs in the
within a preference theory that interprets prefer-                                    agent’s calculations, its importance would already
ence in narrowly self-interested terms. Obligation                                    be integrated into the preference.
might then be reconciled with preference if the                                          A conflict between the projects will then only
ordering incorporates other-regarding concerns                                        exist if obligation plays a role in practical reason
or other concerns that are excluded by an assump-                                     that is somehow inconsistent with the demands of
tion of narrow self-interest.                                                         a preference theory. Incompatibility might arise
   The strong form of the claim denies that                                           in at least three distinct ways. The first two forms
obligation can be reconciled with any preference                                      of incompatibility concern behavior. First, if the
theory, even one that interprets preference                                           demands of obligation somehow induced behav-
in broadly self-interested terms. This claim                                          ior that violated the transitivity requirement on
denies that the expansive conceptions of the con-                                     the preference ordering, the two projects would
cerns reflected in an agent’s preferences can                                         be incompatible. But, as I suggest in the
capture the role of obligation in practical reason.                                   following subsection, such a conflict is unlikely.
We might understand this more radical claim as                                        At the very least, its existence will depend on what
a claim that normative motivations cannot be                                          one seeks to achieve with a preference model that
integrated with self-interested and other-                                            seeks to incorporate normativity. Second, obliga-
regarding interests into a coherent preference. It                                    tion might not influence behavior. Narrow self-
is not clear, however, what argument the critic of                                    interest might, in fact, explain all behavior ad-
economic analysis of law offers to support this                                       equately. The subsection ‘Does obligation motiv-
more radical rejection of preference theory.                                          ate?’ below suggests, however, that this argument
   Ironically, this radical rejection of preference                                   confronts both problems of interpretation and
theory does suggest a way to reconcile the pro-                                       conflicting empirical evidence. The third incom-
jects of legal philosophy and economic analysis of                                    patibility concerns the structure rather than the
law. The philosophical project to articulate the                                      result of practical reasoning. Even though one
role of obligation in practical reason differs from                                   might attribute preferences to the agent that led
the explanatory project of economic analysis of                                       to choices that reproduced the conclusions of the
law for which preference theories are deployed.                                       agent’s practical reasoning from obligations, the
The difference goes beyond the normative aim of                                       preference structure would misrepresent the logic
the philosopher of practical reason and the ex-                                       (and perhaps the psychology) that led to the
planatory aim of the economic analyst. The two                                        choices. The strength of this case also rests on
projects differ even if one adapts the normative                                      the nature of the evidence concerning reasoning
theories of practical reason and of preference                                        and action and on questions of interpretation.
theory to empirical uses.
   When economists assume that an agent has a
preference over some domain, they prescind from                                                   Obligation within preference
the question of the origin or source of those
preferences. One might thus understand a prefer-                                      The conflict between preference and obligation is
ence as the summary of the results of the oper-                                       at least partially interpretive rather than formal.
ation of practical reason in all possible decision                                    This statement follows almost immediately
contexts that the agent may face. On this inter-                                      from the earlier distinction between narrow
pretation of a preference, the philosophical in-                                      and broad interpretations of the concept of self-
quiry into the role of obligation must have                                           interested preferences. A broad interpretation of




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self-interest offers several routes for the partial
                                                                                                                   Redefinition
reconciliation of obligation and preference that
may even be acceptable to a political economist                                       With an adequate description of the obligations
who adopts a relatively restricted interpretation                                     to which the agent is committed, one may incorp-
of self-interest. This subsection briefly discusses                                   orate these obligations into a complete, transitive
two routes: the possibility of norm internalization                                   preference. This conclusion follows directly from
and formal redefinition of the domain of                                              the observation that the definition of a preference
preference.                                                                           requires implicit or explicit criteria that identify
   The reconciliation offered here may be partial                                     which options are identical. Agents who meet
because it provides an account only of obligations                                    their obligations distinguish options in part in
that the agent accepts in some sense. On some                                         terms of features that indicate the existence (or
philosophical accounts of obligation, agents                                          nonexistence) of an obligation to act in a specified
may have obligations regardless of their accept-                                      way. The relevance of the existence of obligations
ance of them. These obligations may fail to                                           to the agents’ decisions will thus be reflected in
motivate them or, on other accounts, they may                                         their preference ordering.
motivate through reason.                                                                 Consider for example the problem discussed in
                                                                                      Anand (1993) and Sen (1993) in which the
                                                                                      agent, from the pair (orange, small apple) chooses
                          Internalization
                                                                                      the orange; from the pair (orange, big apple)
One might further assert that an agent’s prefer-                                      chooses the big apple; and from the pair (big
ences reflect normative concerns. The agent may                                       apple, little apple) chooses the little apple. This
have internalized various obligations where we                                        agent apparently violates transitivity as she prefers
understand the process of internalization as in-                                      big apple to orange to small apple to big apple.
corporation of a concern for compliance with                                          She is, however, following a simple rule: never
obligations in general or with a particular obli-                                     choose the largest exemplar of a given type of
gation into the agent’s preference ordering. An                                       fruit. We might understand this rule-following
agent might internalize a norm, however, in                                           behavior as conforming to an obligation not to
very different ways; and the method of internal-                                      take the largest fruit. In any case, the agent distin-
ization might influence our evaluation of the                                         guishes options in part in terms of the set of
role of obligation in the determination of                                            alternatives with which they are presented. Atten-
action.                                                                               tion to this feature of her preferences rationalizes
   Consider, for example, a norm against                                              them and avoids the intransitivity. Her choices are
littering. Internalization of the norm might                                          in part contingent on the menu of options
mean incorporation into a preference in one of                                        from which she chooses; once we understand
at least three different ways. The agent might                                        the dependence we may redescribe her options
value compliance with norms generally so that                                         appropriately to avoid the intransitivity. The
compliance with the norm against littering satis-                                     incompatibility between preference and obliga-
fies this more general concern. The agent might                                       tion formally disappears.
value compliance with the specific norm against                                          Several considerations, however, make this
littering. Or the agent might value uncluttered                                       formal compatibility an insufficient response to
landscapes. In the first two instances, internal-                                     the objections of a sanction theory of law. First, in
ization means that the agent has developed a                                          many cases, one cannot fully specify the content
preference for compliance to the norm; obliga-                                        of the agent’s obligation. Consider the obligation
tion would appear, then, to play a direct role in                                     of judges in common law jurisdictions to abide by
the explanation of the agent’s behavior. In the                                       stare decisis. (A fuller discussion appears in Korn-
third instance, however, the agent does not                                           hauser 1998a.) The obligation is defined by a
internalize the norm as norm; the agent develops                                      judicial practice that involves both the obligation
a taste for uncluttered landscapes. The obliga-                                       of lower court judges to abide by the rulings of
tion not to litter now plays no direct role in                                        higher court judges (‘‘vertical’’ stare decisis) and
explaining the agent’s actions.                                                       the obligation of the judges of a given court to

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abide by the prior rulings of their own court                                         theory of behavior has both predictive and ex-
(‘‘horizontal’’ stare decisis). Consider the easier                                   planatory force. When obligations are not fully
case of vertical stare decisis, an obligation we may                                  specified, such characterization will fail. More-
take to be strict and not overridable. Suppose that                                   over, we may provide more perspicuous and
the lower court must decide two cases, A and B.                                       powerful explanations when we combine an
Each case may be decided in one of two ways: for                                      understanding of obligatory action with a cruder
the plaintiff or against the plaintiff, which we shall                                specification of options.
label A and not-A in the first case and B and not-B
in the second case. The court has preferences over
states of the law, that is, over each of the four
possible outcomes of the cases (described as an                                                      Does obligation motivate?
ordered pair). Assume the court prefers (A, B) to
(not-A, not-B) to (A, not-B) to (not-A, B). A                                         Before one asks how obligation motivates, one
court unconstrained by vertical stare decisis                                         must accept that obligation does in fact influence
would, when asked to decide the first case, choose                                    behavior. This claim seems obvious to a legal
A over not-A. If, however, a superior court has                                       scholar but the radical interpretation of the pro-
dictated an outcome of not-B in cases of type B,                                      ject of political economy denies that obligation
then a lower court that adheres to its obligation of                                  has causal efficacy. Phrased differently, the polit-
vertical stare decisis will choose not-A over A. If                                   ical economist denies that obligation ever gives an
we ignore the obligation, the court may appear to                                     agent a reason for action except through the
have inconsistent preferences. Once we account                                        sanction imposed for noncompliance or some
for the obligation appropriately, however, its be-                                    information that the rule communicates. More
havior is consistent with a preference theory. The                                    strongly, the political economist apparently con-
example, however, assumed that we could clearly                                       tends that self-interest provides the only source of
determine which cases were governed by a prior                                        reasons for action, and argues that obligations
decision. The criteria that determine when one                                        never influence behavior; only incentive struc-
case is identical to a prior case are difficult to                                    tures determine action. Action is better explained
articulate. Consequently we cannot redescribe                                         through an assumption of self-interested prefer-
the agent’s options to eliminate ‘‘apparent’’ con-                                    ence than through an assumption of a more com-
flicts with transitivity.                                                             plexly derived ordering. In this subsection, I
    Second, incorporation of the content of the                                       review reasons that both support and contradict
obligation into the preference ordering will not                                      this denial.
explain violations of the obligation. Agents rarely                                      Empirical tests alone cannot resolve the ques-
conform to all their obligations; more interest-                                      tion of the superiority of self-interested explan-
ingly, they may sometimes conform to a given                                          ation to normative explanation of behavior.
obligation and sometimes breach that obligation.                                      Formulation of empirical tests require that we
An agent might keep one promise and break an-                                         specify clearly how obligation in theory influences
other. A judge may adhere to stare decisis in one                                     behavior and that we can disentangle self-
case but abandon it in a second.                                                      interested from normative motivations. In this
    One might reconcile this complex behavior to                                      subsection, I first discuss the difficulty of attrib-
preference theory in two unsatisfactory ways.                                         uting motivations. I then address the empirical
One might redefine the obligation so that it is                                       questions more directly.
defeasible; under appropriate conditions the obli-
gation is excused or no longer obtains. Alterna-
                                                                                                            Interpretive problems
tively, one might identify the conditions that
trigger breach of the obligation and characterize                                     Our explanation of behavior requires an inter-
these options as distinct from the conditions                                         pretation of the behavior that requires the
under which the agent conforms. Either strategy                                       attribution of some motivation to the agent; but
is fruitful only if we can characterize the defeasing                                 many interpretations are possible. Consider,
or triggering conditions ex ante so that our                                          for example, Liza who does not eat meat.

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Explanations of Liza’s behavior might refer to any                                    be critical. In this instance, the existence of an
of a number of distinct motivations. An economic                                      obligation marks specific behaviors as socially im-
explanation will refer to both her beliefs and to                                     portant and hence ones that are relevant to tastes
her preferences. The claim that self-interested                                       to conform or for reputation. This reduction of
explanation does not refer to obligation means                                        the role of obligation to a signal, however, does
that obligation is not relevant to the characteriza-                                  not appear to capture the distinctive role of obli-
tion of either her beliefs or her preferences.                                        gation in assessing options and making decisions.
   Of course, in some possible explanations, obli-                                    See P R I VA C Y .
gation plays no role in either preference or belief.
Thus, Liza’s failure to eat meat results from nar-
                                                                                           Real experiments and thought experiments
rowly self-interested preferences in at least two
distinct ways. Liza might simply dislike the taste                                    Evidence should guide a choice between explana-
of meat; she prefers vegetarian cuisine. On the                                       tory theories. The discussion above suggested
other hand, Liza might enjoy meat but face a                                          that the evidence did not speak plainly for one
budget constraint that induces her to eat vegetar-                                    theory over another because the theories relied
ian meals. After all, Liza must allocate her re-                                      on the attribution of competing motivations; the
sources not only to food but also to housing,                                         attribution of motivations presented problems of
education, and other activities that she also                                         interpretation. Nonetheless, proponents of both
values.                                                                               preference and obligation theories of explanation
   On other explanations, obligation plays no role                                    may point to phenomena for which they believe
in explaining the content of Liza’s preferences but                                   their theory provides a clearer explanation.
its role in Liza’s belief system might still partially                                   Political economy seems to explain differences
explain her actions. Liza might have a vegetarian                                     in legal behaviors across countries better than
diet because she seeks to conform to the behavior                                     theories that rely on normative obligation. The
of those in her circle, all of whom are vegetarians.                                  normative theories may point to differences in
We might try to explain this conformity by assum-                                     cultural norms, but the theories have no apparent
ing a taste for conformity directly (see e.g., Jones                                  resources for explaining the emergence of differ-
1983), or through a taste for reputation (Akerlof                                     ent norms in those cultures. The political econo-
1980), or some positional good (Bernheim                                              mist, by contrast, will point to differences in
1994). In these explanations Liza has self-                                           incentive structures or environmental conditions
interested preferences understood more broadly                                        that over time led to the emergence of different
but obligation still plays no role in the content of                                  behaviors.
her preference.                                                                          Consider for example a question of current
   In these explanations, however, obligation                                         academic and practical concern: why do public
might enter an explanation as a belief rather                                         officials conform to the rule of law in some soci-
than a preference. Liza might believe that she                                        eties but not in others? The legal (and moral)
has an obligation not to eat meat. She conforms                                       obligations that in theory bind public officials in
to the community’s vegetarianism because she                                          the United States and the Netherlands do not
understands that the practice is grounded in obli-                                    differ dramatically from those that apply to public
gation. Consequently, not eating meat has special                                     officials in Argentina or Nigeria. Yet most agree
importance for each member of the community,                                          that officials within the former countries conform
and conformity is expected. Other common prac-                                        to the ‘‘rule of law’’ – that is, commonly meet the
tices may not trigger expectations of conformity.                                     express legal obligations of their systems – while
Everyone, for example, might habitually go to the                                     the officials of the latter countries frequently do
movies on Saturday night. If Liza does not go, her                                    not. It is not clear how the legalist explains these
reputation will not suffer. People may notice her                                     differences. The difficulty for the legalist may
absence, remark on it, or speculate as to its causes.                                 simply reflect the more general problem of ex-
They may call concerned about her health,                                             plaining noncompliance within a normative
wonder about the demands of her job, or whether                                       framework. For the economist, noncompliance
she has lost her taste for films. Comment will not                                    presents no explanatory difficulties; an agent will

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fail to comply with a norm when the costs and                                         vide clear, concise, and cogent explanations for a
benefits of noncompliance exceed those of com-                                        number of pervasive phenomena. A convincing
pliance. Thus, the economist explains the behav-                                      legal response to the project of political economy,
ior of public officials in different countries either                                 however, must identify real phenomena that the
by pointing to differences in the incentive struc-                                    political economist cannot explain but that are
tures within the countries, by identifying differ-                                    explained by reference to obligation. Here
ences in the circumstances in which the officials                                     I sketch two potential legal challenges to the
act, or by elaborating models with multiple equi-                                     approach of political economy. The first concerns
libria, in only some of which public officials                                        adjudication; the second concerns the difference
comply with their obligations in equilibrium.                                         among legal forms.
This approach of course raises the problem of                                            Social scientists and legal scholars have long
explaining why one equilibrium is chosen rather                                       adopted different approaches to adjudication.
than another.                                                                         Legal scholars study judicial opinions and seek
   Of course, the mere fact that individuals do not                                   to explain and predict judgments in terms of the
comply with a norm does not imply that the norm                                       content of the opinions that judges write to ac-
has no influence on the individuals’ behavior.                                        company their judgments. As the obligation of
Moral commitments or legal rules may influence                                        judges to provide reasons for their decisions lies at
behavior in many indirect ways. Consider, for                                         the core of adjudicatory practice, the legal
example, legal rules that limit the speed at which                                    scholar’s intensive scrutiny of the given reasons
motorists may drive on a given thoroughfare.                                          implicitly assumes that these obligations will
Widespread violation of the legal obligation,                                         explain judicial behavior.
however, does not alone imply that legal obliga-                                         The ‘‘attitudinalist’’ approach to judicial polit-
tion plays no role in an explanation of motorist                                      ics contends that the judge’s preferences over
behavior. Obligation might explain the pattern of                                     policy outcomes better explains judicial decision
noncompliance. When the speed limit is raised                                         than the expressed reasons of the judges. More-
from 55 miles per hour to 65 miles per hour,                                          over, they proffer extensive evidence in support of
the distribution of speeds at which motorists                                         this claim. Spaeth and Segal (2000; Segal and
travel changes predictably: a limit of 55 miles                                       Spaeth 1993), for example, test their claim
per hour may yield a modal speed of 60 miles                                          against a claim that judicial adherence to stare
per hour with most motorists traveling between                                        decisis explains judicial decisions. They conclude,
50 and 65 while a limit of 65 miles per hour yields                                   using a narrow definition of horizontal stare deci-
a modal speed of 70 miles per hour with most                                          sis, that Supreme Court justices only rarely adhere
motorists traveling between 65 and 80 miles per                                       to stare decisis. This empirical demonstration,
hour. Several standard economic accounts might                                        however, is not fully convincing. For one thing,
explain this shift in distributions. Different speed                                  as noted above, the obligation of stare decisis is
limits lead to different enforcement practices by                                     difficult to specify precisely; the persuasiveness of
police and judges; these different enforcement                                        the empirical test depends on the adequacy of the
practices then lead to different choices by motor-                                    specification. Moreover, one may question the
ists. Of course we must now explain why the                                           validity of the tests that Segal and Spaeth use. As
enforcement practices of police and judges                                            one broadens their narrow definition of stare
change in response to changes in the legal speed                                      decisis, adherence to the obligation increases.
limit. Or we might assume that the speed limit                                        More importantly, they measure adherence to
carries information about the safe speed, and in-                                     stare decisis, narrowly defined, in a problematic
dividuals then use that information to adjust their                                   way. Adherence is defined in terms of movement
own behavior (e.g., posted limits for mountain                                        relative to the status quo. But a prior decision
curves).                                                                              redefines the status quo; it determines the terms
   From within legal culture, it appears obvious                                      of future debate and this itself influences the
that obligations provide distinctive reasons for                                      development of the law.
action to agents, particularly to public officials.                                      The traditional legal scholar has a more sweep-
The existence of these obligations seems to pro-                                      ing response. The reasons judges offer in their

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opinions refer centrally to the obligations of the                                    equivalent size. The two regulatory appro-
judge as well as to the obligations of the parties to                                 aches might also have different distributional
the dispute. Often these opinions assume that                                         consequences.
private individuals or public officials will take                                        Legal theorists thus predict that embedding
legal obligations seriously. The attitudinalist and                                   identical sanctions in different legal forms will
the political economist who denies the motiv-                                         produce different behaviors. Reference to the ex-
ational force of obligation must view the entire                                      istence of an obligation explains at least in part
practice of judicial opinion writing as a charade,                                    individual action. Their claim is compelling, how-
and the public to whom the opinions are ad-                                           ever, only if two conditions are met. First, the
dressed as deluded. This conclusion renders                                           empirical prediction must be true; individuals
ironic the motivation behind the adoption of the                                      indeed respond differently to a tax than to a
assumption of self-interested action of public of-                                    fine. Second, the political economist cannot
ficials. The political economist sought to simplify                                   explain the predicted pattern of behavior.
and unify the theory of public and private behav-
ior by attributing the identical motivations to
private and public actors; this unified framework,
                                                                                                       Concluding Remarks
however, apparently renders private actors ir-
rational.
   Consider next the differences among legal                                          Modern jurisprudence has generally presumed
forms. Regulation may take many forms. One                                            that legal obligations have normative force.
might regulate air pollutants, for example, by a                                      Though current theories usually admit that pri-
tax, a criminal fine, or a civil fine. Consider the                                   vate individuals often – perhaps always – meet
difference between a tax and a fine, either criminal                                  their obligations because it is in their self-interest
or civil, for exceeding prescribed levels of emis-                                    to do so, the theories generally assume that public
sion of air pollutants. Suppose that the tax and the                                  officials meet their obligations because they
fine impose equal penalties for exceeding these                                       ought to. Economic analysis of law, particularly
prescribed levels by any amount. The economist                                        its political economy branch, has challenged this
would regard these two legal forms as economic-                                       presumption. This chapter attempted to deter-
ally equivalent: they impose identical incentives.                                    mine the gravity of this challenge to traditional
The legal scholar, and many lay individuals, view                                     conceptions of law.
the legal forms very differently. A tax permits the                                      In economic theory, the agents’ preferences
agent to emit more than the prescribed levels but                                     explain their actions. The formal concept of pref-
the fine prohibits excessive emission. Excessive                                      erence, however, places no restrictions on the
emissions violate the norm and are at best in-                                        features that agents may consider relevant to
appropriate but more exactly wrong. This distinc-                                     their decisions. Consequently, I have argued
tion might explain why some environmentalists                                         that there is no formal incompatibility between
resist market-based regulatory schemes; they                                          the economic approach to law and current juris-
resist the legal characterization of environmen-                                      prudential theories. The analyst may incorporate
tally destructive behavior as permissive either for                                   the normative force of legal obligation within the
symbolic reasons or for instrumental reasons.                                         formal structure of preference if the obligation is
   A similar distinction appears in the difference                                    sufficiently well specified. Incompatibilities may
between regulating scarce parking space at a town                                     arise, however, when the theorist restricts the
center through parking meters that permit a                                           features of an option that are relevant to the
driver to park for a fee and through a fine that                                      agent’s decision either because the obligation is
punishes drivers who park in the identical spot                                       not sufficiently well defined or for other reasons.
with an identical fee. The fee permits parking                                           Economic analysis of law generally does place
but the fine prohibits it; to the philosopher of                                      restrictions on the preferences of agents. It as-
practical reason a permission coupled with a                                          sumes that self-interested preferences are suffi-
price provides a very different type of reason for                                    cient to explain the behavior of both private
action than a prohibition tied to a sanction of                                       individuals and public officials. I have argued

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that the evidence for the truth of this claim is                                      Dworkin, R. M. 1980b. Why efficiency? Hofstra Law
equivocal for two reasons.                                                              Review 8: 563–90.
   First, the motivations underlying action are not                                   Hart, H. L. A. 1961. The Concept of Law. London:
self-evident. They require interpretation and fre-                                      Oxford University Press.
                                                                                      Hart, H. L. A. 1982. Commands and authoritative legal
quently both self-interested and nonself-inter-
                                                                                        reasons. In H. L. A. Hart (ed.), Essays on Bentham.
ested interpretations may be attributed to                                              Oxford: Oxford University Press, 243–68.
identical behavior. Distinguishing between these                                      Holmes, O.W., Jr. 1897. The path of the law. Harvard
interpretations may require further evidence.                                           Law Review 10: 457–78.
Moreover, the concept of self-interest is itself                                      Jones, S. 1983. The Economics of Conformism. Oxford:
ambiguous. The political economist slides be-                                           Blackwell.
tween narrower and broader interpretations of                                         Kaplow, L. and S. Shavell 2002. Fairness vs. Welfare.
self-interest.                                                                          Cambridge, MA: Harvard University Press.
   Second, both the political economist and the                                       Kornhauser, L. A. 1997. How law influences behavior.
traditional legal theorist may point to phenomena                                       In B. Garth and A. Sarat (eds.), Justice and Power in
                                                                                        Socio-Legal Studies. Evanston, IL: Northwestern Uni-
that seem to support their position. Perhaps most
                                                                                        versity Press, 208–32.
problematically, the political economist has no
                                                                                      Kornhauser, L. A. 1998a. Stare decisis. In P. Newman
adequate account of the variety of legal forms                                          (ed.), The New Palgrave Dictionary of Economics and
that regulation may take: tax, civil liability, or                                      the Law, vol. 3. London: Palgrave Macmillan,
criminal responsibility. An incentive-based ex-                                         509–14.
planation fails because the size of the sanction is                                   Kornhauser, L. A. 1998b. Wealth maximization. In
independent of the legal form of the regulation.1                                       P. Newman (ed.), The New Palgrave Dictionary of
                                                                                        Economics and the Law, vol. 3. London: Palgrave
                                                                                        Macmillan, 679–84.
                                   Note
                                                                                      Kornhauser, Lewis A. 1998c. No best answer? Univer-
                                                                                        sity of Pennsylvania Law Review 146: 1599–1637.
1 I benefited from the comments on an earlier draft of                                Kornhauser, L. A. 2000. Three roles for a theory of
  Liam Murphy and Bill Edmundson. The financial
                                                                                        behavior in a theory of law. Rechtstheorie 31:
  support of the Filomen d’Agostino and Max E.                                          197–252.
  Greenberg Research Fund of NYU School of Law
                                                                                      Kornhauser, L. A. 2003a. The domain of preference.
  is gratefully acknowledged.                                                           University of Pennsylvania Law Review 151: 717–46.
                                                                                      Kornhauser, L. A. 2003b. Preference, well-being, and
                              References                                                morality in social decision. Journal of Legal Studies 33
                                                                                        (1): 303–30.
Akerlof, G. 1980. A theory of custom of which un-                                     Posner, R. A. 1973. Economic Analysis of Law. Cam-
  employment may be one consequence. Quarterly                                          bridge, MA: Harvard University Press.
  Journal of Economics 94: 749–75.                                                    Posner, R. A. 1979. Utilitarianism, economics and legal
Anand, P. 1993. The philosophy of intransitive prefer-                                  theory. Journal of Legal Studies 8: 103–40.
  ences. Economic Journal 102: 337–46.                                                Posner, R. A. 1980. The ethical and political basis of the
Bernheim, D. 1994. A theory of conformity. Journal of                                   efficiency norm in common law adjudication. Hofstra
  Political Economy 102: 841–77.                                                        Law Review 8: 487–598.
Calabresi, G. 1961. Some thoughts on risk distribution                                Raz, J. 1975. Practical Reason and Norms. Princeton,
  and the law of torts. Yale Law Journal 70: 499–553.                                   NJ; Princeton University Press.
Coase, R. 1960. The problem of social cost. Journal of                                Segal, J. and Spaeth, H. 1993. The Supreme Court and
  Law and Economics 3: 1–44.                                                            the Attitudinal Model. New York: Cambridge Uni-
Coleman, J. 1980. Efficiency, utility and wealth maxi-                                  versity Press.
  mization. Hofstra Law Review 8: 509–51. Reprinted                                   Sen, A. K. 1993. Internal consistency of choice. Econo-
  in J. Coleman, 1988. Markets, Morals and the Law.                                     metrica 61: 495–521.
  Cambridge, UK: Cambridge University Press,                                          Spaeth, H. and Segal, J. 2000. Majority Rule or
  95–132.                                                                               Minority Will: Adherence to Precedent on The U.S.
Dworkin, R. M. 1980a. Is wealth a value? Journal of                                     Supreme Court. New York: Cambridge University
  Legal Studies 9: 191, 194–10.                                                         Press.



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----------------------------------- Chapter 5 ----------------------------------

                            Critical Legal Theory
                                                 Mark V. Tushnet



             Historical Background                                          people would generally accept despite their deep
                                                                            disagreements about what the outcomes should
                                                                            be. Critical legal theory took as its premise that
Critical legal theory refers to a body of scholar-                          disagreements were deep and ineradicable. They
ship developed primarily in the United States                               examined the legal system to see how those dis-
starting in the 1970s. Critical legal theory origin-                        agreements manifested themselves, and de-
ated when a group of younger legal academics                                veloped a critique aimed at undermining claims
reflected on their largely political disagreements                          that law provided a distinctive and satisfying way
with more senior scholars, focusing on issues of                            of overcoming deep disagreement.
race, wealth inequality, and the then ongoing
American war in Vietnam (Tushnet 1991). Polit-
ically, the early critical legal theorists identified
                                                                                                  An Overview
themselves as substantially to the left of main-
stream liberals, whom they associated with the
Cold War and an unwillingness to take the steps                             The most general statement of critical legal
necessary to rectify racial and wealth inequalities.                        theory was the slogan, ‘‘Law is politics’’ (Kairys
   The political underpinnings of critical legal                            1982). This meant several things. First, the
theory led its proponents away from concerns                                methods of legal reasoning were, in the end, in-
associated with jurisprudence understood in trad-                           distinguishable from the methods of political ar-
itional terms. At least in the first instance, critical                     gument: analysis would show that what legal
legal theorists were not interested in examining                            theorists presented as distinctively legal argu-
the question, ‘‘What is law?,’’ for example, or the                         ments were reducible to arguments commonly
question, ‘‘What is the connection between law                              made in general political discourse. Second, dis-
and morality?,’’ although their narrower con-                               putes within law were resolved in the same way
cerns ultimately intersected with these more                                that disputes within politics were resolved, by
traditional questions.                                                      some fairly messy combination of coercion and
   The critical legal theorists understood them-                            reasoned argument, rather than by reason alone
selves to be in a world of legal theory where a                             (as they understood their seniors to claim). Im-
consensus-based ‘‘legal process’’ school had                                portantly, the claim was not that law, like politics,
eclipsed a conflict-based legal realism. They                               was a domain of coercion pure and simple; rather,
thought that the ongoing social conflicts over                              it was that both domains mixed coercion and
the war in Vietnam, racism, and poverty rendered                            reason. This part of the claim about law and pol-
implausible what they took to be the legal-process                          itics thus connected critical legal theory to trad-
claim that well-designed institutions for taking                            itional jurisprudential concerns about the relation
social decisions could produce outcomes that                                between law and morality, although the connec-

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tion was weak and never became a focus of atten-                                         of higher-level principles identifying each institu-
tion within the work of critical legal theorists.                                        tion’s central characteristics. For critical legal the-
Third, and perhaps most obvious, just as in polit-                                       orists, this simply shifted the level on which
ics we do not expect disagreement to disappear                                           formalism occurred from substantive law to the
once some provisional resolution of a problem is                                         questions of institutional design and procedure.
located, so too in law we should not expect dis-                                         The scientism of Chicago-style law-and-econom-
agreement to disappear once an apparently au-                                            ics was even more obviously formalistic; here sub-
thoritative decision has been rendered.                                                  stantive legal rules were to be deduced from
   Critical legal theory drew from American legal                                        extremely thin assumptions about individual
realism the perception that an account of law                                            motivation and self-interest.
must combine analysis of legal reasoning with                                               Critical legal theorists also appreciated the legal
social theory, loosely defined. See A M E R I C A N                                      realists’ materialism. As the critical legal theorists
L E G A L R E A L I S M . The legal realists had found                                   read legal realism, rule-skepticism implied that
themselves confronting what they, or at least                                            one could not explain the outcomes actually
their successors, described as a conceptualistic                                         reached in legal disputes by referring to the rules
formalism, in which verbal formulations of rules                                         of law alone. Some social, not legal, theory would
were to be interpreted in ways that resolved con-                                        have to be invoked to explain outcomes. Again, as
crete controversies. For the legal realists, formal-                                     the critical theorists read legal realism, the rele-
ism meant that legal rules could be justified by                                         vant social theory for legal realists was fundamen-
deduction from self-evident first principles. (To                                        tally materialist in a loosely Marxist sense: class
the extent that those principles are moral prin-                                         interests explained why judges (and, even more
ciples, the legal realists’ understanding of formal-                                     obviously, legislators) reached the results they
ism is loosely related to more contemporary                                              did.
definitions of formalism, which assert that the                                             Critical legal theory modernized rule-skepti-
legal system has an immanent moral rationality.)                                         cism, but probably did not add strikingly new
Critical legal theorists appreciated – and perhaps                                       arguments to the ones the legal realists had pro-
may be said to have appropriated – the legal real-                                       duced. The situation was different with respect to
ists’ rule-skepticism as a response to formalism.                                        the explanatory social theory, though. Critical
By examining the relation between particular                                             legal theory combined, sometimes awkwardly, a
rules and concrete problems, rule skeptics argued                                        phenomenological account of social action with
that the rules actually did not provide conclusive                                       elements of the humanist rather than determinist
answers to any legal dispute; the formalist prom-                                        Marxism that had become fashionable on the left
ise that answers could be deduced from agreed-                                           in the 1960s and early 1970s.
upon premises failed, according to the legal real-
ists, because alternative interpretations of agreed-
upon rules, defensible by accepted methods of
                                                                                                     The Indeterminacy Thesis
legal reasoning, were ordinarily available to
support quite diverse outcomes.
   Critical legal theorists confronted versions of                                       Critical legal theory’s version of rule-skepticism
formalism that had arisen after the legal realists                                       gained the label, the indeterminacy thesis, and
developed their rule-skepticism, notably the                                             examining that thesis provides a useful entry
legal-process school and the Chicago style of                                            point into the claims made by critical legal theor-
law-and-economics scholarship that played a                                              ists (Tushnet 1996). Although the thesis was
large role in the legal academy when critical legal                                      sometimes stated in entirely universal terms, to
theory began to be developed. But, the critical                                          the effect that all imaginable legal questions were
legal theorists believed, legal-process theory re-                                       indeterminate, qualified versions played a more
produced formalism. Instead of deducing sub-                                             important part in critical legal theory and, of
stantive rules from higher-level premises, legal-                                        course, were more plausible. One could put a
process theorists argued that legal tasks should                                         qualified version of the indeterminacy thesis in
be allocated to different institutions on the basis                                      this way: in any legal dispute with some social

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significance, whether that significance arises from                                    systems – moving from private law to constitu-
the legal rules at issue or from the problem gen-                                      tional law would often provide the resources
erating the dispute, the legal resources available in                                  lawyers needed to make their argument fit the
any reasonably well-developed legal system were                                        norms of the profession, that is, to justify the
sufficient to justify any socially significant out-                                    result they sought.
come, where justify refers to practices of justifica-                                     The indeterminacy thesis implied that legal de-
tion generally regarded as available to a person                                       cision makers, including specifically judges, inev-
well-trained in the system’s methods of legal ar-                                      itably found themselves in a position of choice.
gument. Critical legal theorists defended the in-                                      The legal materials with which they worked did
determinacy thesis with two general types of                                           not require them to pursue one or another
arguments. The first operated within specifically                                      course, and so they could choose which to
defined fields of law like property and contract,                                      pursue. Critical legal theory’s progressive im-
the second across fields.                                                              pulses counseled decision makers to make the
   Critical legal theorists argued that within any                                     progressive choice, but this advice did not arise
given field of law one could observe concepts                                          organically from the indeterminacy thesis itself.
grouped in pairs with one concept dominant                                             Indeed, as critics of critical legal theory noted,
over the other (Kennedy 1976). For example, in                                         political conservatives could agree with the inde-
property law the predominant concept was the                                           terminacy thesis unless they accepted some ac-
owner’s sovereignty over the property owned,                                           count of conservatism that required legal
meaning that owners could do with their prop-                                          determinacy.
erty what they wished, while one subordinate                                              At least in qualified versions, the indeterminacy
concept is nuisance, meaning that owners cannot                                        thesis has moved from the domain of critical legal
do with their property something that interferes                                       theory into mainstream legal thought. Typically,
with another person’s sovereignty interest in                                          though, the thesis is domesticated. Some ac-
property. In contract law, the dominant concept                                        counts of law against which critical legal theory
of agreement is countered by subordinate con-                                          reacted claimed that legal disputes could be re-
cepts of force, fraud, and mistake. Critical legal                                     solved by applying generally accepted methods of
theorists claimed that, given any problem (within                                      legal reasoning to the materials – statutes, cases,
the range specified by the indeterminacy thesis), a                                    and the like – in the legal system. Accepting the
well-trained lawyer could produce arguments                                            indeterminacy thesis made it difficult to accept
that in the circumstances the subordinate concept                                      that claim. Instead, mainstream legal thinkers
ought to prevail over the usually dominant one.                                        assert that acceptable outcomes result when deci-
Importantly, those arguments would draw on the                                         sion makers exercise judgment or, in some vari-
very justifications for creating the ‘‘exception’’ or                                  ants, practical wisdom. When inspected carefully,
subordinate concept in the first place, so they                                        this response reproduces the legal-process ac-
operated on the terrain already identified as                                          count, and therefore cannot satisfy proponents
legally relevant.                                                                      of critical legal theory.
   Duncan Kennedy offered the clearest version of                                         A different response to a qualified indetermin-
the argument supporting the indeterminacy                                              acy thesis is also common, but it is a response that
thesis across fields (Kennedy 1986, 1997). Ken-                                        critical legal theory anticipated and worked into
nedy noted that sometimes lawyers experience                                           its own underpinnings. In an important way, the
difficulty in doing the work needed to elevate a                                       indeterminacy thesis is inconsistent with the ex-
subordinated concept. Instead of continuing to                                         perience of lawyers. Whatever might be true in
labor at that problem, Kennedy pointed out, the                                        the abstract, lawyers know that they frequently
lawyers could turn to some other field of law,                                         can predict, with a reasonably high level of accur-
moving from tort to contract or from property                                          acy, how a legal dispute will in fact be resolved.
to tort, and redefine the problem at hand as im-                                       Indeed, they can make these predictions even
plicating a concept dominant in the neighboring                                        within the range specified by a qualified indeter-
field. Kennedy noted in passing that in United                                         minacy thesis. How, then, can there be indeter-
States law at least – and increasingly in other legal                                  minacy when accurate prediction is possible?

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Another way of putting the point is that, while                                          sociologists offered alternative structural ac-
the indeterminacy thesis concludes by identifying                                        counts for the fact that liberal reforms were dera-
a moment of choice in every legal dispute, what                                          dicalized. Critical legal theory assimilated Marc
actually happens shows that the choices are some-                                        Galanter’s classic argument that the ‘‘haves’’
how constrained. But what is the source or nature                                        come out ahead because they have structural ad-
of the constraint?                                                                       vantages in litigation over ‘‘one-shot’’ players,
                                                                                         deriving from the haves’ accumulated experience
                                                                                         with and investment in repeated litigation over
     Critical Legal Theory and Social                                                    specific questions in contrast to the limited in-
                                                                                         vestments one-shotters could make (Galanter
                  Theory
                                                                                         1974).
                                                                                            While conceding that such explanations had
Traditional Marxist and American progressive                                             some value, critical legal theorists found them
thought offered one answer to the question of                                            seriously incomplete. They believed that liberal
the source of actual determinacy: the legal                                              proponents of labor law, civil rights, and other
system is ‘‘tilted’’ in favor of the powerful.                                           reforms were sincere in their assertions that
Those bodies of thought identified several pos-                                          the reforms were designed to improve the condi-
sible sources of this tilt, but even in the aggregate                                    tions of workers and others. Further, critical legal
the fact of tilt seemed not fully explained. One                                         theorists, along with many Marxist revisionists,
source was self-conscious action on behalf of                                            were convinced that class domination explan-
the interests of the powerful, construed in trad-                                        ations could not be fully satisfying when the
itional Marxist and progressive thought as refer-                                        working class and other subordinated groups
ring to the interests of capital or the wealthy.                                         were fully enfranchised. In democratic systems,
Critical legal theorists did not deny the fact of                                        why would not the legal system eventually come
occasional, and sometimes widespread, self-con-                                          to reflect the interests of the largest groups, and
scious action of this sort. They were concerned,                                         specifically of workers?
however, with the inadequacy of an account                                                  Critical legal theorists relied on two strands of
relying on self-conscious class-conscious action                                         revisionist Marxism. First, they recalled the
comprehensively.                                                                         Italian communist Antonio Gramsci’s account
   The reason for rejecting self-conscious action                                        of hegemony, which referred to various social
to explain ‘‘tilt’’ was that it failed to capture im-                                    processes that led subordinated groups to accept
portant parts of the phenomena in which critical                                         the conditions under which they found them-
legal theorists were interested. For one thing,                                          selves, or at least to believe that no alternatives
judges regularly reported, both in their opinions                                        were realistically achievable. Again, some of
and in their reflections on their work, that they                                        those processes, such as the domination of
paid attention to the law, not to class (or any other                                    the mass media by capitalists, involved self-
social) relations. Reflecting on their own legal                                         conscious action on behalf of a ruling class, but
training, and on their observations of lawyers at                                        again the account seemed incomplete. Further,
work, critical legal theorists believed that these                                       Gramsci’s specific account was too tied to
self-reports were largely accurate.                                                      the social conditions of Italy in the 1920s to be
   Perhaps more important, critical legal theorists                                      helpful.
were interested in legal reforms designed, or so                                            Critical legal theorists found the humanist
it seemed, to aid the working class and other                                            Marxism rediscovered in the 1960s valuable in
subordinated groups (Klare 1978). One could                                              completing their social theory. That theory
design class-conscious accounts of these reforms;                                        focused on the lived experience people had in
traditional Marxists could and did argue, for                                            society. Hegemony was maintained, according
example, that liberal-seeming labor law reforms                                          to critical legal theory, by accounts people came
were aimed at staving off more substantial                                               up with that made sense of their own experience.
revolutionary transformations by buying off im-                                          Particular social arrangements presented people
portant segments of labor’s leadership. Legal                                            with varying ways of experiencing the world,

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sometimes as participants in a group engaged in a
common project but more often as individuals                                             The Critique of the Public/Private
isolated from each other and pursuing their own
                                                                                                    Distinction
projects. These experiences were supplemented
by messages emanating from the media, and to-
gether experience and social reinforcement pro-                                        Aspects of the indeterminacy thesis converged
vided the basis for fantasies of social life that                                      with the phenomenological social theory in crit-
people internalized as real. Having internalized                                       ical legal theory’s critique of the distinction be-
these fantasies, people came to experience                                             tween a public world and a private domain.
existing social arrangements as natural (Gabel                                         Critical legal theory attacked the distinction
2000).                                                                                 along many fronts (Kennedy 1982). Drawing on
   This social theory retained its connection to its                                   the analytical techniques used to develop the in-
Marxist origins by its emphasis on the material                                        determinacy thesis, critical legal theorists noted
substratum of experience. Materialism, however,                                        that the so-called private sphere was defined by
did not mean determinism. Material experience                                          the actions of public agencies, and in particular by
structured the way people internalized under-                                          the courts as they spelled out the common-law
standings of social arrangements, but alternative                                      entitlements held by actors in the private sphere.
understandings were always available and made                                          For example, ‘‘the family’’ and ‘‘the market’’
choice possible.                                                                       were identified with the private sphere, but what
   As with the structure of legal doctrine, in social                                  constituted a family and what market actors had
theory too critical legal theory found a predomin-                                     power to do were the result of public definitions
ant structure of understanding and a subordinate                                       offered by the institutions of the law. A parent
one. The predominant one was individualist, cap-                                       who abused a child might be the object of public
tured by Peter Gabel’s description of people                                           intervention into the private sphere, but often a
standing in line at a bank waiting for service and                                     husband who abused a wife would be able suc-
not connecting with each other. The subordinate                                        cessfully to claim that penalizing him would be an
one came to consciousness in moments of what                                           unjustified intrusion into the private (Olsen
Kennedy and Gabel called ‘‘intersubjective zap,’’                                      1983). Wherever the line was located, public in-
and which were exemplified by the experience of                                        stitutions would draw some line between the
participating in social movements like those of the                                    family understood as a private entity and the
1960s (Gabel and Kennedy 1984).                                                        proper reach of public regulation. Again, the
   The humanist Marxism that influenced critical                                       limits on contractual freedom identified by doc-
legal theory’s social theory was another reason                                        trines like fraud and mistake showed how market
critical legal theorists had for rejecting the trad-                                   freedom resulted from actions in the public arena.
itional Marxist explanation for tilt as a result of                                    In the study of constitutional law, critical legal
self-conscious bias. Traditional Marxism was                                           theorists argued that the well-known incoherence
simply too determinist to be plausible to critical                                     of the state action doctrine resulted from that
legal theorists. In the domain of law in particular,                                   doctrine’s inevitably unsuccessful effort to iden-
Marxist determinism was thought to be inconsist-                                       tify the line dividing the public from the private,
ent with the implications of the indeterminacy                                         when that line could be identified only by a public
thesis. According to traditional Marxists, the                                         institution, the courts, in implementing the state
logic of capital – the material base – determined                                      action doctrine.
the superstructure, including law. The critical                                           The phenomenological version of critical legal
legal analysis of property law showed, however,                                        theory’s social theory supported the critique of
that law was part of the base to the extent that it                                    the public/private distinction. People experi-
defined the property relations that constituted                                        enced themselves as isolated individuals with pri-
capitalism as an economic system. Humanist                                             vate complaints that they could not, without
Marxism allowed critical legal theory to reject a                                      substantial assistance, turn into public ones.
determinism that seemed incompatible with the                                          Those who experienced racial discrimination saw
theory’s analysis of law.                                                              themselves as victims, but doing so leads people

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to try to identify the perpetrators of their victim-
                                                                                                          Policy ‘‘Implications’’
hood (Freeman 1978). The phenomenology of
discrimination, that is, leads to a focus on individ-
ual actors, both victims and perpetrators, rather                                        That critical legal theory’s recommendations
than to a focus on the structural sources of dis-                                        about what to do at the moment of choice were
crimination of the sort that traditional Marxists                                        ungrounded led to another line of criticism, this
might identify. An important argument by Alan                                            one a criticism to which critical legal theory’s
Freeman pointed out that the courts tended to                                            social theory responded. As one sympathetic ob-
take the perpetrators’ perspective in assessing                                          server put it, the question that killed critical legal
claims of discrimination, but from the point of                                          studies was, ‘‘What would you do?’’ (Fischl
view of critical legal theory’s social theory, it                                        1992). That is, critics of critical legal theory
would have been equally problematic had the                                              wondered what concrete policy proposals critical
courts taken a perspective understood to be that                                         legal theorists offered.
of victims seen as individuals subject to discrimin-                                        In several senses, the question was misplaced.
ation one by one.                                                                        Works in critical legal theory made scores of con-
   The phenomenological social theory also                                               crete policy suggestions, ranging from endorsing
helped explain the component of the indetermin-                                          liberal versions of property/contract law such as
acy thesis emphasizing the juxtaposition of dom-                                         finding an implied warranty of habitability in
inant and subordinate concepts. To take one                                              leases to impoverished tenants (Kennedy 1976),
example, critical legal theory found in contract                                         to suggestions about the way in which national
law a dominant concept of free choice and a sub-                                         labor law should be interpreted (Klare 1978), to
ordinate one of force and fraud. But, according to                                       proposals for large-scale constitutional changes
critical legal theorists, on analysis much that was                                      that included creating a branch whose task was
characterized in the law as free choice could be                                         to be available to destabilize settled understand-
equally well characterized as the result of force                                        ings of the law (Unger 1987). The difficulty,
and fraud, depending only on the scope of what                                           according to critical observers, was that these
the analyst took into account in examining the                                           proposals were either entirely conventional, re-
problem. An impoverished worker could be said                                            quiring nothing from critical legal theory to
to have made a free choice to accept a job                                               support them, or wildly utopian, unachievable
with unsafe working conditions, for example. It                                          in present circumstances or even in realistically
became possible to see the decision to take the job                                      foreseeable ones.
as one forced on the worker, once one’s vision                                              Proponents of critical legal theory made con-
expanded to include the worker’s material condi-                                         crete policy proposals, but they did so on under-
tions. In repudiating its earlier jurisprudence en-                                      standings quite different from those of their
forcing a constitutionally based freedom of                                              interlocutors. To some extent, the proposals
contract, the Supreme Court understood the                                               were designed to expand the range of things
point by characterizing a world without a min-                                           that legal theorists could consider. Too often,
imum wage as one in which the community pro-                                             critical legal theorists believed, law was seen as
vided a ‘‘subsidy for unconscionable employers’’                                         compelling particular policy choices, or at least
(West Coast Hotel v. Parrish 1937). Workers did                                          as sharply narrowing the range of outcomes that
not freely choose to work for low wages; they                                            could be achieved in a manner consistent with
were forced to do so by the distribution of prop-                                        existing legal materials. The indeterminacy thesis
erty rights that gave their employers great wealth                                       demonstrated that these claims of necessity were
and the workers very little. The phenomeno-                                              false. One point of the policy proposals was to
logical social theory explained the concepts of                                          pose the question: what in the existing legal ma-
free choice and force and fraud as social constructs                                     terials rules out this proposal? When the answer
arising from the way in which people interpreted                                         was, ‘‘Nothing,’’ critical legal theorists turned
their material conditions.                                                               to social theory to account for the unnecessary



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restriction of policy argument. Critical legal the-                                    to vindicate rights – moral, constitutional, and
ory’s distinctive policy proposals may have been                                       other – on behalf of socially subordinated groups.
utopian, but – although critical legal theorists                                       Brown v. Board of Education (1954), the desegre-
would have been happy had the proposals been                                           gation decision, and Roe v. Wade (1973), the
adopted – the proposals’ point was to expose that                                      abortion decision, loomed large in the minds of
their utopianism resided in social arrangements,                                       progressive legal scholars.
not in the legal materials.                                                               The critique of rights posed a sharp challenge
   Critical legal theory’s social theory had another                                   to the prevailing image of legal possibility. It
implication, related as well to the question of                                        seemed to place Brown and Roe in question,
policy proposals. The theory’s interlocutors                                           suggesting that these triumphs of liberal legal
wondered what proposals flowed from critical                                           activism were somehow inconsistent with en-
legal theory. The indeterminacy thesis and the                                         during achievements for progressive law and
social theory associated with critical legal theory                                    politics.
answered that nothing flowed from the theory in                                           The critique of rights questioned the utility of
the sense required. The question assumed some                                          making claims of legal right on a number of
degree of legal or social determinacy, an assump-                                      grounds. First, the indeterminacy thesis sug-
tion that critical legal theory rejected. All that                                     gested to critical legal scholars that rights-claims
could be done in any specific situation was to                                         were a double-edged sword. There was no reason
engage in an extremely detailed analysis of the                                        to suppose, they argued, that courts would vindi-
interests at stake, the possibilities of change, the                                   cate only rights-claims made by subordinated
social setting, and much more; serious policy                                          groups. Seeing hints in the late 1970s and early
proposals could emerge only from such fine-                                            1980s of possibilities that came to fruition in the
grained analyses, and even then decision makers                                        1990s, the critique of rights worried that strong
were highly likely to find themselves at a point                                       defenses of courts as rights-protectors would turn
when they would simply have to make a pure                                             against progressives when the courts started to
choice. So the questions being asked of critical                                       vindicate the rights of whites in affirmative action
legal theory demonstrated, to the critical legal                                       cases, and property owners in cases involving
theorists, a deep lack of understanding of the                                         claims that government regulation amounted to
theory itself.                                                                         a taking of primate property.
                                                                                          Second, the critique of rights found in the
                                                                                       slogan, ‘‘Law is politics,’’ another danger in reli-
                                                                                       ance on rights-claims in the judicial arena. Such
               The Critique of Rights
                                                                                       claims could trigger counter-claims of right-
                                                                                       invasion by political opponents. More important,
The indeterminacy thesis and the phenomeno-                                            framing political claims in legal terms naturally
logical arguments about the ways in which people                                       induced activists to seek redress in courts, dimin-
created images of legality to reconcile themselves                                     ishing the attention they could devote to other
with their social positions combined in one of                                         arenas of political action such as legislatures and
early critical legal theory’s most controversial                                       the streets. But, courts were not a reliable source
claims, described as the critique of rights (Tushnet                                   of rights-protection. Even when courts took the
1984). Critical legal theory was created after the                                     progressive side in identifying rights-violations,
US Supreme Court had begun to repudiate its                                            actually implementing the courts’ decisions re-
earlier interventions on behalf of liberal interests                                   quired a mobilized political community whose
in cases involving race and social welfare. Those                                      development might have been impaired by
interventions remained important in the legal                                          the dominance of lawyers pursuing the rights
academy’s understanding of the possibilities of                                        strategy.
legal, and particularly judicial, action in support                                       Third, the critical legal scholars’ phenomen-
of progressive visions of social justice. Among                                        ology led them to believe that, at least in the
those possibilities was the use of the legal system                                    context of the United States in the late twentieth


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century, claims about rights were likely to re-
inforce an individualism that they believed stood                                        Critical Feminist Theory and Critical
in the way of developing community solidarities
                                                                                                     Race Theory
that could generate more substantial progressive
change. The dominant concepts in constitutional
law in particular were strongly individualist. The                                       The minority response to the critique of rights
rhetoric of Brown focused on the rights of each                                          was only the beginning of a proliferation of crit-
individual African American child to attend                                              ical legal theories, including critical race theory
school without regard to his or her race; Roe                                            and critical feminist theory. These theories de-
relied on an earlier case saying, ‘‘If the right of                                      veloped in ways that led to some significant diver-
privacy means anything, it is the right of the indi-                                     gences from early critical legal studies, and here I
vidual . . . to be free from unwarranted govern-                                         emphasize only themes in later analyses that res-
mental intrusion’’ (Eisenstadt v. Baird, 1972).                                          onate with ones articulated in early critical legal
Critical legal theorists believed that the individu-                                     theory.
alism of a rights-based strategy occluded the                                               Critical feminist theory and critical race theory
underlying social conditions, including social                                           generally accepted the indeterminacy thesis, but
mobilization, that actually induced courts to                                            offered different social-theory accounts for the
recognize rights.                                                                        way in which legal outcomes were structured.
   Related to this last point was a fourth one,                                          Focusing on the subordinate position of women
deriving from the phenomenological social                                                and racial minorities in society, they found it easier
theory. Rights-strategies on behalf of progressive                                       to accept accounts of domination cast in terms of
interests took advantage of, but were also infected                                      the immediate self-interest of dominant groups,
by, the prevailing view of people as individuals                                         that is, men and whites. See F O U R T H E M E S I N
with rights that resided in themselves as em-                                            F E M I N I S T L E G A L T H E O R Y . Ideological domin-
bodied persons, a view most obviously compat-                                            ation was less important (relative to coercion) in
ible with the claims of women in the abortion                                            accounting for the maintenance of the dominant
cases. But, the critique of rights argued, rights-                                       position of whites and men over racial minorities
claims were made against the state, and led people                                       and women than it was in accounting for
to experience rights as something conferred on                                           class-based domination. Still, some notion of
them by a fantasized ‘‘state’’ rather than as a set of                                   ideological domination or hegemony remained
lived experiences arising out of social relations of a                                   helpful to these theories, to deal with the ways in
particular sort.                                                                         which apparent legal reforms nonetheless pre-
   The critique of rights elicited a strong reaction                                     served existing relations of power (Siegel 1997).
from minority legal scholars who were part of the                                           Critical race theory and critical feminist theory
rough social formation – leftist, non-liberal legal                                      also developed a better method than early critical
theorists – that included the early critical legal                                       legal theory had for conveying the role that phe-
scholars (Williams 1987). The minority response                                          nomenology played in their theory’s social
was that the critique of rights undervalued the                                          theory. That method was the narrative of personal
contribution rights-claims had made to reducing                                          experience. Narrative and a phenomenologically
social subordination and, perhaps more import-                                           focused social theory fit comfortably with the
ant, failed to take account of the ways in which                                         identity politics to which critical race theory in
judicial recognition of rights provided minority                                         particular was connected. Mainstream critics of
communities with a sense of full membership in                                           these theories derided the narrative method for
the nation even if the rights were imperfectly                                           failing to show that individual experiences were in
implemented. The latter point, if not the former,                                        some statistical sense typical of the experiences of
was actually compatible with the indeterminacy                                           members of the social groups from which the
thesis and, indeed, with the critique of rights                                          narratives emerged (Farber and Sherry 1997).
itself, and this aspect of the minority response to                                      That criticism, however, failed to appreciate
early critical legal theory became an accepted part                                      the role that narrative played in critical theory.
of critical legal theory generally.                                                      Early critical legal theory had presented its

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phenomenological accounts in highly theorized                                          Critical race theorists argued that racial categories
and abstract forms, invoking Freud and Sartre.                                         were constructed through processes by which
The narrative form proved more effective in es-                                        people were ‘‘raced,’’ that is, given races by the
tablishing the importance of phenomenology in                                          societies in which they were located. Skeptics of
constructing a social theory that made sense of                                        the argument that ‘‘free choice’’ was a socially
claims about the processes by which ideological                                        constructed category may have found it easier to
domination or hegemony was constructed.                                                accept the idea that ‘‘race’’ was a socially con-
   Critical race theorists redirected the early crit-                                  structed category.
ical legal theorists’ concerns about the priority
given a universalist individualism in mainstream
legal theory. Early critical legal theory argued that
                                                                                                                  The Legacy
individualism predominated over group-oriented
approaches in much of existing law. Critical race
theorists refined the analysis by pointing out that                                    By the late 1990s proponents and opponents of
the subordinated concept of ‘‘group’’ actually                                         critical legal theory often observed that that
identified a far more differentiated social reality.                                   theory was ‘‘dead.’’ Precisely what they meant
They were particularly effective in pointing out                                       was unclear. Critical legal theory had generated
the importance of what they called intersectional-                                     an organization, the Conference on Critical Legal
ity, by which they meant the legal treatment and                                       Studies, that had indeed passed from the scene.
social status of collectivities composed of people                                     Yet writers who had been prominent in the devel-
with two or more subordinated identities, such as                                      opment of critical legal studies continued to pro-
African American women or Asian American gay                                           duce works that were plainly consistent with the
men (Crenshaw 1989).                                                                   premises of early critical legal theory. The claims
   The idea of intersectionality reinforced another                                    notoriously associated with critical legal theory –
component of early critical legal theory. That                                         that ‘‘law is politics,’’ the indeterminacy thesis,
theory’s non-determinist component led pro-                                            the critique of rights, the critique of the public/
ponents of critical legal theory to insist that one                                    private distinction – had entered into mainstream
could not answer questions about what should be                                        discourse, sometimes achieving widespread ac-
done, whether cast in terms of general policy-                                         ceptance in modestly qualified forms (as with
making or in terms of case outcomes, in the ab-                                        the indeterminacy thesis) and sometimes becom-
stract. As I noted earlier, only a highly contextual-                                  ing at least a proposition that mainstream theor-
ized analysis could begin to provide decent                                            ists had to take seriously (as with the critique of
guidance on those questions. The idea of inter-                                        rights). Critical feminist theory and critical race
sectionality helped critical legal theorists ap-                                       theory were active areas of scholarship as well.
preciate again the complexity of social life by                                           What it meant to say that critical legal theory
broadening the range of the groups whose social                                        was dead, then, was that critical legal theory did
and legal subordination they opposed, thereby                                          not appear to be generating distinctive new in-
demonstrating why analysis had to be highly                                            sights. Perhaps so, although much the same could
contextualized.                                                                        be said of many well-established approaches to
   Critical race theory made another important                                         legal analysis, such as Chicago-school law-and-
contribution in clarifying and providing perhaps                                       economics and even liberal legal theory. Some
more persuasive examples of the social construc-                                       younger scholars applied the ideas and insights
tion of legal concepts than early critical legal                                       associated with early critical legal theory in their
theory had. The critical race theorists’ insight                                       work on legal areas to which prior authors had
was captured by the term race-ing (introduced                                          devoted little attention, such as disability discrim-
by Kendall Thomas at a conference on Frontiers                                         ination, copyright law, and local government law.
of Legal Thought in 1990). The analysis offered                                        In short, critical legal theory was not, I think,
by mainstream legal theory, and even by some                                           moribund relative to any other sub-field of legal
early critical legal theorists, treated racial categor-                                thought. It had become one of many analytic
ies as natural, at least in their core meanings.                                       techniques available to legal scholars.

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                               References                                                Kennedy, Duncan. 1982. The stages of the decline of
                                                                                           the public/private distinction. University of Pennsyl-
Brown v. Board of Education. 1954. 347 US 483.                                             vania Law Review 130: 1349–57.
Crenshaw, Kimberle Williams. 1989. Demarginalizing                                       Kennedy, Duncan. 1986. Freedom and constraint in
  the intersection of race and sex. University of Chicago                                  adjudication. Journal of Legal Education 36: 518–62.
  Legal Forum 1989: 139–67.                                                              Kennedy, Duncan. 1997. Critique of Adjudication: Fin
Eisenstadt v. Baird. 1972. 405 US 438.                                                     de Sie`cle. Cambridge, MA: Harvard University Press.
Farber, Daniel and Sherry, Suzanna. 1997. Beyond All                                     Klare, Karl E. 1978. Judicial deradicalization of the
  Reason. New York: Oxford University Press.                                               Wagner act and the origins of modern legal conscious-
Fischl, Richard Michael. 1992. The question that killed                                    ness, 1937–41. Minnesota Law Review 62: 265–339.
  critical legal studies. Law & Social Inquiry 17:                                       Olsen, Frances E. 1983. The family and the market.
  779–820.                                                                                 Harvard Law Review 96: 1497–1578.
Freeman, Alan. 1978. Legitimizing racial discrimin-                                      Roe v. Wade. 1973. 410 US 113.
  ation through antidiscrimination law. Minnesota                                        Siegel, Reva. 1997. Why equal protection law no longer
  Law Review 62: 1049–1119.                                                                protects. Stanford Law Review 49: 1111–48.
Gabel, Peter. 2000. The Bank Teller and Other Essays                                     Tushnet, Mark. 1984. An essay on rights. Texas Law
  on the Politics of Meaning. San Francisco: Acada                                         Review 62: 1364–1403.
  Books.                                                                                 Tushnet, Mark. 1991. Critical legal studies: A political
Gabel, Peter and Kennedy, Duncan. 1984. Roll over                                          history. Yale Law Journal 100: 1515–44.
  Beethoven. Stanford Law Review 36: 1–55.                                               Tushnet Mark. 1996. Defending the indeterminacy
Galanter, Marc. 1974. Why the ‘‘haves’’ come out                                           thesis. Quinnipiac Law Review 16: 339–56.
  ahead. Law & Society Review 9: 95–160.                                                 Unger, Roberto Mangeibera. 1987. False Necessity.
Kairys, David. 1982. The Politics of Law, 1st edn. New                                     New York: Cambridge University Press.
  York: Pantheon.                                                                        West Coast Hotel v. Parrish. 1937. 300 US 379.
Kennedy, Duncan. 1976. Form and substance in private                                     Williams, Patricia J. 1987. Alchemical notes: Recon-
  law adjudication. Harvard Law Review 89:                                                 structing ideals from deconstructed rights. Harvard
  1685–1778.                                                                               Civil Rights-Civil Liberties Law Review, 22: 401–33.




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----------------------------------- Chapter 6 ----------------------------------

                   Four Themes in Feminist
                   Legal Theory: Difference,
                   Dominance, Domesticity,
                          and Denial
                                                    Patricia Smith
Feminist jurisprudence is a comparatively new                               version, and containment that pose barriers to
discipline that grew out of the women’s liberation                          reform. This chapter will review three basic
movement of the late 1960s and 1970s. At that                               themes that have focused much feminist legal
time a relatively large number of women (as com-                            scholarship since the 1980s: difference, domin-
pared to previous decades) entered the profession                           ance, and domesticity.
of law and related academic pursuits, some with                                These general themes, and especially certain
the idea of using law to correct the unjust and                             particular issues within them, have at times been
unequal treatment of women that was widely evi-                             extremely controversial and public. We might call
dent at the time. The puzzle of why women are                               these public debates ‘‘spotlight controversies.’’
treated unequally, why this injustice is so com-                            Issues of abortion, pornography, affirmative
monly invisible to so many in power, why it per-                            action, sexual harassment and date rape have all
sists even when identified, and what it will take                           had some share of the spotlight. But the level on
to change it has become the subject matter of                               which these issues have been debated in the
feminist legal theory.                                                      public eye (as opposed to discussion in law jour-
    But the approach to this subject matter has                             nals or academia) has often been emotional and ill
evolved over time. In the 1970s activists argued                            considered, pandering to the public enjoyment of
that for all legally relevant purposes men and                              sensationalism and oversimplification.
women were equal and should be so treated in                                   Many of these discussions illustrate clearly what
law. By the 1980s feminist scholars undertook to                            Deborah Rhode calls the ‘‘no problem’’ problem.
analyze and evaluate the legal structures that                              Date rape and sexual harassment are clear cases of
retarded justice for women instead of promoting                             one variety. Despite alarming statistics it is
it. Thus, feminist legal theorists began by arguing                         asserted that date rape and sexual harassment
simply for the inclusion of women in all social                             either are rare or are not harmful. Women exag-
practices as they stood, and progressed to a cri-                           gerate their claims about these matters, it is said.
tique of those practices and legal norms. Today                                Affirmative action represents a different sort of
feminist jurisprudence is focused on law in three                           denial. Some opponents say it was always unjusti-
distinctive ways: first, to identify sources of bias                        fied in principle as reverse discrimination, while
and injustice within it; second, to find ways to use                        glossing over the seriousness of the discrimin-
it as a means to promote justice for women in                               ation it is supposed to counter. Others claim
other institutions and social practices; and third,                         that it was once justified as a countermeasure to
to identify and overcome devices of denial, sub-                            sex discrimination, but now that sex discrimin-

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ation is pretty much a thing of the past (at least as                                      terms of the debate, a common sign of outsider
rare as sexual harassment and date rape) there is                                          status.
no more justification for affirmative action. In her                                          Martha Minow (1987) characterized this kind
book, Speaking of Sex: The Denial of Gender In-                                            of problem as ‘‘dilemmas of difference.’’ Where
equality (1997), Rhode provides a well-                                                    difference means disadvantage, she pointed out,
documented and encyclopedic account of many                                                the courts reinforce the disadvantage either by
sources of the continuing subordination of                                                 ignoring the difference or by acknowledging it.
women and the denial of its existence. Hers is                                             If the disadvantage is acknowledged so as to ad-
the most comprehensive treatment of a subject                                              dress it or compensate for it, the acknowledge-
receiving increasing attention in recent scholar-                                          ment reinforces stereotypes that perpetuate the
ship, namely, the identification of sources of sub-                                        disadvantage. If the court denies the stereotype, it
version and containment or reinterpretation and                                            is then prone to ignore the disadvantage,
reversal of women’s claims to equality. As I review                                        leaving the cost with the victim. Thus, we have
the three major themes of difference, dominance                                            something close to a no-win situation for
and domesticity, I will also bring in the issue of                                         courts as well as for women unless the issue is
denial as an emerging area, or fourth theme of                                             reformulated.
increasing importance in feminist legal thought.                                              Minow argues that such dilemmas rely on un-
                                                                                           stated assumptions about the nature of difference
                                                                                           that must be transcended to enable the courts to
   The Double Bind of Sameness and                                                         formulate more creative solutions to the problem
                                                                                           of equal treatment in cases of difference. Courts
             Difference
                                                                                           typically reason from an unstated norm that un-
                                                                                           critically assumes the status quo. This implies that
The debate over sameness and difference (of men                                            the status quo is natural, uncoerced, and good, or
and women) may be viewed as a question mark. It                                            perhaps inevitable, but in fact it is simply not
is either a complete diversion – that is, an instance                                      considered. From this vantage point the perspec-
of feminists themselves being sucked into trad-                                            tive of the judge takes on the aspect of the impar-
itional norms that we have all been socialized to                                          tial observer, neutral and objective, rather than
value and perpetuate – or it is a primary instance                                         one possible perspective among many; and the
of the double bind encountered by outsiders who                                            difference of the outsider to the norm seems to
seek to reform a system by criticizing the very                                            be a characteristic of the outsider rather than a
procedures that they themselves must use to ac-                                            relation between the outsider and the unconsid-
complish their desired reforms. Possibly it is both.                                       ered insiders who represent the norm. Thus,
I will begin with the latter.                                                              women (or the disabled, or people practicing
   Ann Freedman’s 1983 essay, ‘‘Sex Equality, Sex                                          non-Christian religions) are characterized as dif-
Difference, and the Supreme Court,’’ marked the                                            ferent. But women are no more different from
beginning of an avalanche of articles debating                                             men than men are from women. Any difference is
claims of sameness and difference during the                                               relational. If women appear to present ‘‘special’’
1980s, that focused primarily on the issue of                                              issues in the workplace, it is only because the
pregnancy leave. The double bind of that debate                                            norm from which they are being judged has
was that assuming equal treatment means identi-                                            been formulated by and for men (Minow 1987).
cal treatment (i.e., sameness) then, if both men                                           From analyses like Minow’s the insight emerged
and women have no pregnancy benefits they are                                              that there was no reason to call rights to preg-
being treated equally; so equality in this case                                            nancy benefits ‘‘special rights’’ or ‘‘special treat-
means disadvantage for women. On the other                                                 ment’’ unless the norm against which they were
hand, if women argue against the disadvantage it                                           being judged was male. There is nothing extraor-
is viewed as special pleading, asking for special                                          dinary or ‘‘special’’ about a woman being preg-
treatment, which means better treatment, extra                                             nant, since most women do experience this
favors. This, obviously, is a no-win debate for                                            condition at some time during their working
women. It results from not being able to set the                                           lives. In that regard it is less extraordinary than,

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say, appendicitis or a broken leg. Thus, the very                                How, exactly, such a view should be used in law
construction of the debate as a question of either                           to promote the rights of women is a good ques-
equal or special rights is a false dichotomy that is                         tion. Unsurprisingly, it has in fact been used for
slanted against women.                                                       the opposite end. For example, in the case of
   This is an important insight because it illus-                            EEOC v. Sears (1986), testimony of feminist
trates that norms themselves must be evaluated,                              scholars citing Gilligan’s work was used to coun-
and not just taken as given, or assumed to be                                ter a claim of employment discrimination for
neutral. So most feminists today view the idea of                            hiring and promotion practices that automatically
equal rights versus special rights as a misguided                            funneled women into low paying, dead end
formulation of the problem that needs to be tran-                            clerking positions rather than higher paying com-
scended. Yet the debate over sameness and differ-                            mission sales positions, even when they applied
ence has continued, and has influenced feminist                              for commission sales. The ground was that
legal scholarship in a broad range of areas.                                 women are not interested in such work (even if
   In particular, the work of Harvard psychologist                           they apply for it) because women (being nurtur-
Carol Gilligan (1982) has had a certain impact                               ing and caring) do not like competition. Such
in feminist jurisprudence, as it has had in all areas                        cases show how close Gilligan’s portrait of
of feminism. What is positive in Gilligan’s view                             womanhood is to the Victorian standards of
is its defense of humane values associated with                              middle-class motherly matrons, and how easy it
women’s traditional roles: concern, sympathy,                                is to interpret them for exactly the same nine-
nurturing. These are indeed significant values                               teenth-century effect: the subordination of
that should not be abandoned in the quest for                                women. Of course, it does not follow that Gilli-
equality.                                                                    gan’s theory is false (or true), but it does follow
   What is troubling about Gilligan’s view is that                           that it is dangerous.
it looks like a reinstatement of traditional                                     Thus, the problem with Gilligan’s view is that
norms. Not only does Gilligan celebrate trad-                                while it correctly identifies important values, it
itional ‘‘female virtues,’’ she specifically re-                             focuses the issue of difference in exactly the
attaches them to women. She argues that men                                  wrong direction. Values are learned, and it is not
and women think differently and value differ-                                women who need more socialization to learn to
ently, men tending to operate from an abstract                               identify with values of care and nurture, but men.
‘‘ethic of justice,’’ while women tend to utilize a                          (Women should be learning to identify with
contextual ‘‘ethic of care’’ (Gilligan 1982).                                values of accomplishment and self-sufficiency.)
   There is nothing very new about this set of                               All these values are universal and should be re-
ideas. Pythagoras thought more or less the same                              flected in a balanced set of virtues for all people.
thing. It fits quite nicely within his theory of                             Thus, the identification of certain values with
oppositions. These ideas have been the founda-                               women (especially the values associated with trad-
tion of sexist prejudice for thousands of years,                             itional motherhood) is much too susceptible to
except for one important difference. Gilligan’s                              abuse to be useful in legal analysis. It reinstates
point is that thinking and valuing one way is no                             the old self-reinforcing idea that certain virtues
better than the other. We need to appreciate                                 are natural for women and certain others are
both. That is an important point, which unfor-                               natural for men (no matter how many individuals
tunately seems all too easily overlooked or                                  do not really fit the paradigm). From there it is
ignored. Furthermore, Gilligan’s view creates                                only one short step to the idea that it is only
the impression that women as a class think and                               natural that roles should be different as well, and
value differently from men as a class, which                                 it follows that the requirements of justice will also
borders precariously on the old, discredited, es-                            be different. This was exactly the conclusion
sentialist idea that men and women necessarily                               drawn in Sears, as applied to employment discrim-
think and value differently. While Gilligan denies                           ination. Indeed, the idea of difference has mani-
that she is making any such essentialist claims,                             fested itself in the form of prejudice in virtually
she uses language throughout her book that is                                every area of life and law for centuries, and con-
easily mistaken for it.                                                      tinues in the present day. Nowhere is this kind of

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problem more evident than in the ongoing war                                               important about feminist work on the issue of
over abortion.                                                                             difference (despite its obvious inherent practical
    Abortion is the ultimate spotlight controversy.                                        dangers for women) is that ultimately the mean-
It is extremely important, rests on fundamental                                            ing of equality and justice in cases of difference
disagreement, and is prone to produce volatile,                                            must be worked out. Some differences are real;
ill-considered, and generally unproductive                                                 yet difference should not mean disadvantage. It
debate, rather than thoughtful discussion. It is                                           should not, but it certainly does at present, as
noteworthy, however, that abortion is much                                                 is clearly displayed in the other two themes of
more controversial outside feminism than within                                            feminist legal theory.
it. Within feminist theory abortion is a funda-
mental issue of self-determination for women. If
the determination of the use of one’s body is
controlled by someone else (such as the state),                                                Dominance, Feminism, and Legal
then every other source of self-determination is
                                                                                                        Protection
seriously jeopardized. The jurisprudential con-
troversy is over whether the best foundation on
which to base a right of self-determination in                                             Not only are women traditionally viewed as dif-
regard to abortion is privacy or equality. This is                                         ferent, but also as subordinate, and this subordin-
an interesting legal question, both sides of which                                         ate status is enforced not only by institutional
have pros and cons that have been carefully ex-                                            structures, but also by widespread personal inter-
plored in feminist legal scholarship (see e.g.,                                            actions and social practices of coercion and vio-
Olsen 1989; Law 1984; see also P R I VA C Y ).                                             lence. These attitudes and practices are being
    Of course, the spotlight issue has not been this                                       combated by activists, but are yet widely dis-
one, but whether abortion should be allowed or                                             counted in law and largely denied in popular
not in any case, an issue which is said to be deter-                                       discourse. ‘‘Male dominance’’ is often considered
mined by the answer to the question of when life                                           a laughable topic these days, reserved for radical
begins. Most of this controversy is not about                                              feminist fanatics, but its effects – domestic vio-
jurisprudence. The intensity and intractability of                                         lence, sexual harassment, and rape – are serious
it does, however, represent the depth of under-                                            social problems. The theme of dominance in
lying disagreement and ambivalence toward the                                              feminist jurisprudence reflects what early
entire agenda of feminism and feminist jurispru-                                           radical feminists called the ‘‘construction of
dence. The significance of the sameness/dif-                                               gender’’ (or sexuality) as male domination and
ference controversy in all this is that the                                                female subordination. It is manifested in the an-
‘‘difference’’ of women is exactly what makes                                              cient game of the male predator and the female
the requirements of justice ‘‘different’’ for                                              prey, in the identification of masculinity with
them, and the idea of equality (supposedly) in-                                            power and femininity with submission. It impli-
applicable. In the case of abortion it means that                                          cates a deep-seated set of preconceptions about
since women are ‘‘different’’ (namely, mothers),                                           the nature of human life and the relative hierarch-
self-determination is not fundamental for them.                                            ical positions of men and women within it.
They are precluded from it by nature.                                                         This attitude is reflected in long-standing prac-
    Feminists argue that nature may make men and                                           tices of violence and coercion that feminists have
women different, but it is not nature that makes                                           sought to correct through legal reform and edu-
the difference redound to the advantage of men                                             cational programs. During the 1970s the primary
and the disadvantage of women. Nature made                                                 focus of dominance feminists was rape and sexual
some human beings black and others white, but                                              harassment, but these issues were eclipsed in the
it was not nature that made some slaves and                                                public discourse of the 1980s by debates over the
others masters. Such differential valuations and                                           issue of pornography, a spotlight controversy that
effects are created and maintained by unjustifiable                                        I will not dwell on here. While feminist concern
physical, social, and legal structures premised on                                         over pornography is understandable, the political
the excuse of difference. Consequently, what is                                            and practical effect of the public controversy

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can only be described as divisive and counterpro-                            hard to see what to do about such a global phe-
ductive for the cause of women’s liberation. Fur-                            nomenon as ‘‘male domination as such.’’ But
thermore, the theoretical positions espoused                                 rape, battery, and sexual harassment are specific
by feminists on this issue are so diametrically                              illegal behaviors. They can be addressed, if taken
opposed to one another that there cannot be                                  seriously. Recent scholarship suggests that radical
said to be a single feminist position on it. Finally,                        feminists are correct that it is the pervasive en-
given its apparently irresolvable character (like the                        trenched tradition of male domination that makes
abortion controversy), it functions as a distraction                         the reaction to rape, harassment, and battery less
from issues that might otherwise be confronted                               than it should be, that facilitates attitudes of
and addressed, despite their controversial nature.                           denial and dismissal, and consequently retards
   I will accordingly concentrate on some of these                           reform. However, the radicals are not correct to
other issues. Three serious problems that clearly                            suppose that no social progress can be made until
represent three sources of entrenched enforce-                               the worldview is changed. Progress is being made
ment mechanisms for male domination, as well                                 (slowly but actually). Furthermore, the only way
as clear illustrations of the problem of denial are                          to address the basic attitude – the largely uncon-
sexual harassment, domestic violence, and rape.                              scious presumption of male dominance as normal
In the interest of space I will focus primarily on                           – is to attack its manifestations, while recognizing
feminist legal scholarship regarding the rape issue                          that they are effects of a pattern of normal life and
as representative of this area.                                              thought that reformers must be dedicated to
    Sexual and marital arrangements reflect who                              changing. Thus, the response to male domination
we are as individuals and as a culture. They repre-                          as a worldview can only be to redouble reform
sent the most intimate of our personal relations,                            efforts to counter its causes and effects, but those
as developed over centuries of civilization. For all                         efforts must take the pattern of domination into
those centuries until the twentieth, male domin-                             account and address it in explicit measures
ation was a given. The natural order of social life                          designed to counteract the underlying attitudes
and the proper relations between the sexes have                              that have undercut the effectiveness of previous
always been viewed as hierarchical. The paradigm                             attempts at reform.
of manhood is power; and the paradigm of                                        Recognition of these points is well illustrated in
womanhood is subordination to that power.                                    recent feminist work on the issue of rape. Stephen
   These attitudes are manifested in both social                             Schulhofer’s book, Unwanted Sex: The Culture of
and aesthetic norms: standards of beauty, style,                             Intimidation and the Failure of Law (1998), is a
manner, courtship, courtesy, masculinity and                                 good example. Schulhofer notes that reforms to
femininity, attractiveness, and appropriateness of                           rape law over the past 50 years have largely failed.
behavior, as well as work roles, family responsi-                            For example, alarmingly low conviction rates in
bilities, social and political organization, the                             rape cases that prompted the American Law In-
nature of authority, and the structure of institu-                           stitute to attempt to encourage reforms during
tions. They also manifest themselves in sexual                               the 1950s have not substantially changed despite
harassment, domestic violence, and rape, and                                 decades of repeated reform efforts. In 1975 the
they are expressed in pornography as well as in                              National Task Force on Rape led to further statu-
mainstream media, especially commercial                                      tory reform in some states, and continuing femi-
media. Those feminists (e.g., MacKinnon 1993;                                nist activism has promoted widespread legal
Dworkin 1979) who have been particularly con-                                change in certain respects (e.g., the introduction
cerned about pornography see it as an expression                             of rape shield laws, the demise of the cautionary
and reinforcement of the attitude of male domin-                             instruction to juries, and the easing of the resist-
ance that results in rape, harassment, and vio-                              ance requirement). Yet studies in several states
lence. That these are manifestations of male                                 during the 1990s showed little impact: no in-
dominance is a point that is widely ignored or                               creased reporting, prosecution, or conviction
denied, perhaps because it is more comfortable                               rates were indicated (Schulhofer 1998:18ff.).
to marginalize these problems by disassociating                                 Because of all this legal activity (and despite the
them with ‘‘normal life,’’ or perhaps because it is                          recent reports of its ineffectiveness) there is a

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myth of radical change, Schulhofer explains. It is                                            Second, social attitudes about sex, sexuality,
assumed that the legal problems have been cor-                                             and rape are ambivalent, confused, and perva-
rected. So the social problem is denied. Backlash                                          sively biased to favor traditional notions of sexual
writers claim that women themselves are to blame                                           relations. The result is that genuine legal reform
for engaging in careless behavior. The behavior of                                         (that is, legal reform that would reflect a recogni-
abusive men is viewed as inevitable. Acquaintance                                          tion of equal rights to sexual autonomy) is almost
(or date) rape is dismissed as simply bad sex. And                                         precluded from possibility, and even the partial
the complaints of feminists are treated as special                                         reforms that are instituted are interpreted to cor-
pleading. (See e.g., Paglia 1992; Roiphe 1993.)                                            respond to traditional ideas. This social ambiva-
But in fact, as Schulhofer so ably demonstrates,                                           lence indicates the great need for clearer legal
the law has not been corrected effectively, the                                            standards to counter harmful behavior, Schulho-
protection against rape is virtually as weak and                                           fer argues. And since attitudes are in flux, reform
restricted as it was in 1950, and consequently                                             is not impossible.
women are at risk of sexual assault in all areas of                                           Rape law is pervaded by two abiding concerns:
life without genuine recourse to legal protection                                          protecting the male interest in pursuing sexual
of their basic interest in bodily integrity.                                               intimacy, and fear that women could bring false
   Schulhofer suggests that this situation is due                                          charges against them. These are legitimate con-
to two factors that reinforce each other. First,                                           cerns, but there is virtually no recognition
the law as currently written is grossly inadequate                                         of women’s competing interest in self-
to protect the interest it is supposedly designed                                          determination of their own intimate relations.
to protect (namely, the interest in not being                                              Thus, the major problem with rape law, according
coerced into sexual intimacy). For one thing,                                              to Schulhofer, is its failure to recognize a right to
the basic elements of the crime (namely, force                                             sexual autonomy for all people.
and consent) are vague, and vagueness is re-                                                  Autonomy requires freedom of choice, which
solved in favor of the defendant (as it should                                             implies both the right to accept and the right to
be, of course, in a criminal case). Furthermore,                                           decline. But obviously when people engage in a
some sexual abuses, such as obtaining sexual                                               shared activity one person’s interest in pursuing it
submission by fraud, intimidation, abuse of au-                                            is limited by the other person’s right to refuse to
thority, or any form of coercion short of serious                                          do so. As the law currently stands, it is so strongly
physical force or the direct threat of it, are ex-                                         slanted toward the protection of pursuing sexual
cluded from coverage by definition. Schulhofer                                             intimacy and the protection against false charges
points out that the law of theft was once this                                             that there is no effective legal right to refuse. This
way. Property owners were protected only from                                              maintains and reflects what Schulhofer (1998)
direct physical taking by force and without con-                                           calls a culture of intimidation.
sent (e.g., robbery) but not from losing their                                                  Addressing the culture of intimidation is no
property by what are now called embezzlement,                                              easy task (Schulhofer proposes a model statute to
extortion, or fraud. During the sixteenth cen-                                             begin to do so), but identifying and describing it
tury this situation was gradually changed, and                                             accurately in detail is a very important step. One
ownership is now protected by a comprehensive                                              gratifying feature of Schulhofer’s work (and other
regime of legal mechanisms that recognize the                                              such recent scholarship) is the clear documenta-
loss of property as an addressable interest against                                        tion of the extreme bias that currently presumes
a wide range of illegitimate infringements. But                                            male domination as normal life, and the complic-
the law does not similarly protect bodily integ-                                           ity of law in failing to address it. The pattern is
rity from fraud, extortion or blackmail. It is still                                       repeated in practices of sexual harassment and
at the level of property loss in the sixteenth                                             domestic violence, all of which are dismissed by
century. Because of these problems the law itself                                          repeated themes of denial. Deborah Rhode lists
poses an obstacle to reform, entrenching trad-                                             four such themes:
itional discriminatory attitudes that protect men
but leave women with no effective legal recourse                                           1     The general problem is not serious; serious
to protect themselves.                                                                           instances are rare.

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2 Common complaints are not about serious                                       So the real question is not whether the behav-
  harms or real injuries (women are exaggerat-                               ior is rare. The real question is whether it is harm-
  ing).                                                                      ful. Do women have a legitimate interest that is
3 Men are not responsible for the harm; the                                  being violated? And is it an interest that should be
  victim is (she provoked it, asked for it,                                  legally protected? These questions are not that
  deserved it, or enjoyed it . . . ).                                        hard to answer. The clearest case, again, is that
4 Law cannot deal with it (at least any more                                 of domestic violence. The most basic and uncon-
  than it already has).                                                      troversial interest traditionally protected by the
                                                                             criminal law is the interest in physical security.
Rhode analyzes these claims in connection with                               Since being beaten can no longer be recharacter-
her analysis of sexual harassment (Rhode 1997:                               ized as punishment, it is then assault. Assault is a
96ff.), but in fact they are illuminating for the                            recognized legal injury, and anyone has a legal
issues of rape and domestic violence as well. The                            interest in being protected from it.
similarities are quite striking.                                                Rape is more complicated, since it involves two
   Consider the first two claims, since they rely on                         interests. The clearest cases are those involving
one another. That these dual claims are patently                             violence or the threat of it. These implicate
false as applied to domestic violence is easily veri-                        again the uncontroversial interest in physical
fiable with clear statistics. Domestic violence pro-                         security that law is designed to protect.
duces approximately four million victims needing                                The other interest, a much more controversial
medical treatment costing $5 to $10 billion each                             one, is the interest in sexual autonomy, or self-
year in the United States alone, according to                                determination over the physical use of one’s
American Medical Association estimates. It is                                body. There is no legal recognition of this inter-
the leading cause of injury to women (see                                    est, but it is hard to see what could justify that.
Rhode 1997: 108; Schneider 2000: 4). Four mil-                               Who can deny that all individuals have an interest
lion serious injuries to women every year cannot                             in controlling what happens to their own bodies?
be characterized as a few rare incidents. It is a                            Thus, all people should have an enforceable right
social problem of large proportions.                                         to refuse sexual intimacy, just as we have a right to
   The damage done by sexual harassment and                                  refuse medical treatment, and a right not to be
date rape (and even their frequency of occur-                                beaten. Sexual self-determination is a fundamen-
rence) are harder to document. There is, how-                                tal interest for any person, and violating it is a
ever, ample evidence that the behaviors referred                             harm.
to by the phrases ‘‘sexual harassment’’ and ‘‘date                              Finally, a few words on sexual harassment. This
rape’’ are in fact common. (Whether they should                              is a highly complex issue and I cannot begin to
be evaluated as harassment or rape is a separate                             cover it adequately here. It reflects not only atti-
issue.) The behavior itself (whatever we call it) is                         tudes of domination, but also preconceptions
common. It is documented that every year mil-                                about basic differences of gender, and assump-
lions of women are propositioned and pushed                                  tions of domestic work roles (that will be dis-
into having sex with their employers, supervisors,                           cussed in the next section). Yet, its status as a
teachers, doctors, lawyers, psychiatrists, indeed                            harm is not difficult to establish.
with any man who has authority and is willing to                                One form of sexual harassment (quid pro quo)
abuse it to extort sexual favors (see Schulhofer                             involves an abuse of power in order to obtain
1998). And millions of women every year                                      sexual intercourse, and thus is indistinguishable
are subjected to ridicule, sexual innuendo,                                  from the nonviolent sexual abuse discussed under
threatening confrontations, degrading remarks,                               the heading of rape. If, as I argued there, an inter-
pictures, posters, calendars, and attitudes, some                            est in sexual autonomy exists, undermining that
of which are intentionally aimed (minimally) at                              interest by extortion is a harm, and a serious one.
making them uncomfortable, and (maximally) at                                The other form of sexual harassment (hostile en-
driving them out of what some men see as ‘‘their                             vironment) is a particular version of workplace
world.’’ All this – the behavior itself – is docu-                           discrimination that is designed and intended
mented (see e.g., Rhode 1997: ch. 5).                                        to offend, ridicule, and demean women in order

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to drive them out of the workplace. As complex                                             harm is to restrict your own behavior. But men
and interesting as this phenomenon is, it is a rather                                      are not natural forces or wild animals. They are
uncontroversial harm since it is a clear example of                                        human agents with as much free will and control
harassment (even if a specialized form of it) and                                          over their choices and actions as women have.
harassment is a legally recognized injury.                                                 Consequently, it is unjust to allow men to control
   Overall, then, the claim that (most) domestic                                           or overpower women simply because they have
violence, date rape, and sexual harassment are not                                         the physical capability or social authority to do so.
real harms to women is not supportable. The                                                This recognition was reflected in a comment by
kernel of truth is that all this behavior ranges                                           Golda Meir some years ago in response to a sug-
from minor annoyance to serious harm, a con-                                               gestion that a curfew should be imposed on
tinuum that facilitates denial, while statistics show                                      women temporarily because there was a rash of
that supposing serious infractions are rare is a                                           assaults against them. The men are committing
mistake. So the dual claim that the truly harmful                                          the attacks, she responded; impose the curfew on
behavior is rare, and the common behavior is not                                           them (quoted in Rhode 1997: 124).
harmful, is false.                                                                            Overall then, unless he is claiming incompe-
   The third claim – that men are not responsible                                          tence, a man is an autonomous agent who is
for sexual harassment, date rape, or domestic vio-                                         responsible for his own actions, whatever the be-
lence because they are provoked by their victims –                                         havior of others around him may be. Thus, the
is such blatant rationalization that it hardly de-                                         suggestion that men are not responsible for their
serves a response. This is another manifestation of                                        own behavior makes no sense.
the bias that reflects an acceptance of male misbe-                                           The fourth claim is that while the social situ-
havior as a subset of male dominance, viewed as                                            ation may be unfortunate and the problems ser-
inevitable human nature, while imposing the                                                ious, the law is not the appropriate way to address
costs on female victims. Notice the implications.                                          them. Many critics and reformers alike have sug-
   First, it might suggest that such behavior would                                        gested that the law has already done all it can do in
not occur if it were not provoked, which in turn                                           these areas. Domestic violence (assault and bat-
suggests that women have control over prevent-                                             tery), rape, and sexual harassment are already
ing it. But that supposition is clearly false. Women                                       illegal. What we need now are better educational
do not have control over a hostile work environ-                                           programs, counseling, sensitivity training, con-
ment or an overreaching supervisor – except to                                             sciousness raising, as well as more women’s
quit. That hardly qualifies as control. Similarly,                                         shelters, rape crisis centers, and the like.
women can avoid rape (insofar as it is possible at                                            There is much to be said for this view. Law
all) only by restricting their own activity. They                                          alone will never solve these problems. Law is
have no control over restricting the behavior of                                           interactive with and dependant on social norms,
men. Finally, battered wives do not have control                                           presumptions, and practices, and these must be
over preventing their husband’s violence. It can                                           addressed by all the mechanisms and institutions
be brought on by anything or nothing, or at least                                          just mentioned, as well as others. But it does not
nothing that wives can control (such as his un-                                            follow that law has done all it can do.
employment, or his drinking, or his bad day at the                                            It may be precisely in showing what more law
office). Women do not control men’s behavior;                                              should be doing that some of the best work in
consequently, they cannot prevent it.                                                      feminist legal theory is being accomplished today.
   Second, and more importantly, shifting re-                                              Schulhofer’s work documents the deficiencies of
sponsibility from men to women (i.e., from per-                                            rape law in detail and explicates reforms designed
petrator to victim) accepts the legitimacy of                                              to correct the current bias. Elizabeth Schneider’s
gauging the limitation of women’s freedom in                                               recent book, Battered Women and Feminist Law-
terms of the misbehavior of men. It treats male                                            making (2000), lays out a feminist program of
behavior as if it were a force of nature, or that of a                                     lawmaking to combat domestic violence, and
wild animal. If you go walking in a hurricane, or                                          documents in thorough detail the seriousness of
play with a lion, you can’t blame the hurricane or                                         the problem, as well as the failures and successes
the lion if you get hurt. The way to avoid the                                             of processes intended to deal with it. Andrew

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Taslitz, in Rape and the Culture of the Courtroom                               This form of social organization became espe-
(1999), explains why the trial process itself, and                           cially prominent during the industrial revolution
especially our adversarial system, denies rape                               when masculinity became synonymous with
victims their day in court, and provides concrete                            ‘‘breadwinning,’’ which meant leaving home to
suggestions for reform.                                                      earn money in the market by which to provide for
   All these scholars and others emphasize the                               the material needs of one’s family by one’s pur-
importance of acknowledging the culture of                                   chases. A successful breadwinner (or real man
dominance that produces the problems they                                    perhaps?) could provide for the material needs
detail, as well as the legal environment that dis-                           of his family unaided. Therefore, a woman with
misses them. Only by situating these problems of                             an adequate breadwinner would be able to per-
coercion and violence within the overall context                             form her correlative role of homemaking with
of domination and submission will we be able to                              total dedication. A woman forced to participate
understand and address them fairly, and thereby                              in the market was, thus, a sign of an inadequate
erode the culture of intimidation.                                           breadwinner and a lower-class family. For about
                                                                             200 years a nonworking wife has been a symbol of
                                                                             middle-class status. And, despite the great chal-
                                                                             lenge to this norm since the 1970s, domesticity
       Domesticity and Institutional                                         overall remains intact and entrenched today (see
                                                                             e.g., Olsen 1983).
             Organization
                                                                                Men are still breadwinners: their primary re-
                                                                             sponsibility and source of self esteem is to ‘‘earn
Physical coercion is not the only source of subor-                           a living.’’ In recent polls, for example, blue-collar
dination, nor the most effective. Economic                                   workers expressed feeling threatened by stagnant
strength is the most certain and extensive form                              wages that forced their wives to work. And
of control, as well as the surest source of inde-                            their working wives characterized their own
pendence. Money is power. As noted by Virginia                               wages as ‘‘helping out.’’ They were not them-
Woolf, economic independence is a necessary                                  selves breadwinners. That is a male role, and a
condition of self-determination. Yet economic                                powerful source of masculine (but not feminine)
power is precisely what most women lack. And                                 identity (Williams 2000). Nor is this attitude
this condition is essentially insured in virtually all                       confined to the working class. At every level of
economic systems today, which reflect an organ-                              society success in the public sphere is the test
ization of family and work that perpetuates the                              of manhood. Men are breadwinners. That norm
economic disadvantage and consequent subor-                                  is unquestioned.
dination of women.                                                              And women are still homemakers: their first
   This organizational structure is a gendered                               responsibility is the care and maintenance of the
system, often referred to as the culture of domes-                           home and children. Although this norm has
ticity. It presupposes the older notions of differ-                          become much more complex and contested for
ence discussed earlier: men and women are                                    women, about 90 percent do become mothers,
different. Women are domestic and men are not.                               and all mothers are hard pressed to ignore the
Women are natural caregivers, innately nurturing,                            norm. Many middle-class women characterize
tidy, and oriented to the personal relations of                              their motivation for working as ‘‘self-fulfillment’’
family. Men, in contrast, are aggressive, competi-                           (Williams 2000). So, working-class wives work to
tive, and oriented to the impersonal relations of                            help out, and middle-class wives work for per-
market and political life. This convenient image of                          sonal edification. Neither of them is a breadwin-
masculinity and femininity reflects the organiza-                            ner, which suggests that there can only be one per
tion of work and family in separate spheres of life,                         family and it must be male if there is a man in the
dominated by men and women respectively, and                                 family. It also suggests that work (i.e., paid labor)
encourages precisely the attitudes and psycho-                               for women is ideally optional, and acceptably
logical characteristics that suit them for activity                          temporary or intermittent – all possibilities that
in their assigned spheres.                                                   are not open to men, which in turn enables

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women to assume responsibility for the home and                                            Her domestic work is not recognized as an invest-
retards men from it. These social arrangements                                             ment in his future wage. Thus, the dependency
and expectations are still predominant in every                                            and inequality of women is all but guaranteed by
society, and the attitudes that presume such social                                        the correlative roles of caregiver and breadwinner,
organization to be natural, normal, more or less                                           the implications of which are finessed by the lan-
inevitable, and basically right are pervasive (Wil-                                        guage of domesticity, love, and marriage. Obvi-
liams 2000: ch.1).                                                                         ously, this institutional organization profoundly
   There are two big hitches in this neat arrange-                                         disadvantages women, and raises at least three
ment from the viewpoint of equality for women.                                             issues of justice that are central concerns of
The first, as just noted, is that the public sphere is                                     feminists.
a male domain: men are the breadwinners (as well                                              The first is the issue of freedom or equality of
as the leaders, specialists, authorities, etc.).                                           opportunity (in the minimal sense of open insti-
Women may be allowed in the public sphere at                                               tutions). If all women are restricted to the profes-
this point but it is not theirs. They are visitors,                                        sion of homemaking, while men are allowed to
there by choice and not by duty. And the male                                              compete for all other pursuits available in the
world of work is policed by extensive norms,                                               world, the disparity of freedom is obvious, and
presumptions, and overt rules that relegate                                                could only be justified (or supposedly justified) by
women to subordinate status, unless they (indi-                                            old assumptions of innate difference: the innate
vidually) can emulate men without also alienating                                          domesticity of women. Once that presumption
them. This is a tricky business that few woman are                                         was denied the restriction of women from the
able to accomplish, thereby insuring that the                                              public sphere could only be seen as injustice.
public sphere remains a male domain, and that                                                 The second issue is that of equal treatment. If
women remain (subordinate) visitors within it.                                             women do work in the public sphere, they should
   The second hitch is that domestic work (the                                             have the same opportunities for promotion and
domain of women) is unpaid. (At least in one’s                                             advancement, the same pay for equivalent work,
own home it is unpaid; and outside one’s own                                               the same benefits, and so forth. Since there is no
home it is among the lowest paid forms of work in                                          reason to think of gender as a relevant basis for
existence.) Furthermore, because it is unpaid it is                                        differential treatment in any such areas, discrim-
not really recognized as work. Real work is paid                                           ination on the basis of sex with regard to them is
labor. Domestic activity is an expression of love.                                         unjust.
   One result of this attitude is that domestic                                               The third issue is the structure of social organ-
responsibilities are not recognized as relevant                                            ization. The current organization of family and
considerations in the public sector, or as the                                             work is structured to provide men with the bene-
basis for monetary entitlement. Little or no al-                                           fits of both market and family life at the expense of
lowance is made for them (either for men or                                                marginalizing women in the market and reducing
women) in the market or in governmental pro-                                               them to dependency as caregivers. But if social
grams. The domestic sphere is private and                                                  institutions and practices are organized in a way
invisible. A second result is that caregivers                                              that inherently or systematically benefits one
(or homemakers) are necessarily dependent on                                               group at the expense of another then the organ-
breadwinners. Hence, the relationship (between                                             ization itself is unjust. The particular concern of
breadwinners and caregivers) is not and cannot be                                          feminist legal scholars with regard to all this is
economically equal. Domestic activity, as cur-                                             how law is used to maintain these injustices, and
rently viewed, cannot be translated into market                                            how it could be used to alleviate them.
value (or at least, at current rates its market value                                         The first set of issues was the initial focus of
is so ludicrously low that no rational person who                                          feminists during the 1960s and 1970s (although
could do otherwise would engage in it for the                                              it sounds like an eighteenth-century issue). In
purpose of gainful employment). This attitude is                                           fact, the Civil Rights Act of 1964 made discrimin-
reflected in divorce settlements that treat a man’s                                        ation on the basis of sex a cause of action for the
wage as his property (not joint property) and a                                            first time. In 1971 the Supreme Court recog-
wife’s domestic contribution as nonmonetary.                                               nized sex equality as a constitutionally protected

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interest, and overt barriers to women were gener-                               For example, 99.94 percent of CEOs and 97.3
ally dismantled over the next 10 years or so.                                percent of top earners in business are men, even
   During this time the predominant ideal of                                 though women have represented 25 percent or
feminism was the model of ‘‘full commodifica-                                more of business school graduates for the past 25
tion.’’ Excellent and affordable day care as readily                         years. Similarly, while women comprised at least
available as libraries, school days coordinated with                         one third of law school graduates since 1980, they
work days, on-site school doctors and clinics, and                           represent only 13.6 percent of partners in the
the possibility of a 35-hour work week would                                 larger law firms, and half of those are not equity
enable parents to share equally the responsibilities                         partners who share in profits. Only 8 percent of
of home and family, and thus enable women to                                 federal judges are women. Furthermore, while
participate equally in the market. These were the                            women make up more than half of all college
visions of the 1960s. Women could ‘‘have it all,’’                           graduates, they make up only 26 percent of fac-
it was said.                                                                 ulty members, 11 percent of full professors, and
   Instead the work week increased; day care                                 less than 7 percent of department chairs and
became more expensive, less available and often                              deans (see Estrich 2001: 72-7). It has been esti-
of poor quality; school days still do not match                              mated that at our present rate of progress it will
work days, and the possibility of school clinics                             take three to four centuries for women to achieve
that actually treat sick children is no longer even                          equal representation in American executive
a dream; the image of shared parenting was re-                               suites, and about 500 years to accomplish it in
placed by the ‘‘supermom,’’ who worked a                                     Congress. In the early 1970s women wore ‘‘59’’
‘‘double day,’’ on what often turned out to be                               buttons to protest that women made only 59
the ‘‘mommy track,’’ and overt barriers to the                               cents to the male dollar. After 30 years the wage
equal participation of women were widely re-                                 gap has stagnated at 72 cents (Estrich 2001: 79).
placed with informal and often unconscious                                   So, despite substantial participation in the market
ones. So overt legal barriers to women have                                  for more than a generation, women who work full
largely been removed, and this represents a                                  time still earn less than three-quarters of what
major improvement and enormous change in cer-                                men earn for the same work. (Woman who work
tain respects. But in other ways the change is                               part time, of course, earn much less than that.)
minimal because society continues its long-                                     Thus, in pay, promotion, and advancement the
standing assumptions and practices, like a horse                             disparity between men and women is substantial,
long hobbled to trot continues its same measured                             and it cannot be explained (as it once was) by a
pace as though the restrictions were never re-                               lack of eligible female candidates in the pool. This
moved.                                                                       raises the second set of issues. Unequal treatment
   The result is that progress toward real equality                          is not only unjust, but illegal. What constitutes
has been disappointingly slow. Female participa-                             unequal treatment, however, is a complex matter,
tion in the work force grew from 35 to 75 percent                            and the devices of denial are pervasive and strong.
between 1960 and 1992, but job segregation has                                  The bulk of the public debate in this area has
remained at 75 to 80 percent (a reduction of less                            been focused on the spotlight issue of affirmative
than 5 percent in over 30 years). Predominantly                              action. One major drawback of this issue is that it
female occupations (such as nursing, teaching,                               focuses attention (and questions) on one rather
secretarial, or clerical work) remain relatively low                         minor corrective measure rather than on the
paying, with little advancement available. While a                           problem of discrimination itself, and the more
great many women have entered traditionally                                  substantial measures that might be taken to cor-
male professions (such as law, medicine, business,                           rect it. Issues like comparable worth or pay equity
and higher education) they remain clustered in                               have been dismissed out of hand, and the defi-
the lower ranks with disproportionately few                                  ciencies of policies like the Family and Medical
reaching top level positions. And those who do                               Leave Act, or the Equal Pay Act are largely
reach the top positions are typically paid less than                         ignored, while the problems of discrimination
men in comparable spots (see e.g., Rhode 1997:                               and inequality are disregarded or glossed in the
ch. 6; Estrich 2001: ch. 4).                                                 debate over the nature and legitimacy of affirma-

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tive action. As Deborah Rhode has pointed out,                                             tional, indecisive, deficient in quantitative skills,
affirmative action would not correct the problem                                           lacking in commitment and leadership qualities.
of discrimination even if it were fully imple-                                             Conversely, women who do not fit the stereotype
mented (which is not to say that it should not be                                          are penalized for being ‘‘unfeminine,’’ ‘‘diffi-
fully implemented). Nevertheless, resistance to it                                         cult,’’ or ‘‘pushy.’’ This Catch 22 affects evalu-
illustrates the problem of denial in this area.                                            ations of merit, which are hardly neutral. Many
There is no systematic evidence that beneficiaries                                         studies have shown that women’s work, records,
of affirmative action are unqualified to perform                                           and potential are consistently rated lower than
their jobs (Rhode 1997: 168–70). Yet the persist-                                          men’s. One well known study switched the
ent perception is that affirmative action programs                                         names on resumes from male to female and vice
pass over qualified candidates in favor of unquali-                                        versa. The resumes with female names were
fied ones. The basis of this idea involves the denial                                      rated lower than when they had male names.
of the problem of gender discrimination itself.                                            How does that fit into a neutral market (Rhode
   According to Deborah Rhode, this denial is                                              1997: ch.6)?
based on two primary rationales. The first she                                                It is well known that black baseball players were
calls ‘‘the myth of meritocracy.’’ We live, it is                                          excluded from major league teams for many years
said, in a meritocracy. Our system of rewards                                              despite the clear knowledge that their perform-
and benefits is based on individual merit, meas-                                           ance was undeniably superior to that of many
ured in terms of effort and productivity, through                                          white players who were hired instead of them.
the mechanism of the free market. Consequently,                                            This is a very good counterexample to the claims
once formal barriers to women’s participation in                                           of a neutral market because the criteria of quality
the market were removed, the problem of dis-                                               performance are actually objective in this case. Yet
crimination was solved. The market is neutral. It                                          they were ignored for years, even when it could
simply selects on the basis of performance, so sex                                         have meant the difference between winning and
discrimination is irrational in market terms. It is                                        losing games. Thus, market evaluations are not
inefficient to exclude competent workers on the                                            always rational in practice, even when criteria of
basis of sex. So if women are excluded, they must                                          performance are objective. And most professions
not be competent, or at least as competent as                                              and jobs do not have criteria of quality perform-
those (men) who are selected instead (Rhode                                                ance that are objective, even though we like to
1997: 144).                                                                                pretend that they do. Consequently, bias can
   This is a nice argument in theory, but as Rhode                                         easily and even unconsciously be built into the
notes, it simply does not accurately reflect the                                           very criteria or process of evaluation. Further-
realities of the actual world, which includes a                                            more, the higher level the job evaluation is, the
market originally constituted by men. As noted                                             more subjective the criteria become. Capacity for
earlier, the culture of the public sector is trad-                                         leadership, creativity, and intellectual promise are
itionally male, so customers and coworkers may                                             not objective criteria, and the male culture and
well prefer what they are used to. Many men are                                            mentoring system further undercuts the equal
more comfortable in an all-male work environ-                                              participation and the evaluation of women. It
ment, and some men will not work for women.                                                may be claimed that the market is neutral, but
Many studies (and court cases) have shown wide-                                            all the human beings who make the market evalu-
spread bias in hiring. Women are systematically                                            ations in everyday life are not. Thus, the claim of
channeled into lower paying, more subordinate                                              meritocracy through the neutral open market is a
positions than those offered to men with the same                                          rationalization that covers discrimination and
qualifications. And women are consistently fun-                                            denies its existence without adequate grounds to
neled into female-dominated occupations with                                               do so (Rhode 1997: ch. 6).
lower pay and fewer opportunities for advance-                                                Rhode’s second basis of denial she calls the
ment. None of this indicates a neutral market (see                                         myth of choice. The myth of choice raises the
Rhode 1997: ch.6).                                                                         third set of issues, the injustice of certain forms
   Furthermore, stereotypes go against advance-                                            of social organization, and notably the culture of
ment for women, who are characterized as emo-                                              domesticity. It is widely claimed that whatever

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                                                                                             ------------------------------------------------------

their talents and abilities may be, women choose                             workers. Consequently, they cannot compete in
lower pay and less prestige as a trade-off for pleas-                        the market, so they hold lower level positions (on
anter working conditions and more convenient                                 average), they are promoted less, and are paid less
hours. Thus, their marginalization is a result of                            because they merit less. That is what they choose
their own choice. It is what they prefer (Rhode                              (Williams 2000: ch.1).
1997: ch.6).                                                                    Williams explains that as long as the culture of
   In her recent book, Unbending Gender: Why                                 domesticity continues to divide labor into the
Family and Work Conflict and What to Do About                                traditional public and private domains of segre-
It (2000), Joan Williams provides a comprehen-                               gated responsibility, these choices will be un-
sive explanation of the myth of choice in terms of                           avoidable. But that means that the social
the culture of domesticity. The culture of domes-                            organization that requires such unfair choices is
ticity relies on two interrelated ideals: the perfect                        itself discriminatory. The fundamental problem
worker and the perfect mother. The perfect                                   of inequality cannot be solved unless the norm
worker is available to work long hours, weekends,                            of parental care is recognized as valuable, which
or overtime without distraction, to travel or                                requires the basic norms of perfect worker and
even relocate. Work responsibilities are never in-                           perfect mother to be reconstructed. This is not an
truded upon, interrupted, or restricted by per-                              impossible task, Williams argues, but legal meas-
sonal responsibilities. Furthermore, employers                               ures are needed to accomplish it. Williams pro-
are entitled to perfect workers, and men are both                            poses two sorts of measures: (1) those aimed at
duty bound and entitled to be perfect workers.                               reconstructing the workplace and its current en-
And since the perfect worker is exempt from family                           titlements; (2) those aimed at reconstructing the
responsibility so that he can be totally dedicated to                        role of caregiver, especially lack of entitlements.
his work, his personal life depends on a flow of                                These legal measures are justified in order to
services provided by a wife. So, the male norm                               combat discrimination. However, a broader
(whatever its deficiencies) is basically integrated                          understanding of what constitutes discrimination
and harmonious. The more successful a perfect                                is necessary. Currently, only sexual harassment
worker is at work, the better he meets his most                              and stereotyping are recognized as illegal forms
basic obligation, which is breadwinning.                                     of discrimination. But designing the workplace
   Similarly, the perfect mother is totally commit-                          around male size and strength is also discrimin-
ted to her family responsibilities. She is there,                            atory. And designing work schedules around the
available or on call 24 hours a day, to provide                              flow of family services only available to men is
the care and services needed by her children.                                discriminatory as well (Williams 2000: ch.3).
She is unselfish, nurturing, and dedicated to her                               Legal mechanisms are available that could be
home and family above all. She also keeps up with                            interpreted to challenge these and related prac-
the housework (about 30 hours a week of it on                                tices, including widespread discrimination against
average). But the important job of a mother, of                              mothers. Title VII of the Civil Rights Act of 1964
course, is child care, which has become increas-                             provides two forms of action: disparate treatment
ingly time consuming during the past 30 years, as                            and disparate impact. Disparate treatment has
children have become more directed, protected,                               been widely used to challenge discrimination in
and less free. The organization of middle-class                              cases where an individual woman can show that
child life now requires a great deal of oversight                            she was passed over for promotion despite per-
and personal service. As a result of these duties,                           formance that meets the standard of the perfect
two thirds of all mothers do not work full time                              worker required by employers. The so-called ‘‘sex
year round, and those who do work full time                                  plus’’ theory of disparate treatment forbids dis-
gravitate toward traditional female occupations                              crimination against mothers even if equal oppor-
that accommodate family responsibilities. This is                            tunity is provided to nonmothers. This will not
characterized as a matter of choice. Women choose                            reconstruct any workplace norms, since it takes
to marginalize themselves in the workplace be-                               the norms as given, but it could at least lead to a
cause they prefer to spend more time with their                              reconceptualization of what constitutes discrim-
children. It follows that they cannot be perfect                             ination against those mothers who are able to

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meet the norm. While recognizing that suing                                                   The second half of Williams’s comprehensive
one’s employer is a personally devastating way to                                          proposal is to challenge family norms and entitle-
encourage social change, Williams astutely notes                                           ments. If we are serious about the value of paren-
that it is not the suit but the threat of it that leads                                    tal care then caregivers should not be
to social modification. No one took sexual harass-                                         disadvantaged or impoverished for providing
ment seriously until the threat of suit encouraged                                         it. Given that men are able to perform as perfect
a change of perspective. Disparate treatment                                               workers only because they are supplied with a
could do the same.                                                                         flow of family work by their wives, the income,
   Disparate impact analysis has considerable                                              including the future income that results, should
power for social reform, but (perhaps because of                                           be considered joint property. This means that
its potential power) it has thus far been inter-                                           in the event of a divorce, a fair split of the
preted very narrowly. Yet it could be used to                                              joint property would be required. After consider-
challenge masculine norms in the workplace. Wil-                                           ing several possibilities, Williams suggests that
liams suggests that such suits could be used to                                            the best alternative is to equalize the standard of
challenge the ‘‘executive schedule’’ (or 80-hour                                           living of the two households. This would
week), the design of promotion tracks that re-                                             help to counter the all too common impoverish-
quire the executive schedule, relocation, manda-                                           ment of women and children after divorce
tory overtime, training programs in off time,                                              that results from the assumption that a man
stringent sick leave policies that impair parental                                         ‘‘owns’’ his wage, and owes his former wife and
responsibilities, penalties for work interruptions,                                        children only enough to provide for their basic
or the denial of part-time work. Disproportionate                                          needs.
impact could also be used to challenge workplace                                              This rationale should be changed, according to
design and equipment design over time.                                                     Williams, to reflect the idea that the primary care-
   Another possibility is the Equal Pay Act, which                                         giver ‘‘owns’’ a portion of the wage, because it
requires that two employees of the same firm must                                          was the flow of family work that enabled this
be paid the same for substantially equal work. This                                        earning potential to be manifested in the perfect
could be used to challenge the heavy penalty                                               worker, and precluded its manifestation in the
structure attached to part-time work. The goal                                             caregiver. Family work and market work together
would be to convince courts that ‘‘substantially                                           should be viewed as a joint venture. The joint
equal’’ and ‘‘effort required’’ should be evaluated                                        property proposal could be instituted by statute
in terms of the effort required per hour, and thus                                         or by court action, Williams notes. Its intent is to
to give up their own attachment to the perfect                                             change the way we think about property entitle-
worker norm as the only test of a loyal and com-                                           ments to income from wages that are produced by
mitted worker (Williams 2000: ch.3.).                                                      the labor of two people rather than one, and to
   The results of such challenges, if they suc-                                            counter the current assumption that child sup-
ceeded would correspond to proposals made by                                               port and alimony are something like charity (Wil-
unions and by time relief advocates (such as Juliet                                        liams 2000: ch.4).
Schor in The Overworked American) that amount                                                 Williams calls her overall proposal ‘‘recon-
to quality of life proposals that would benefit men                                        structive feminism.’’ Its purpose is to ‘‘deinstitu-
and children as well as women. Schor (1992) has                                            tionalize domesticity by deconstructing the ideal-
pointed out that the workload requirements in                                              worker norm’’ (Williams 2000: 143). Like the
the United States have become untenable over                                               recent work on dominance, Williams’s compre-
the past 30 years. Union gains of the 1940s and                                            hensive treatment of the work/family conflict lays
1950s have been completely reversed. A 50-hour                                             out the systematic discrimination against women
work week is now common for men, as is manda-                                              that is built into the very structure of social or-
tory overtime. A man may be able to meet the 80-                                           ganization in the culture of domesticity, and
hour executive schedule, but in no way is it a                                             details the legal action that could help to correct
benefit. Thus, the time may be ripe to challenge                                           it. The insight displayed in all this work is that
some workplace norms.                                                                      discrimination against women is systemic and im-


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------------------------------------------------------- Four Themes in Feminist Legal Theory -------------------------------------------------------

bedded in law. The best recent work illustrates in                           Law, S. 1984. Rethinking sex and the Constitution.
detail how this is so.                                                         University of Pennsylvania Law Review 132:
                                                                               955–1030.
                                                                             MacKinnon, C. 1993. Only Words. Cambridge, MA:
                                                                               Harvard University Press.
                        Conclusion                                           Minow, M. 1987. Justice engendered. Harvard Law
                                                                               Review 101: 10–127.
                                                                             Olsen, F. 1983. The family and the market: A study of
The object of this overview of feminist legal theory                           ideology and legal reform. Harvard Law Review 96:
has been to lay out four major themes of analysis,                             1497–1612.
and to attempt to represent the systematic nature                            Olsen, F. 1989. Unraveling compromise. Harvard Law
of bias against women, as well as its pervasiveness,                           Review 103: 105–92.
                                                                             Paglia, C. 1992. Sex, Art, and American Culture. New
invisibility, and depth of entrenchment. I high-
                                                                               York: Vintage.
lighted the work of three scholars (Rhode, Schul-
                                                                             Rhode, D. 1997. Speaking of Sex: The Denial of Gender
hofer, and Williams) as representing the best                                  Inequality. Cambridge, MA: Harvard University
recent work on three of the most important topics.                             Press.
It is not the only outstanding work, but there is                            Roiphe, K. 1993. The Morning After. Boston: Little,
none better. And the topics are not the only im-                               Brown.
portant ones, but there are none more crucial that                           Schneider, E. 2000. Battered Women and Feminist Law-
these. The culture of dominance and the culture of                             making. New Haven, CT: Yale University Press.
domesticity combine to produce the multidimen-                               Schor, J. 1992. The Overworked American. Cambridge,
sional subordination of women to men that is                                   MA: Harvard University Press.
accepted as normal life, and the rationalization of                          Schulhofer, S. 1998. Unwanted Sex: The Culture of
                                                                               Intimidation and the Failure of Law. Cambridge,
difference is used to justify it.
                                                                               MA: Harvard University Press.
   Unfortunately, recognizing pervasive and sys-
                                                                             Taslitz, A. 1999. Rape and the Culture of the Court-
tematic discrimination against women makes                                     room. New York: New York University Press.
everyone uncomfortable (including women) be-                                 Williams, J. 2000. Unbending Gender: Why Family and
cause it illustrates that our society is fundamen-                             Work Conflict and What to Do About It. New York:
tally unjust. Indeed, it is organized on the basis of                          Oxford University Press.
injustice. We do not want to recognize that, so we
deny it. But as Deborah Rhode so clearly demon-
strates, if we refuse to acknowledge the problem                                                   Further Reading
then we cannot adequately address it. Feminist
jurisprudence is the gadfly that reminds us of                               Allen, A. 1988. Uneasy Access: Privacy for Women in a
this.                                                                          Free Society. Totowa, NJ: Rowman and Littlefield.
                                                                             Bartlett, K. and Kennedy, R. (eds.). 1991. Feminist
                                                                               Legal Theory. Boulder, CO: Westview Press.
                                                                             LeMoncheck, L. and Sterba, J. 2001. Sexual Harass-
                                                                               ment: Issues and Answers. New York: Oxford Univer-
                           References                                          sity Press.
                                                                             MacKinnon, C. 1982. Feminism, Marxism, method,
Dworkin, A. 1979. Pornography: Men Possessing Women.                           and the state: An agenda for theory. Signs 7: 515–44.
  New York: Dutton.                                                          Minow, M. 1990. Making All the Difference: Inclusion,
EEOC v Sears. 1986. 628 F. Supp. 1264 (N.D.Ill.                                Exclusion and American Law. Ithaca, NY: Cornell
  1986), affd. 839 F. 2d. 302 (7th Cir. 1988).                                 University Press.
Estrich, S. 2001. Sex and Power. New York: Riverhead                         Olsen, F. (ed.). 1995. Feminist Legal Theory, 4 vols.
  Books.                                                                       New York: New York University Press.
Freedman, A. 1983. Sex equality, sex difference, and the                     Rhode, D. 1989. Justice and Gender. Cambridge, MA:
  Supreme Court. Yale Law Review 92: 913–83.                                   Harvard University Press.
Gilligan, C. 1982. In a Different Voice. Cambridge,                          Smith, P. (ed.). 1993. Feminist Jurisprudence. New
  MA: Harvard University Press.                                                York: Oxford University Press.



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         Part II
  Doctrinal Domains
and their Philosophical
     Foundations
 ----------------------------------            ----------------------------------
----------------------------------- Chapter 7 ----------------------------------

                            Criminal Law Theory
                                                   Douglas Husak



Surely it is pretentious to suggest that criminal                          small number of them. What is the reason to
law theory might be somewhat different from                                require all crimes to include a voluntary act?
what the most distinguished criminal theorists                             When may persons be punished for their omis-
have construed it to be. Can it possibly be true                           sions? What mental states make agents culpable
that virtually all of the acknowledged experts                             for performing criminal acts? Must each material
have tended to neglect the most central issues?                            element of every crime contain a culpability com-
Despite the implausibility of this suggestion, I will                      ponent, or is strict liability sometimes acceptable?
attempt to defend it here.                                                 Should persons ever be punished for negligence?
                                                                           What conditions must be satisfied before an agent
                                                                           can be said to have caused a result, and should
                                                                           results always, sometimes, or never be relevant to
           The Need for a Theory of                                        criminal liability? How should justifications be
                                                                           differentiated from excuses, and how useful is
               Criminalization
                                                                           the contrast between these two types of defenses?
                                                                           Might defendants have a justification defense
Anyone who consults the writings of the recog-                             even though they were unaware of the circum-
nized authorities in the field would come to bel-                          stances that gave rise to the justification? Why
ieve that criminal law theory revolves around a                            should the state recognize excuses, and which
number of questions that arise in the so-called                            excuses should it allow? Is the character of defen-
‘‘general part’’ of criminal law (Williams 1961).                          dants ever material to their criminal liability?
The exact nature of the general part is enor-                              Needless to say, detailed positions on these
mously controversial; commentators have pro-                               matters invite further questions that have given
vided very different accounts of what the general                          rise to a massive literature.
part of criminal law is thought to include and                                Everyone admits the above issues are important
exclude (Lacey 1998). But everyone agrees that                             and difficult. Each issue, however, pales in signifi-
the doctrines of the general part consist in gene-                         cance against a topic that criminal theorists have
ralizations about the ‘‘special part’’ of criminal                         tended to neglect. This is the topic of criminaliza-
law – the many offenses that have been enacted                             tion – the conditions that must be satisfied before
by legislatures. The status of these generalizations                       the state may enact a statute that subjects offenders
remains a matter of heated scholarly debate.                               to criminal liability. A theory of criminalization, in
   Perhaps the nature of the general part is best                          other words, describes the conditions under
introduced simply by describing the issues that                            which criminal offenses are justified. In this chap-
criminal theorists have typically investigated.                            ter, I will confine my remarks to this basic issue.
Most of these issues have both a conceptual and                               I hope it is clear that the foregoing examples
a normative dimension; I will mention only a                               of controversies in the general part are less

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                                                                                              -----------------------------------------------------------------------

fundamental to criminal theory than the topic of                                      offense’’ prevents no substantial harm or evil of
criminalization. Most of the normative objectives                                     a kind that should concern the criminal law, what
sought by criminal theorists would be frustrated if                                   sense does it make to inquire whether this harm
we begin with a defective theory of criminaliza-                                      or evil is outweighed?
tion. No doctrine in the general part can begin to                                       Much the same oddity arises in the context of
compensate for the injustice that inevitably                                          excuses. Why suppose that an excuse is needed to
occurs when a state punishes conduct that should                                      engage in conduct that should not have been
not have been subjected to liability in the first                                     prohibited? Again, no example to illustrate my
place. A few examples should illustrate the cen-                                      point is beyond controversy. But what sense
trality of the problem of criminalization. Even if                                    does it make to demand an excuse for a defendant
criminal theorists could persuade courts to reject                                    who violates a nineteenth-century statute pro-
strict liability, so that some degree of culpability                                  scribing the harboring of runaway slaves? Crim-
were required for each material element of every                                      inal theorists who provide accounts of defenses
offense, little would have been accomplished if                                       almost certainly assume that their views will be
the conduct for which liability is imposed should                                     applied to defendants who commit criminal of-
not have been proscribed. Or suppose that legal                                       fenses that are themselves justified. If so, theorists
philosophers could produce an unproblematic                                           must undertake a more basic inquiry into the
account of causation. Almost no progress would                                        conditions under which criminal offenses are jus-
have been gained if the state has no reason to                                        tified – that is, into the criteria of criminalization.
prevent the particular results for which punish-                                      Further examples to demonstrate the normative
ment is imposed. Or suppose that a persuasive                                         priority of the topic of criminalization to most of
defense of punishment could be provided. Surely                                       the questions entertained in the general part of
the application of this theory presupposes that                                       criminal law could be multiplied indefinitely.
legislators have adequate reasons to select the                                          Despite its central importance, however, rela-
conduct that subjects persons to liability.                                           tively little progress has been made in defending a
   In fact, several issues in the general part are                                    theory of criminalization. Indeed, no good
barely intelligible when applied to criminal laws                                     theory of criminalization exists; few meaningful
precluded by our best theory of criminalization.                                      constraints on the scope of the criminal law are
Consider the question of whether and under                                            endorsed by commentators or observed by legis-
what circumstances defendants have a justifica-                                       lators. Because of this failure, states throughout
tion defense for committing a criminal offense.                                       the world have overcriminalized. Few scholars are
This question can be peculiar if the crime in ques-                                   prepared to estimate how many criminal laws
tion is unjustified, and lies beyond the legitimate                                   actually exist. A decade ago, one commentator
reach of the penal sanction. On many occasions,                                       guessed that at least 300,000 existing federal
we cannot understand what it could mean to ask                                        regulations are enforced by criminal sanctions in
whether and under what conditions a defendant                                         the United States (Coffee 1991). A more recent
is justified in committing an offense that should                                     estimate in England is that approximately 8,000
not have existed. No example to illustrate my                                         different criminal statues have been enacted
point is unproblematic; each depends on agree-                                        (Simester and Sullivan 2000). These numbers
ment that legislatures should not have enacted                                        rise each year. With no political constituency in
the law in question. Suppose, however, we                                             favor of reform, criminal prohibitions are
assume that the state should not have proscribed                                      frequently created but seldom repealed. Partly
marijuana possession; this conduct creates no                                         because of too many criminal laws, too many
substantial harm or evil of a kind that should                                        people are punished. In the United States, ap-
concern the criminal law. Many jurisdictions                                          proximately two million persons are currently
allow a generic justification defense when the                                        jailed or imprisoned – four times the number in
‘‘harm or evil sought to be avoided by such con-                                      1980. No other country resorts to incarceration
duct is greater than that sought to be prevented                                      so frequently; one-quarter of the world’s prison
by the law defining the offense’’ (Model Penal                                        population resides in the United States. Perhaps
Code, §3.02(1)). If ‘‘the law defining the                                            more alarming is the fact that 6.5 million

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------------------------------------------------------------------------------ Douglas Husak ------------------------------------------------------------------------------
                                                                                              -----------------------------------------------------------------------------

Americans are presently under the supervision of                                         though the crimes of illicit drug possession and
the criminal justice system – which includes pro-                                        distribution are principal forces that drive the
bation and parole. Prosecutorial restraint is the                                        criminal justice system today. This fact is not ref-
main reason these totals are not even higher.                                            lected in the content of casebooks, and students
   Anyone who peruses state or federal criminal                                          are not given the resources to assess whether this
codes would be astonished ‘‘at their scope, by the                                       development is welcome or unwelcome. More
sheer amount of conduct they render punish-                                              generally, the topic of criminalization is not in-
able’’ (Stuntz 2001: 515). Most of the people                                            cluded in a standard course in criminal law in
sentenced to jails or prisons today are incarcerated                                     most law schools. The most widely used casebook
for conduct that was not even criminal a century                                         in courses in criminal law today devotes a scant 16
ago. Because crimes overlap so extensively, a                                            of its 1,138 pages to the topic of ‘‘what to
defendant can violate six or eight statutes simul-                                       punish?’’ In the accompanying Teacher’s Manual,
taneously by engaging in conduct that one would                                          the authors recommend skipping these pages in a
expect to constitute a single offense. Criminal                                          one-semester course (Kadish and Schulhofer
laws are so ubiquitous and far-reaching that                                             2001: 34). Of course, virtually all first-year
almost everyone has violated them at some time                                           courses in criminal law span only a single semes-
or another. The criminal law no longer distin-                                           ter. Typically, students begin and end their study
guishes ‘‘us’’ from ‘‘them.’’ What tends to char-                                        by applying existing statutes to real or imaginary
acterize many of us who have escaped criminal                                            fact patterns. Since the content of criminal of-
liability is the good fortune not to have been                                           fenses is regarded as given, scholarly inquiry
caught, or the resources and social standing to                                          begins somewhere near the middle. Students are
avoid punishment in the event we are appre-                                              seldom invited to think about why the statute
hended.                                                                                  came to be as it is, or how its content could be
   Criminal offenses have increased not only in                                          improved. These issues are no more likely to be
number. The characteristics of criminal law are                                          explored outside than inside law schools.
changing rapidly; whole new kinds of statutory                                              If the criminal law has changed so dramatically,
schemes have been created. Largely in response to                                        and grown so rapidly in size and shape, one would
sensationalistic media accounts and the influence                                        anticipate that contemporary theories of the crim-
of political pressure groups, criminal laws are rou-                                     inal law would reflect these developments. Unfor-
tinely enacted as though they were the natural                                           tunately, they have not. Contemporary theories
response to any and all social problems. Many                                            are not very different from those that were in
of these new crimes might be called ‘‘ancillary                                          vogue 25 years ago. But a theory that might have
offenses’’ – statutes designed to support a com-                                         been adequate to explain the content and function
plex regulatory scheme that persons find ingeni-                                         of the criminal law a generation ago is likely to be
ous ways to circumvent (Abrams 1989). The                                                woefully deficient today. Legal philosophers
features of many of these offenses – the absence                                         sometimes avoid this problem by confining the
of culpability requirements, the shifting of                                             scope of their views to cases of so-called core
burdens of proof, the imposition of liability for                                        criminality. Since these crimes have not changed
omissions, the implicit trust in prosecutorial dis-                                      significantly in decades, a theory devised in the
cretion to prevent abuse – are incompatible with                                         nineteenth century is just as viable today. But the-
fundamental principles long held sacrosanct by                                           orists pay a high price by restricting the application
criminal law theorists (Ashworth 2000).                                                  of their views to core criminality. The criminal law
   One would naturally hope to gain an under-                                            has expanded far beyond its core, and one would
standing of these general trends by consulting any                                       like to provide a perspective to assess this phenom-
of the leading casebooks assigned in law schools.                                        enon. Consider, for example, the recent trend to
Yet there is a surprising (and almost inexplicable)                                      shift the focus of the criminal law from the punish-
gap between the reality of contemporary criminal                                         ment of prohibited conduct to the incapacitation
law and the picture that is conveyed in these texts.                                     of dangerous persons (Robinson 2001). One way
Most notably, none of these casebooks contains a                                         this transition has been achieved is by expanding
sustained discussion of drug offenses, even                                              the number of possessory offenses (Dubber

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2001). A theorist who informs us that these crimes                                    tive reasons. As a conceptual matter, we need to
deviate from core criminality does not tell us any-                                   be clear what we are talking about when we pro-
thing we did not know already. Doctrines in the                                       duce theories of the criminal law. The theories we
general part that are derived from core criminality                                   construct about the criminal law will differ
are unlikely to offer the perspective needed to                                       depending on what we conceptualize as criminal.
evaluate the most important trends in contempor-                                      Consider traffic offenses, for example. Are they
ary criminal law.                                                                     crimes? Are they merely violations that are prop-
   Any number of examples could be given from                                         erly included in criminal codes, even though they
the criminal codes of different jurisdictions to                                      are not really crimes? As a practical matter, a
illustrate the recent expansion of the criminal                                       number of safeguards become applicable when a
law. Since many statutory schemes in the United                                       law is labeled as criminal. Several provisions in the
States are too complex to serve as useful illustra-                                   United States Constitution, for example, are op-
tions, I will mention only a few of several possible                                  erative only if a defendant is accused of criminal-
examples. Federal regulations punish persons                                          ity. For example, persons may be convicted of a
who bring dogs or other animals on the grounds                                        criminal offense only after their guilt is estab-
of federal buildings, who include a member of the                                     lished by proof beyond a reasonable doubt, and
armed forces in a voter preference poll, or who                                       no persons may be required to incriminate them-
disturb mud in a cave on federal land. States                                         selves in a criminal case. These constitutional pro-
punish persons who sell untested sparklers or                                         tections are inapplicable outside of the criminal
exhibit deformed animals. Can these crimes pos-                                       arena. Finally, as a normative matter, a theory
sibly be justified? What considerations should be                                     about the nature of the criminal law helps us to
invoked to answer this question? As I will show,                                      understand what it is about the criminal law that
philosophers of law have made disappointingly                                         requires justification. All legal philosophers agree
little progress in resolving this issue – in                                          that criminal laws must satisfy demanding criteria
defending and applying principles to restrict the                                     of justification. They differ not only about the
reach of the criminal sanction. This state of affairs                                 content of this justificatory standard, but also
is intolerable. We have too many criminal laws,                                       about why it should be imposed.
too much punishment, and too little that differ-                                         Theorists typically evade rather than address
entiates criminals from noncriminals. In part,                                        the problem of identifying the nature of the crim-
these phenomena are due (inter alia) to the                                           inal law. As Henry Hart once lamented, a crime
absence of a viable theory of criminalization. We                                     seems to be ‘‘anything which is called a crime’’
urgently need a better theory to identify the                                         (Hart 1958: 404). This account might be called
scope and limits of the criminal law.                                                 positivistic: laws are criminal if and only if they are
                                                                                      denominated as such by legislatures. If we reject a
                                                                                      positivist account, and search for characteristics
                                                                                      that differentiate criminal laws from other kinds
     The Nature of the Criminal Law
                                                                                      of laws, we find that no single feature suffices to
                                                                                      draw the contrast. Admittedly, many characteris-
In fact, however, criminalization is not the most                                     tics are distinctive of core criminality – of what
basic issue in criminal theory. We cannot begin to                                    might be called the paradigm of criminality.
construct a theory of criminalization without cri-                                    Criminal law attaches special significance to culp-
teria to identify its subject matter. In short, what                                  ability; it does not require actual harm, but only
is the criminal law? I will make the convenient                                       (at most) a risk of harm; it is enforced by the state
(but jurisprudentially problematic) assumption                                        rather than by private individuals; and it imposes
that we are able to identify law. Therefore, the                                      higher burdens of proof in order to impose liabil-
difficulty is to decide what makes a given law, or a                                  ity. Despite these important differences, I believe
body of law, criminal. Proposed solutions of this                                     a better answer is available. The single feature that
problem identify the nature of the criminal law.                                      is most helpful to identify the nature of the
   Specifying the nature of the criminal law is                                       criminal law is that laws are criminal when they
important for conceptual, practical, and norma-                                       subject persons who violate them to state punish-

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ment. I will call this view the orthodox position on                                     ously sentenced for sex offenses to register with
the nature of the criminal law. The orthodox                                             the police in the communities where they reside.
position identifies criminal laws by reference to                                        A defendant alleges that this statute imposes a
the sanction that may be imposed on persons who                                          retroactive punishment. He would not be satis-
violate them.                                                                            fied if he were told that the registration require-
   This answer, of course, gives rise to many diffi-                                     ment is somewhat like but also somewhat unlike a
cult problems. Fortunately, not all of these prob-                                       paradigm case of punishment. Typically, legal
lems must be resolved in order to believe the                                            purposes demand that questions of categoriza-
orthodox position to be correct. I will mention                                          tion be given a yes or no answer. Our ordinary
only two such controversies. First, in order to                                          language conception of punishment, however,
hold that laws are criminal when they subject                                            does not always provide the means to sort these
violators to punishment, one need not produce                                            borderline cases onto one side of the line or the
an altogether satisfactory account of the nature of                                      other. Therefore, answers to the question of
punishment. Perhaps no entirely adequate defin-                                          whether a given mode of treatment is or is not
ition of punishment exists. Most philosophers                                            an instance of punishment may be indeterminate.
probably agree that punishment necessarily invol-                                        Theorists can continue to accept the orthodox
ves hard treatment while expressing censure or                                           position while remaining agnostic about whether
reprobation, but concur about little else. Philoso-                                      given sanctions are or are not punitive. If forced
phers who accept the orthodox position need                                              to provide a definitive answer, they probably must
only believe that an adequate account would                                              resort to stipulation.
identify state punishment as whatever may be                                                I dwell on this topic because the criterion by
imposed on actual or supposed offenders of crim-                                         which laws are identified as criminal is absolutely
inal laws. In other words, state punishment –                                            crucial to theory construction. As I have indi-
regardless of its elusive nature – is a defining                                         cated, different sets of data can, and do, produce
feature of the criminal law.                                                             radically different theories of the criminal law.
   Moreover, one need not be able to categorize                                          Suppose, for example, that laws are (and not
each borderline sanction on one side of the line or                                      merely ought to be) criminal when they imple-
the other – as punishment or not as punishment –                                         ment a principle of retributive justice (Moore
to accept the orthodox position. We are confident                                        1997). On this account, a theorist of the criminal
in our ability to identify clear instances of punish-                                    law need not be concerned with laws that do not
ment, but many modes of treatment deviate from                                           serve this function. But if the orthodox position is
this paradigm and may or may not qualify as                                              correct, and laws are criminal when they subject
instances of punishment. Troublesome cases are                                           offenders to state punishment, I doubt that a
increasingly familiar to constitutional scholars                                         relatively simple theory about the aim or function
and probably have given rise to more ongoing                                             of the criminal law will prove defensible. No
dispute than any other issue in criminal law                                             account, I fear, can remotely fit the data. The
recently addressed by the Supreme Court. The                                             hundreds of thousands of laws that subject viola-
Court’s decisions about when a sanction amounts                                          tors to state punishment are sufficiently diverse to
to a punishment are confusing at best (Logan                                             resist a unifying theory. A long line of distin-
1998). Perhaps such confusion is inevitable. If                                          guished theorists has contended that the criminal
we draw from the concept of punishment                                                   law is essentially concerned with wrongdoing and
employed in ordinary language, we should not                                             blame. Whatever may have been the case historic-
always expect a right answer to the question of                                          ally, however, I am less persuaded that this con-
whether each sanction is or is not an instance of                                        cern remains prominent in the criminal law today.
punishment. The concept of punishment, like                                              Recent commentators have protested that theor-
most concepts in ordinary language, is vague                                             ists ‘‘mythicize’’ the criminal law when they con-
and allows for borderline cases. This conclusion                                         strue it to require individualized moral
creates problems for many of the uses to which                                           blameworthiness (Bilionis 1998: 1279). It is
the concept of punishment is put. Suppose, for                                           easier to defend the claim that moral blame-
example, that a statute requires persons previ-                                          worthiness ought to be a defining feature of the

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criminal law. But judicial deference to legislative                                   range of harms may be noncompensable if we
supremacy in the enactment of laws that subject                                       expand our horizon to include the impact of con-
offenders to state punishment all but ensures that                                    duct on third parties. A system that permitted
no simple theory about the aim or function of the                                     assaults if compensation were paid ex post might
criminal law will closely fit existing practice.                                      give rise to general fear and anxiety throughout
                                                                                      the general population. It is hard to imagine (for
                                                                                      both practical and theoretical reasons) how per-
                                                                                      sons could be compensated for these losses. On
              Inadequate Theories of                                                  this account, conduct should be criminalized
                                                                                      when permitting it would spread fear and anxiety
                 Criminalization
                                                                                      throughout society, even if individuals knew they
                                                                                      would receive full compensation were they to be
Clearly – or at least as I have assumed – we have                                     victimized directly (Nozick 1974).
too many criminal laws and too much punish-                                              The foremost difficulty with this answer is that
ment. Legal philosophers have not been espe-                                          it both contracts too narrowly and expands too
cially helpful in suggesting how this trend might                                     broadly the scope of the criminal sanction. Con-
be reversed. In this section, I will describe four                                    sider the former objection. Whatever may be the
approaches that yield important insights, but pro-                                    case with assaults, undue fear and anxiety need
duce defective or incomplete theories of crimin-                                      not occur if theft is permitted in a state that
alization.                                                                            requires compensation to be paid ex post. Why,
   First, consider the efforts of theorists to draw                                   then, should property offenses not be repealed?
from other disciplines to identify the scope and                                      Or consider the latter objection. Many of the
limits of the criminal law. In particular, scholars in                                losses caused by torts give rise to enormous trepi-
the law and economics movement have struggled                                         dation among potential victims. Any reasonable
to produce a theory of criminalization. If we begin                                   passenger in an automobile should be worried
by asking why the criminal law should ever be                                         about the risk of a crash, but no one concludes
employed, we may come to identify the conditions                                      that automobile accidents should be transformed
under which its use is justified. When one person                                     into criminal offenses. The general problem is
harms another – as in cases of core criminality –                                     that the contrast between conduct that does or
why not rely on the remedies available in tort?                                       does not cause fear and anxiety maps poorly onto
Typically, tortfeasors are required to make restitu-                                  the contrast between conduct that should or
tion to compensate their victims for the losses they                                  should not be criminalized.
cause. Why not treat criminals similarly? Different                                      Tort remedies may be inadequate for a differ-
answers to this question suggest different limita-                                    ent reason. If criminals/tortfeasors were merely
tions on the scope of the criminal sanction.                                          required to compensate victims for the losses they
   One kind of answer attempts to specify the                                         inflict, they would be indifferent between the
kinds of losses for which the criminal sanction is                                    option of buying goods ex ante on the market or
uniquely appropriate. In particular, the losses                                       taking them and paying their market price ex post.
caused by crimes might be noncompensable.                                             In addition, of course, the probability of detec-
When compensation is impossible or necessarily                                        tion is less than one, so a great many perpetrators
inadequate, tort remedies cannot substitute for                                       would not be forced to pay compensation at all.
criminal punishments. Homicide causes the most                                        In economic jargon, persons would lack an incen-
obvious noncompensable loss, and thus is a clear                                      tive to observe the distinction between property
candidate for criminalization. But most of the                                        and liability rules – a distinction grounded
losses caused by criminal conduct are compensa-                                       in considerations of efficiency (Calabresi and
ble if we confine our focus to individual victims.                                    Melamed 1972). To prevent criminals/tortfea-
Of course, translating losses such as pain and                                        sors from taking goods and compensating victims
bodily injury into monetary terms is difficult.                                       ex post, the amount of damages must be greater
Somehow, however, tort law has managed to                                             than the market value of the loss inflicted.
cope with this problem. In any event, a broad                                         A ‘‘kicker’’ is added to the damages to be paid

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by the defendant in order to induce the defendant                                        Perhaps the criminal law should increase or de-
to respect the distinction between property and                                          crease the number of culpable states to be coun-
liability rules.                                                                         tenanced. But the basic question remains: why
   But this kicker need not take the form of incar-                                      should a greater kicker be added onto the com-
ceration – the stigmatizing mode of hard treat-                                          pensation that is required when a given defendant
ment imposed for serious crimes today. Why is a                                          behaves more culpably than another? Economic
monetary penalty not sufficient to deter? The sad                                        analysis offers no plausible account of why the
but incontrovertible answer is that the majority of                                      criminal law should care about culpability at all.
persons who inflict losses on others lack sufficient                                        Attempts to produce a theory of criminaliza-
wealth to fully compensate their victims. As a                                           tion that draw from moral philosophy rather than
result, most victims would not receive compen-                                           economics might seem to have the potential to
sation, and the criminals/tortfeasors would have                                         remedy this deficiency. I am dubious, however,
little to fear from the kicker imposed for their                                         that the dominant approach among moral phil-
unlawful conduct. Impecunious defendants                                                 osophers will prove satisfactory. Many theorists
could be forced to labor, but this option encoun-                                        are utilitarians about criminalization, and con-
ters obvious practical and principled difficulties.                                      tend that the state is justified in proscribing con-
Therefore, this view reserves criminal sanctions                                         duct that produces a net balance of disutility.
for ‘‘cases where the tort remedy bumps up                                               They are far less likely, of course, to apply the
against a solvency limitation’’ (Posner 1985:                                            same standard to punishment – to identify
1204). Of course, many tortfeasors are impecuni-                                         whom to punish, or to what extent. In these
ous as well, but this problem is mollified by third-                                     matters, desert plays a central role and the prob-
party insurance. No one would allow criminals/                                           lems with utilitarianism are widely recognized.
tortfeasors to buy insurance against the risk of                                         A utilitarian theory would justify the punishment
performing conduct the state is trying to pro-                                           of innocent persons, in violation of their rights
hibit. A world in which ‘‘crime insurance’’ could                                        and despite their lack of desert. Yet many theor-
be purchased would give rise to the phenomenon                                           ists, under the enormous influence of H. L. A.
of ‘‘acute moral hazard’’; more crimes would take                                        Hart, attempt to combine a desert theory of
place in this world than if crime insurance were                                         punishment with a utilitarian approach to
not permitted. Since many criminals are unable to                                        criminalization. This combination, I believe, is
afford compensation, and cannot resort to insur-                                         untenable. I will briefly argue that the same ob-
ance, nonmonetary sanctions are required to                                              jection acknowledged to be decisive against a
induce compliance. Thus, the state has little alter-                                     utilitarian theory of punishment – that it violates
native but to resort to hard treatment.                                                  the rights of the innocent by imposing un-
   But even if economic analysis were able to                                            deserved punishments – is fatal to a utilitarian
explain why the state selects some acts for punish-                                      theory of criminalization as well.
ment, its main deficiency is its inability to justify                                       Conduct should not be criminalized solely on
the extraordinary significance the criminal law                                          utilitarian grounds if we are serious about pro-
attaches to culpability – the mental states of per-                                      tecting the rights of persons who do not deserve
sons who commit criminal acts. Any sensible                                              to be punished. Otherwise, even our best efforts
system of criminal law contains a principle of                                           to protect the innocent could easily be circum-
proportionality – a principle that makes the sever-                                      vented by changes in the content of the substan-
ity of the punishment sensitive to the seriousness                                       tive criminal law. Consider an example of a kind of
of the crime. The seriousness of the crime, in                                           punishment that only utilitarians could endorse:
turn, is partly dependent on the culpability of                                          collective punishments. Punishments are collect-
the offender (Von Hirsch and Jareborg 1991).                                             ive when each member of a group is punished for
Existing codes frequently punish persons with                                            an offense committed by a single member of that
increasing severity when they commit criminal                                            group. Collective punishments are commonly
acts negligently, recklessly, knowingly, or pur-                                         imposed in military training. When one soldier
posely. Many theorists have argued that this culp-                                       breaks a rule, the sergeant punishes all of the
ability structure needs fundamental revision.                                            soldiers in the platoon. In the appropriate circum-

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stances, no one doubts that collective punish-                                        But legalism can’t be correct. If we really believed
ments work; they can promote utilitarian object-                                      that the persons in the original examples were
ives like deterrence. Nonetheless, these utilitarian                                  innocent and did not deserve to be punished,
practices are textbook examples of injustice; they                                    would we always abandon this objection if we
punish persons who are innocent of the offense.                                       were informed that the rule had been revised to
Notice, however, how easy it is to evade this                                         make each of them guilty? On many occasions,
objection to collective punishments. Suppose                                          the objection would persist; we would now com-
the military were to create a new rule that pro-                                      plain that the law is unjust. The law is unjust
scribes membership in a platoon in which a sol-                                       because it punishes persons who are innocent
dier breaks a rule. After implementing this simple                                    and do not deserve to be punished.
change in the content of the rules, every soldier                                        If the above argument is sound, it follows that
punished by the sergeant would become guilty.                                         utilitarianism is a defective theory of criminaliza-
   Comparable examples can be drawn from the                                          tion. Laws that are acceptable to utilitarians are
law. Suppose the police get a tip that illicit drugs                                  vulnerable to the same difficulty that is decisive
are being used inside a hotel room. They break in                                     against a utilitarian theory of punishment – that it
and find drugs, but none of the four people inside                                    allows the innocent to be punished, in violation of
the room is willing to admit guilt. In this kind of                                   their rights and despite their lack of desert. Per-
situation, no individual can be convicted of the                                      sons may be innocent in the morally relevant
offense of drug possession beyond a reasonable                                        sense, even though a law that is justified on utili-
doubt. To protect the innocent, it would seem                                         tarian grounds pronounces them to be guilty.
that all four must be acquitted, despite the indis-                                   This result is not really so surprising. Utilitarian-
putable fact that one (or more) is guilty. Of                                         ism has been widely discredited as a moral theory
course, the state can easily circumvent this prob-                                    generally, and its application to issues of criminal-
lem by imposing collective punishments under a                                        ization is no more plausible.
different name. The offense can be changed (pro-                                         We still lack a viable theory of how criminal
spectively, not retroactively) from actual posses-                                    offenses can be justified. Yet another familiar at-
sion to constructive possession, so that everyone                                     tempt to limit the reach of the criminal sanction
in the room becomes guilty of the crime. To                                           invokes the need for harm as a prerequisite to
mitigate the unfairness, the new crime of con-                                        liability. I am inclined to endorse the harm
structive possession might include a culpability                                      principle. For several reasons, however, the harm
requirement, so that no one can be convicted                                          principle has proved somewhat less helpful than
unless he or she knows of the drugs in the room.                                      theorists might have hoped. First, almost any
I assume that this change in the law is defensible                                    conduct that anyone has ever proposed to crim-
on utilitarian grounds; the objectives of deter-                                      inalize could be said to cause harm. Are persons
rence and incapacitation are frustrated if everyone                                   harmed when they are deeply offended, for
in the hotel room must be acquitted.                                                  example? Obviously, an account of harm is
   The above strategy can be employed in any case                                     needed to answer such questions. Unfortunately,
in which people are punished despite their inno-                                      the term has proved stubbornly resistant to analy-
cence and lack of desert. A simple alteration in the                                  sis. The most thorough and sophisticated account
content of the substantive law – defensible on                                        of harm has been defended by Joel Feinberg.
utilitarian grounds – can instantly transform in-                                     According to Feinberg, ‘‘to say that A has harmed
nocence into guilt. Can this strategy possibly be                                     B [in any plausible formulation of the harm
justified? After this change is implemented, can                                      principle] is to say much the same thing as that
any of those people in the platoon or hotel room                                      A has wronged B, or treated him unjustly. One
continue to complain that they are punished des-                                      person wrongs another when his indefensible
pite their innocence and lack of desert? One pos-                                     (unjustifiable and inexcusable) conduct violates
sible answer is that this objection evaporates. This                                  the other’s right’’ (Feinberg 1984: 34). Clearly,
answer might be called a legalistic (or positivistic)                                 this analysis cannot be applied to decide whether
solution to the problem. Guilt and desert are                                         one person has harmed another in the absence of
solely matters of legality – of what the law says.                                    a theory of rights. Needless to say, controversies

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about the nature and content of rights have                                              suggestion by John Gardner and Stephen Shute,
proved every bit as intractable as disputes about                                        ‘‘it is no objection under the harm principle that a
harm. See T H E O R I E S O F R I G H T S .                                              harmless action was criminalized, nor even that an
   Second, the harm requirement encounters dif-                                          action with no tendency to cause harm was crim-
ficulties in attempts to differentiate the criminal                                      inalized. It is enough to meet the demands of the
from the civil law (Kleinig 1986). The latter, per-                                      harm principle that, if the action were not crim-
haps even more obviously than the former, pre-                                           inalized, that would be harmful’’ (Gardner and
supposes harm. Why should the state not                                                  Shute 2000: 216). Depending on how this idea is
criminalize breaches of contract, for example?                                           explicated, a great deal of criminal legislation
Presumably, A wrongs B and violates B’s right                                            might turn out to be compatible with the harm
whenever A defaults on an agreement with B. A                                            principle. Suppose citizens were inclined to retali-
resolution of this problem must distinguish crim-                                        ate violently against persons who were perceived
inal from noncriminal harms. According to Fein-                                          as having escaped their just deserts for engaging
berg, the choice between criminal and civil                                              in conduct that the state had decided not to
responses to harmful conduct is ‘‘determined by                                          criminalize – for performing abortions, for
such practical matters as the use of available re-                                       example. Can the desirability of preventing this
sources, court facilities, police time, enforcement                                      state of affairs possibly show that the conduct may
costs, effects on individual expectations, and the                                       be criminalized under the harm principle? This
like’’ (Feinberg 1986: 17). One might hope,                                              cannot be the result that Gardner and Shute
however, for a principled rather than a merely                                           intend. But such questions indicate how their
pragmatic reason why persons who breach their                                            interpretation of the harm requirement has the
agreements should not be subject to criminal                                             potential to expand the scope of the criminal law
liability. Some theorists have argued, for example,                                      exponentially.
that crimes are unlike civil offenses in that the                                           I hope to have shown that the foregoing three
former cause public harm, or are wrongs against                                          accounts – which award a central place to eco-
the community (Marshall and Duff 1998). But it                                           nomics, utility, or harm – produce inadequate
is notoriously difficult to explain the sense in                                         theories of criminalization. Still, the theory actu-
which crimes involve public or communal harms.                                           ally in place in the United States today is no better
   Third, it is clear that the primary motivation for                                    and probably worse. Legal practice has provided
embracing the harm requirement is to preclude                                            little help in developing rationales to narrow the
legal moralism – criminal legislation designed to                                        scope of the criminal law. In the United States,
punish harmless wrongdoing. Legal moralism                                               legislators have nearly unlimited authority to
continues to attract contemporary defenders.                                             enact new crimes. Although the Constitution im-
But the recent growth of the criminal law is fueled                                      poses many significant constraints on law enforce-
less by statutes designed to proscribe immorality                                        ment, its provisions are seldom interpreted to
(harmless or otherwise) than by statutes that do                                         give rise to restrictions on the power of states to
not seem to involve immorality at all. The main                                          create criminal offenses. In what follows, I will
expansion of the criminal law into controversial                                         describe what passes for a theory of criminaliza-
terrain is in the area of risk prevention. All theor-                                    tion under constitutional law at the present time.
ists concede that the risk of harm, and not harm                                         I recount this theory not only to demonstrate its
itself, may warrant the enactment of a criminal                                          inadequacies, but also to build a better account of
offense. But nearly all conduct creates risks of                                         criminalization upon its foundations.
some kind or another. Without principles to                                                 Most laws burden (that is, limit or restrict)
limit the use of the criminal law in proscribing                                         liberties. When the constitutionality of these
risk, the harm requirement is of little value in                                         laws is challenged, courts respond by dividing
restricting state power. The task of identifying,                                        liberties into two kinds: fundamental and non-
defending, and applying these principles has                                             fundamental. Some liberties (e.g., speech) are
proved enormously difficult (Husak 1995).                                                fundamental because they are explicitly enumer-
   Finally, we need to understand how the harm                                           ated in the United States Constitution. Other
requirement should be construed. According to a                                          liberties (e.g., marriage) are fundamental because

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they are said to be ‘‘implicit in the concept of                                      onstrate the extent of state power in the criminal
ordered liberty.’’ The constitutionality of legisla-                                  arena – and the potential injustice of this power.
tion that burdens a fundamental liberty is sub-                                       Suppose that legislators become alarmed by the
jected to ‘‘strict scrutiny’’ and is evaluated by                                     fact that too many persons are unhealthy and
applying the onerous ‘‘compelling state interest’’                                    overweight. Initially, they decide to facilitate the
test. Under this test, the challenged law will be                                     efforts of consumers to eat a better diet by
upheld only if it is necessary to achieve a compel-                                   enacting legislation requiring distributors of fast
ling government purpose. In other words, the                                          foods to display nutritional information on their
government’s purpose must be essential, and the                                       packaging. If the constitutionality of this law were
law must be the least restrictive means to attain it.                                 challenged, it would seem appropriate for courts
The constitutionality of legislation that burdens a                                   to defer to legislators by invoking the rational
nonfundamental liberty, on the other hand, is                                         basis test. Suppose, however, that legislators
evaluated by applying the much less demanding                                         came to believe (as is probably the case) that
‘‘rational basis’’ test. Under this test, the chal-                                   better information would have little impact on
lenged law will be upheld only if it is substantially                                 the problem of obesity. Imagine that they decided
related to a legitimate government purpose. The                                       to prohibit – on pain of criminal liability – the
legitimate government purpose need not be the                                         consumption of designated unhealthy foods.
actual objective of the legislation – only its con-                                   Suppose that sausage were placed on this list.
ceivable objective. Since only those laws that lack                                   Once again, the rational basis test would be ap-
a conceivable legitimate purpose will fail this test,                                 plied to assess the constitutionality of this law.
courts almost never find a law to be unconstitu-                                      This hypothetical crime is almost certainly consti-
tional when nonfundamental liberties are                                              tutional, since the liberty to eat sausage does not
burdened.                                                                             seem to qualify as fundamental. The state has an
   The vast majority of criminal laws burden non-                                     uncontested interest in protecting health, and it is
fundamental liberties and thus are assessed by the                                    at least conceivable that proscribing the con-
rational basis test. As a result, the state needs only                                sumption of sausage would bear a substantial
some conceivable legitimate purpose to enact                                          relation to this interest. Admittedly, many foods
most of the criminal laws on our books today.                                         are more detrimental to health than sausage, and
Persons who break these laws can be punished                                          not all sausages are especially detrimental to
simply because the state has a rational basis to                                      health. But the fact that a criminal law is under-
do so. Moreover, punishments can be (and often                                        inclusive and/or overinclusive is not regarded as a
are) severe, since courts refrain from applying a                                     constitutional impediment under the rational
test of proportionality to ensure that the severity                                   basis test. In other words, a statute need not
of the punishment reflects the seriousness of the                                     proscribe each instance of conduct that contrib-
offense. Applications of the rational basis test                                      utes to the statutory objective, and may proscribe
produce a startling departure from what should                                        some instances of conduct that do not contribute
be demanded before punishment can be imposed.                                         to the statutory objective.
People’s lives can be ruined – they can spend their                                      I have briefly surveyed four theories of crimin-
remaining years in prison – simply because they                                       alization. Although inadequate, each makes a
engaged in conduct the state had only a rational                                      valuable contribution to our understanding of
basis to proscribe.                                                                   the conditions that must be satisfied before the
   Of course, the state needs an extraordinary                                        state can subject persons to punishment. It is hard
rationale to punish persons who exercise funda-                                       to believe that criminal liability may be imposed if
mental liberties. The United States Constitution                                      civil liability would suffice to achieve the statutory
effectively precludes the state from criminalizing                                    objective. No sensible person would believe a
travel, prayer, or political speech, for example.                                     criminal statute should be enacted that creates
Outside the narrow range of fundamental liber-                                        more disutility than it prevents. The penal sanc-
ties, however, it is only a slight exaggeration to say                                tion should be used only to prevent harm. Even
that the state can decide to criminalize almost                                       though it is evident that all criminal laws must
anything. A hypothetical case may help to dem-                                        have a rational basis, contemporary constitutional

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law may seem to offer the least help in construct-                                       law against eating sausage is much more import-
ing a viable theory to limit the reach of the                                            ant. Persons not only have an interest in
penal sanction. Nonetheless, I will try to correct                                       eating sausage, but also have an interest in not
the deficiencies of this account in order to build                                       being punished when they violate the law by
a better theory of criminalization upon its foun-                                        eating sausage. This latter interest can be far
dations.                                                                                 more significant than the former. The state
                                                                                         needs a much better reason – more than a mere
                                                                                         rational basis – to justify deprivations of this valu-
                                                                                         able interest. Even though the state may have a
A Better Approach to Criminalization
                                                                                         good reason to discourage the consumption of
                                                                                         sausage, it may lack a good reason to subject
What is most remarkable about the last approach                                          persons who eat sausage to the hard treatment
surveyed is its complete indifference to the dis-                                        and stigma inherent in the penal sanction.
tinction between criminal and noncriminal legis-                                            This point is crucial, and I want to elaborate on
lation. It is one thing for the Constitution to                                          it. Proscriptions in a possible world in which the
evaluate noncriminal laws that burden nonfunda-                                          legislature could effectively prevent conduct
mental liberties by the rational basis test. But it is                                   without resorting to punishment would be easier
quite another when criminal legislation is assessed                                      to defend. In such a world, the only substantive
by that same standard. The criminal law is differ-                                       consideration that would be relevant to criminal-
ent – importantly dissimilar from other kinds of                                         ization would be the value of the liberty that is
law. The extraordinary procedural protections                                            lost when conduct becomes an offense. But that
surrounding the criminal sanction are sensible                                           world is not our world. We should avoid the
only on the assumption that the criminal law is                                          common mistake of supposing that the criminal
unlike other bodies of law (Stuntz 1996). The                                            law operates by preventing given forms of con-
criminal law is different in that it subjects persons                                    duct. In reality, the criminal law proscribes, but
to punishment. By definition, punishment in-                                             does not always prevent. We can safely predict
cludes both hard treatment and censure, each of                                          that some people will engage in the prohibited
which is a clear violation of rights in the absence                                      behavior, whatever the law may say. If the law in
of a compelling justification. Contemporary con-                                         question is indeed a criminal law, these offenders
stitutional law provides an inadequate theory of                                         will become subject to punishment – which has
criminalization because it fails to offer a justifica-                                   proved very difficult to justify. Punishment in-
tion sufficient to override these rights.                                                volves hard treatment and censure, both infringe-
   The key to constructing a better theory of                                            ments of rights that should not be permitted in
criminalization is to understand how the criminal                                        the absence of compelling reasons. Hence a more
law is different – that is, why it should be evalu-                                      stringent test of justification applies to criminal
ated by a higher standard of justification than                                          laws.
other kinds of law. The criminal law burdens                                                Perhaps attempts to justify punishment can
interests not implicated when other types of law                                         provide an important source of limitations on
are employed. When persons become subject to                                             the reach of the penal sanction. In stark contrast
punishment, more important interests are at stake                                        to their neglect of the topic of criminalization,
than the liberty to perform whatever conduct has                                         legal philosophers have written countless volumes
been proscribed. These interests can be illustrated                                      about the justification of punishment. Remark-
by returning to my earlier example. Suppose that                                         ably, few of these philosophers have shown much
the liberty to eat sausage is not especially valuable.                                   interest in the content of the substantive criminal
If so, the state would need only a minimal reason                                        law. They have tried to theorize about punish-
to dissuade persons from exercising this liberty.                                        ment as though they could afford to ignore the
This reason might support noncriminal means to                                           issue of what punishment is imposed for. Despite
discourage consumption – increased taxation,                                             this tendency, theories about the justification of
bans on advertising, educational programs, and                                           punishment might prove enormously useful in
the like. But the interest burdened by a criminal                                        generating constraints on the kinds of conduct

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that may be criminalized. Before legislators enact                                    body of constitutional law that protects interests
a criminal law, they must be confident that the                                       acknowledged to be as valuable as our interest in
state would be justified in punishing persons who                                     not being punished. Our liberties in speech and
violate it. In other words, the state should not                                      religion are foremost among these interests. The
draft statutes that will subject offenders to hard                                    body of law applicable to deprivations of these
treatment and reprobation unless it has good                                          liberties can be readily adapted to limit impos-
reason to believe that the punishment to which                                        itions of the criminal sanction (Colb 1994).
such persons will become subject would be justi-                                         Recall that current constitutional law in the
fied. If we are relatively sure that our theory of                                    United States requires the state to have a compel-
punishment is correct, but we cannot apply it to                                      ling interest before it will allow important funda-
justify the punishment of those who commit a                                          mental interests to be burdened. Why should we
given offense, we should not have made that                                           concede that our fundamental liberties to speak
offense criminal in the first place. The existence                                    or to exercise our religious beliefs are more im-
of such an offense would require the state to                                         portant and thus entitled to a greater degree of
impose unjustified punishments, or to renege on                                       protection than our interest in not being pun-
its classification of that law as criminal.                                           ished? If forced to choose, reasonable persons
   Of course, this strategy will not generate limi-                                   might be less willing to be punished than to sacri-
tations on the scope of the criminal law unless we                                    fice many of the liberties deemed fundamental
are reasonably confident in the cogency of our                                        under contemporary constitutional law. If we
theory of punishment. Although philosophers                                           agree that our interest not to be punished is
disagree vehemently about what justifies punish-                                      equally valuable, all criminal laws should be re-
ment, none disagree that a justification is needed.                                   quired to satisfy the same justificatory test that
An adequate theory will have two dimensions.                                          applies to deprivations of our fundamental liber-
Understandably, most of the focus is on the con-                                      ties. By examining what counts as a persuasive
ditions under which punishment is justified. But a                                    reason to burden fundamental liberties such as
given theory must also identify the conditions                                        speech or religion, we can begin to develop stand-
under which punishment is not justified. As                                           ards for subjecting persons to criminal liability
long as we are talking about rape, theft, murder,                                     and punishment.
or other cases of core criminality, virtually all                                        The implications of this theory of criminaliza-
theorists agree that punishment is justified; they                                    tion are radical and profound. Applying the same
only disagree about why. As we have seen, how-                                        standard of justification that already pertains to
ever, the criminal law has expanded far beyond its                                    infringements of speech and religion would re-
core. When new examples of criminality such as                                        quire the state to strictly scrutinize all criminal
walking dogs on federal property are involved,                                        laws. In other words, the state would need to
reasonable persons should doubt that punish-                                          have a compelling interest before it subjects any
ment is justified at all. Still, persons who com-                                     conduct to punishment. Of course, this theory
mit these offenses, no less than those who commit                                     cannot be implemented without criteria to decide
crimes within the core, become subject to                                             which state interests are compelling; attempts to
punishment. Can their punishments possibly be                                         identify these interests are bound to generate
defensible?                                                                           enormous dispute. Moreover, determining that
   Clearly, a better theory of criminalization is                                     a statutory objective is compelling is only the
needed to answer this question – a theory that                                        first step in applying a more demanding standard
demands a higher standard of justification for                                        of justification to criminal legislation. The law
criminal than for noncriminal laws. What stand-                                       must also be necessary to achieve this objective.
ard of justification should be applied to infringe                                    That is, the state must show that its legislative
our interest in not being subjected to hard treat-                                    objective would be harder to achieve without
ment or reprobation? Fortunately, we have ample                                       resorting to punishment. The criminal law must
experience in answering questions of this kind.                                       be a last resort – a condition not imposed on the
The conditions that should be satisfied before a                                      criminal law by the rational basis test. Applying
criminal law is enacted can be drawn from that                                        this criterion to the criminal law would open up

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an entirely new area of research. Deciding                                               teria I have described. One advantage of this
whether and under what circumstances noncrim-                                            theory of criminalization is that the state would
inal alternatives are as effective as criminal sanc-                                     be required to articulate a rationale in favor of the
tions would often require empirical investigation                                        criminal laws it enacts. Today, no such require-
that criminal theorists have seldom recognized                                           ment exists, and judges and citizens alike must
the need to undertake (Ashworth 1995).                                                   guess about the objectives of given laws.
   An equally important step in the justificatory                                           I do not discuss the enormous difficulties
process is the determination that the criminal law                                       in implementing the theory I have described.
is narrowly tailored to serve the compelling state                                       I doubt that judges should be given the power
interest. The requirement of narrow tailoring has                                        to declare a criminal statute unconstitutional if it
two dimensions. First and perhaps more import-                                           fails the justificatory test I have sketched. The
antly, criminal laws must not be overinclusive,                                          judiciary almost certainly lacks the competence
proscribing instances of conduct beyond those                                            to apply my theory of criminalization, which is
that serve the compelling state interest. Desert is                                      addressed primarily to legislators. I am confident,
individual; punishment must be justified for each                                        however, that applications of my theory would
and every person on whom it is imposed. In add-                                          help to make the criminal law more just. The
ition, the requirement of narrow tailoring pre-                                          theory would go a long way toward retarding
cludes the enactment of criminal laws that are                                           the current trends to criminalize too much and
underinclusive. To be justified, a criminal law                                          to punish too many. But a better account of crim-
must apply equally to each type of conduct the                                           inalization would also have obvious advantages
state has the same compelling interest to pro-                                           for criminal theory as traditionally construed.
scribe. The state must treat us as equals in our                                         The doctrines in the general part of criminal law
interest in not being punished; it should not                                            – the area on which theorists have tended to focus
punish some while sparing others if it has                                               – are derived by generalizing from offenses in the
the same compelling reason to punish both.                                               special part. A better theory of criminalization
A principle against underinclusive legislation                                           can only improve the normative content of crim-
would help to ensure that the state is really aiming                                     inal theory generally.
toward the interest it alleges to be promoted by
the statute.
   The foregoing account simply begins the extra-
ordinarily difficult task of providing an adequate                                                                      References
theory of criminalization. Further details would
                                                                                         Abrams, N. 1989. The new ancillary offenses. Criminal
borrow from that body of law that protects inter-
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                                                                                         Ashworth, A. 1995. Principles of Criminal Law, 2nd
being punished. Applying the principles I have                                             edn. Oxford: Clarendon Press.
described requires normative judgments that are                                          Ashworth, A. 2000. Is the criminal law a lost cause? Law
immensely controversial. But far greater contro-                                           Quarterly Review 116: 225–56.
versy should surround the enactment of criminal                                          Bilionis, L. 1998. Process, the Constitution, and sub-
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us of our interest in not being subjected to hard                                          1269–1334.
treatment and censure.                                                                   Calabresi, G. and Melamed, D. A. 1972. Property
   How would this theory apply to the prolifer-                                            rules, liability rules, and inalienability: One view
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criminality? Can the state possibly have a compel-
                                                                                         Coffee, J. 1991. Does ‘‘unlawful’’ mean ‘‘criminal’’?
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                                                                                           Reflections on the disappearing tort/crime distinc-
member of the armed forces in a voter preference                                           tion in American law. Boston University Law Review
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seems obvious. Still, we should not be too quick                                         Colb, S. 1994. Freedom from incarceration: Why is
to decide until the state has had an opportunity to                                        this right different from all other rights? New York
justify these laws by applying the demanding cri-                                          University Law Review 69: 781–849.

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Dubber, M. 2001. Policing possession: The war
  on crime and the end of criminal law. Journal of                                                             Further Reading
  Criminal Law and Criminology 91: 829–996.
Feinberg, J. 1984. Harm to Others. New York: Oxford                                   Alexander, L. 2000. Insufficient concern: A unified
  University Press.                                                                     conception of criminal culpability. California Law
Feinberg, J. 1986. Harm to others – a rejoinder. Crim-                                  Review 88: 931–64.
  inal Justice Ethics 5: 16–29.                                                       Alexander, L. 2002. The philosophy of criminal law. In
Gardner, J. and Shute, S. 2000. The wrongness of                                        J. Coleman and S. Shapiro (eds.), Oxford Handbook of
  rape. In J. Horder (ed.), Oxford Essays in Jurispru-                                  Jurisprudence and Philosophy of Law. Oxford: Oxford
  dence, 4th series. Oxford: Oxford University Press,                                   University Press, 815–67.
  193–217.                                                                            Coffee, J. 1992. Paradigms lost: The blurring of the
Hart, H. 1958. The aims of the criminal law. Law &                                      criminal and civil law models – and what can be
  Contemporary Problems 23: 401–41.                                                     done about it. Yale Law Journal 101: 1875–93.
Husak, D. 1995. The nature and justifiability of non-                                 Coleman, J. 2000. Crimes and transactions. California
  consummate offenses. Arizona Law Review 37:                                           Law Review 88: 921–30.
  151–83.                                                                             Dressler, J. 1995. Understanding Criminal Law, 2nd
Kadish, S. and Schulhofer, S. 2001. Criminal Law and                                    edn. New York: Matthew Bender.
  its Processes, 7th edn. New York: Aspen Law & Busi-                                 Duff, A. 1996. Criminal Attempts. Oxford: Clarendon
  ness.                                                                                 Press.
Kleinig, J. 1986. Criminally harming others. Criminal                                 Dyer, J. 2000. The Perpetual Prisoner Machine. Boulder,
  Justice Ethics 5: 3–10.                                                               CO: Westview Press.
Lacey, N. 1998. Contingency, coherence, and concep-                                   Feinberg, J. 1985. Offense to Others. New York: Oxford
  tualism. In A. Duff (ed.), Philosophy and the Criminal                                University Press.
  Law. Cambridge, UK: Cambridge University Press,                                     Feinberg, J. 1987. Harmless Wrongdoing. New York:
  9–59.                                                                                 Oxford University Press.
Logan, W. 1998. The ex post facto clause and the juris-                               Fletcher, G. 1978. Rethinking Criminal Law. Boston:
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  Review 35: 1261–1318.                                                               Fletcher, G. 1993. Blackmail – the paradigmatic crime.
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  sharing wrongs. Canadian Journal of Law and Juris-                                    1617–38.
  prudence XI: 7–22.                                                                  Fletcher, G. 1998. Basic Concepts of Criminal Law. New
Moore, M. 1997. Placing Blame: A General Theory of                                      York: Oxford University Press.
  the Criminal Law. Oxford: Clarendon Press.                                          Gainer, R. 1998. Federal criminal law reform: Past and
Nozick, R. 1974. Anarchy, State, and Utopia. New                                        future. Buffalo Criminal Law Review 2: 45–159.
  York: Basic Books.                                                                  Green, S. 1997. Why it’s a crime to tear the tag off a
Posner, R. 1985. An economic theory of the criminal                                     mattress: Overcriminalization and the moral content
  law. Columbia Law Review 85: 1193–1231.                                               of regulatory offenses. Emory Law Journal 46:
Robinson, P. 2001. Punishing dangerousness: Cloaking                                    1533–1615.
  preventive detention as criminal justice. Harvard                                   Hart, H. L. A. 1968. Punishment and Responsibility.
  Law Review 114: 1429–56.                                                              New York: Oxford University Press.
Simester, A. P. and Sullivan, G. R. 2000. Criminal Law:                               Husak, D. 1987. Philosophy of Criminal Law. Totowa,
  Theory and Doctrine. Oxford: Hart.                                                    NJ: Rowman & Allanheld.
Stuntz, W. 1996. Substance, process, and the civil-crim-                              Husak, D. 1992. The serial view of criminal law
  inal line. Journal of Contemporary Legal Issues 7:                                    defenses. Criminal Law Forum 3: 369–400.
  1–41.                                                                               Katz, L. 1987. Bad Acts and Guilty Minds. Chicago:
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----------------------------------- Chapter 8 ----------------------------------

                       Philosophy of Tort Law
                                         Benjamin C. Zipursky



The string of words, ‘‘Philosophy of tort law’’                            to the development of philosophically rich
may seem like a random conjunction of academic                             answers.
topic nouns selected from columns in a word                                   Philosophy/tort questions will be presented in
game. If the phrase has a comical ring, it is be-                          three sections. The first section pertains to prob-
cause tort law is among the most practical and                             lems in the development of the black-letter law of
least high-falutin’ areas of law. Tort law deals with                      torts within the twentieth century, which have
car accidents, medical malpractice, and defective                          spurred the development of philosophical tort
lawn mowers, matters seemingly far from the                                theories. The second looks to broader debates
celestial concerns of the philosopher. And so,                             within legal theory in which tort theory has
like the lobster ice cream sold in a sea-faring                            been a singularly important domain. Third, and
tourist town, the existence of philosophy of tort                          finally, there are debates within moral and polit-
law as a subject may seem to be proof that people                          ical philosophy that have again displayed tort
will swallow just about anything that can be                               theory as a domain within which particularly
served up.                                                                 rich philosophical ideas have been generated.
   The decision to write this chapter indicates that                       Philosophical work in tort law has emerged
I do not share the perspective articulated above.                          from, addressed, pushed forward, and been
And yet the question raised – ‘‘Is philosophy of                           shaped by, developments in all of these debates.
tort law intellectually unmotivated?’’ – provides a
valuable backdrop for thinking about the topic.
I shall suggest in what follows that the subject
actually covers a number of different kinds of                                  Pushed by Problems in Law and
inquiry, each kind motivated by a set of practical                                          Policy
or intellectual concerns. By probing these diverse
motivations we will not only address the reasons
why there is such a subject (philosophy of tort                                    Negligence versus strict liability
law), we will also get a better sense of the sub-
stance of ongoing debates within tort law, and we                          In a number of different domains of tort law
will have greater reason to hope that further de-                          during the twentieth century, judges, lawyers,
velopment in philosophy of tort law will lead to                           legislators, and academics engaged in a debate
valuable contributions to our legal system and                             over whether companies and individuals should
academic culture. Rather than setting forth sev-                           be held strictly liable for the injuries they cause.
eral leading tort theories as if the subject had an                        Workers’ compensation for workplace injuries,
uncontested subject matter over which different                            no-fault automobile insurance for car accidents
scholars had different theories, we shall look at                          in some jurisdictions, and strict liability for manu-
several different kinds of questions that have led                         facturing defects in products are prominent

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examples of domains in which the advocates of                                         erty right is required by the law to compensate the
strict liability have prevailed. A wide variety –                                     property owner for the infringement, so each
probably the vast preponderance – of areas of                                         who causes injury to another’s body is also liable
accident law remain negligence-based, but there                                       to the other for the costs of the injury inflicted –
has been and continues to be a significant range of                                   at least where there is not a specific showing of
areas in which debates between a negligence                                           excuse or justification (Epstein 1973: 203–4).
principle and a strict liability principle remain                                     The purpose of this body of law is not to provide
energetic and nuanced. This includes, for                                             compensation to accident victims, nor to deter
example, liability for suboptimal designs and un-                                     wrongdoers (although it does, and not unimpor-
known hazards in products, liability for automo-                                      tantly, have those consequences); the purpose of
bile accidents, and a significant number of                                           the law is to protect each person’s holdings
dangerous activities.                                                                 against the infringements of others. Whether
   While the strict-liability-versus-negligence                                       those infringements are deliberate or negligent
debate has benefited from major, and in some                                          or without fault is largely irrelevant, just as it
cases, central, contributions from economists,                                        generally is for property infringements. One’s
historians, and other analysts within the social                                      body is as precious as one’s real property, so inva-
sciences, it has from its inception presented a                                       sions of bodily integrity trigger a right to com-
significant philosophical aspect. At first appear-                                    pensation.
ance, one might suppose that the philosophical                                           The key to the interpretive success or failure of
question at issue has been: ought a person who has                                    Epstein’s account is whether he can recast what
caused injury to another person be held liable for the                                would otherwise seem to be a conception of fault
cost of compensating the victim’s injury, regardless                                  in many cases as an aspect of the causation
of whether the one who caused injury acted in a                                       requirement; Stephen Perry’s widely respected
faulty manner? In fact, this bald normative ques-                                     critique of Epstein (based on the idea that he
tion has not been the primary target of philosoph-                                    must smuggle normative notions into his concep-
ical analysis. Rather, the primary philosophical                                      tion of cause) suggests that he cannot (Perry
question has been one that presupposes a setting                                      1989: 404–12). From a normative point of view,
within legal doctrine, and an interpretive slant: to                                  the view requires adherence to an almost visceral
the extent that the imposition of liability under                                     Nozickian libertarianism – a view to which
Anglo-American tort law embodies a set of legal                                       Epstein appears to remain loyal, albeit for a dif-
principles that displays a defensible normative                                       ferent set of reasons than he initially endorsed.
structure, does that normative structure permit
the imposition of liability without fault, and if so,
                                                                                       Weinrib and Ripstein: Fault-based conceptions
when?
                                                                                                of corrective justice theory
   The results of this broad inquiry fall into a
spectrum running from strict liability to negli-                                      Weinrib, like Epstein, embraces a corrective just-
gence. Richard Epstein’s straightforwardly titled                                     ice framework in which restoring an equilibrium
‘‘A Theory of Strict Liability’’ (1973) is a liber-                                   that was disturbed by tortious conduct is a central
tarian case for strict liability in accident law; by                                  feature of tort law (Weinrib 1995). Unlike
contrast, Ernest Weinrib’s corrective justice                                         Epstein, however, Weinrib openly states that the
theory advocates a fault principle across the                                         equilibrium disturbed (and then ideally restored)
board, and Arthur Ripstein largely shares this                                        is not simply the status quo distribution of entitle-
position. Several views fall in between – including                                   ments. It is, Weinrib argues, a ‘‘normative equi-
those of George Fletcher, Gregory Keating, Jules                                      librium,’’ which is disturbed only where people
Coleman, and Stephen Perry.                                                           have acted in a manner that they were not entitled
                                                                                      to act, outside of their rights. Where the defend-
                                                                                      ant has so acted and the conduct ripens into an
Epstein’s strict-liability corrective justice theory
                                                                                      invasion of the plaintiff’s right, that invasion is a
Richard Epstein has taken the view that, just as                                      disturbance that needs to be rectified. When the
each person who infringes upon another’s prop-                                        tort law obligates the tortfeasor defendant to pay

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the plaintiff, it is making sure that the rectification                              in a given community – such as driving – each of
occurs and normative equilibrium is restored;                                        us accepts a certain degree of risk as a form of
things are set right, so far as possible. Because                                    vulnerability that we must tolerate in light of our
the trigger of liability is an action in breach of                                   own production of similar risks to others. There-
duty, or outside of a defendant’s right, this is                                     fore, when those risks are realized, the generator
not strict liability. The defendant has injured the                                  of realized risks need not bear the liability. How-
plaintiff, but the liability for the injury is not                                   ever, when people do not use reasonable care
generated by that fact alone, but by the wrongful-                                   in engaging in those activities, they generate a
ness of the defendant’s injuring of the plaintiff.                                   nonreciprocal risk and must therefore take re-
Hence, fault is essential to liability in tort, under                                sponsibility if the risk is realized in an injury.
Weinrib’s view. This is not to say that insurance or                                 That is negligence-based liability. Similarly, if
administrative law frameworks could not justifi-                                     people engage in abnormally risky activities,
ably be created that would impose strict liability,                                  the reciprocity of risk does not apply, and they
but such structures could not properly come from                                     should be held liable for the results of those real-
within the judiciary purporting to apply tort law,                                   ized risks. That is strict liability. Recent work
and could not appeal to the supposed normative                                       by Gregory Keating has expanded Fletcher’s
bases of tort law.                                                                   theory in illuminating ways (Keating 1996,
   Arthur Ripstein’s powerful book, Equality,                                        1997, 2001).
Responsibility and the Law (1998), takes Kantian
strands in Weinrib and weaves them into a con-
                                                                                      Mixed corrective justice theories: Coleman and
temporary, constructivist, Rawlsian defense of
                                                                                                           Perry
tort law. His basic idea is that security and liberty
are goods that it is the domain of law to shape and                                  Coleman has offered at least two quite different
constrain for citizens on equal terms. Tort law                                      models aimed at capturing both strict liability and
does this by declaring that when people act in a                                     negligence. In his early work, Coleman depicted
manner that takes more liberty than a generalized                                    the tort law as a system fundamentally aimed at
scheme of liberty could permit – when they                                           annulling unjustifiable losses (which, he argued,
unreasonably risk harm to others, for example –                                      is consistent with strict liability) (Coleman 1976).
then the risked harm, if it comes to pass, will be                                   At the same time, Coleman recognized that the
their responsibility. In that manner, tortious con-                                  legal system may choose particular modes of rec-
duct in effect creates a domain of responsibility for                                tifying those losses, and some modes (e.g., a fault
injuries caused. Because it is essential to Ripstein’s                               principle) may serve other social goals or imple-
view that the injury only becomes the defendant’s                                    ment other principles (Coleman 1983). Those
responsibility under the tort law because he or she                                  crafting the tort system presumably need to
acted beyond the limit of liberty designated,                                        decide which principles they think should be
negligence or fault is critical to liability.                                        treated as primary if they want to ascertain the
                                                                                     propriety of strict liability.
                                                                                        A second incarnation of Coleman’s thinking –
                 Fletcher’s reciprocity theory
                                                                                     which displays a stimulating conversation with
Two pioneers of the philosophical study of tort                                      Stephen Perry’s work – is found in Risks and
law – George Fletcher and Jules Coleman – have                                       Wrongs (Coleman 1992). Like both Perry and
offered accounts that expressly leave room for                                       Weinrib, Coleman urges a corrective justice view
both strict liability and negligence within tort                                     that treats plaintiffs and defendants in an inter-
law. Fletcher’s 1972 article, ‘‘Fairness and Utility                                 locked relationship, within which their rights and
in Tort Theory,’’ asserts that a single principle                                    duties are correlative. Tort liability is imposed
accounts for both strict liability and negligence:                                   where defendants have a duty of repair running
a principle that the creation of nonreciprocal risks                                 to the plaintiff, and they have this duty of repair
generates liability for the realization of those                                     where they are responsible for the plaintiff’s
risks. In risky activities that are widely engaged                                   injury. They are responsible for injuries where
in and are taken as part and parcel of modern life                                   they have violated a right not to be injured

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tortiously. For the most part, such rights are cor-
                                                                                           Revisiting the doctrinal and policy arenas
relative to duties not to injure another wrong-
fully. To this extent, they are negligence-based.                                     It is not necessarily easy to say what the precise
However, Coleman also suggests that some rights                                       contributions of these philosophical accounts
are defined such that infringement can occur                                          have been to the development of legal doctrine,
without wrongdoing; land rights are a good                                            but that is not to say that they have been inert.
example, for a trespass need not be negligent or                                      A variety of economic, political, social, and intel-
wrongful (Coleman 1992: 371–4). Hence, a                                              lectual forces pushed toward strict liability in
rights violation is either a wrongful injuring or                                     products and more generally in the 1950s
an infringement of a predefined interest in not                                       through the early 1970s. Philosophical theorists
being injured through a certain sort of conduct                                       of tort law at first added to this pressure, by
and as to a particular sort of entitlement. Negli-                                    depicting tort as aimed toward – or at least con-
gence liability is the first sort, strict liability is                                strained by – the notion of responsibility and by
consistent with the second.                                                           analyzing responsibility in a manner that permit-
   Perry grounds corrective justice in a notion of                                    ted strict liability. However, since Epstein’s views
responsibility – one that he labels (following                                        were rejected and an analysis of responsibility in
         ´
Honore) ‘‘outcome responsibility’’ (Honore           ´                                terms of fault gained prominence, philosophical
1988; Perry 1992). The assignment of liability                                        and justice-based accounts of tort law have
in tort is, in effect, a recognition that the defend-                                 tended to support at least a strong presumption
ant is responsible for the plaintiff’s injury. The                                    that fault or negligence is required in the theory
implication of such a finding of responsibility, as a                                 of tort liability, with strict liability remaining a
moral matter, is the recognition of a duty of con-                                    fragment of exceptions. At the same time, courts,
duct toward the plaintiff to rectify the injury in                                    legislatures, and tort doctrinalists have greatly
some manner. Perry offers a detailed analysis of                                      retreated from the movement toward strict liabil-
the moral principle underpinning the assignment                                       ity. Indeed, the American Law Institute’s Restate-
of responsibility, arguing that the notion of out-                                    ment (Third) of Products Liability has expressly
come responsibility is part and parcel of a social                                    advocated negligence over strict liability in both
practice in which certain outcomes are linked to,                                     the products context and more generally, in part
and associated with, a person’s agency. Typically,                                    citing philosophical reasons. The directions of the
an accidental injury is not simply within one per-                                    causal link among these academic, political, and
son’s agency, but within more than one person’s                                       legal developments – if there be any links – would
agency. The question therefore arises as to which                                     require much greater analysis; suffice it to say that
should be deemed responsible for the outcome,                                         there is no a priori reason to assume that the
given that both are linked with it causally, and                                      causal link traveled in only one direction.
possibly both (or several) could have foreseen                                           A somewhat subtler, but perhaps even more
the outcome (Perry 1992: 509). Our notions of                                         significant effect has involved the issue of caus-
corrective justice offer a principle of distribution                                  ation more than the issue of fault. During the
localized to the few who are outcome-respon-                                          1970s, courts began experimenting with the
sible, imposing a duty of repair upon the one                                         relaxation of proof requirements for cause in fact
whom we judge most fairly bears the burden                                            and for tortfeasor identification. Hence, in the
among those who are outcome-responsible                                               DES context, plaintiffs in jurisdictions that
(Perry 1992: 512–13). Normally, a notion that                                         permit market-share liability can recover from a
one of the parties was at fault is necessary to a                                     drug company that produced the same sort of
judgment that that person should fairly bear the                                      drug that injured them, without proving that
burden of the injury, but in a certain class of cases,                                the manufacturer produced the particular brand
the comparative judgment may not require any                                          that injured them (Ripstein and Zipursky 2001:
actual judgment of fault (Perry 1992: 510–11).                                        215). A spate of commentators asserted that this
To that extent, Perry argues, a fragment of strict                                    sort of innovation should be followed in a wide
liability may be cogent, notwithstanding the gen-                                     variety of tort cases, and in fact provided a more
eral preference for fault.                                                            sound basis for tort law than actual doctrine.

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Philosophical analysts of tort law, particularly cor-                                assume that philosophy of tort law is largely
rective justice theorists, presented an account of                                   exhausted by grand philosophical theories of the
tort law in terms of responsibility for injuries that                                domain of tort law. It would be odd if this were
provided a powerful and cogent justification for                                     true in torts, for it is not true in those areas of law
the central role of causation, roughly as tradition-                                 where philosophical work has been most promin-
ally understood. In combination with a number                                        ent – constitutional law and criminal law. In those
of other intellectual and political forces, it would                                 areas, while grand theories such as fundamental
appear that the principled defense of causation                                      rights theory or retributivism have been promin-
has seriously stalled the efforts of enterprise liabil-                              ent, philosophers and philosophically oriented
ity revisionists.                                                                    legal scholars have probed a variety of narrower
   To summarize: legal scholars and courts seem                                      questions. In constitutional law, for example, im-
to be near consensus on the view that to assign                                      portant scholarship has focused on questions
responsibility for a defendant without deeming its                                   such as (simply to name a few) the nature and
conduct to be either a prima facie wrong or an                                       scope of free speech, the right to privacy, the
extraordinary taking of a risk runs against the                                      proper scope of judicial review, the role of
grain of the principles embedded in the tort law,                                    framers’ intent in constitutional interpretation.
and is therefore disfavored unless there are par-                                    Similarly, in criminal law, scholarship has focused
ticularly forceful reasons of policy or equity for                                   not only on the justification of punishment, but
doing so. Hence, there is strict liability for ultra-                                on (for example) the nature of criminal intent, the
hazardous activities – those involving extraordin-                                   distinction between justification and excuse, and
ary risks – and there is strict liability in worker’s                                defenses such as insanity and self-defense. See
compensation as a policy-motivated legislative                                       C R I M I N A L L AW T H E O R Y. We should not expect,
choice during the inception of the last century,                                     therefore, that theories over whether fault or
and there is strict liability on a restitutionary basis                              strict liability is the basic principle of tort would
in a narrow range of cases. But otherwise there is                                   take up the space in philosophy of tort law. And
not. And to the extent that, for example, product                                    that is just what we find.
liability has moved toward strict liability, scholars                                   Philosophers and philosophically oriented
have favored a return to the negligence-based                                        scholars of tort law have provided serious and
idea, unless particularly strong policy-based justi-                                 interesting work on a variety of broad but defined
fications can be demonstrated.                                                       legal issues. Thus, for example, philosophers have
   At a broader level, the richness of philosophical                                 investigated the nature of the cause-in-fact and
theories of tort law over the past few decades                                       the proximate cause requirements for tort liabil-
should not seem either mundane or rarified. Ques-                                    ity; the meaning of the ‘‘prudent person’’ stand-
tions about the basis of our tort liability push                                     ard or the ‘‘reasonable care’’ standard in
lawyers and citizens to think philosophically. In-                                   negligence law (Feldman 2000; Keating 1996);
quiry into the basic concept of responsibility and                                   the relation between intent and knowledge
what role fault plays within it cuts deeply into both                                in intentional torts (Finnis 1995; Sebok 2001);
moral and political theory, and is hardly banal;                                     the concept of foreseeability (Perry 2001: 88–
exploration and modification of the contours of                                      101); and the nature of duty in negligence
liability on the border of negligence and strict                                     law (Goldberg and Zipursky 1998; Weinrib
liability raise the bar on the importance of crafting                                1995), just to take a few examples. The areas are
intelligent answers to such questions, an activity                                   far too numerous even to survey here, but it may
that is hardly inert or esoteric.                                                    be useful to explore an example of this phenom-
                                                                                     enon. Like the broader debate between fault and
                                                                                     strict liability, the theoretical issues that revolve
           Concepts within tort doctrine                                             around more defined doctrines have tended to
                                                                                     arise out of ongoing practical debates within
Commentators on tort theory – even those who                                         actual types of legal disputes that courts are
recognize an important link between theory and                                       trying to resolve in a coherent, just, and beneficial
open questions in legal doctrine – typically                                         manner.

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   Let us take the example of ‘‘duty’’ in negli-                                      view, that the term ‘‘duty’’ refers to a relation of
gence law. The meaning and nature of the                                              moral significance between two parties. Weinrib’s
‘‘duty’’ element in negligence law is equally in-                                     moralization – or remoralization – of torts antici-
viting to the skeptic and the moralist. This is                                       pated a broader philosophical investigation of the
immediately evident in Holmes’s famous antici-                                        meaning of ‘‘duty’’ within negligence law (Wein-
pation of legal realism in ‘‘The Path of the Law’’                                    rib 1983, 1989, 1995).
(1897), where he states that: ‘‘a legal duty so                                          In a series of articles, my coauthor John Gold-
called is nothing but a prediction that if a man                                      berg and I have depicted the debate over duty as,
does or omits certain things he will be made to                                       in part, a philosophical debate over the structure
suffer in this or that way by judgment of the                                         of the concept of duty within certain kinds of
court; – and so of a legal right’’ (1897: 458–                                        normative systems (Goldberg and Zipursky
9). Holmes the scholar was above all a tort                                           1998, 2001, 2002). Quite apart from the inter-
theorist and so it is fair to take this largely juris-                                pretive question of what concept the law of neg-
prudential statement as a commentary on duty                                          ligence is best understood as displaying, there is
in torts as well. Legal realism in torts in particu-                                  an analytical question of whether a nonreductive
lar was advanced by Leon Green in the early part                                      conception of duty in negligence law can be
of the twentieth century in work that expressly                                       articulated in such a way that it is not equivalent
asserted that ‘‘duty’’ in negligence law was                                          to the question of whether reasonable or ordin-
largely a procedural device for shifting classes of                                   ary care was used by the defendant. According to
cases to the court from the jury (Green 1928).                                        what is now the academically dominant account,
See A M E R I C A N L E G A L R E A L I S M . These theoret-                          to say that there was unreasonable conduct by
ical statements then made their way into horn-                                        the defendant but that there was no duty to use
book statements of law, and from there, they                                          such care running to the plaintiff is simply to say
entered into the lexicon of the California Su-                                        that notwithstanding breach of duty causing
preme Court of the 1960s and 1970s, as if they                                        injury, there shall be no right of action available
were black letter law. Essentially, Holmes’s blend                                    to this particular plaintiff. That is because,
of realism, moral skepticism, and reductive                                           according to this conception, the only genuine
instrumentalism as attached to the pivotally im-                                      obligation of conduct within negligence law is an
portant ‘‘duty’’ in negligence law had prevailed                                      obligation to use due care, and this obligation
within the legal academy and within certain                                           does not run to any person or class of persons; it
avant garde courts. The result was quite real as                                      just exists as the standard of reasonable conduct,
well: large bodies of well-settled law, such as                                       full stop. And hence, once one has concluded
landowner liability, professional liability to third                                  that reasonable conduct was not used, one has
parties, emotional harm doctrine, and economic                                        decided that the only genuinely duty-like aspect
harm doctrine, as well as limitations on the duty                                     of the situation – the obligation to use reason-
to rescue, became targets of sustained critique                                       able care – existed and was breached. If the court
purporting to display the rules as arbitrary limi-                                    then turns around and says that the plaintiff
                                               ¨
tations based on philosophically naıve interpret-                                     must lose because there was no duty to him or
ations of the concept of duty.                                                        her, the court can only be interpreted to mean
   In the context of a near landslide of support for                                  that there is a class of cases involving a plaintiff
a philosophical (and reductive) analysis of a cen-                                    situated a particular way and a defendant situ-
tral element of the main tort, negligence, it is not                                  ated a particular way, which for some reason
surprising that a philosophical opposition began                                      should not be actionable even where there is
to emerge. Weinrib’s articles, and those of several                                   unreasonable conduct causing injury, and that
of his students, began to take a harder look at the                                   this case belongs to that class.
question of what role the duty element plays in                                          The analytical challenge is therefore the puzzle
negligence law. Weinrib’s Kantian and Hegelian                                        of explaining how there could be a form of
account of the correlativity of right and duty                                        obligation to use due care that is not simply a
within negligence law is fundamental to his                                           duty to use reasonable care owed to no person or
account of torts. And it is critical, on Weinrib’s                                    class of persons: why, as we have put it, it might

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be possible to think of duties of due care as
relational in a nonquestion-begging sense. The                                            Jurisprudence and Legal Theory
answer offered is that it is possible to think of
norms of conduct as either monadic (or simple)                                       The philosophical literature on tort law has been
or dyadic (or relational). Monadic norms direct                                      at least as important within jurisprudence as it
or enjoin a class of persons not to behave in a                                      has within tort law itself. Broadly speaking, tort
certain way (or to behave in a certain way).                                         theorists have contributed to jurisprudential de-
Dyadic norms of conduct are norms that direct                                        bates in at least two ways. The first looks to the
or implore a class of persons not to treat                                           nature of the value system to be utilized in ex-
members of some class some way. It is possible                                       plaining or justifying bodies of law. The second
to ask whether one person has violated the norm                                      looks to the nature of the analytical process to
with respect to some particular person, if the                                       be used in breaking down and understanding
norm is understood as having a dyadic structure,                                     the law.
but not otherwise (Zipursky 1998b: 61–3). It is
possible to think of a norm of due care as a
dyadic norm, not a monadic norm. Insofar as
the obligation’s existence is constituted by or                                                         Fairness versus utility
identical with the existence of a norm, it is pos-
sible to think of an obligation to use due care as                                   Drawing from Mill and Bentham, Oliver Wendell
a relational obligation, an obligation that it is                                    Holmes Jr. thought that the measure of a legal
coherent to think is owed to a person or class                                       system was its contribution to overall well-being
of persons, and coherent to say has been violated                                    of the community it served. The point of the law
with respect to one person but not to another. It                                    was to improve concrete human functioning. It
is therefore possible to think of duties of due                                      did this by compensating those wrongfully in-
care as owed to persons or classes of persons                                        jured and by giving teeth to the norms of prudent
(and, correspondingly, to think of a breach of                                       conduct that our society needs. Holmes’s pion-
the duty of due care as a breach of a duty owed                                      eering work was followed, in different ways,
to a person or a class of persons). And – so long                                    by doctrinalists such as Prosser and Keeton and
as one can think of legal norms as directing or                                      by economic theorists such as Richard Posner
enjoining conduct – it is possible to conceptual-                                    (Posner 1972), Guido Calabresi (Calabresi
ize all of this without begging the question of                                      1970), and Ronald Coase (1960), and, of course,
whether the right to sue for negligence is limited                                   by many leading courts. By the end of the 1960s,
by whether one is among the class of persons to                                      tort law as a domain in which we seek out the
whom a duty is breached.                                                             most commendable system for compensating ac-
   Of course, even if it is possible to understand                                   cidental injury was well entrenched. Indeed, a
duties of care in this manner, it does not follow                                    general view of the law as aimed toward produ-
that tort law’s duties of due care are best under-                                   cing human happiness was flourishing in consti-
stood in this manner, or that a body of law so                                       tutional law, contracts, and criminal law. This was
constituted would be more desirable than what                                        not surprising, since utilitarianism and its off-
‘‘simple duty’’ theorists would advocate. We and                                     shoots had achieved extraordinary prominence
others have addressed these questions in detail                                      in America during the twentieth century. Partly
elsewhere (Goldberg and Zipursky 1998: 1826–                                         because of Holmes’s leadership, and partly be-
42). What I wish to point out here, however, is                                      cause of its practical importance within a quickly
that the question of the structure of duties is                                      industrializing nation, tort law was the exemplar
really only the beginning of a domain of philo-                                      of the utilitarian approach.
sophical debate that can and should inform                                              But moral and political philosophy in the Eng-
ongoing legal controversies. Later in this chapter,                                  lish-speaking world was altered in the 1950s and
I shall comment on the role of philosophical an-                                     1960s by the publication of important papers by
alysis of the concept of duty in tort to moral                                       John Rawls, culminating in his Theory of Justice in
philosophy more broadly.                                                             1971. Rawls, of course, revitalized social contract

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theory and used it as a foundation from which to                                      fertile and plausible insights into tort law and tort
construct a critique of utilitarianism. Moreover,                                     policy, they have fortified the plausibility of an
after generations of skepticism about the notion                                      entire paradigm of legal theorizing. This broader
of justice, Rawls confidently offered a grand                                         plane of theorizing has spread across contract,
theory of justice, deploying a notion of fairness                                     property, criminal law, tax, and a variety of other
in a central role. Given that jurisprudence has                                       areas once almost entirely dominated by the utili-
historically and conceptually enjoyed a sibling-                                      tarian framework.
like relationship with moral and political philoso-
phy, one would expect these changes to be
reflected in legal theory.                                                               Instrumentalism versus conceptualism
   In 1972, less than a year after Rawls’s book,
George Fletcher published a landmark article in                                       The debate described above, between utilitarian
the Harvard Law Review entitled ‘‘Fairness and                                        and nonutilitarian theories, is related to another
Utility in Tort Theory.’’ Fletcher expressly cited                                    legal theory debate: that between instrumentalist
Rawls as foundation and inspiration for his ideas                                     analysis of law and legal concepts and conceptua-
in the philosophy of tort law. Unlike constitu-                                       listic analysis. The instrumentalist took the key to
tional law, where others (most notably Dworkin)                                       understanding law and legal concepts to be an
had cited the significance of Rawls, and where                                        appreciation of the capacity of pieces of doctrine
utilitarianism was unlikely to have achieved un-                                      to serve as instruments for the realization of social
questioned superiority, tort law was an area in                                       ends (Summers 1982: 20).
which utilitarian theorizing reigned supreme.                                            Examples of this sort of analysis abound within
Fletcher argued that a notion of fairness was                                         twentieth-century legal theory, both inside and
better than a notion of utility for understanding                                     outside of torts. Take the example of ‘‘uncon-
tort law, both from an interpretive and from a                                        scionability’’ within contract law. The doctrine
normative point of view. He urged that even strict                                    that unconscionable contracts are unenforceable
liability, which was famously advocated from a                                        superficially appears to be a moralistic require-
utilitarian point of view, was in fact better inter-                                  ment that bargains that are so extremely one-
preted in terms of a notion of fairness. And he                                       sided as to be grossly oppressive or unfair should
used this notion of fairness as means for casting in                                  not be enforced. An instrumentalist analysis
relief how dogmatically utility-based legal theory                                    would eschew this superficial interpretation – at
in America had become.                                                                least insofar as it aimed to resurrect some justifi-
   Fletcher’s article is emblematic of a now-famil-                                   able aspect of the doctrine – and read unconscion-
iar paradigm battle between economically                                              ability as a doctrine aimed to ferret out bargains
oriented legal theorists and deontologically                                          that were made in a context of such dispropor-
oriented ones, both within torts and elsewhere.                                       tionate bargaining power that the usual presump-
And tort law has been viewed as a field over which                                    tion that freely agreed to bargains are efficient no
these two paradigms should properly do battle.                                        longer holds. ‘‘Unconscionable’’ is just a rhet-
Fletcher’s reciprocity-based approach is no longer                                    orically effective label for such contracts. The
the dominant model for the antiutilitarians in                                        propriety of refusing to enforce them has nothing
torts (corrective justice theory is); but, again,                                     to do with the superficial meaning of the term,
the philosophy of tort law remains the centrally                                      and is really just a disguise for one of the law’s
contested forum within which broadly speaking                                         means of adhering to a program of promoting
utilitarian theories are challenged by nonutilitar-                                   efficiency. Similar examples exist through virtu-
ian ones: Libertarian Strict Liability (Epstein                                       ally all areas of the common law and constitu-
1973), Aristotelian Corrective Justice Theory                                         tional law. Instrumentalism has thrived in torts
(Gordley 1995; Stone 2001; Weinrib 1995),                                             as much, or more, than in other parts of the law –
Constructivist Corrective Justice Theories (Cole-                                     famously, for terms such as ‘‘proximate cause’’
man 2001; Ripstein 1998); Social Contract-                                            and ‘‘duty,’’ and for fundamental principles,
based Theories (Fletcher 1972; Keating 2001).                                         such as the requirement that defendant’s conduct
To the extent that such theories have provided                                        actually caused plaintiff’s injury.

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   Instrumentalism and utilitarianism are by no                                      sumptively required to pay an amount equal to
means identical, even if adherence to one often                                      the magnitude of the plaintiff’s injury. For if the
accompanies adherence to the other. It is entirely                                   tort law is viewed as aiming at efficient deter-
possible for an instrumentalist to believe that                                      rence, it is an entirely open question whether
rights and duties are not simply a matter of utility,                                the correct amount will match the plaintiff’s
but have a thoroughly deontological foundation,                                      injury; conversely, if it is aimed at efficient com-
and that the legal terms and concepts are best                                       pensation. The system is a truly magnificent coin-
viewed as instruments for promoting such rights                                      cidence if it is aimed at both, and the precise
and duties. Justice Brennan’s First Amendment                                        magnitude of the injury from these respective
decisions could be viewed in such light, for                                         parties is what would be required. By contrast,
example. Conversely, it is possible to think of                                      Weinrib and Coleman have each insisted that the
the legal system as a whole as justified within a                                    concept of a duty to make whole is central both to
utilitarian framework, but to think that under-                                      corrective justice and to tort law. To seek to dig
standing of legal concepts requires a noninstru-                                     underneath this concept in favor of finding an
mentalist approach; H. L. A. Hart’s treatment                                        independently specifiable social goal that is
of the criminal law arguably falls within such a                                     reached is to flush away the core of the justifica-
description (Hart 1968) and, from quite a differ-                                    tion of the system.
ent point of view, a variety of neoformalist                                            Weinrib has understandably been criticized for
approaches to statutory interpretation and consti-                                   riding the pendulum too far from instrumental-
tutional law do so as well.                                                          ism all the way to the sort of Langdellian formal-
   Ironically, philosophy of tort law has fueled the                                 ism that was rejected in the early part of the last
attack on instrumentalism, even though torts was                                     century (Rabin 1996). Whether or not that is a
probably the field in which instrumentalism                                          fair criticism, there is no doubt that Weinrib
enjoyed the greatest dominance. Above all,                                           demands a level of sympathy for Hegelian and
Ernest Weinrib has advanced a rich and intricate                                     Aristotelian metaphysics that law professors
theory of tort law that is profoundly anti-instru-                                   cannot always muster. And yet similar ideas have
mentalist (Weinrib 1995). The jurisprudential                                        emerged from Jules Coleman (Coleman 1988,
core of his view is that the distinctive form of                                     2001), Stephen Perry (Perry 1997), Martin
legal justification is one in which concepts play a                                  Stone (Stone 1996, 2001), and by me (Zipursky
particular role that is essentially distinct from that                               1998a, 2000, 2003) and by my coauthors, John
of promoting certain ends. Part of what makes tort                                   Goldberg (Goldberg 1999; Goldberg and
law a form of law, on Weinrib’s view, is that the                                    Zipursky 1998, 2001, 2002) and Arthur Ripstein
concepts within it fit one another in an integrated                                  (Ripstein and Zipursky 2001). Coleman was
manner, and this cluster of integrated concepts                                      never a formalist, and yet by contemporary legal
manages to realize a certain kind of normative                                       academic standards, his patience for the analysis
order, rather than advancing one. The concept                                        (rather than the reduction or elimination) of legal
of a ‘‘juridical structure’’ within tort law, exam-                                  concepts has always been remarkable. I have
ined with great philosophical subtlety by Weinrib,                                   coined the term ‘‘pragmatic conceptualist’’ to
suggests an entirely different model of how law                                      connote a form of anti-instrumentalism that is
gets content and meaning, if not by its role in a                                    open to late twentieth-century legal practice as
system aimed at promoting certain goals.                                             we know it (Zipursky 2000). This view borrows
   Among the most powerful arguments made                                            from Cardozo on the one hand (Goldberg and
against instrumentalism has been the ‘‘bipolarity                                    Zipursky 1998; Goldberg 1999) and from con-
critique’’ of instrumentalist accounts of tort law,                                  temporary philosophers of language on the other.
an attack offered in slightly different forms by                                     Its point is that concepts and principles within a
Weinrib and Coleman (Weinrib 1989, 1995;                                             given domain are grasped by those who interact in
Coleman 1988, 2001). Briefly, both of these                                          that domain, and that their content is, in a sense,
thinkers point out that instrumentalists must                                        just the network of ‘‘moves’’ with those concepts
view it as a contingent matter, from a normative                                     and principles. To understand these concepts is
point of view, that defendants in tort are pre-                                      not to adopt the right theory of the concept, from

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a normative point of view, but to learn what it                                       by MacIntyre and others need not be accepted as
means and be able to apply it. And the pattern of                                     a foregone conclusion in the law. If these conjec-
results that would flow out of these ‘‘moves’’                                        tures are true, at least two felicitous features are
constitutes the relevant domain of law.                                               enjoyed by the philosophy of tort law. First,
                                                                                      philosophical examination of moral concepts in
                                                                                      tort law is particularly valuable as a form of moral
                                                                                      anthropology. Like the cooking implements that
      Moral and Political Philosophy                                                  outlast the food and drink of ancient peoples, and
                                                                                      thereby provide valuable information about
                                                                                      them, the enduring common law provides valu-
Thus far, I have articulated a number of debates                                      able understanding of the morality of prior cul-
within which the turn to philosophical ideas and                                      tures. Second, if MacIntyre is correct that moral
philosophical analysis is natural, and has been                                       concepts of a commendable and vital form are
fruitful. In these areas, law, or at least legal theory,                              difficult to retain and reconstruct, then it is not
have drawn from philosophy. In the remaining                                          merely a historical curiosity, but a valuable guide
discussion, I shall (following Bernard Williams)                                      to affirmative normative efforts to reconstruct
turn the arrows around, and ask what other areas                                      aspects of our moral conceptual framework, and
of philosophy have learned or could learn from                                        revitalize it.
the philosophy of tort law (Williams 1995).                                              The first part of this chapter, which explored
                                                                                      the contributions of philosophy to tort law itself,
                                                                                      provides a useful framework within which to illus-
       Contextualism in moral thinking                                                trate these points. Some concepts – like the con-
                                                                                      cept of responsibility – figure pervasively within
In the roughly 25 years that have elapsed since                                       the content and structure of tort law. Other con-
Alasdair MacIntyre published his celebrated book                                      cepts – such as the concept of the duty of due care
After Virtue, moral philosophy has undergone                                          – figure within tort law in a more doctrinally
several different changes. MacIntyre (1981)                                           structured way. Philosophy of tort law has, I beli-
argued that the concepts that comprised moral                                         eve, the potentiality to further thinking within
and ethical thinking as a coherent whole                                              moral theory more generally both on the level of
depended upon a teleological backdrop that en-                                        pervasive principles, and on more focused con-
lightenment thinking rendered untenable, cer-                                         cepts.
tainly as a practical matter and possibly as a                                           Consider first the concept of responsibility. To
theoretical matter too. The result was the paradox                                    begin with, there are of course multiple distinc-
of modern moral philosophy, which inevitably                                          tions corresponding to forms of liability, culpabil-
would be unstable and unsatisfactory because its                                      ity, and obligation. To be criminally responsible
cogency depended on a metaphysical backdrop                                           for an act is different from being held liable for
that had been rejected. If the modern world had                                       damages in tort. Both of these are forms of liabil-
moved too fast for our metaphysics and morals to                                      ity that can be defeated if certain features of res-
catch up, the unfortunate consequence was that a                                      ponsibility (or their more doctrinally structured
whole world of concepts, although basic, would                                        counterparts in law) are missing. In addition,
not endure in any cogent, comprehensible, and                                         there is an important way of discussing responsi-
transmissible form.                                                                   bility that pertains not to liability ex post, but to
   I suggest that philosophy of law, particularly                                     the allocation of duties, ex ante. Thus, for
philosophy of the private law, has retained the                                       example, an assistant teacher might be respon-
vitality it has as a philosophical area in part be-                                   sible for the reading practice of the N-Z students,
cause the common law has proved itself, for better                                    while the principal teacher was responsible for the
or worse, to be driven by and controlled by genu-                                     A-M students. Or maintaining safe conduct in the
ine moral concepts. Moreover, the law is durable                                      swimming pool might be a camp counselor’s re-
– sometimes maddeningly so – and consequently                                         sponsibilities. Or identifying automobile models
the disintegration of moral concepts bemoaned                                         that have had significant defects and recalling

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them might be among a manufacturer’s responsi-                                       care, injury, and negligence, the river between
bilities. The concept of responsibility here not                                     moral and legal understanding flows in both dir-
only mirrors morality, but is intertwined with                                       ections. Duty within negligence law again pro-
legal concepts. Not only does the law incorporate                                    vides a strong example. An important debate
morality in such concepts. Morality also incorpor-                                   over the past 25 years in moral philosophy is
ates legal concepts.                                                                 whether all duties are universal, and essentially
   Stephen Perry’s excellent work on outcome                                         require of moral agents impartiality among all
responsibility, discussed above, provides an illu-                                   persons as obligees, or whether the superficially
minating account of the sense in which legal res-                                    attractive idea that some duties are agent-relative
ponsibility in torts for outcomes has a prelegal                                     is in fact morally defensible (even apart from con-
foundation in ideas pertaining to moral responsi-                                    tractual obligations). There is little doubt that,
bility and fault (Perry 1992, 1997, 2001). I think                                   according to common-sense morality or folk
that there is much to this suggestion, and do not                                    morality, or late twentieth- and early twenty-
mean to undercut it by suggesting that the oppo-                                     first-century Western morality, agent-relative
site is probably also true; that there is a domain of                                duties exist and are fairly prominent on our
moral attributions of responsibility whose origin                                    moral landscape (Nagel 1986; Scheffler 1994).
and interpretation requires an understanding of                                      There is also little doubt that the law of torts
institutional – and perhaps legal – arrangements                                     and beyond are rife with agent-relative duties,
that allocate blame and liability for bad outcomes.                                  even apart from contract. The questions in both
As Arthur Ripstein and Jules Coleman have                                            morality and law is whether such duties are de-
argued, there are domains in which the allocation                                    fensible, and if so, what their range, nature, con-
of liability and the shifting of costs are probably                                  tent, and ground of justification is.
not prelegal, where our moral judgment is rela-                                          These are obviously complex questions that
tively amorphous and there is a more probing                                         I am not about to answer here. What I am com-
political and institutional account of how respon-                                   menting upon is, however, one of the reasons that
sibility judgments are constituted (Ripstein 1998;                                   philosophy of tort law makes sense as a subject,
Coleman and Ripstein 1995; Coleman 2001).                                            and more particularly, the idea that moral phil-
I would suggest that accountability for injuries                                     osophy more broadly can learn from philosophy
caused by defective products, and a broader                                          of tort law – now in the context of whether agent-
range of enterprise liability falls into this category,                              relative duties are defensible. What tort law
for example. Yet in these areas we certainly                                         teaches us, John Goldberg and I have argued, is
deploy moral concepts of responsibility too.                                         that those who think in terms of duties of care, by
Here, I would be inclined to think the legal                                         virtue of the structure of the concept of duty,
concepts will play a role in understanding the                                       highlight a domain of persons and a domain of
moral ones.                                                                          goods for those persons as ones on which a cer-
   More generally, what it means to hold someone                                     tain kind of focus and vigilance and responsive-
responsible, how responsibility for groups works,                                    ness is of the highest priority. The nature of the
what the relation between state of mind and re-                                      vigilance, the responsiveness, and the prioritiza-
sponsibility is, and how responsibility relates to                                   tion are all sensitive to the institutional context
freedom and voluntariness are all questions that                                     and the ramifications for liability and courts.
have both moral and legal aspects. If contempor-                                     Agent relativity simultaneously emerges from
ary moral philosophers are right to suggest that                                     this context as a rather appropriate kind of link,
the abstractness and acontextuality of the framing                                   and also serves a certain function by permitting
of moral problems often plays a large role in their                                  vigilance to develop and play a role where certain
evolution into conundrums – and I think they are                                     kinds of bonds exist. The concepts and institu-
– then philosophical examination of legal aspects                                    tions of the law solidify and perpetuate these roles
of these problems will also illuminate their moral                                   and bonds.
aspects.                                                                                 If this picture of the duties in the law of negli-
   For a variety of broad, but somewhat more                                         gence is correct, then it suggests a possible route
pigeon-holed concepts, such as intent, duties of                                     for understanding agent-relativity in morality

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too. Moral duties of care that are recognized by                                      only the distribution of goods and posts but also
folk morality tend to relate to family, friendships,                                  the basic structure of a just society. Putting that
and groups of social organization. To some                                            question to one side, Rawls’s own title and a
degree they relate to expectations, but there is a                                    generation of scholars have taken Rawls’s work
circularity here that will be vicious if we do not                                    to demarcate boundaries of the subject of justice.
offer an explanation of why the expectations are                                      As discussed above, this was notable not only
what they are. The legal account suggests that, as                                    because of the depth and quality of Rawls’s own
Mill and Sidgwick recognized, the sanctions of                                        theory of justice, but also because it developed
conscience ingrained through folk morality struc-                                     a philosophical approach that, both in plan and
ture our patterns of vigilance, care, and respon-                                     in execution, displayed justice as a different, and in
siveness, so that we prioritize those with whom                                       some ways superior, value to social welfare.
we have certain kinds of relationships over others.                                      Tort theory has brought an entirely different
Just as patterns of legally recognized duties of                                      aspect of justice to the forefront of political phil-
care within, say, hospitals or governments, make                                      osophy. ‘‘Corrective justice’’ is of course the label
those institutions possible, so patterns of moral                                     used, and it is distinguished from ‘‘distributive
duties within friendships and families play a role in                                 justice.’’ There are other forms of justice that
making these possible (Raz 1994). The scope,                                          have been interestingly developed, most notably
content, and nature of these patterns of care and                                     ‘‘retributive justice’’ within the criminal law. But
vigilance within ordinary morality are less struc-                                    the depth and philosophical breadth of corrective
tured and perhaps more intuitive than on the legal                                    justice theory have made it a uniquely important
level. But the legal case – the case within negli-                                    foil of and complement to distributive justice
gence law – provides a powerful analytical frame-                                     within political theory. Moreover, the pedigree
work for thinking about the moral level. I would                                      of this pair of forms of justice comes from Aris-
argue that theories of intent, causation, fault,                                      totle’s Nicomachean Ethics (1962) leading many
reasonableness, restitution – even the concepts                                       to suspect that a full philosophical theory of just-
of fact and opinion – could provide similar illu-                                     ice would have to reckon with both halves. If
mination to debates within substantive moral and                                      constitutional law, property law, and tax policy
political philosophy.                                                                 are the legal domains that most usefully accom-
                                                                                      pany theoretical examination of issues in distribu-
                                                                                      tive justice, tort law is the legal domain that most
Distributive justice and corrective justice                                           usefully complements theoretical examination of
                                                                                      issues in corrective justice.
Finally, philosophy of tort law has made a sub-                                          Aristotle distinguished corrective justice from
stantial contribution to philosophical theorizing                                     distributive justice using mathematical meta-
about justice. The previous section on ‘Jurispru-                                     phors. Distributive justice is geometric and in-
dence and Legal Theory’ discussed legal theory’s                                      volves proportionality in the allocation of goods
building upon Rawls in the philosophy of tort                                         among members of society. Corrective justice is
law. Here I shall discuss the possibility that polit-                                 arithmetic, and involves adding back what has
ical theory can break out of a Rawlsian conception                                    been taken away, or subtracted, from someone.
of the subject matter of theories of justice by                                       The one who adds back is the one who gained
building upon tort theory.                                                            from a transaction or activity more than he or she
   John Rawls’s A Theory of Justice (1971) is prob-                                   should have. The rendering even between the two
ably the most important piece of political theory                                     parties is corrective justice, on the Aristotelian
in the English-speaking world of the past century.                                    account.
While its scope is remarkable, Rawls’s theory of                                         This distinction between ‘‘corrective justice’’
justice is ultimately an account of only certain                                      and ‘‘distributive justice’’ has been criticized on
aspects and forms of justice, sometimes lumped                                        numerous grounds; I suggest, simply for pur-
under the heading ‘‘distributive justice.’’ I am                                      poses of demarcating a domain of study, a differ-
doubtful that this is really just one large form of                                   ent basis of distinction. What is remarkable about
justice – considering that Rawls addresses not                                        the Rawlsian domain of justice is that justice is an

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attribute of a state or system, in the first instance.                               corrective justice as a form of distributive justice
Relatedly, justice is like beauty or fairness or trans-                              in which losses are allocated fairly by considering
parency: it is an attribute that, as a matter of                                     fault and the connections between conduct and
logical form, is enjoyed or not enjoyed by an                                        consequence that constitutes ‘‘outcome responsi-
entity at a time. Distributive justice is, in this                                   bility’’ (Perry 1992). Ripstein conceives of tort
sense, static.                                                                       law in terms of ‘‘risk ownership’’ within a system
   Corrective justice is a different sort of thing,                                  that involves fair and equal terms in the distribu-
I suggest, following Weinrib (Weinrib 1995). The                                     tion of risk ownership (Ripstein 1998). It is a
phrases ‘‘justice is done’’ or ‘‘let justice be done’’                               subtle question whether corrective justice, for
connote the idea that justice is something that is                                   Perry or Ripstein, involves a dynamic conception
done in certain processes or transactions. Now                                       of justice or merely a static conception, applied to
certainly distributive justice could be done, in                                     a very different sort of good and equality than we
the sense that changes could occur that transform                                    usually think.
a state that is unjust from a distributive point of                                     Weinrib is a corrective justice theorist in pre-
view into one that is just. But here, the nonstatic                                  cisely the sense I have described, and, indeed, is
sense of justice is derivative of the static sense.                                  largely responsible for the reinvigoration of this
The idea of justice being done contemplates,                                         branch of political philosophy emanating out of
I believe, a primary sense of justice at the level of                                Aristotle. Corrective justice involves rectification
the doing, or the event, or the transaction.                                         or, more colloquially, setting things right. The
A court’s doing justice or a private party’s doing                                   idea of justice being done is an idea of rectification
justice is not usually conceived of as the reestab-                                  being done. Various philosophers of tort law have
lishment of a state of affairs that is incontrovert-                                 offered different theories of what constitutes rec-
ibly distributively just. The opinion of whether                                     tification. Weinrib himself analyzes rectification as
justice has been done is surely sensitive to the past                                a restoration of a normative equilibrium, and
and the context; indeed, the judgment of whether                                     argues that a synthesis of Aristotle, Kant, and
justice has been done cannot be made until we                                        Hegel yields an understanding of normative equi-
know in response to what a court or private party                                    librium. A larger group of scholars, including
has acted. The point, however, is that as a matter                                   Epstein, Wright, and Gordley (the latter two,
of form the sort of justice we are considering now                                   purporting to follow Aristotle), understand recti-
pertains in the first instance to acts or events or                                  fication in a manner that tracks property rights
doings – all of which occur through time and are                                     more closely (Epstein 1973; Gordley 1995;
processes. The noun ‘‘justice’’ is not simply a                                      Wright 1995). Margaret Radin understands rec-
conjugation of the adjective ‘‘just,’’ referring to                                  tification in communicative terms, as the sending
the static attribute of being just. And ‘‘doing                                      of a countermessage that negates the message of
justice’’ is not simply putting things into a state                                  the wrongdoer (Radin 1993). Hampton explored
of affairs that enjoys the attribute of being just. In                               a parallel variation of retributive justice in criminal
this sense, the concept of justice is capable of                                     law (Hampton 1988). Ripstein’s book has inter-
being nonstatic, or what I would call dynamic.                                       estingly synthesized a number of aspects of these
   If these remarks are plausible then corrective                                    views (Ripstein 1998).
justice theory can be viewed, most broadly, as the                                      In my own work, I have offered what is, in an
philosophical examination of the dynamic aspect                                      important sense, a more subjective interpretation
of justice, while distributive justice theory is the                                 of the dynamic form of justice that acts as a foil to
philosophical examination of the static aspect of                                    distributive justice, an idea sufficiently different
justice, particularly of the state. Not all of those                                 from corrective justice to merit a different name:
who would call themselves ‘‘corrective justice                                       ‘‘civil recourse’’ (Zipursky 1998b, 2002, 2003).
theorists’’ would accept this characterization,                                      I have argued that a domain of justice involves
but even the attempt to avoid dynamic concep-                                        response to wrongdoing (indeed, the word
tions of justice is itself extraordinarily illuminat-                                ‘‘responsibility’’ connotes the idea of who is
ing. Thus, for example, to return to the                                             properly the object of a response). However,
exploration of responsibility, Perry conceives of                                    what our modern political state offers, at least in

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common law systems, is not necessarily an ap-                                         the ball of wax does to the epistemologist or the
proximation to an objective form of setting things                                    metaphysician.
right. Rather, it offers those who have been                                             Its simplicity ironically invites the deepest
wronged a means of responding to those wrong-                                         inquiries. It invites basic questions about what
doings, and both defines and constrains the nature                                    justice is, how morality and justice are inter-
and magnitude of permissible response to wrong-                                       twined, how legal concepts shape conduct but
doing. The law of torts embodies what I have                                          also constitute forms of thinking, and how
called a ‘‘principle of civil recourse’’: in denying                                  deontic and utilitarian notions share the playing
individuals the raw liberty to respond aggressively                                   field in the arena of law. Philosophers of tort law
to having been wronged, it is incumbent upon the                                      have probed in these areas and proceeded to
state to provide each person an avenue of civil                                       deeper levels than philosophers of law have previ-
recourse against the wrongdoer. A right of action                                     ously reached.
is an artificial, civil, means of redress with which                                     At the same time, tort law is not only quotidian
the state empowers each citizen, in order to pro-                                     at a conceptual level, its problems touch almost
vide an avenue of recourse. Yet a right of action in                                  every area of conduct in daily life. It is therefore
tort is simply an individual’s legal power to seek                                    not surprising that the relatively comfortable con-
redress; its exercise does not necessarily, or even in                                cepts with which the tort law began, and which,
principle, entail that justice will be done. Correct-                                 because of the place of precedent in the common
ive justice is perhaps what we individually and                                       law, constitute tort law, have provided an almost
socially aspire to as a regulative ideal. But the                                     dizzying array of conceptual puzzles as we have
structure of our tort law is better understood as                                     forged ahead with new sorts of activities, prob-
affording and constraining an individual’s oppor-                                     lems, injuries, and torts. Here too, philosophical
tunity to pursue justice, than as comprising                                          inquiry has offered the means to continue on our
society’s effort to do so.                                                            framework of concepts, reflectively pruning that
   These philosophical theories of tort law are                                       framework so as to retain an intelligible form that
underdeveloped, particularly in comparison with                                       we are willing to stand by.
the philosophical riches that enlightenment
thinkers and Rawls and his critics have provided
in the theory of distributive justice. But what they                                                                 References
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Perry, Stephen R. 1989. The impossibility of general                                   sophical Foundations of Tort Law. Oxford: Clarendon
  strict liability. Journal of Product Liability: 383–419.                             Press, 487–97.


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Wright, Richard. 1995. Right, justice and tort law. In                                Zipursky, Benjamin C. 2000. Pragmatic conceptualism.
  D. Owen (ed.), Philosophical Foundations of Tort Law.                                 Legal Theory 6: 457–85.
  Oxford: Clarendon Press,159–82.                                                     Zipursky, Benjamin C. 2002. The philosophy of private
Zipursky, Benjamin C. 1998a. Legal malpractice and                                      law. In Jules Coleman and Scott Shapiro (eds.), The
  the structure of negligence law. Fordham Law Review                                   Oxford Handbook of Jurisprudence and Philosophy of
  67: 649–90.                                                                           Law. New York: Oxford University Press, 623–55.
Zipursky, Benjamin C. 1998b. Rights, wrongs, and re-                                  Zipursky, Benjamin C. 2003. Civil recourse, not
  course in the law of torts. Vanderbilt Law Review 51:                                 corrective justice. Georgetown Law Journal 91:
  1–100.                                                                                695–796.




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----------------------------------- Chapter 9 ----------------------------------

                                     Contract Theory
                                                    Eric A. Posner



                      Introduction                                         critical theories, grounded in historical contin-
                                                                           gency or struggles for power among competing
                                                                           groups. See C R I T I C A L L E G A L T H E O R Y. The first
Contract law governs a range of behavior loosely                           group of theories divides into welfarist and non-
connected by the idea of promising. When X                                 welfarist approaches. The welfarist approach
proposes to Y an exchange of money, goods, or                              comprehends only one theory: the law and eco-
services, and Y accepts, we say by convention that                         nomics theory. The nonwelfarist approaches
X and Y exchange promises. If X or Y subse-                                come in many flavors, but can be conveniently
quently breaks that promise, contract law deter-                           divided into ‘‘liberal’’ or ‘‘promissory’’ theories,
mines whether the victim of the breach is entitled                         and ‘‘corrective justice’’ or ‘‘reliance’’ theories.
to a remedy. The victim will be denied a remedy if                            My focus is the philosophical justification for
a valid offer and acceptance were not exchanged,                           contract doctrine (welfarist, nonwelfarist, etc.),
or if the promise was not supported by consider-                           and not the analytic question of whether contract
ation or reasonable reliance, or if the promisor has                       doctrine can be unified conceptually (contract as
an excuse, or if the promise is indefinite; and so                         promise, as reliance, as transfer, etc.) (see Smith
forth. Contract law also determines the nature of                          2000; Kraus 2002). To be sure, the latter ques-
the remedy, and provides background interpret-                             tion is the topic of much writing; and it has been
ive presumptions for use when the terms of the                             the practice of nonwelfarists to try to find the
contract are vague or incomplete. Sometimes                                central unifying idea of contract law as well as a
courts push interpretive presumptions aggres-                              philosophical justification for it. For these reasons
sively, so that parties can be bound to promises                           discussion of both topics is unavoidable. But I am
that they did not make – treated as if they made a                         less interested in the second question and will not
certain promise – as when a warranty is implied                            give it the attention that some philosophers think
for a sale of goods by a seller who had no such                            it deserves.
intention and said no such thing. Because prom-
ises are not enforceable when formal require-
ments like consideration are not satisfied, and
because nonpromissory representations can gen-
                                                                                 Welfarism: Law and Economics
erate liability under the principles of contract law,
the idea of promise can be only a starting point for                       The economic theory of contract law holds, min-
understanding contract law: the two are not co-                            imally, that economic concepts can be used to
extensive.                                                                 illuminate contract law. A more aggressive version
   Theories of contract law purport to show that                           of the theory holds that contract law has an eco-
contract law has an internal logic and that the                            nomic logic. Not all scholars within law and eco-
logic is normatively attractive or, in the case of                         nomics hold this view – indeed, most criticize

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contract law for failing to meet economic criteria                                        whether to perform a promise or not; whether
– but the extreme view lends itself to expository                                         to renegotiate the promise or not; and so forth.
crispness, and for that reason I will focus on it.                                        Each of these decisions constitutes a separate
   This ‘‘economic theory of contract law’’                                               dimension of efficiency: contract law could, for
assumes that (1) individuals conform to the ra-                                           example, provide optimal incentives to search for
tionality assumptions of economic theory; and                                             a partner, but not to gather information prior to
(2) contract law promotes ‘‘efficiency.’’ The first                                       entering the contract. The literature has investi-
premise is that individuals have preferences over                                         gated all of these decisions, but the two decisions
states of the world; that people’s behavior con-                                          that have received the most attention are the
forms to their preferences; that these preferences                                        decision to perform or breach, and the decision
are consistent and transitive; and that they can be                                       to rely. (For surveys, with citations, see R. A.
represented as utility functions. In addition,                                            Posner 1998; Kaplow and Shavell 2001.)
people have high enough discount factors and                                                 Let two parties, S and B, enter a contract for a
find it worthwhile to invest in legal advice. Other-                                      trade that will take place at some future time.
wise, the law would not affect people’s behavior.                                         Prior to the trade B can make an investment that
See E C O N O M I C R AT I O N A L I T Y I N T H E A N A L Y S I S                        would increase the value which he attaches to
OF LEGAL RULES AND INSTITUTIONS.                                                          performance. If transaction costs were zero, they
   The second premise might seem to invite                                                would enter a ‘‘complete’’ contract that specifies
standard criticisms about the normative force of                                          that trade will occur only when B’s valuation
efficiency, which also infect the descriptive project                                     exceeds S’s cost. The contract would also specify
to the extent one doubts that judges would                                                the level of B’s investment – that is, the optimal
enforce normatively unattractive rules. From an                                           amount of investment given the probability of
ex post perspective, the court takes money from                                           trade. But because transaction costs are positive,
one person and gives it to another, and it might                                          the parties might enter an ‘‘incomplete’’ contract
seem difficult to make the proper welfare com-                                            that does not identify ‘‘good’’ and ‘‘bad’’ states in
parisons. But economists think of contract law                                            which trade should and should not occur, and
from an ex ante perspective: as an institution                                            that does not specify the level of investment, but
that parties voluntarily invoke in order to arrange                                       instead simply says that at the future time there
their affairs. When the rules are ex post inefficient                                     will be a trade.
in the Kaldor–Hicks sense – that is, when they                                               Contract law produces the same outcome as
result in an obligation that costs the obligor more                                       the complete (efficient) contract by providing
than it benefits the obligee – then the parties will                                      the optimal terms in the form of default rules.
either avoid contracts, or use elaborate and costly                                       Expectation damages produce ex post efficiency
contracts in order to avoid the inefficient rules.                                        by giving the promisor the option to pay the
When the rules are ex post efficient but also seem                                        promisee’s valuation or perform. If, for example,
to impose a hardship on one party, the parties can                                        S’s cost is higher than B’s valuation, S will pay
arrange ex ante for a transfer that compensates                                           damages; if not, S will perform. Thus, S will per-
expected losers. The economic project assumes                                             form if and only if S’s cost is less than B’s valu-
that judges would enforce efficient rules because                                         ation – and ex post efficiency is satisfied.
the judges see themselves as minimizing the cost                                          Therefore, expectation damages are efficient
of contracting for all parties, and thus making all                                       with respect to the decision whether to perform
parties, in an ex ante sense, better off.                                                 or breach.
   To understand what efficiency requires, one                                               However, expectation damages also make B
must first see that contract-related behavior                                             indifferent between performance and nonperfor-
occurs along many margins. A person must                                                  mance – he gets his valuation in both cases. Thus,
decide how much to invest in finding a contract                                           B will ‘‘overrely’’ in the sense of investing as
partner; how vigorously to negotiate; whether to                                          though the efficiency of performance were cer-
reveal private information during bargaining;                                             tain, rather than stochastic, if such is the case.
whether to make a promise or not; whether to                                              Thus, expectation damages are not efficient with
‘‘rely’’ on the promise made by someone else;                                             respect to the incentive to rely.

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   These standard arguments have been qualified                                          transaction costs interfering with optimal con-
in many ways. Expectation damages are not likely                                         tracts – is ambiguous. Transaction costs make
to be efficient even with respect to the breach                                          judicial creativity – and the various doctrines of
decision if, as seems likely in many cases, courts                                       contract law – necessary. If transaction costs were
cannot determine B’s valuation and thus fix an                                           zero, parties would enter complete contracts and
equivalent monetary sum. In that case, specific                                          courts would have the task of specifically enfor-
performance is likely to be more efficient than                                          cing all terms (except when the contract harms
expectation damages, as specific performance                                             third parties). However, even if transaction costs
does not require an independent valuation by                                             are high, parties could enter relatively simple (in
the court. The standard explanation for the su-                                          the sense of short), albeit complicated (in the
periority of expectation damages to specific per-                                        sense of cognitively challenging), contracts that
formance – that expectation damages do not                                               would produce optimal results, or results that are
require renegotiation of the contract when per-                                          superior to those that courts could impose
formance is inefficient – is questionable. S has the                                     through the creation of default rules. Contractual
motive, and usually will have the opportunity, to                                        incompleteness is likely the result of bounded
pay B to release her from the contract when cost                                         rationality, rather than transaction costs, but
exceeds valuation, and B has no reason to resist,                                        then the behavioral premises of the economics
though the two parties might haggle over the                                             of contract law are violated. If parties are not
division of the surplus.                                                                 rational enough to design optimal contracts,
   Indeed, the consensus today is, I think, that the                                     then they might not be rational enough to re-
doctrines of contract law are not necessarily the                                        spond to legal incentives to act efficiently (Posner
most efficient rules. There are several reasons for                                      2003).
this consensus (Posner 2003).                                                               None of these criticisms denies the value of
   First, as we have seen, contract doctrines do not                                     economics for shedding light on contract law,
appear to conform to the predictions of simple                                           but the criticisms do suggest that an ‘‘economic
economic models of the contracting promise.                                              theory of contract law’’ is likely to be coarse-
Specific performance is likely to be superior to                                         grained. A market economy produces greater
expectation damages, yet expectation damages                                             wealth than plausible alternatives, and any market
are the rule. Even if the cost of renegotiation is                                       economy needs an institution for enabling people
high, it is not clear that expectation damages                                           to make commitments. Contract law is, at the
produce optimal incentives. Other models have                                            most general level, the institutional form that
trouble explaining other doctrines – mistake,                                            gives people the power to make commitments
impossibility, and so forth.                                                             when reputation and other nonlegal sanctions
   Second, more complex models usually make                                              are insufficient (Posner 2000). But many alterna-
indeterminate predictions about the doctrines of                                         tive doctrines might serve this purpose equally
contract law. Models of asymmetric information                                           well, in which case economic theory will not dis-
in contract negotiations (e.g., Ayres and Gertner                                        tinguish between them, or at best provide partial
1989) make the optimality of default rules turn                                          explanations or rationalizations.
on a range of variables – including the distribu-                                           Another possible reason for the descriptive
tion of valuations in the populations of buyers and                                      weaknesses of the economic model is that con-
sellers – that cannot plausibly be measured or                                           tract law does not reflect welfarist premises, and
estimated by scholars or judges. This conclusion                                         instead reflects other norms, the topic of the next
has led to a resurgence of the view that courts                                          section.
should enforce contracts formalistically (e.g.,
Schwartz 1998), but that view is itself based on
an unverified and probably unverifiable empirical
                                                                                                          Nonwelfarist theories
conjecture about the abilities of courts and the
complexity of contracting behavior.
   Third, the central motivating concept of the                                          Many legal philosophers reject the welfarist
economic approach to contract law – that of                                              approach to contract law and argue that contract

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law reflects nonwelfarist commitments. Two                                                damages are the routine measure of damages, and
views have received the most attention. The first                                         reliance damages are reserved for unusual cases,
is that contract law reflects corrective justice by                                       or cases where the profit cannot be calculated.
forcing the breacher to return a wrongful gain to                                            Another problem with the theory is its invoca-
the victim. The second is that contract law                                               tion of corrective justice. In tort theory, the status
respects the autonomy of promisor and promisee                                            quo is taken to be existing property rights. The
by forcing promisors to keep their promises.                                              tortfeasor causes harm by violating these rights.
(A very useful survey is Benson 1996.)                                                    In contract theory, the status quo is more difficult
                                                                                          to specify. The ‘‘reliance interest’’ – the expected
                                                                                          return on the investment that the promisee makes
                        Corrective justice                                                in anticipation of performance – could be con-
                                                                                          sidered a kind of property interest, deprivation of
The corrective justice theory is often called the                                         which justifies a remedy. But it need not be so
reliance theory because of its focus on the reliance                                      considered; it could be thought of as a gratuitous
of the promisee (Fuller and Perdue1936; Gilmore                                           act by which the promisee voluntarily risks disap-
1974; Atiyah 1981). A person B promises that if S                                         pointment. By contrast to tort, where the victim
produces a widget, B will buy it. S invests in new                                        is (in the standard case) a passive recipient of the
machinery (thus, ‘‘relying’’ on the promise), and                                         wrongdoer’s act, promisees voluntarily make an
then B announces that he will not keep his prom-                                          investment in the hope that the promisors will
ise. S has incurred a sunk cost which she cannot                                          keep their promise. To say that corrective justice
recover by producing and selling the widget to                                            obliges the promisor to compensate the victim,
someone else.                                                                             one must first show that the right to the return on
   To explain why S should recover her reliance                                           this investment is part of the victim’s background
cost, reliance theorists liken B’s actions to a tort.                                     entitlements (Craswell 1991, 2000).
Just as a driver wrongs pedestrians by negligently                                           The problem could be solved in two ways. The
running over them, so does B wrong S by failing                                           first would be to revert to welfarism and argue
to perform after inducing reliance. If, as reliance                                       that the reliance interest should be protected be-
theorists assume, corrective justice demands that                                         cause otherwise optimal investment would not
the pedestrians recover from the tortfeasor for                                           occur. This approach explains why contract law
the injury, then corrective justice also demands                                          protects reliance, but does away with corrective
that S recover from B for the reliance loss. B’s                                          justice. The second would show that reliance, or
action has made S worse off than she was in the                                           some kinds of reliance, are protected by conven-
status quo; B ought to compensate S for the                                               tional practices or understandings, and for that
harm.                                                                                     reason should be thought of as part of the prom-
   The theory does not on its own terms explain                                           isee’s entitlements. This argument would pre-
much about contract law. It does not explain why                                          serve a role for corrective justice, but it depends
victims of breach of contract can recover damages                                         on empirical premises that would be difficult to
even if they do not rely. The theory suggests that                                        establish.
promissory estoppel should be the basis of liabil-                                           Defenders of the reliance theory have argued
ity, not the consideration doctrine; but promis-                                          instead that the failure of contract law to conform
sory estoppel remains a subsidiary doctrine. The                                          to the requirements of the reliance theory shows
theory implies, according to Fuller and Perdue,                                           that contract law is unjust. Atiyah and Gilmore
that reliance damages are the appropriate remedy,                                         argue that contract law has served an ideological
not expectation damages or specific performance.                                          purpose: it promotes the market, and reflects lais-
Fuller and Perdue point out that in a market the                                          sez faire prejudices. For that reason, their project
reliance loss will include opportunity cost, so                                           becomes one of excavating the historical record
expectation damages and reliance damages will                                             for evidence of a purer contract law at an earlier
be equal; and expectation damages might other-                                            stage of development, subsequently comprom-
wise be a reasonable, because more measurable,                                            ised by judges with ideological blinders. (See
proxy for reliance. But the fact is that expectation                                      also Gordley 1991.) But in the absence of a

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reason for thinking that the reliance theory itself                                      cise autonomy when they choose not to keep a
reflects moral commitments grounded in correct-                                          promise. Thus, the law might violate their auton-
ive justice or other concepts, their arguments                                           omy if it compels them to pay damages or per-
cannot be accepted.                                                                      form the promise. A more complex view is that
                                                                                         promisors should not be compelled to perform
                                                                                         extremely burdensome promises when expect-
                          Liberal theory                                                 ations are disappointed by remote events (cf.
                                                                                         Kronman 1983). The implications for the law, in
The second type of nonwelfarist theory derives                                           any event, are obscure.
contract law from the morality of promising or                                              Fried avoids these problems by focusing on the
cooperating. Fried (1981) argues that people                                             promise; Barnett, by focusing on consent at the
have a natural or moral right to alienate their                                          time of contracting. But even taken on their own
property. They do so by exchanging it for other                                          terms, the theories do not explain doctrine very
things, and this inevitably involves making prom-                                        well. Fried acknowledges that under his theory
ises. If the law did not enforce promises, people                                        gratuitous promises should be enforced, when in
would have difficulty making binding promises,                                           fact they often are not. But the real problem for
and so an important aspect of their freedom                                              his theory is that it does not tell us whether gra-
would be lacking.                                                                        tuitous promises should be enforced or not. Lib-
   Barnett (1986) argues that the law concerns                                           eral courts could reasonably believe that the
itself with protecting people from nonconsensual                                         gratuitousness of a promise is an adequate proxy
takings of their property. Tort law is a prominent                                       for the parties’ desire or expectation that the
example. But if people consent to alienation, then                                       promise not be legally enforced (Fuller 1941).
the law should permit that alienation. Contract                                          Craswell (1989) points out in another context
law enforces promises because by making a prom-                                          that Fried and Barnett’s theories are compatible
ise people consent to its enforcement by the law.                                        with any remedy that penalizes the promisor for
   Scanlon (2001) emphasizes the perspective of                                          violating a promise. The bare fact that a promise
the promisee. Just as individuals have a right not                                       should under general conditions be enforced
to be deceived by the representations of others,                                         does not tell us whether expectation damages,
they have the right not to be misled by the prom-                                        reliance damages, or specific performance should
ises of others. Contract law protects this right by                                      be the remedy. (For a defense of Fried’s theory
giving the promisee a remedy when a promise is                                           against Craswell’s criticisms, see Kraus 2002.)
broken. (For yet another theory, see Raz 1994.)                                             For this reason, Scanlon’s argument is of inter-
   These theories share the premise that the law                                         est, as he asserts that his theory justifies expect-
should respect individual autonomy. Autono-                                              ation damages or specific performance, as
mous people have the freedom to arrange their                                            opposed to reliance damages. He says, suppose
lives in any way that they see fit, as long as they do                                   that X wants Y not to reveal information about X.
not violate the autonomy of others. If people                                            X promises to pay Y $100 in five years if Y does
consent to the transfer of their property through                                        not reveal this information to someone else.
a promise, then legal enforcement of that promise                                        Under the reliance measure, X cannot commit
is unobjectionable. If people make promises,                                             to paying Y the $100 – for if X breaches and Y
then they seek to bind themselves, and legal                                             does not ‘‘rely’’ in the sense of giving up the
enforcement of those promises can only enhance                                           opportunity to exchange the information for a
their autonomy. And if people rely on the prom-                                          benefit, Y would not recover anything. But then
ises of others, then the law can help protect their                                      Y might not agree to the contract in the first
autonomy from violation through opportunistic                                            place.
promise breaking by the others.                                                             Scanlon’s argument does not so much justify
   Autonomy is a significant value but it is also a                                      expectation damages (or specific performance)
complex idea and has ambiguous implications for                                          over reliance damages, as explain why courts
the law. People exercise autonomy by making                                              should defer to parties’ arrangements. A default
binding promises, but, arguably, they also exer-                                         rule of reliance damages would be unobjection-

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able as long as the parties can opt out of it by                                          the law – sales, insurance, debtor–creditor – being
agreeing to an enforceable liquidated damages                                             stripped of their idiosyncrasies and merged into a
provision (cf. Craswell 1989).                                                            single general contract law. Conventional wisdom
   Related ideas are Benson’s (2001) argument                                             places the apogee of this system in the second half
that a contract should be considered a transfer                                           of the nineteenth century. At the same time, lais-
of an interest from promisor to promisee, and                                             sez faire ideology was at its height, and there has
Smith’s (2000) argument that a contract should                                            been since then a persistent identification of
be seen as akin to the creation of a new property                                         formal contract law and market morality. The
interest. Neither scholar makes a purely promis-                                          twentieth century is seen as one of a decline of
sory argument. Promises by themselves do not                                              contract law, in both senses: the decline of the
give promisees the right to enforcement under                                             formalism of contract law; and decreasing gov-
liberal premises because promisees are not injured                                        ernment deference to voluntary agreements (see,
by nonperformance of a promise unless they rely,                                          e.g., Gilmore 1974, Friedman 1985, Atiyah
and reliance by itself cannot be the basis for a right                                    1979).
because it is freely chosen. Both scholars thus                                              The historical variation – and for that matter,
argue that the promisee has a property right in                                           variation across jurisdiction – poses questions for
the enforcement of the promise. For Benson, this                                          those who seek a theory of contract law. If con-
property right exists because the promisor trans-                                         tract law reflects a single moral structure, what
fers it, just as the owner of a good can transfer                                         accounts for its variation across time and place?
it to a buyer or donee; for Smith, the property                                           There are many possibilities. First, morality
right exists because the promisor creates it in the                                       changes across time and place; or, the deep
same way that a person can create a property                                              moral commitments (like corrective justice)
interest by catching a wild animal or inventing a                                         remain constant, and embodied in the law, even
new product.                                                                              as more superficial commitments change.
   Benson and Smith are more interested in pro-                                           Second, morality remains constant, but empirical
ducing an internally consistent analysis of con-                                          conditions change. Thus, economics at one time
tract doctrine than (especially in Benson’s case)                                         was thought to offer a general theory – welfare
providing a moral justification for it. But one is                                        maximization – that predicts different laws in
entitled to be skeptical about the likelihood that                                        different jurisdiction where empirical conditions
these redescriptions of the interests at stake can be                                     vary. Or political conditions change, with courts
given a philosophical defense. Autonomy, as we                                            and other government institutions, for their own
have seen, is an insufficiently determinate notion;                                       reasons including the amount of prestige they
and corrective justice requires an explanation for                                        hold, becoming more or less willing to bend con-
the baseline property entitlements. An appeal to                                          tractual behavior to the demands of morality.
the common good needs to be distinguished                                                 Third, contract law does not reflect general
from welfarism, which can do without the analytic                                         moral commitments, but is a hodgepodge,
distinctions that Benson and Smith propose.                                               reflecting not just moral ideas, but politics,
                                                                                          mistakes, ideologies, general institutional devel-
                                                                                          opments, and so forth.
                                                                                             The third view has attracted historians and
               Historical Explanations
                                                                                          critics of market institutions. Indeed, we have
                                                                                          seen that welfarists are more likely to criticize
Contract law has changed over the years. In the                                           contract law than defend it, and in their criticism
eighteenth century and before, courts enforced                                            is the implicit concession that contract law has
all kinds of agreements, but a recognizable system                                        over history deviated from proper welfarist prem-
of ‘‘contract law’’ did not come into existence                                           ises. Gilmore, Atiyah, and others think that con-
until the nineteenth century, both in England                                             tract law was distorted by the laissez faire craze of
and the United States. This system became                                                 the nineteenth century and today reflects more
increasingly formal, abstract, and unified over                                           humane commitments. Other scholars have
the course of the century, with disparate areas of                                        emphasized the relationship between contract

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law and changes in legal institutions such as the                                        some of these questions because of their signifi-
jury and the court system. Simpson (1987), for                                           cance in the contracts literature but I will do so
example, argues that the modern hostility to pen-                                        briefly in order to avoid redundancy with other
alties can be traced to a trend from private enfor-                                      chapters in this volume.
cement to public enforcement of the law, before
which penalties were enforced.
   These theories, and others as well, fall into                                                                       Formalism
the trap of mistaking correlation for causation.
Gilmore (1974) cannot resist connecting changes                                          Many scholars have been struck by the ‘‘formal-
in contract law (which he hyperbolically calls its                                       ism’’ of contract doctrine. Many rules seem, by
death) to the rise of the welfare state (on which                                        the standards of other areas of the common
see below), but there is no reason to think that                                         law, rigid and simple; as a result, considerations
traditional contract law cannot operate within the                                       of justice may be excluded from the evaluation
constraints imposed by taxation and welfare.                                             of a contract dispute. Under traditional contract
Simpson identifies just one of many trends to                                            doctrine, for example, a promise is enforceable
which the legal change could be connected; and                                           if supported by bargained-for consideration,
this connection does not make any sense on its                                           which could mean any giving up of a legal
own terms. Parties relied on courts to enforce                                           right, no matter how small. Reasonable reliance
contracts both before the rise of the penalty doc-                                       on a gratuitous promise would not create lia-
trine and after; the courts and related government                                       bility even if justice would seem to require it.
institutions retained at all times the exclusive                                         The rise of promissory estoppel, which makes
power to use force in order to extract damages                                           the reasonableness of reliance and the justice of
from breachers.                                                                          enforcement relevant considerations, reflects
   None of these observations is meant to imply                                          the decline of the formalism of contract law,
that history does not matter. Indeed, history                                            though contract law remains more formalistic
surely does matter, and in two ways. First, it                                           than tort.
matters as a fund of data that any good theory of                                           The standard explanation for formalism in con-
contract law must explain. A theory of contract                                          tract law is that contract law, like testamentary
law must be general enough to ‘‘predict’’ differ-                                        law, is facilitative, and the law best enables people
ences across time (and place), or else explain why                                       to accomplish their goals by making the legal
its inconsistency with the law in other jurisdic-                                        consequences of alternative actions as clear as
tions should not count against it. Second, history                                       possible (Fuller 1941). Hence Gilmore saw the
can stand in for the idea that elements of contract                                      decline of the formalism of contract law as an
law at a particular time and place might be the                                          expression of the decline of laissez faire. The
product of chance, decisions that had unforeseen                                         problem with these views is that formalism also
consequences, local political institutions, and in-                                      interferes with people’s ability to accomplish their
ertia – in which case ambitions for a comprehen-