Legal Theory Lexicon

Introduction

The world of contemporary constitutional theory is complicated. Although originalism the focus of attention in many recent discussions, there are a plethora of nonoriginalist positions. One of these is usually called “constitutional pluralism,” an approach to constitutional interpretation and construction which holds that constitutional practice should be guided by multiple “modalities” of constitutional justification, including text, historical practice, precedent, and others. This Lexicon post provides an introduction to constitutional pluralism for law students (especially first year law students) with an interest in constitutional law.

Constitutional Law as a Complex Argumentative Practice

Constitutional pluralism can be theorized in several ways, but for the present purposes, let us stipulate that constitutional law ought to be viewed as a complex argumentative practice. When a judge decides a case, the judge ought to justify their decision by employing the legitimate forms of constitutional justification, and should exclude other considerations.

So, a judge may properly consider the meaning of the constitutional text and precedent and write an opinion that justifies their decision on the basis of those two modalities but it would be improper to consider the impact of the decision on the electoral success of a political party or the benefits of the decision for a special interest group.

Importantly, constitutional pluralism is grounded on the idea that constitutional law is a practice–a way of doing things with an internal logic and structure. Frequently, constitutional pluralists claim that this account of constitutional law is descriptively accurate. Constitutional pluralism is the way lawyers and judges actually do constitutional law. This strategy avoids or brackets another set of issues about the normative justification for pluralism. In other words, some constitutional pluralists believe that constitutional pluralism is just the way we already do constitutional law and avoid the question whether the status quo is normatively justified.

What are the modalities of constitutional justification?

There is no “official” list of the legitimate forms of constitutional argument. Different pluralists have different lists.  For illustrative purposes, I will employ five modalties, which I will call (1) text, (2) historical practice, (3) precedent, (4) constitutional values, and (5) institutional capacities. But additional modalities could be added to the list, including “structure,” “policy consequences,” “morality,” “constitutional narratives,” and “constitutional identity.”  I will briefly discuss these possible additions to the list.

Text: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of meaning of the constitutional text. Thus, it would be legitimate to argument for a constitutional rule that extends birthright citizenship to the American born children of undocumented parents on the ground that the text of the first clause of Section One of the Fourteenth Amendment requires that result. Arguments from original public meaning would be textualist arguments, but a constitutional pluralist might also make arguments from the contemporary meaning of the text.

Historical Practice: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of historical practice, including statutes enacted by Congress, actions of the executive branch, and actions by state governments. Thus, if Congress has enacted many statutes delegated legislative power to independent regulatory agencies over a long period of time, that would constitute a strong argument for the constitutionality of that practice and against a strong version of the nondelegation doctrine.

Precedent: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions of the basis of precedent including (but not limited to) the decisions of the Supreme Court. Thus, if the Supreme Court has adopted a set of constitutional doctrines in the Noel Canning case, there is an argument from precedent that those doctrines are justified. Arguments from precedent are strongest if there are many precedents extended over a long period of time in favor of a constitutional rule or standard. Such arguments are weakest if there is only precedent, it is very old, and has been undermined (but not not overruled) by subsequent cases.

Constitutional Values: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of values that are imminent in constitutional practice, paradigmatically values that express the goals, functions, and justifications for the provisions of the constitutional text. Thus, equality is a constitutional value because it represents the goal of the Equal Protection Clause, and liberty is a constitutional value because protection of Due Process Clause.

Institutional Capacities: Constitutional arguments if the justify constitutional doctrines and decisions on the basis of the functional capacities of constitutional institutions. For example, it could be argued that Congress is the constitutional institution that is best situated to determine whether a given policy question should be resolved by Congress itself, by a regulatory agency, or by the Courts. If this is the case, this argument supports the conclusion that the a delegation of regulatory authority to an agency is constitutional.

Possible Additions to the List: Different pluralists may have different lists of modalities. For example, “structure” is sometimes listed as a modality. I have excluded it, because I believe that constitutional structure arguments can be reduced to textual arguments (implications from the structure of the text) or constitutional values arguments (values that are implicit in the structure of the constitution rather than a particular provision). Other modalities mights include: (1) policy consequences or pragmatism, (2) morality or natural law, (3)  constitutional narratives or historical stories about constitutional development, and  (4) constitutional identity or arguments from how the American people understand their identities as constituted by the constitution. And there could be other modalities as well.

The Relationships between the Modalities

Conceptually, we can imagine several versions of constitutional pluralism, each with each own account of the relationship between the modalities.  Here are some of the possibilities:

The Standard Account, No Hierarchy: The standard account is that all of the modalities equal, independent, and sufficient.  They are equal in the sense that there is no hierarchy among the modalities.  They are independent in the sense that an argument from one modality (e.g., text) is not required to take into account the other modalities (e.g., precedent). They are sufficient in the sense that a constitutional doctrine can be justified on the basis of any one modality, even if all of the other modalities point the other way. On the standard, account, if a doctrine or decision can be justified by precedent, then the judge can legitimately reach that decision, even if the constitutional text, historical practice, constitutional values, and institutional capacities all point the other way. Indeed, the judge is not required to even consider all the modalities: if precedent supports an outcome, then the judge can stop there. In other words, if the modalities conflict, judges must simply choose an outcome, because pluralism does not tell them what to do on the standard account.

The Balancing Theory, the Modalities Must Be Balanced: A second possible version. of constitutional pluralism would be based on the idea of balancing (in a loose sense). On the balancing theory, a judge ought to consider all of the modalties. If they all support one outcome or doctrine, then the judge must reach that outcome. But if the modalities point in different directions, then they must be balanced. For example, if both precedent and historical practice strongly support one outcome, but the text points in a different direction, then the judge is required to determine the strength of each modality. The judge might conclude that since there are many precedents and a longstanding historical pracitce in favor of one doctrine (say a very weak nondelegation doctrine), the judge may decide that this outweighs the contrary argument from constitutional text.

The Hierarchical Alternative, Lexical Ordering of the Modalities: A third possible version of constitutional pluralism would be based on the idea that there is a lexical ordering of the modalities. For example, the text modality might come first, if the text is clear, then text governs. But if the text is unclear, but there there is a controlling precedent (or set of precedents), then precedent governs. If neither text nor precedent is clear, then a longstanding and consistent historical practice will govern. But if historical practice neither longstanding nor consistent, then constitutional values will be considered. If none of the other modalities resolves the case, then institutional capacity will be decisive. Of course, the hierarchical ordering could be different or more complex.

Constitutional Pluralism and Underdeterminacy

One objection to the standard account of Constitutional Pluralism flows from the fact that it implies that most constitutional questions have many right answers. In other words Constitutional Pluralism leads to the underdeterminacy of constitutional decisionmaking.  Indeed, it could be argued that almost all of the most important constitutional questions (federalism, separation of powers, the content of unenumerated constitutional rights, and so forth) can be answered in radically different ways–each of which can be justified using constitutional pluralism.

As a descriptive matter, this underdeterminacy might be counted as a plus factor. If pluralism is a descriptive theory of constitutional law, then it could be argued that pluralism explains why constitutional law is underdeterminate as a matter of fact.  But as a normative view, the underdeterminacy of constitutional pluralism might be seen as a negative. It might be argued that constitutional pluralism makes constitutional decisionmaking depend on the political ideologies and moral values of judges (especially Supreme Court Justices).

The underdeterminacy of Constitutional Pluralism entails that it is difficult to evaluate for those who believe that we should evaluate normative constitutional theories on the basis of the outcomes they will produce. Constitutional Pluralism can justify both Roe v. Wade and Dobbs, both Wickard v. Filburn and United States v. Lopez, both Humphrey’s Executor and a decision to overrule that case. Constitutional pluralism opens the door to constitutional outcomes that are conservative, progressive, liberal, and libertarian.

Conclusion

Constitutional Pluralism is one of the most important and influential constitutional theories. One reason for its importance is that captures significant aspects of actual constitutional practice.

Related Lexicon Entries

• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 077: Living Constitutionalism

Link to the Most Recente Version of this Lexicon Entry

• Legal Theory Lexicon 100: Constitutional Pluralism

(First posted on March 1, 2026.)

Introduction

Law students soon learn that the interpretation of legal texts is one of the most important things that lawyers and judges do.  In a previous Legal Theory Lexicon entry, a distinction was made between "interpretation" and "construction."  Although we could use other words to express the distinction, it expresses an important conceptual difference between two activities: (1) discovering the "meaning" of a legal text, and (2) determining the legal effect given to the text.  Thus, statutory interpretation aims to recover the meaning of the words and phrases of a statute in context, whereas statutory construction provides the legal norms that courts will use to apply the text to the facts of a particular case.

With this distinction in mind, we can ask the question, "How do we figure out the meaning of a legal text?" In some cases, we can tell what the statute unambiguously means without asking the "how" question.  But other cases are more difficult.  When there is an argument about what a statute means, it may be helpful to turn to theoretical linguistics and the philosophy of language for an a theory of communication.

One such theory was developed by the philosopher Paul Grice.  A key component of Grice's theory is the distinction between "speaker's meaning" and "sentence meaning."  Although most lawyers have never heard of Grice, every lawyer has an intuitive grasp of the difference between literal meaning (the bare meaning of the words as combined by syntax and punctuation) and the meaning that a speaker or author intended to convey in context.  This entry in the Lexicon provides a basic introduction to Grice's ideas.  As always, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

Speaker's Meaning

The meaning that a speaker or author intended to convey to a listener or reader is what Grice calls "speaker's meaning."  And Grice developed a very precise and illuminating theory.  Grice uses the word "utterance" to refer to oral communications, and I will use that word as well.  For Grice the speaker's meaning of an utterance is the meaning that the speaker intended to convey to the listener via the listener's grasp of the speaker's communicative intentions.

Wow!  That sounds complicated!  Let's unpack Grice's formulation step by step.  We can start with an example.  It is a Tuesday and the following exchange takes place:

Ben says to Alice: "Pizza day!"

Alice says, "Great!  See you there."

Suppose that in context, when Ben says "Pizza day!" he means to say: "Today is the day that we usually have Pizza at Lampo's at noon, and I don't have a conflict."  But he doesn't have to spell it out, because Alice knows that Ben and Alice have Pizza at Lampo's every Tuesday at noon unless Ben has a meeting.  When Ben says "Pizza day," Alice relies on her background knowledge and grasps that by saying "Pizza day!" Ben is conveying that he plans to meet her for Pizza.  By replying "Great!  See you there", Alice conveys that she is pleased and that she will be at Lampo's at noon today.

Notice that the content communicated by Ben and Alice is much richer in content than the literal meaning of their utterances.  This brings us to the idea of "sentence meaning."

Sentence Meaning

Grice contrasted the speaker's meaning of a particular utterance on a particular occasion with sentence meaning.  The sentence meaning of an utterance is simply the literal meaning of the words, phrases, and sentences.  The literal meaning of "Pizza day" is very sparse.  Pizza is a food consisting of a crust and toppings such tomato sauce and cheese.  Day is a unit of time.  The phrase "pizza day" could mean any number of things.  It might be a day upon which there are pizzas–pizza day at the cafeteria.  Or it might be a day when a particular person, Vibiana, ate a slice of pizza.  Or it could be the day when the refrigerated truck delivers frozen pizzas to the market.  The expression "pizza day" is incomplete when it is considered out of context.  It has meaning, but that meaning is sparse.

Of course, "pizza day" isn't even a grammatically complete sentence, but we can imagine Ben saying, "Today is pizza day," which is grammatically complete.  Notice, however, that the literal meaning of "Today is pizza day." is still ambiguous.  It could express that idea that today is the day Ben and Alice have pizza for lunch or the day when the truck delivers frozen pizzas to the market.  This grammatically complete sentence does not express a complete thought if it is considered without any context.

The account of sentence meaning that I have just offered is simplified.  Grice's own explication of this idea changed over time and was expressed in technical language.  But I hope that I have conveyed the gist of his idea.  The speaker's meaning of an utterance is the meaning of the utterance on a particular occasion–the meaning that the speaker intended to convey.  The sentence meaning of an utterance is the meaning that the words have generally and is a function of the conventional semantic meanings of word and phrases as combined by the conventions and regularities of syntax (and in the case of written communication, punctuation as well).

The Relevance of Speaker's Meaning and Sentence Meaning to Legal Interpretation

There are many different theories of legal interpretation and their vocabulary differs with context.  Let's use statutory interpretation and construction as an example.  There are three basic views of statutory interpretation:

• Textualism: the legal norms that implement a statute should be determined by plain meaning of the statutory text.
• Purposivism: the legal norms that implement a statute should be determined by the objective purpose of the statute, where objective purpose is understood as the purpose that an ideal legislature would have had in enacting the statutory text.
• Intentionalism: the legal norms that implement a statue should be determined by the subjective policy preferences of the actual legislators that enacted the statute.

The distinction between speaker's meaning and sentence meaning allows us to clarify these theories.  For example, textualism is sometimes criticized on the grounds that textualists are literalists who ignore context; in other words, the critics assume that textualists aim to recover the sentence meaning of the statutory text.  Textualists themselves deny this.  They argue that they are concerned with the meaning of the statutory text but only for the purpose of clarifying the meaning that the statute conveyed.  In other words, they are aiming to recover something that is more like speaker's meaning than it is like sentence meaning.  Purposivism, on the other hand, is only indirectly concerned with the meaning of the statute: because purposivists are after an idealized purpose they may sometimes prefer to focus literal meanings (sentence meaning) to contextualized meanings (speaker's meaning)–because the very sparseness of sentence meaning creates an empty vessel into which a judge's version of objective purpose may be poured.

Likewise, the idea of speaker's meaning helps us to understand intentionalism.  Intentionalism is concerned with intentions, but the kind of intention is not the communicative intentions that Grice's idea of speaker's meaning uses.  Instead, intentionalists are concerned with policy preferences.  This distinction is important.  If intentionalism aimed to recover the communicative intentions of the legislature, it would actually be a form of textualism.  In my experience, it is common for discussions of statutory interpretation to equivocate on this issue.  When that happens, conceptual confusion results.

Conclusion

There is much more to be said about the speaker's meaning, sentence meaning, and legal communication, but I hope that this entry in the Lexicon has given readers a basic understanding of Grice's distinction and the ways in which it can shed light on questions of legal theory.

Related Lexicon Entries

• Legal Theory Lexicon 021: Speech Acts
• Legal Theory Lexicon 022: Intention
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 051: Vagueness and Ambiguity
• Legal Theory Lexicon 063: Interpretation and Construction
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 079: Communicative Content and Legal Content
• Legal Theory Lexicon 094: Words and Concepts

Bibliography

• H.P. Grice, Utterer's Meaning, Sentence-Meaning, and Word-Meaning, 4 Foundations of Language 225 (1968).
• Paul Grice, Studies in the Way of Words (1989).
• Lawrence B. Solum, Contractual Communication, 133 Harv. L. Rev. F. 23 (2019).

(Last modified on October 6, 2024.)

Introduction

Many legal questions involve the application of settled law to the facts of a particular case.  But there are other cases, where the law is unsettled, either because there is no controlling precedent or because there is an going dispute about whether the controlling decision is correct.  This topic is discussed in Legal Theory Lexicon 095: Open and Contested Questions of Law.  Sometimes the framework for the resolution of an unsettled question of law is well-established: the open or contested question of law can be settled at the issue level.  Other times, there are disputes about how to settle the open or contested question: for example, if the question is one of statutory interpretation and construction, the resolution of the question may hinge on whether the methodology employed by the court is textualist, purposivist, intentionalist, or something else.  We can call this kind of question, a "meta-level question."  This topic is discussed in Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions.

Law students spend a lot of time learning the legal doctrine and developing the ability to apply the law to complex fact patterns.  This is the skill that is tested by the standard issue-spotter exam.  And many law students are exposed to open and contested questions of law.  Some professors treat such questions as an opportunity to express their own opinions as to how the questions should be resolved; others may ask students to take a position and make an argument on the open or contested question.  But in the first year of law school, it is relatively rare for students to get a systematic exposure to meta-level questions.  And a systematic exposition of the kinds of arguments that can be advanced at the meta-level is even rarer.

This entry in the Legal Theory Lexicon offers an introduction to meta-level argumentation.  As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Internal and External Critique of Meta-Level Theories

One useful distinction is usually expressed by differentiating "internal critique" from "external critique."  An internal critique of a meta-level theory accepts the basic premises of theory but shows that the theory or the justifications for the theory fail from this internal perspective.  There are many different kinds of internal critique.  One simple mode of internal critique challenges the validity of the argument for a meta-level position.  For example, it might be argued that the fact that the constitutional text is written leads to the conclusion that it should be interpreted on the basis of its original meaning.  One frequent criticism of this argument is that the conclusion does not follow from the premises.  Another kind of internal critique is based on an internal inconsistency is a theoretical position.  For example, a theory that asserted that common-law decisions are judge-made law, and that hard cases in the common law are decided by following precedent would be internally inconsistent.

External critique operates on the basis of premises that are outside of the theory being criticized.  For example, textualism might be criticized on the ground that legislatures are poorly equipped to understand the legal consequences of the statutes they right.  Therefore, textualism will lead to interpretations of statutory language that produce unintended consequences and bad policy.  Or a theory of the common-law might be based on a deontological theory of morality; judges should decide cases on the basis of considerations of justice and fairness.  A critique of this theory might start with the rejection of deontology in favor of consequentialism; this move then could lead to the argument that decisions based on fairness will lead to bad consequences and hence to bad decisions.

Public Reasons and Deep Theories

Another useful distinction differentiates between "public reasons" and "deep theories."  Let's begin with a list of theoretical positions that are "deep" in the sense specified by this distinction:

• Utilitarianism–the view that ultimate value is utility, which might be understood as the maximization of pleasure and the minimization of pain.  (But there are other forms of utilitarianism.)
• Social Contract Theory–the view that government should have all and only those powers that would be granted to government by persons forming a social contract in the state of nature.
• Egalitarianism–the view the most important criterion for judging the rightness or wrongness of a legal norm is the effect the norm will have on equality.  (Note that there can be many different views about what kind of equality counts.)

The reasons provided by these deep theories can be contrasted with reasons that are "shallow" in the sense that the avoid commitment on ultimate questions of morality or political philosophy.  Rawls used the phrase "public reason" to describe justifications that can be viewed as reasonable by persons who differ about the deep questions.  Here are some examples:

• Equal Citizenship–all citizens should be viewed as political equals and therefore no citizen should be denied the basic rights of citizenship such as the rights to vote and hold office.
• The Relevance of the General Welfare–the general welfare is relevant to questions of law and public policy, even if it is not the only relevant factor.  Hence, a meta-level theory that would lead to disastrous consequences for society as a whole can be argued against on that ground.

There is a Legal Theory Lexicon entry on public reasons: Legal Theory Lexicon 009: Public Reason.  One advantage of arguments based on public reasons is that may be able to produce an "overlapping consensus" or "incompletely theorized agreement."  Deep reasons fair badly on this score, because almost any deep theory of ethics or political morality is rejected by many or even most citizens. This topic is discussed in the following Lexicon entry:  Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements.

Outcome Arguments and Process Arguments

Another useful distinction can be made between outcome-based arguments and process based arguments.  An outcome based argument is one that looks to the consequences of adopting a meta-level theory.  The following are examples of outcome-based arguments:

• Originalism will lead to bad outcomes because the Constitution is very old and adherence to its original public meaning would hobble the regulatory state and result bad policy on many issues, including climate, pollution, and the regulation of financial institutions.
• Statutory intentionalism will lead to bad outcomes, because the actual intentions of Congress are motivated by the power of special interest groups and not good public policy.

Process arguments focus on the way that decisions are made.  For example:

• Statutory textualism is more legitimate than rival views, because it requires judges conform to legal norms made by elected officials.  Purposivism is less legitimate, because it requires judges to adopt statutory constructions that conform to the judge's own views about what the purpose of the statute should have been.
• Common law constitutionalism is better than originalism, because judges are institutionally competent to engage in common law reasoning but they are not trained in the historical methods required to discern original meaning.

The Method of Reflective Equilibrium

There is a Legal Theory Lexicon entry on "reflective equilibrium": Legal Theory Lexicon 009: Public Reason.  The basic idea of this method is that meta-level positions can be justified using the following procedure.  We start with our intuitive beliefs, both about general principles and particular cases.  We then examine these beliefs to see if they are consistent.  For example, we might start out with a belief that Roe v. Wade was rightly decided because it protects a fundamental right of privacy and another belief that Lochner v. New York was wrongly decided because it protected an unenumerated constitutional right that could not be justified on the basis of the constitutional text.  If the right to privacy is also an unenumerated right that cannot be justified on the basis of the constitutional text, we would then try to reconcile these two beliefs.  If at the end of the day, they cannot reconciled, then one belief or the other would need to be modified.  For example, we might jettison the idea that unenumerated rights are illegitimate.  Or we might instead conclude that such rights are legitimate if they ensure political equality, but not legitimate otherwise.  This process continues until our beliefs about both particular cases and general principles are mutually supportive and consistent.  At that point we have reach what Rawls called "reflective equilibrium."

The method of reflective equilibrium can be contrasted with what Rawls called "the method of geometry."  The analogy to geometry is designed to bring out the possibility that meta-level theories might be justified by arguments from "first principles."  If there were a set of principles of political morality or normative legal theory that were self-evidently true, it might be possible to justify a meta-level theory by deductive argument.  The practical problem with such a theory is that there does not seem to be any agreement on what the self-evidence premises of political morality are.

Conclusion

This entry in the Legal Theory Lexicon introduced some very general and basic ideas about meta-level arguments.  Such arguments operate at a very abstract and general level.  So, it is not surprising that the distinctions that we have examined are quite abstract and general as well.  Nonetheless, I hope that this Lexicon entry has provided a set of tools for thinking about meta-level argumentation.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 009: Public Reason
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 018: Justice
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements
• Legal Theory Lexicon 046: Legitimacy
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract
• Legal Theory Lexicon 077: Living Constitutionalism
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 095: Open and Contested Questions of Law
• Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions
• Legal Theory Lexicon 069: Reflective Equilibrium

(Last revised on December 4, 2022.)

Introduction

There is a fundamental distinction between two kinds of questions that lawyers and judges ask.  Let's begin with some examples of what we can call "issue-level questions":

• What is the standard of care in a negligence action?
• What is the proper test for federal question jurisdiction under 28 USC §1331?
• Are laws that classify on the basis of sexual orientation subject to heightened scrutiny under the Equal Protection Clause?

These issue-level questions can be contrasted with what we can call "meta-level questions."  Here are some examples:

• Should tort law be based on ex post considerations of fairness or ex ante assessment of welfare?
• Should the interpretation of statutes be guided by the plain mean of the text, the objective purpose of the statute, or the subjective intent of the legislature?
• Should the interpretation of the constitutional text be guided by originalism or by some form of living constitutionalism?

In the first year of law school, students encounter countless issue-level questions, usually explored by discussing the cases in which they arise. Frequently, one aspect of the discussion concerns the normative question: "what should the law be?"  In common law courses, that discussion might focus on ex post considerations of fairness or ex ante consideration of policy consequences.  Those discussions are about issue-level questions. 

What about the meta-level?   At many law schools, the meta-level questions are rarely discussed explicitly, although they may be lurking in the background.  If there is a required course in Legislation and Regulation, there might be a unit on statutory interpretation and construction.  Some constitutional law courses spend a class session or two on originalism versus living constitutionalism.  Common law courses frequently include some cursory discussion of the question whether common law is discovered or made.

This entry in the Legal Theory Lexicon provides a brief introduction to the distinction between issue-level questions and meta-level questions.  As always, the Lexicon is written for law students, especially first year law students, with an interest in legal theory.

The Basic Distinction

The intuitive idea of the distinction between issue-level questions and meta-level questions is not difficult to grasp.  When the word "meta" is attached to some other word, it usually indicates conceptual ascent–going up a level of abstraction.  But "meta" indicates something else as well.  Metaethics is about fundamental assumptions in normative ethics.  Meta-level questions are about the resolution of issue-level questions. Thus, a meta-level theory of statutory interpretation aims to guide the resolution of issue-level questions about the interpretation and construction of particular statutes.  A meta-level theory of constitutional interpretation and construction tells us how to resolve issue-level questions of constitutional doctrine.  A meta-level theory of the common law instructs judges as to how they are to engage in common-law decisionmaking.

The Domains of Meta-Level Theorizing

Some meta-level theorizing takes place at a very high level of abstraction.  For example, the phrases "legal formalism" and "legal realism" (or "legal instrumentalism") are sometimes used as labels for very abstract normative legal theories.  When the words are used in this way, legal formalism combines a preference for rules over standards with the view that judges ought to consider themselves bound by written constitutional provisions, statutes, and precedent.  Legal realism is harder to pin down, but some strands of legal realism endorse standards over rules and counsel judges to attend to considerations of policy and principle; other strands of realism counsel judges to attend to the particular facts of the cases that are before them and eschew grand theories.  Many realists or instrumentalists reject the idea that judges should consider themselves bound by constitutional and statutory texts or by the formal doctrine of stare decisis.  So, normative legal formalism and normative legal realism are meta-level theories at a very high level of generality.

Other meta-level theories are less general because they focus on specific domains of law.  Here are some examples:

Meta-Level Constitutional Theories:  There are so many different views in constitutional theory!  Simplifying, we might distinguish between originalism and living constitutionalism–both of which are really families that include many members.  These days, the predominant originalist theory is "public meaning originalism," but a few decades ago, "original intentions originalism" was more common and today there is talk for "original methods originalism" and "original law originalism"–and "living originalism" as well.  Living constitutionalist views include common-law constitutionalism, constitutional pluralism, the moral readings theory, and various forms of Thayerianism (views that emphasize deference to elected officials and therefore affirm a very restrictive view of judicial review). 
"Which constitutional theory should guide judges?" is a meta-level question.

Meta-Level Statutory Theories: There are three basic approaches to statutory interpretation and construction: textualism, intentionalism, and purposivism, but there are other approaches as well, including the ad hoc pragmatism advocated by Richard Posner.  Debates about which approach to statutory interpretation is best take place at the meta-level.

Meta-Level Theories of the Common Law: Theoretical work on the common law is more difficult to organize than is the work on statutes and constitutions.  One line of meta-level disagreement concerns the question whether common-law ought to be judge-made law or whether judges should limit themselves to the discovery of preexisting social norms and customs.  Another disagreement concerns the respective roles of principle (or deontological reasoning) and policy (consequentialist reasoning).  Ronald Dworkin's theory of law as integrity posits that common-law judges ought to decide individual issues and cases in accord with the moral theory that best fits and justifies the law as a whole.  The choice between normative theories of the common law takes place at the meta-level.

Theory and Anti-Theory at the Meta-Level

The discussion so far has assumed that meta-level questions can be distinguished from issue level questions and that meta-level questions ought to be addressed from some theoretical perspective.  But this assumption is not universally shared.  Some legal theorists have anti-theoretical views about meta-level questions.  The most well-known group of anti-theorists are the pragmatists, including RIchard Posner as well as the so-called "prairie pragmatists," Daniel Farber and Suzanna Sherry.  Another strand of anti-theory draws on "particularism"–a view that is well developed in moral philosophy.  Some of the legal realists may have had particularist views.  What pragmatists and particularists have in common is an aversion to theories that abstract away from particular issues and cases.  In one sense, the antitheorists deny that there is a true distinction between issue-level and meta-level questions, but in another sense pragmatists and particularists have meta-level theories themselves.  Pragmatism is the meta-level theory that recommends pragmatic, consequence focused decisionmaking.  Particularism is the meta-level theory that counsels judges to decide each case on the basis of its particular facts.

The Role of Meta-Level Questions in Legal Practice

Much of the work of lawyers and judges is like "normal science."  There is an agreed upon framework for analyzing issue-level questions.  Lawyers make arguments within that framework.  Judges decide cases using the framework.  Meta-level questions simply don't come up.  But it isn't always like that.  Judicial agreement that statutory interpretation should be guided by legislative intent is questions; another theory, textualism, gains adherents on the bench.  Once this happens, meta-level questions arise.  There is a particular statute that raises an issue level question.  The legislative history of the statute indicates that Congress wanted the question to come out one way, but the plain meaning of the statutory text suggests a different answer.  The case now hinges on a meta-level question: which approach to statutory interpretation and construction should the court use?

In recent years, meta-level questions of constitutional theory have have arisen in the Supreme Court on a regular basis.  One of the consequences of the appointment of a significant number of originalist judges to the lower federal courts is that meta-level disputes between originalist and living constitutionalist judges have begun to surface explicitly in judicial opinions at the Court-of-Appeals level.

Conclusion

Once you become aware of the distinction between issue-level and meta-level questions, it becomes apparent that both kinds of questions are pervasive, both in law school and in legal practice.  Many of the most controversial issues in American law are controversial precisely because of a meta-level disagreement.

Related Lexicon Entries

• Legal Theory Lexicon 001: Ex Ante/Ex Post
• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 067: The Priority of the Particular
• Legal Theory Lexicon 077: Living Constitutionalism
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 095: Open and Contested Questions of Law

Bibliography

Although there distinction between "issue-level questions" and "meta-level questions" is well understood by legal theorists, there is, so far as I know, no literature on the distinction itself.  There are analogous terminological issues in philosophy.

• Geoff Sayre-McCord, Metaethics, Stanford Encyclopedia of Philosophy (2012).

(Last modified on November 27, 2022.)

Introduction

First-year law students may come into law school believing that they will learn "the law"–a body of settled rules that decide cases.  But early on, they are likely to discover that many legal questions are open to dispute and others have never been addressed by an appellate court.  Sometimes there is "settled law."  But some questions are open and others are contested.

This installment in the Legal Theory Lexicon takes a look at open and contested questions of law and contrasts these two categories with law that is settled or binding  As always, the the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Open Questions of Law

What is an "open question of law"?  Let's start with a relatively simple example from an opinion by Judge Sweet of the United States District Court for the Southern District of New York.  The case involves a question about the application of the Fifth Amendment right against compelled self-incrimination in the context of private papers in light of binding precedent that addressed the application of the Fifth Amendment to business records.  Here is how Judge Sweet used the phrase "open question of law":

The Second Circuit has followed the Fisher–Doe analysis in In Re Proceedings before August 6, 1984 Grand Jury . . . and affirmed the district court's order directing the witness to produce a tape recording, found to be a business record, that the defendant had made of conversations between himself and others pursuant to an act-of production immunity order. . . . The Court of Appeals, however, expressly stated that the question of whether the Fifth Amendment protects the contents of private non-business papers had been left open in Fisher and remained open in this Circuit. Accordingly, to the extent the documents subpoenaed are non-business records, movant's motion to quash presents an open question of law.

In re Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741 F. Supp. 1059, 1064–65 (S.D.N.Y. 1990) (citations omitted and emphasis added).  From the perspective of the District Court judge, the question whether private non-business papers was open, because there was no controlling precedent on the question.

Open questions of law arise in the context of vertical stare decisis, where the question is whether a lower court is bound by the holding of the opinion of a higher courts, but they also can arise in the context of horizontal stare decisis.  For example, a three-judge panel of the Second Circuit could be faced with the same open question as was Judge Sweet–and so could the United States Supreme Court.  Unlike a District Court judge who is bound by precedent from the relevant Circuit and from the Supreme Court, the Supreme Court itself is not bound by horizontal stare decisis.

Nonetheless, there is an important difference between legal questions the Supreme Court has previously decided and those which are open, even when the court is one of last resort and does not consider itself bound by its own prior decisions.  At the very least, courts of last resort consider their own prior decisions to be presumptively valid, and they may go further and give them considerable "weight."

The question as to what constitutes a holding is the the subject of another entry in the Lexicon.  A question of law is open if it is not governed by a prior holding that has either vertical or horizontal stare decisis effect.

Contested Questions of Law

Contested questions of law are conceptually distinct from open questions.  A question of law is contested if it is the subject of current disagreement and dispute.  Importantly, questions of law may be contested, even though there is a controlling precedent from the relevant court of last resort.  For example, the constitutionality of the death penalty under the Eighth Amendment was actively contested by the Justices of the United States Supreme Court, both before and after Furman v. Georgia, a 5-4 decision that invalidated all the death penalty statutes that were in place at the time of the decision.  Some Justices believed that the death penalty was always unconstitutional; others believed that Furman was wrongly decided.  The Justices continued to disagree and dissent despite the fact that there was a controlling decision that bound the lower federal courts. When Furman was eventually  overruled, the question continued to be contested for some time.

If the law is contested, it is contested by some group.  For practical purposes, it matters very much who is contesting.  For example, if some question comes before the Supreme Court and is resolved by a nine to zero decision, the fact that a group of law professors or political pundits disagree may not have much practical significance.  But if the Supreme Court decides an issue by a five to four decision and the dissenting Justices continue to press their argument in subsequent cases, that fact has practical consequences.  Lawyers may continue to argument the point in their briefs to the Supreme Court, and the Justices may continue to argue and deliberate about the contested question.  Justices may change their minds or newly appointed Justices may tip the balance on the issue.

The contestedness of a question may vary over time.  Academic critics of the death penalty continue to press their points, but there is no active campaign by a group of Justices on the Supreme Court to overrule the decisions holding that the the death penalty is not per se unconstitutional.  By way of contrast, Roe v. Wade was actively contested by the Justices despite the fact that the Supreme Court has declined to overrule it on many occasions over a period of decades. Dobbs eventually overruled Roe, but the validity of Dobbs continues to be actively contested 

The Relationship Between Open and Contested Questions of Law

Some questions of law are neither open nor actively contested.  Such questions are settled in the fullest sense of "settled law."  Other questions are both open and contested: there is no controlling precedent and the relevant judges disagree about what the legal norm ought to be.  And yet other questions of law are open (there is no controlling precedent), but uncontested–all of the relevant judges agree about what the rule ought to be.  And finally, there are questions of law that are contested despite the fact that they are not open.

Settled Law

The distinction between open and contested questions of sheds light on another important concept–the notion of "settled law."  Because a question of law can be contested even if it is not open, "settled law" is not identical with the set of legal issues upon which there are controlling precedents.  Moreover, settled law can become "unsettled" if lawyers and judges begin to question the correctness of holdings that are binding (in the vertical stare decisis context).  The process of unsettling law is sometimes related to large movements in legal theory.  For example, if the Supreme Court's approach to statutory interpretation and construction shifts from a mixture of purposivism and intentionalism to textualism, then many questions of statutory interpretation that are not "open" may become "contested."

In addition, there may be settled law, even on questions that are technically open.  Consider an issue of law that has not been addressed by the Supreme Court or the Courts of Appeal.  Suppose that many District Courts have addressed the question and that they all come out the same way.  Remember, District Court decisions have no stare decisis–even within the district in which the decision was rendered.  Now add the fact that the question is uncontested; no one is arguing that all the District Courts have gotten it wrong.  The law on this question is settled–even though it involves an open question of law.

How Do Courts Decide Questions of Law that Are Both Open and Contested?

When the law is both open and contested, two things are true: (1) there is no controlling precedent and (2) there is a first-order disagreement about what the legal norm ought to be.  How are such questions resolved by courts?   Judges might vote their policy preferences–and surely they sometimes do.  But many judges believe that it is improper for a judge to resolve and open and contested question based on their personal preferences.  Such judges may resort to second-order legal theories to resolve first-order questions.  For example, if the open and contested question involves a statute, the judge might look to a theory of statutory interpretation and construction such as textualism, purposivism, or intentionalism.    In Similarly, if there is an open and contested question of constitutional law, the judge might look to the original public meaning of the constitutional text, on the one hand, or look to some form of living constitutionalism, on the other.

Of course, judges disagree about which second-order legal theories are best.  Some judges are statutory textualists, but others believe that they are bound by legislative intent; yet others attempt to discover the objective purpose of the statute.  Moreover, there are judges who are pragmatists or pluralists about statutory interpretation.  In other words, the question as to which second-order theory of statutory interpretation and construction is best is itself a contested question of legal theory.  And the same is true for second-order theories of the common law and of constitutional interpretation and constructions.

This fact is important for lawyers.  Lawyers almost always try to argue that their client is entitled to win on the basis of existing caselaw, but when there is an open and contested question of law, appeals to the cases and preexisting black-letter law will not suffice.  Good advocates recognize this fact, but it is not uncommon to read a brief that claims that an obviously open question of law was resolved in a prior case.

Moreover, the existence of open and contested questions of law might also be important to law students, who might be inclined to approach law school exams via the familiar IRAC formulate.  The problem arises at the "R" (rule) step, because if the exam includes an open and contested question of law, there is no "R"–no preexisting legal norm that resolves the question. 

Conclusion

Lawyers, law students, judges, and legal scholars all need the ability to recognize open and contested questions of law.  Of course, lawyers sometimes given advice about or litigate questions that are neither open nor contested and judges decide such questions.  For legal scholars, it is a bit different.  Traditional doctrinal scholarship–especially treatise writing–includes case crunching that synthesizes the black letter law.  But most modern legal scholarship that addresses first-order questions of law addresses questions that are open, contested, or both.

Related Lexicon Entries

• Legal Theory Lexicon 005: Holdings
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction

Bibliography

• G. Alexander Nunn* & Alan M. Trammell, Settled Law, 107 VA. L. REV. (forthcoming 2021).
  

(This entry was last modified on September 14, 2024.)

Introduction

Even before entering law school, law students are likely to know that lawyers work with words and ideas.  But most law students are likely to get through the first year without learning of one of the most basic distinctions in legal theory–the distinction between words and concepts–and the closely related distinction between sentences and propositions.  This entry in the Legal Theory Lexicon provides a very short introduction to the these ideas and their applications in legal theory.

A word of warning.  The notion of a concept plays an important role in legal theory, but typically legal theorists take the nature of concepts themselves for granted.  With the exception of work on the nature of law, where the notion of a concept is sometimes interrogated, legal theory rarely discusses deep questions about the nature of concepts themselves.  The discussion that follows ignores many important philosophical questions about concepts.  This is the Legal Theory Lexicon and not the Philosophers Lexicon.  For an introduction to the philosophical issues, I recommend the entry on Concepts in the Stanford Encyclopedia of Philosophy, which is cited in the bibliography at the end of this Lexicon entry.

What is a Concept?

Let’s begin with concepts.  What is a concept?  And how is a concept different from the word or phrase that is used to express that concept in a natural language like English?  We can start with an example.  One of the meanings of the word “law” refers to the system of legal norms.  “The law in the United States includes a right to the freedom of speech.”  The word “law” is used to express an idea or concept.  The concept law can be represented by other words.  Most obviously, the word “law” in English is translated as “recht” in German, “loi” in French, and “ley” in Spanish.  But the concept law can also be expressed in English in other words or phrases.  For example, the phrase “system of legal norms” can be substituted for the word “law” in a variety of contexts. Relatedly, many words are ambiguous: the same word can represent more than one concept. For example, the word “bank” can refer to a financial institution or the soil adjacent to a river.

Words and phrases express concepts, but words are not the same kinds of things as concepts.  There is a conceptual distinction between a word and the concept that the word expresses.

Words, Phrases, and Terms

Some concepts are expressed by single words, but others are expressed by phrases (groups of words).  Some phrases are compositional: the meaning of the phrase is determined by the meaning of the individual words that make up the phrase.  Other phrases are idiomatic: the meaning of the phrase is not the product of the meaning of the individual words.  Here are some examples of idioms:

• “Burn the midnight oil”
• “Cry over spilt milk”
• “Devil’s advocate”

Each of these phrases has an idiomatic meaning that is well known to competent speakers of American English, but is not reducible to the meanings of the words that compose the idiom.  A “devil’s advocate” is not the advocate of Satan.  “Crying over spilt milk” does not involve milk and it does not require crying.

We can use the word “term” to represent a unit of meaning, which could be a word or a phrase.  Thus, “law,” “legal system,” and “devil’s advocate” are all terms that represent concepts.  This Lexicon entry is entitled “Words and Concepts” but a more accurate title might have been “Terms and Concepts.”

Sentences and Propositions

What about sentences?  Words and phrases are combined into sentences.  Individual words and phrases have semantic meanings that associate them with concepts.  Sentences also have semantic meanings (or literal meanings), but these meanings are not just a function of the meaning of the individual words and phrases that make up the sentence.  Syntax plays a role in sentence meaning.  For the rough and ready purposes of this Lexicon entry, syntax might be thought of as something like grammar and (in the case of written sentences) punctuation.

We can use the word “proposition” to express the idea that the meaning of a sentence can be thought of as an abstract object.  Just as a word expresses a concept that can be expressed using other words, so too sentences express propositions that can be expressed using other sentences.  Thus, this Lexicon entry could be translated into Mandarin or Romanian (as many other Lexicon entries have already been translated).  And every sentence is this Lexicon entry could have been written using a different sentence in English that would have expressed the same proposition.  For example, many sentences in English that are expressed in “active voice” can be rewritten in passive voice.  “I wrote this the first sentence of this Lexicon entry” can be rewritten as “The first sentence of the Lexicon entry entitled ‘Words and Concepts’ was written by me.”

As concepts are to words and phrases, so propositions are to sentences.  Again, a word of warning: this view of the relationship between concepts and propositions is controversial in philosophy, but for the purposes of the Lexicon, I am ignoring many of the foundational issues about the nature of concepts.

A Common Error: Mistaking Definitions for Concepts

Here is a very common mistake made in academic legal writing: conceptual issues are described as definitional issues.  For example, in an article about foundational issues in international law, the author might say that a dispute about the nature of international law is a definitional dispute.  Of course, it is possible that the dispute is really about the meaning of the phrase “international law,” but it is more likely that the author is talking about the concept of international law and that the dispute is conceptual rather than definitional.  One way to see the difference is to ask these questions: (1) could the dispute be expressed in a different language?, and (2) could the dispute be reframed in English using other words?  If the answer to both of these questions is “yes,” then there is a good chance that the issues are conceptual and not definitional.

Of course, many disputes are merely terminological, but terminological disputes can be avoided by stipulated definitions.  If stipulation doesn’t provide a way around the issues, then the dispute is not really about the meaning of a word or phrase, it is actually about a concept or the nature of some kind.

Concepts and Conceptions

There is a Lexicon entry on the concept-conception distinction, which is frequently invoked by legal theorists.  This distinction was made famous by John Rawls in A Theory of Justice and was adapted to legal theory by Ronald Dworkin.  The gist of the idea is that certain concepts, such as justice, are contested.  There are different theories about the nature of justice and these theories compete with each other.  These competing theories can be described as “conceptions.”  So we have different conceptions of the concept justice.  Notice that the debates over the nature of justice are not about the definition of the word “justice.”

Linguistic Determinism (the Whorfian Hypothesis)

One of the ideas about the relationship between words and concepts is associated with Benjamin Whorf and is sometimes called “linguistic determinism” or “the Whorfian hypothesis.”  The gist of this idea is that our language determines our concepts.  Thus, it is claimed that Eskimos have 50 words for snow or that the Hopi do not have a concept of time.  This Lexicon entry won’t explore the empirical and philosophical issues raised by debates over linguistic determinism, but I do want to warn readers that they should not casually assume that linguistic determinism has been confirmed by social scientists.  It may be the case that the Eskimos do have many words for snow (as very recent research purports to show), but that does not entail linguistic determinism.  The notion that the Hopi lack a concept of time is probably false.  Before you make big assumptions about linguistic determinism, do some serious investigation!

Conclusion

As is usually the case, this Lexicon entry barely scratches the surface.  I hope that the ideas that I have introduced here are sufficient to give you a sense of the difference between words and concepts.  The bibliography includes some suggestions for additional readings!

Related Lexicon Entries

• Legal Theory Lexicon 028: Concepts and Conceptions
• Legal Theory Lexicon 051: Vagueness and Ambiguity
• Legal Theory Lexicon 075: Metalinguistic Negotiation and Contestation
• Legal Theory Lexicon 076: Natural Kinds and Moral Kinds
• Legal Theory Lexicon 079: Communicative Content and Legal Content

Bibliography

• Ronald Dworkin, Law’s Empire  (Harvard University Press 1988).
• Maite Ezcurdia, The Concept-Conception Distinction, 9 Philosophical Issues 187-192 (1998).
• W. B. Gallie, ” Essentially Contested Concepts,” 56 Proceedings of the Aristotelian Society167 (1956).
• Eric Margolis & Stephen Laurence, Concepts, The Stanford Encyclopedia of Philosophy (2011).
• Matthew McGrath & Devin Frank, Propositions, The Stanford Encyclopedia of Philosophy (2018).
• Christopher Peacocke, A Study of Concepts (1992).
• John Rawls, A Theory of Justice (1971).
• David Robson, There really are 50 Eskimo words for ‘snow’, The Washington Post, January 14, 2013, https://www.washingtonpost.com/national/health-science/there-really-are-50-eskimo-words-for-snow/2013/01/14/e0e3f4e0-59a0-11e2-beee-6e38f5215402_story.html?utm_term=.4055baefca32.

Link to the Most Recent Version of this Lexicon Entry

• Legal Theory Lexicon 094: Words and Concepts, Sentences and Propositions

(This entry was last modified on January 18, 2026.)

Introduction

Law students encounter the notion of "common law" very early in their legal education, frequently in an orientation program or on the first day of classes.  The standard law school curriculum includes courses in contracts, property, and torts, which are "common law" subjects.  And the reading of common law cases as presented in casebooks is the primary way in which students learn the doctrinal structure (the legal norms) of these common law subjects.  But what is the common law?  And what is the role of the concept of the common law in legal theory?  This Lexicon entry explores these questions.

As always, the Lexicon is aimed at law students, especially first year law students, with an entry in legal theory.

A Rough Typology & the Hierarchy of Authority

One way way to understand the notion of "common law" is to place the common law in a typology with other forms of law and to organize the forms of law into a hierarchy of authority.  Such a typology might look like this:

• Constitutions: The United States Constitution and the constitutions of the several states are examples.
• Statutes: Statutes are directed enacted by a legislature, e.g., Congress or a state legislature.
• Regulations and Rules: Regulations are typically promulgated by administrative agencies, such as the Environmental Protection Agency or the Federal Aviation Agency.  Similarly, various bodies promulgate rules, such as the Federal Rules of Civil Procedure.
• Common Law: Common law is found in judicial opinions and can be conceived as case law.  Usually common law is distinguished from case law that interprets a constitution, statute, rules, or regulations.

The conventional understanding is that there is a hierarchy of authority, with constitutions at the topic, followed by statutes, rules and regulations, and then common law.  If a common law norm is inconsistent with a regulation or rule, statute, or constitutional provision, the common law norm gives way and the higher form of authority governs.

Two Approaches to the Common Law

What is the source of the common law?  Simplifying a complex debate, we can identify two theories of the nature and source of the common law, the "discovery theory" and the "judicial legislation theory."

The Discovery Theory

The core idea of the discovery theory is that the common law preexists the judicial decisions that identify common law norms.  Judges don't "make" the common law; they "discover" it.  On this view, there must be some source of the preexisting common law that is independent of the judicial decisions that discover it.  Traditionally, there are two candidates for the source of discovered common law, "natural law" and "social norms or customs."

On the natural law interpretation, common law decisions articulate principles of natural law, which are moral principles discoverable by human reason.  If this view were correct, then morality would be the source of the common law, and common law reasoning would be a form of moral reasoning, sometimes called "right reason."

On the social norms interpretation, common law decisions articulate preexisting social norms or customs.  Thus, the common law of property would reflect the norms of the community with respect to the ownership of land and things.  As members of the community, judges would apply and articulate their intuitive knowledge norms that they have internalized.

The natural law theory and the social norms or custom theory might be rivals, but they might also be reconciled in various ways.  Custom might be considered an imperfect or approximate guide to the natural law, subject to correction when judges discover a gap between the customs of a community and the requirement of right reason.

The Judicial Legislation Theory

The judicial legislation theory denies the fundamental assumption of the discovery theory: common law is judge-made law.  On the judicial legislation theory, judges are given the power to engage in interstitial legislation.  Unlike, a legislature, judges are not authorized to write statutes.  Instead, judges legislate on a case-by-case basis, making incremental changes in the rules within the limits of the doctrine of stare decisis or precedent.

Most contemporary legal theorists affirm the judicial legislation theory of the common law.  The natural law version of the discovery theory seems to depend on the acceptance of natural law views about the nature of law, but most contemporary legal theorists are legal positivists.  The notion that the common law involves judicial legislation was the view of the legal realists, and continues to dominate legal theory in post-realist legal thought.  There has, however, recently been a revival of the view that the common law is grounded in customs and social norms.

Another View: Dworkin's Theory of the Common Law

Ronald Dworkin has a distinctive theory of the common law.  The gist of Dworkin's theory is that common law cases should be decided in accord with the moral theory that best fits and justifies the preexisting legal materials as a whole.  Simplifying, a judge deciding a property case would look at all of the prior common-law property cases and then develop the theory of property law that best justifies the pattern of decisions.  Dworkin believes that there is a "right answer" to every common law question–so his theory is inconsistent with the idea that common law involves judicial legislation.

The Doctrine of Stare Decisis

Closely related to the concept of the common law is the idea of stare decisis (the doctrine of precedent).  The common law develops via the doctrine of stare decisis, which distinguishes between the holdings and dicta.  On the traditional formulation of the theory, holdings are binding, but dicta are not, although they may constitution persuasive authority.  The various views about what constitutes the holding of a case are explored in a prior Lexicon entry (Legal Theory Lexicon 005: Holdings).  The traditional view is that the holding of a case is the ration decedendi, the legal norm that is entailed by the reasoning that is necessary to the outcome given the legally salient facts presented by the record and the arguments of the parties.  The doctrine of precedent operates to constraint the power of judges to make common law; the rules they announce are limited by the facts and issues raised in the case to be decided.

General and Local Common Law

Most law students read the Supreme Court's decision in Erie Railroad v. Tompkins in their course in civil procedure, and they may also read an excerpt from the Supreme Court's prior decision in Swift v. Tyson.  Those cases introduce a distinction between "general common law" and "local common law."  The idea of this distinction was that some common law topics are governed by "general common law," which is the same in every common law jurisdiction.  Commercial law and maritime law are examples of doctrinal areas that were thought to be governed by general common law at the time Swift v. Tyson was decided.  Local common law governed topics where local customs created rules that were not followed by all common law jurisdictions.  Many property law norms were considered to be matters of local common law.

Erie Railroad v. Tompkins rejected the idea that federal judges were free to adopt views of the general common law that differed from those adopted by state courts, leading to the demise of the distinction between general and local common law.

Normative Criticism of Common Law

Jeremy Bentham is famous for his critique of the common law.  Bentham argued that the common law was defective for multiple reasons.  One reason is that the common law is driven by the doctrine of precedent; Bentham argued that codified law based on utilitarian principles provides a superior method of lawmaking.  Bentham also contended that codified statute law is public and easier to ascertain than is the common law, which is relatively difficult to ascertain.

Conclusion

The idea of the common law has produced a vast literature exploring many issues that are beyond the scope of this Lexicon entry, but I hope to have provided a starting point for further investigation.  Some additional sources are provided in the bibliography provided below.

Related Lexicon Entries

• Legal Theory Lexicon 005: Holdings
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 073: Persuasive Authority

Bibliography

• Matthew Hale, On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings (2018).
• Oliver Wendell Holmes, Jr., The Common Law (1882).
• Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960).
• Theodore F. T. Plucknett, A Concise History of the Common Law (1929).
• Gerald J. Postema, Bentham and the Common Law Tradition (1989). 

(Last modified on August 31, 2024.)

Introduction

Because the first-year curriculum emphasizes common-law courses (property, contracts, torts), law students may not encounter the concept of "deference" early on.  Nonetheless, understanding deference is important in a wide variety of contexts, including standards of appellate review and judicial review of both legislation and administrative action.  This entry in the Legal Theory Lexicon provides a short introduction to the idea of deference.

As always, the Lexicon is aimed at law students with an interest in legal theory.

The Concept of Deference

What does "deference" mean?  The standard dictionary definitions define deference as "respect and esteem due a superior or an elder," but that is not the technical legal meaning of deference.  Pinning the concept of "deference" down in a precise way is tricky, but deference seems to involve a relationship between two legal actors or institutions, for example a court and a legislature.  Deference usually involves situations in which the deferring institution has some power over the institution to which it might defer.  Examples include (1) an appellate court reviewing the decision of a trial court, (2) a court reviewing the constitutionality of legislation, and (3) a court reviewing the legality of action by an administrative agency.

What does it mean to defer to a trial court, legislature, or administrative agency?  One approach to that question is to consider the opposite of deference.  Nondeferential appellate review of a trial court decision is "de novo": de novo review requires the appellate court to resolve the issue without regard to the action taken by the trial court.  Thus, de novo review of a trial court's conclusions of law gives no weight to the fact that the trial court has taken a position on the legal question.  But when it comes to a trial court judge's findings of fact, the appellate court does defer.  Findings of fact made by a trial court judge are reviewed under the deferential "clearly erroneous" standard.  The appellate court will only reverse the trial court if the appellate judges are convinced that the error is "clear."  The finding of fact may be wrong, but not clearly erroneous.  The clearly erroneous standard does give weight to the factual determination made by the trial court.

Degrees of Deference

The conventional wisdom is that deference is a matter of degree and not an off-on switch.  That is, deference is a scalar and not a binary.  For example, the standards of appellate review of trial court decisions are usually ranked as follows:

Most deferential: Abuse of discretion, applies to discretionary decisions by the trial court.

Intermediate deference: Clearly erroneous, applies to factual determinations by trial judges.

Least deferential: De novo, applies to issues of law.

There are interesting questions about the spectrum of deference.  One interpretation of the spectrum would assign probability values to degrees of deference.  For example, the de novo standard might be interpretation as requiring reversal of a trial court decision if the likelihood that it is incorrect is greater than 0.5.  The clearly erroneous standard might be assigned a value of 0.7 and the abuse of discretion standard could be 0.1.  But the probability interpretation might not be correct: it could be argued that the different standards  of appellate review are qualitatively different.

Deference in the Context of Judicial Review of Legislation

Another important context in which the concept of deference operates is judicial review of legislation for constitutionality.  For example, in the context of the Equal Protection Clause, the Supreme Court sometimes applies tiers of scrutiny.  Rational basis review is highly deferential.  In the most deferential form of rational basis review, legislation is upheld so long as the legislature could conceivably have had a legitimate aim in enacting the legislation and conceivably could have believed that the legislation was a rational means of pursuing that aim.  Intermediate scrutiny (which applies to gender) requires more, an important aim and a reasonable relationship between the means and end of the legislation.  Strict scrutiny (which applies to race) involves the lowest level of deference: legislation will be upheld only if there is a compelling state interesting and the legislative means are actually necessary to achieve this compelling end.

Rational basis scrutiny provides one of the paradigm cases of deference.  Even within this category, there seem to be different approaches.  The conceivable basis variant of rational basis review is so deferential that it is hard to imagine any legislation that would fail to satisfy the test.  But if the government is required to show that the legitimate state interest was the actual purpose of the legislation and that there is evidence supporting the means-ends relationship, then even a deferential standard of review might result in the invalidation of legislation.

Deference and Judicial Review of Agency Action

In recent years, the term "deference" arises most frequently in connection with the "Chevron doctrine," which involves judicial deference to agency interpretations of regulatory statutes.  The basic idea of Chevron deference is that courts should defer to the agency's interpretation of the statute, if the statute is unclear ("ambiguous") and the agency's interpretation is reasonable.  This form of deference is controversial, because it is in tension with the traditional conception of judicial role that assigns to courts the primary and ultimate authority for the interpretation and construction of legal texts.

Conclusion

There is much more to be said about the idea of deference, but I hope that this brief discussion is sufficient convey the basic idea of deference and to illustrate its application in a variety of contexts.  Additional reading is provided in the bibliography.

Related Lexicon Entries

• Legal Theory Lexicon 054: Standards of Review
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
• Legal Theory Lexicon 091: Discretion

Bibliography

• Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986).
• Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past, 78 Ind. L.J. 73 (2003).
• William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1120 (2008).
• Jacob E. Gersen & Adrian Vermeule, Chevron As A Voting Rule, 116 Yale L.J. 676 (2007).
• Jonathan T. Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary's Structural Role, 53 Stan. L. Rev. 1 (2000).
• Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.

(Last revised on August 25, 2024.)

Introduction

Law students are likely to encounter the concept of discretion early in the first year of law school.  Judges make decisions.  Some of these decisions are constrained by law, but others are made in contexts in which the law permits the judge a range of choice or discretion.  Likewise, sometimes executive officials carry out legal duties, but other executive actions are discretionary.  This Lexicon entry provides a brief introduction to the idea of discretion.  As always, the Lexicon is aimed at law students with an interest in legal theory.

The Idea of Discretion

The word "discretion" is ambiguous.  One sense of "discretion" refers to good judgment; another to being circumspect or cautious.  The sense of "discretion" that is discussed in this Lexicon entry is associated with this definition from Merriam-Webster: "power of free decision or latitude of choice within certain legal bounds."  In this sense, "discretion" is contrasted with constraint.  A decisions is constrained if the actor making the decision is bound by law to take a certain action.

The word "discretion" is usually used to refer to actions where the law confers a power within a limited sphere of action.  Kent Greenawalt expressed this idea when he wrote, "When a person's choice is not constrained at all we would not ordinarily use the term “discretion.” We say an official has “discretion” to pick employees for a company, but we do not say a child has “discretion” to choose the flavor of ice cream he wants." (Greenawalt 1975, p. 365)

In the law, we use the word "discretion" in situations in which a legal norms confers legal authority or power on some agent or institution.  Judicial decisions about the number of witnesses that will be allowed to testify on a given issue are said to be discretionary: there is no rule that specifies the number of witnesses or provides a formula for the calculation of such a number.  Presidents are legally empowered to choose the members of the staff; these decisions are discretionary, because there is no legal rule or standard that governs the President's decision.  Legislatures as institutions have wide discretion to choose what laws to make and to define the content of such laws.

But the existence of discretion does not imply an absolute power without outer limits.  For example, a judge could not limit the number of witnesses in order to exclude witnesses of a certain race or gender: although this is a discretionary decision, the law prohibits making the choice for some reasons.  Similarly, a decision may be discretionary, but there may be a requirement that the decisionmaker take certain factors into account in making the decision.  Thus, a judge may be obliged to consider the impact of limiting the number of witnesses on the ability of the parties to prove their case, even though there is no rule or standard that governs the decision. The judge’s exercise of discretion may be guided in other ways as well. These might include a specification of the aims meant to be achieved by the exercise of discretion, the exclusion of certain factors from consideration, a reminder about certain ways the exercise of discretion might fail, and a reason-giving requirement.

Judicial Discretion and Interstitial Lawmaking

One realm in which the idea of judicial discretion operates is in the realm of interstitial judicial lawmaking.  The idea that judges possess a discretionary power to make law was articulated by Benjamin Cardozo in The Nature of the Judicial Process:

The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law …. None the less, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom. (Cardozo 1921, pp. 113-15)

Cardozo then uses the idea of discretion to contrast interstitial lawmaking with cases in which judges are bound or constrained by existing law: “[i]n countless litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps.” (Cardozo, 1921, pp. 129).

The idea that judges have discretion in the realm of interstitial lawmaking is controversial.  Ronald Dworkin's Right Answer Thesis is the claim that even common-law judges have a legal duty to reach a legally correct answer in cases in which there is no prior case with a binding holding.  Unlike Dworkin, many legal realists believe that interstitial lawmaking involves discretion: when there is no controlling prior decision, the role of the judge is essentially the same as that of a legislator.

Even more controversial is the claim that judges, on courts of last resort like the United States Supreme Court, always possess quasi-legislative discretion.  For example, originalist constitutional theory holds that judges are bound by the original meaning of the constitutional text, but some living constitutionalists deny this.  For example, a common law constitutionalist might take the position that the constitutional text does not bind the Supreme Court, and that the Court has a discretionary power to make constitutional law that is inconsistent with the text.

Discretion Granting Language

Sometimes the law uses the word "discretion" to signal that a power conferring legal norm creates discretion.  But this is not always the case.  For example, the word "may" is frequently used to confer a discretionary power, whereas the word "must" is used to create a legal duty.  For example, Federal Rule of Civil Procedure 13 distinguishes between compulsory and permissive counterclaims.  The word "must" is used in Rule 13(a) to convey the idea that such counterclaims must be brought by a defendant.  The word "may" is used in Rule 13(b) to indicate that defendants have discretion to decide whether or not to bring permissive counterclaims.

Abuse of Discretion and Appellate Review

Another context in which the idea of discretion arises involves standards of appellate review.  When a trial court judge makes a decision of law (e.g., granting or denying a motion for summary judgment), the standard of appellate review is de novo; the trial judge has no discretion.  But many trial court decisions are discretionary, including, for example, trial management decisions about the number of witnesses or the time allotted for questioning of a particular witness.  When an appellate court reviews these decisions, the standard of appellate review is "abuse of discretion."  Consideration of an improper factor (such as a bribe or personal animus) or the failure to consider a mandatory factor may render a decision an abuse of discretion–even if the decision would have been proper if it had been reached on the basis of proper reasons.

Executive and Legislative Discretion and Judicial Review

Another context in which the idea of discretion plays an important role is provided by judicial review of executive and legislative actions.  There are many actions by legislatures and executives that are discretionary: there is no legal duty that specifies what must be done.  One clear example is prosecutorial discretion.  In the United States (but not everywhere else), prosecutors have discretion to refrain from brining criminal charges, even if the prosecutor is aware of criminal conduct and the evidence of guilt is so overwhelming that no case could be made for reasonable doubt.  On the other hand, prosecutors do not have discretion to bring criminal charges where there is no evidence of guilt.

Similarly, lawmakers have substantial discretionary power in the legislative process.  There is no legal duty to enact the Green New Deal, even if there are overwhelming good reasons to do so.  Likewise, there is no legal prohibition on enacting a repeal of the Clean Air Act, even if this decision were demonstrably against the public interest.  But the discretion of lawmakers is nonetheless bounded, both by the scope of lawmaking authority (i.e., the enumerated powers of Congress) and by rights conferring provisions (i.e., the freedom of speech).

Thus, judicial review of executive or legislative action necessarily involves the idea of discretion.  Courts will defer to decisions that are within the discretionary powers of executive officials or legislative institutions.  Judicial review that invalidates an action by an executive official or legislature is proper when discretion runs out.

Discretion and Other Forms of Legal Norms

Discretion is a form of legal norm, but there are many other forms as well.  At the other end of the spectrum from discretion are legal rules–legal norms that provide bright lines sorting official conduct into prohibited and permitted categories.  Standards provide officials with a set of mandatory considerations and may also provide procedure for weighing or combining these considerations: balancing tests are the paradigm case of a legal norm in the form of a standard.  Legal principles provide mandatory considerations, but may be consistent with the exercise of discretion, so long as the principle is taken into account in cases in which it is relevant.

The question whether to give a legal actor is one of institutional design.  Discretion might be granted because it is believed that the legal actor or institution granted discretion will make better decisions on a case-by-case basis than would be made if a legal rule or standard were to govern the decision.  The decision not to grant discretion may entail judicial review, which has costs and benefits.

De Facto and De Jure Discretion

The question whether discretion exists has at least two dimensions.  We might use the phrase "de jure discretion" to designate cases in which the legal rules explicitly confer discretion on a given official or institution.  But it might be the case that even though a decision is, in theory, governed by a rule or standard, it is, in fact, discretionary, because violations of the rule are not effectively subject to correction.  For example, it might be argued that in theory, the Supreme Court is bound by the constitutional text, but in practice, the Court has discretion, because the decisions of the Supreme Court on constitutional questions are final.  Thus, the Court might have de facto discretion to make constitutional law, even though it has not de jure power to do so.

Conclusion

Discretion is a complex subject, and this Lexicon entry has only scratched the surface.  Nonetheless, I hope that I have provided an introduction to this important concept and some of the contexts in which it is important.

Related Lexicon Entries

• Legal Theory Lexicon 005: Holdings
• Legal Theory Lexicon 024: Balancing Tests
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 039: Primary and Secondary Rules
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 054: Standards of Review
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
• Legal Theory Lexicon 092: Deference

Bibliography

• Aharon Barak, Judicial Discretion (1989).
• Benjamin Cardozo, The Nature of the Judicial Process (1921).
• Ronald Dworkin, Judicial Discretion, 60 J. Phil. 624 (1963).
• Kent Greenawalt, Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges, 75 Colum. L. Rev. 359 (1975).

My thanks to Professor Samuel Bray who provided useful suggestions.

(Last revised on August 21, 2024.)