Legal Theory Lexicon

  • Legal Theory Lexicon 089: Inference to the Best Explanation (Abduction)

    Introduction

    Early in the first year of law school, students are likely to realize that facts are crucially important.   But the law school curriculum is designed so as to make the process of legal factfinding almost invisible.  The traditional first year courses focus on appellate cases and legal norms.  The facts are givens.  The standards of appellate review largely insulate factfinding by trial courts from examination by appellate courts.  And casebooks focus on legal rules and largely exclude cases that focus on the factfinding process.  The primary law school course that focuses on factfinding is Evidence, but in many versions that course, the emphasis on questions about the admissibility of evidence on not the processes by which juries and judges move from evidence to findings of fact.

    Facts are important in trials and regulatory proceedings, but they are also important in the lawmaking processes that occur in legislatures and in common law courts.  Sometimes we call the facts that are found in trial courts “adjudicative facts” and the facts that are used in lawmaking “legislative facts.”  A similarly phrase is used to describe the facts that are used in the development of constitutional doctrines; these facts are sometimes called “constitutional facts.”

    So perhaps it is no surprise that most law students have never thought seriously about the logical structure of the factfinding process.  My sense is that most students have a basic familiarity with the distinction between deductive and inductive arguments, but I would guess that many (or perhaps almost all) law students are unfamiliar with the idea of “interference to the best explanation” or “abduction.”  Indeed, at this point many readers might assume that this Lexicon entry is going to address an obscure topic that is only of interest to legal theorists: after all, how important could inference to the best explanation be, if law students, lawyers, and judges have never heard of it.  But in fact, factual arguments based on inference to the best explanation are ubiquitous in the law.  Knowing something about they way such arguments work can be eye opening and extremely useful.

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

    Deduction, Induction, and Abduction

    The first step in understanding inference to the best explanation is to distinguish it from two other forms of argument, “deduction” and “induction.”  Almost every law student has a basic understanding of deductive arguments.  A deductive argument is valid if the truth of its premises guarantee the truth of the conclusion; deductive arguments are sound if their logical structure is valid and their premises are true.  Thus, “All dogs are mammals.  All mammals are animals.  Therefore, all dogs are animals.” is both sound and valid.

    Good inductive arguments do not guarantee the truth of the conclusion; instead, inductive arguments provide some degree of support for their conclusions.  Here is an example:

    • Every crow in a sample of one thousand crows is black.  This supports the conclusion that all crows are black.

    An entire field of legal study, “Empirical Legal Studies,” is devoted to what we are calling “inductive arguments.”

    Unlike deductive arguments, arguments based on inference to the best explanation do not guarantee the truth of their conclusions.  Unlike inductive arguments, inference to the best explanation does not depend on generalization from many instances (or samples).  An argument from inference to the best explanation frequently moves from one fact (which might be an event or occurrence) to a conclusion on the basis that the conclusion is the best explanation for the fact that provides the premise for the argument.  This may sound very abstract, but the idea is simple and intuitive in the context of specific examples.

    Examples of Inference to the Best Explanation

    The best way to understanding inference to the best explanation is via examples.  Here are a few:

    • Helberta wakes up in the morning and goes into the kitchen.  The beans for coffee have been ground and placed in the filter bag in the coffee maker.  Helberta is positive that they did not do this last night.  The best explanation for this state of affairs is that Helberta’s partner Gertruda set up the coffee the prior evening.
    • Walter is found dead from a gunshot wound inflicted by a 45 calibre bullet.  The day before, Graham and Walter had a violent argument during which Graham threatened to kill Walter.  Graham owns a 45 calibre revolver and cannot account for his actions during the time period during which the shooting must have occurred.  The best explanation for these circumstances is that Graham shot Walter.
    • You are walking on the beach and see the following letters in sand: “L i f e  i s  b e a u t i f u l.”  It is is possible that the letters were caused by random wave action, but the best explanation is that another person drew the letters in the sand.

    None of these examples involve inductive or deductive arguments.  In each of the examples, it is logically possible that your conclusion is false.  If you doubt this, consider the following additions to the examples:

    • After Helberta sips her coffee, her sister Alberta comes into the room, surprising Helberta.  Alberta says, “Sorry to scare you.  I arrived late last night and Gertruda let me in.  I got the coffee ready.”
    • After the police investigate Walter’s shooting, they discover that Alice, Walter’s wife had learned about the argument between Walter and Graham, had access to Graham’s revolver, and was furious at Walter because they had learned that Walter had been sleeping with another woman.
    • After you see the writing on beach, you come across a boy and their dog.  The boy says, “Spot, write ‘hello’!” and remarkably, the dog traces the letters “H e l l o” in the sand and these letters are similar in width and shape to the letters you saw earlier.

    Arguments from an inference to the best explanation do not guarantee the truth of their conclusions, even when they make the conclusion seem very likely.  Given new and different facts to be explained, the process of inference to the best explanation can lead to a different conclusion.

    Inference to the Best Explanation in the Law

    Inferences to the best explanation ubiquitous in the law.  The idea of “circumstantial evidence” is based on inference to the best explanation.  When someone says “the evidence is only circumstantial” they are point out the possibility that the inference to the best explanation does not guarantee the truth of the conclusion.  But inference to the best explanation operates in the context of non-circumstantial evidence as well.  Suppose that there is an eyewitness to a shooting (Helena) and that the Helena testifies at trial that Roberta was the shooter.  The fact to be explained is Helena’s testimony.  If we believe her, it is because we believe that the best explanation for her having testified that Roberta was the shooter is that Roberta did in fact do the shooting, that Helena witnesses the shooting, and that Helena is now truthfully recounting what she saw.  Of course, there are other explanations, and there is empirical evidence that eyewitness identifications of strangers are frequently wrong.  More generally, inference from the testimony of witnesses to the facts about which they testify all depend on inferences to the best explanations.

    The role of inference to the best explanation is not limited to factfinding at trial.  The factual predicates for policy arguments may be based on inferences to the best explanation.  And many doctrinal arguments about legal content use inference to the best explanation as well: the courts in cases X, Y, and Z, made decisions A, B, and C, and the best explanation for this patter of decisions is that the courts were implicitly following legal norm P.

    Once you start looking for arguments from the best explanation in law, you will find them everywhere.

    Inference from the Best Explanation and Behavior Economics

    Just because inference to the best explanation is ubiquitous does not mean that it is unproblematic.  Human psychology influences which inferences are seen as best, but the psychological mechanisms may be biased or flaw.  Behavioral economics, which is grounded in psychology, identifies various heuristics that may result in inferences to the best explanation that are, in fact, invalid.  For example, it may be the case that there is a tendency to prefer simple explanations over complex ones, but that the simplicity of an explanation is not a good predictor of its accuracy.

    Conclusion

    This Lexicon entry aims to introduce the idea of abduction or inference to the best explanation.  The bibliography provides some references for additional reading and legal applications.  There is much more to be said about this topic, but I hope that I have provided enough background to get you started.

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    Bibliography

    • James Hawthorne, Inductive Logic, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/logic-inductive/ (2018).
    • Igor Douven, Abduction, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/abduction/ (2017).
    • Harman, G., 1965. “The Inference to the Best Explanation,” Philosophical Review, 74: 88–95.
    • Craig R. Callen, Spotting A Preponderance of the Evidence in the Wild: Inference to the Best Explanation and Sufficiency of the Evidence, 48 Seton Hall L. Rev. 1517 (2018).
    • Ronald J. Allen & Alex Stein, Evidence, Probability, and the Burden of Proof, 55 Ariz. L. Rev. 557 (2013).
    • Peter Lipton, Inference to the Best Explanation (2d ed. 2004).

    Link to Latest Version of this Lexicon Entry

    (Last revised on December 14, 2025.)

  • Legal Theory Lexicon 088: The Construction Zone

    Introduction

    Law students quickly learn that many legal texts are vague or open-textured.  Words like “reasonable” and phrases like “freedom of speech” may not provide bright-line rules for their application.  This lack of precision creates a zone of underdeterminacy, where something other than the meaning of the text is required in order to formulate implementation rules (the legal doctrines that courts use to apply the text to particular cases).  If we distinguish between “interpretation” (which discovers meaning) and “construction” (which determines legal effect, we can call these zones of underdeterminacy “construction zones.”

    This entry in the Legal Theory Lexicon provides a short introduction to the idea of a “construction zone.”  As always, the Lexicon is aimed at students, especially first-year law students, with an interest in legal theory.

    The Interpretation-Construction Distinction

    The idea of a “construction zone” is based on the interpretation-construction distinction.  The distinction between “interpretation” and “construction” marks the fundamental conceptual difference between two activities:

    Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

    Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

    This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the “New Originalism” and especially Keith Whittington and Randy Barnett.

    Underdeterminacy

    The idea of “underdeterminacy” is best explained by comparison with two contrasting ideas, “determinacy” and “indeterminacy.”  A legal text is “indeterminate” if it provides no guidance at all, permitting judges reach any result they wish.  A legal text is “determinate” if it fully determines application.  “Underdeterminacy” applies when a legal text is consistent with more than one outcome, but rules out other outcomes.  In other words, a legal text is underdeterminate with respect to the legal rules that implement that text if and only if it allows for some possible rules but rules out others.

    Construction zones arise because the meaning of some legal texts underdetermines the legal effect that is given by courts and other officials to the text.  For example, the communicative content of the phrase “freedom of speech” underdetermines the legal content of free-speech doctrine.  The linguistic meaning of the phrase “freedom of speech” does not contain doctrines such as the distinction between content-based and content-neutral restrictions on speech.  These legal content of these implementation rules is underdetermined by the communicative content of the First Amendment.

    There are many reasons for the underdeterminacy of legal texts.  Here is a brief catalog:

    Vagueness and Open Texture: Some legal texts are vague because they create borderline cases: for example, the word “tall” is vague, because there is no bright-line between persons who are tall and those who are not.  Other texts include “open textured” provisions.  Typically, an open-textured legal rule has a core of determinate application and an equally determinate core of nonapplication, but creates a set of cases where the rule may or may not apply.  H.L.A. Hart used the term “penumbra” to designate this set of cases.

    Irreducible Ambiguity: Many words and phrases are ambiguous: they have more than one meaning.  “Bank” can refer to a financial institution or the soil that adjoins a river.  Usually, we can resolve ambiguity by context, but some terms may be irreducibly ambiguous.  For example, a legislature may decide to use ambiguous language if a compromise cannot be reached on some issue: this kind of ambiguity “kicks the can down the road,” creating a construction zone to be resolved by judges or officials at some future date.

    Gaps:  Some legal texts may contain “gaps.”  For example, a statute may create a legal question but provide no legal rule to govern that question.  The resulting “gap” creates a construction zone.

    Contradictions:  Complex statutes sometimes contain contradictions, provisions that conflict with each other.  Again, the contradictory provisions create a construction zone, where the resolution of the conflict must be done by officials or courts when they implement the statute.

    When a legal text is vague, open-textured, irreducibly ambiguous, has gaps, or contains contradictions, it creates a “construction zone.”  The legal effect of the constitutional clause, statutory provisions, or contract clause will underdetermine its legal effect.  In this zone of underdeterminacy, construction will be required to determine legal content and application to particular cases.  In other words, underdeterminacy creates construction zones.

    Interpretation Zone versus Construction Zone

    Now that we have the idea of a construction zone, we can introduce a contrasting notion.  The “interpretation zone” is the set of issues and cases for which the meaning of the text is determinate.  Some legal texts are fully determinate: once we know what they mean, we know how to apply them.  For example, the Constitution specifies that each state has two Senators: in practice, this provision is fully determinate: issues concerning this provision are in the interpretation zone.

    The notion of an interpretation zone is relative to theories of interpretation and construction.  For example, statutory textualists believe that any statutory issue that can be answered by the meaning of the statutory text is in the interpretation zone.  But purposivists may not accept this idea.  Because they believe that the purpose of a statute should determine the statute’s legal effect, they reject the idea that clear text automatically resolves questions about the legal effect of a statute.

    Methods of Construction

    Identification of the construction zone is only the start of the analysis of what to do when a legal text is underdeterminate with respect to some case or issue.  The next step is to determine what methods of construction are appropriate for the determination of legal effect.  This step involves theories of construction: such theories provides methods for choosing implementation rules.

    There are many possibilities.  For example, we might devise implementation rules by identifying the objective purpose or function of a statute or constitutional provision.  Or we might use a default rule: for example, in constitutional cases, courts could defer to democratic officials when the constitutional text is underdeterminate.  Precedent or historical practice might play a role in the construction zone.

    The law is full of doctrinal techniques for resolving cases in the construction zone.  For example, application of a vague or open-textured statute or constitutional provision might be guided by a balancing test.  Or the courts might precisify a vague provisions by devising a bright-line rule that implements that purpose of the provision.  Another possibility is to grant discretion to trial court judges to resolve cases in the construction zone.

    Conclusion

    The idea of a construction zone is a powerful tool for analyzing questions about the interpretation and construction of legal texts.  I hope that this entry in the Legal Theory Lexicon has provided a basic introduction to this idea and the complementary notion of an interpretation zone.

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    Bibliography

    (Last updated on December 7, 2025.)

  • Legal Theory Lexicon 087: Soft Law

    By Lawrence B. Solum

    Introduction

    The first year curriculum in the United States focuses on domestic private law (property, torts, contracts), civil procedure, and constitutional law, with the possibility of a course on legislation and regulation or an elective outside the core common law subjects.  International law is rarely studied in the first year.  So, many first-year law students may complete the year without having heard of “soft law,” which implicitly is defined as contrasting with “hard law.”  Here is a representative definition that assumes the international law context:

    By “soft law” I am referring to quasi-legal instruments that have no legal force, such as non-binding resolutions, declarations, and guidelines created by governments and private organizations. (Druzin, 2017)

    The idea of soft law can easily be extended to domestic contexts.  This entry in the Legal Theory Lexicon provides an introduction to the idea of soft law aimed at law students, especially first-year law students with an interest in legal theory.

    Hard Law

    The notion of “soft law” is implicitly defined by contrast with “hard law.”  Hard law is binding and enforceable.  In the international contrast, treaty obligations and the binding enactment of international organizations created by treaties would be hard law.  In the domestic sphere, hard law is the system of binding legal norms, including criminal law, tort law, constitutional law, and so forth.

    What makes “hard” law hard?  That is a deep question that connects with disputes about the nature of law: explored in Legal Theory Lexicon 065: The Nature of Law.  One possible answer is that a hard law must be properly enacted or recognized by the relevant rule of recognition (a social rule that specifies what counts as a law and what does not) and be properly connected to some form of state-imposed sanction or reward.  There are deep waters here, but we will work with that definition for the remainder of this Lexicon entry.

    Soft Law

    If hard law is properly enacted and backed by sanctions or rewards, then what is soft law?  “Soft law” must share something with “law”: at a minimum soft law must contain a norm the content of which has the action guiding function of hard law.  And soft laws also appear to be things that are enacted or promulgated in some way.  Thus, it common to include in the category of “soft law” things like “non-binding resolutions, declarations, and guidelines created by governments and private organizations.” (Druzin, 2017)  In other words, soft-laws are things with content that would be hard law if it had been enacted by a process that would have conferred legal status and if it had included some sanction or reward.

    This definition of “soft law” is incomplete.  If I right a set of guidelines for fossil fuel companies, it does not become “soft law.”  Implicitly, the category is limited to norms (rules, standards, or other kinds of norms) that are effective.  Guidelines that achieve some threshold level of compliance may properly characterized be as “soft law,” but guidelines that are have not effect on behavior are not.  A full and complete definition would also need to differentiate the category of “soft law” from related notions such as “custom” or “social norms,” but at this point, we will bracket these additional questions.

    Soft Law in International Law

    The term “soft law” seems to have originated in the field of international law and it is applied to resolutions of the United Nations General Assembly and the action plans or recommendations generated by the various organs of the United Nations and other international organizations.

    Why is soft law created?  And why does soft law sometimes succeed in changing behavior?  These are big questions, but here are some ideas for starting to think about answers.  Soft law may be created because it is not feasible to create hard law.  This might happen in the course of treaty negotiations: if a hard law treaty is impossible, the negotiating parties might turn to soft law as a less than ideal option that is “better than nothing.”

    Even if soft law is not backed by sanctions or rewards, it might nonetheless affect behavior.  Soft law might act like informal social norms and create social pressures for compliance.  Violations of soft law may be criticized and result in various soft pressures, such as refusals to cooperate with the violators of soft law norms.

    Another mechanism for cooperation may involve what are called “networking effects.”  Soft law may provide a mechanism for the coordination of behavior.  If the benefits of coordination depend on the number of cooperators, the soft law norm may be adopted voluntarily.  Here is an example from international shipping:

    Soft-law documents such as BIMCO bills of lading, standard-form charter-parties, and the York-Antwerp Rules 2004 on General Average have self-standardized as de facto industry standards. This process of self-standardization may occur with respect to instruments at all levels of interaction. The soft-law document need only provide a focal point for actors within a network seeking to co-ordinate. International bill of lading and charter-party forms, couched in universal terms and practices widespread throughout the shipping world, do not require any formal legal codification precisely because—and this is a crucial point—they are already robustly supported by network-effect pressures. (Druzin, 2017)

    Conclusion

    There are many more questions that could be asked about the idea of soft law.  Does it make sense to use the word “law” when we refer to “soft law”?  Or is the terminology misleading?  What are the costs and benefits of soft law approaches as compared to hard law?  I hope this Legal Theory Lexicon entry has provided you with the tools to understand and recognize the concept of soft law.

    Bibliography

    • Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (2d ed. 2015).
    • Bryan H. Druzin, Why does Soft Law Have any Power Anyway?, 7 Asian Journal of International Law, 361–378 ((2017).
    • Gregory C. Shaffer and Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in
      International Governance, 94 Minnesota Law Review 706 (2010).

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    Permanent Version of this Lexicon Entry

    (Last revised on November 30, 2025.)

  • Legal Theory Lexicon 086: Context and Meaning

    Introduction

    One of the most important tasks performed by lawyers and judges is the “interpretation” of legal texts, including constitutions, statutes, regulations, rules, contracts, and the list goes on.  One aspect of communication involves the linguistic meaning the words and phrases that make up the text: this aspect of meaning is sometimes called “semantics.”  The bare semantic meaning of a legal text is sometimes called the “literal meaning.”  But the whole meaning of a text almost always is richer than the literal meaning.  We might ask, “Where does the ‘extra’ meaning come from?”  The answer to that question is context.  The role of context in the production of meanings is called “pragmatics” by philosophers of language and linguistic theorists.

    This Lexicon entry explores the relationship between context and meaning.  As always, the Lexicon is aimed at law students, especially first-years, with an interest in legal theory.

    Contextual Disambiguation

    One of the most important roles played by context occurs when a legal text is ambiguous. The word “ambiguity” has more than one meaning or sense. Sometimes it is used in a very general sense to refer to a lack of clarity, but “ambiguity” also has a technical sense. In this Lexicon entry, “ambiguity” is used to refer to the situation in which a word has more than one sense. For example, the word “bank” might appear in a statute.  “Bank” has more than one meaning.  The land adjoining a river is a “bank,” and so is a financial institution that accepts deposits from customers.  If a statute or regulation includes the word “bank,” we can almost always disambiguate on the basis of context.  If the statute concerns the regulation of financial institutions, then the word “bank” is almost certain to refer to the kind of “bank” that accepts deposits.  But if the statute involves water pollution or navigation, then the “bank” is all but sure to be the land adjoining a river.

    Because most words have more than one meaning, semantic ambiguity is pervasive.  But we often do not even notice the fact of ambiguity because we naturally read legal texts contextually and resolve the ambiguity without even consciously realizing that we are doing so.

    There are other forms of ambiguity, including syntactic ambiguity, which arises from the fact that sentence structure and punctuation are frequently consistent with more than one set of relationships between words.  Here is a simple example: “The professor said on Monday he would give an exam.”  This might mean that it was Monday, when the professor said that he would given an exam on a subsequent day.  Or it might mean that the professor said that he could given an exam and that the exam would be administered on Monday.  Syntactic ambiguities are very common, but they are usually resolved by context.

    Pragmatic Enrichment

    Context plays another important role in the production of meaning.  A legal text can communicate an idea without stating the idea explicitly.  Context can “enrich” or add to the literal meaning of a text.  This is a deep topic, but one way to approach it is by cataloging some of the forms of what is called “pragmatic enrichment.”

    Implicature

    Implicature conveys communicative content that is different from the semantic content of an utterance or text. Consider the classic example of a letter of recommendation, written by a law professor, for a student applying for a prestigious judicial clerkship. The entire body of the letter reads as follows: “I recommend Ben. He was always on time to class and his attendance record was perfect.” The semantic content of the letter consists of a speech act, recommendation, and two supporting statements regarding punctuality and regularity of attendance. But in the context in which the letter was written, much more than the literal meaning is communicated. If the best that can be said about Ben is that he was on time and did not miss class, the implicature is that Ben is not suitable for the position of judicial clerk.

    Impliciture

    Impliciture involves situations in which what is said implicitly includes something else that is closely related. Kent Bach gives the following examples, in which the impliciture (unstated) has been added in brackets:

    • Jack and Jill are married [to each other].
    • Bill insulted his boss and [as a result] got fired.
    • Nina has had enough [pasta to eat].

    Thus, if someone says, “Jack and Jill are married,” the [to each other] is unstated but implicit, and so forth for the other examples. Constitutional impliciture is common: Article I, Section 9, of the Constitution explicitly states, “No Bill of Attainder or ex post facto Law shall be passed,” with [by Congress] as an impliciture.

    Presupposition

    Presupposition is communicative content provided by an unstated assumption or background belief that is conveyed by what is said. Again, examples are helpful:

    • Utterance: “Cass is no longer the head of OIRA.” Presupposition: “Cass was once the head of OIRA.”
    • Utterance: “Adrian should not eat meat.” Presupposition: “Adrian does eat meat.”
    • Utterance: “Lisa’s wife is pregnant.” Presupposition: “Lisa has a wife.”

    Philosophers of language distinguish between “conversational presuppositions” (also called “speaker presuppositions” or “pragmatic presuppositions”) and “conventional presuppositions” (or “semantic presuppositions”) that are triggered by particular words or phrases (“no longer” in the first example above). For our purposes, we can put these technicalities to the side.

    Presuppositions are common.  For example, the Ninth Amendment may presuppose the existence of “rights retained by the people” even though the explicitly semantic content of the text does not state that such rights exist.

    Modulation

    Finally, consider what is sometimes called modulation. The intuitive idea is that, in context, a conventional semantic meaning can be adjusted or modulated to fit the context—essentially a new meaning is created (sometimes on the spot) so that an old word is used in a new way.  In ordinary speech, modulations may be “one-offs,” used on a single occasion. But in the law, modulation can create a new technical meaning for a word that also has an ordinary sense.

    Again, we can find examples of modulation in the text of the United States Constitution. One example is (or hypothetically may be) the Recess Appointments Clause, which uses the word “recess.” Read acontextually, a recess might be any break in the business of the Senate—even a lunch break. But in context, “recess” is best read as a modulation, the meaning of which plays off the complementary term “session.” The relevant sense of “recess” is a modulation of the conventional semantic meaning; it is limited to the break between sessions of the Senate.  This difference between conventional semantic meaning and modulation was actually the source of disagreement among the Justices in the Noel Canning case.

    Another Role of Context: Purposes and Values

    The discussion so far has concerned the role of context in the production of “meaning” in the sense of communicative content.  But there is another, quite distinct, role that context can play.  Context can provide the “purpose” of a statute or the “constitutional values” that animate a clause in the constitutional text.  We can get at this role of context by recalling the distinction between “purposivism” and “textualism” as theories of statutory interpretation.  Textualists are concerned with the meaning of the statutory text: they look to context in order to determine the content communicated by the text of the statute.  Purposivists have a very different approach to statutory interpretation: they believe that courts should determine the “objective purpose” or “function” of a statute.  The legal rules that implement  a statute should be designed to achieve that purpose–even if achieving the purpose requires legal norms that differ from those that are expressed in the statutory text.  A purposivist can look to the context in which a statute was enacted in order to determine its purpose, but that is quite different than looking to context to determine the meaning of the text.

    The Interpretation-Construction Distinction

    The two roles of context that we have identified can be clarified by invoking the interpretation-construction distinction, which is the subject of a Lexicon entry.  Here is the distinction:

    • Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text.
    • Construction: The activity of determining the legal effect (or legal content) of a legal text.

    Contextual disambiguation and pragmatic enrichment are used in interpretation.  The determination of purposes, policy goals, and values is used in construction.

    Conclusion

    As is usually the case, this Lexicon entry provides a very brief introduction to a very big topic, but I hope it illuminates the role of context in the interpretation and construction of legal texts.

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    (Last modified on November 23, 2025.)

  • Legal Theory Lexicon 085: Canonical and Anti-Canonical Cases

    Introduction

    Sometimes a case is referred to as “canonical.”  It is one of the cases that is clearly correct.  In the context of American constitutional law, Brown v. Board is frequently cited as a canonical case.  Other times, the opposite point is made: a case is call “anti-canonical.”  It is clearly wrong.  An example is Dred Scott.  But what is the theoretical force of these moves?  And what accounts for the canonical or anti-canonical status of a case?  Do cases move in and out of the canon and anti-canon?  How and why?  Is the argument that a theory is inconsistent with a canonical a “conversation stopper”?  Or can one argue that a canonical case was wrongly decided?

    Most of the discussion in this brief Lexicon entry will use constitutional law examples, but the the idea is more general than that.  There are canons in contracts, torts, property, and administrative law, but most of the discussion of the idea of canonical and anti-canonical cases has occurred in the context of constitutional law.

    This entry in the Legal Theory Lexicon discusses the idea that some cases are canonical and others are anti-canonical.  As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

    Canonical Cases

    The paradigm case of a canonical case is Brown v. Board of Education.  For example, Cass Sunstein has written:

    [I]t seems clear that to have a claim on lawyers’ attention, any serious theory of constitutional interpretation must be able to explain why Brown was right. In this sense, Brown is part of the canon of constitutional law. (Sunstein, 23)

    There is no set list of canonical cases, but other candidates for the constitutional canon include Marbury v. Madison, McCulloch v. Maryland, and West Virginia State Board of Education v. Barnette.  These are the cases that are included in almost every constitutional law course, that every educated lawyer is expected to know, and that the Supreme Court is very unlikely to overrule or disapprove, even in dicta or a dissent.

    Anti-Canonical Cases

    Jack Balkin suggested the idea of an “anti-canon” in a law review article in 2005.

    Law is distinct from other subjects with a canon, like literature, because it also has an anti-canon – a set of cases and materials that must be wrong. Anti-canonical cases serve as examples of how the Constitution should not be interpreted and how judges should not behave.  (Balkin, 2005)

     

    The anti-canon includes Plessy v. Ferguson, Dred Scott, and Lochner v. New York.  Every lawyer is expected to know that these cases were wrongly decided.  The Supreme Court never cites them with approval.

    The Relationship of the Canon and the Anti-Canon to the Role of “Fit” in Legal Theory

    The canon and the anti-canon play many roles in legal discourse, but this Lexicon entry is focused on the way that the idea of canonicity works in normative legal theory.  One way to understand that role is via Ronald Dworkin’s notion that legal content is a function of the theory that best fits and justifies the legal materials as a whole.  There is a separate Legal Theory Lexicon entry on this idea: Legal Theory Lexicon 032: Fit and Justification.

    Canonical cases are the cases that a normative theory of the law must fit:  for example, a theory of the Equal Protection Clause must justify Brown v. Board.  Likewise, a normative theory of law must condemn the anti-canonical cases.  For example, a theory of Equal Protection cannot be consistent with Plessy v. Ferguson.  Dworkin use the metaphor of “gravitation force” to describe the way precedent works: we might say that canonical cases have tremendous gravitational force and that anti-canonical cases have the opposite effect, a sort of repelling force.

    Reflective Equilibrium

    A more theoretical way to think about canonicity is via John Rawls’s notion of reflective equilibrium.  Again, there is a Lexicon entry: Legal Theory Lexicon 069: Reflective Equilibrium.  The method of reflective equilibrium begins with our current set of  beliefs–our moral theories, the moral principles we accept, and our judgments about particular cases.  We look for contradictions and inconsistencies and then revise.  These revisions might operate at the level of particulars–we might change our mind about a particular case (real or hypothetical) because it seems inconsistent with a general principle.  Or the revisions might go the other way.  We might discover that a moral theory or principle that seemed correct is inconsistent with firmly held beliefs about particular cases.  By working back and forth, between and among our beliefs at various levels of generality and particularity, we might eventually reach a state in which all or almost all of our moral beliefs were consistent and mutually supporting–in other words, a state of reflective equilibrium.

    Canonical cases express our strong intuitions about cases that are rightly decided.  When we construct legal theories using the method of reflective equilibrium, our working hypothesis is that the theories must be consistent with and supportive of the canonical cases–and inconsistent with the anti-canonical cases.

    What Accounts for Canonical or Anti-Canonical Status?

    Why are some cases canonical and others anti-canonical?  That’s a big question, but here are some tentative ideas.

    Casebooks

    One possibility is that the canon is produced by the system of legal education.  Some cases are in every casebook–or almost every casebook.  Of course, this just pushes the story back one step.  How do cases get in the casebooks?  It might be that there is a lost of path dependency is the selection of cases: Legal Theory Lexicon 062: Path Dependency An early casebook includes a case; subsequent casebooks copy some of the case selection of the early book.  Now the case is in several books, and this leads subsequent writers to believe that they must include the case.

    Citations

    Another possibility is the canonicity is produced by the network of case citations.  Canonical cases are cited a lot, but anti-canonical cases are not frequently cited.  This hypothesis could be tested empirically.  I am a bit skeptical that citation is really doing the work–in part, because the causation could easily work the other way, with canonicity and inclusion in casebooks being the cause of the citation counts.

    Normative Evaluation

    Another idea is that cases are in the canon because they are normatively attractive and that anti-canonical cases are those that are especially bad from the normative point of view.  There is surely something to this idea.  It seems quite likely that Brown is in the canon because it is viewed as morally right and that Plessy is in the anti-canon because it is morally wrong.  But this may be a necessary but not sufficient condition.  There are many morally attractive cases that are not canonical, and many very bad cases that are mostly forgotten.

    Narratives

    Another promising idea is that canonical status is conferred by narratives–stories that are told about the law.  Brown is in the canon because it is part of a constitutional narrative of the progress of justice.  Plessy is in the anti-canon because it is part of a narrative about the subversion of Reconstruction and the triumph of racism.  Narratives are influenced by politics and ideology.  The dominant constitutional narrative was surely changed by the New Deal in one way, but then changed again by the Reagan Revolution.  There is a Lexicon entry on narrative in legal theory: Legal Theory Lexicon 080: Narrative and Normativity.

    Multiple Pathways to the Canon and Anti-Canon

    Of course, it may well be the case that there are multiple pathways and complex causes.  The canon may in part be a product of historical accidental, while it is, at the same time, also constructed by historical narratives and the citation practices of the Supreme Court.  Each of these causes may influence the others.

    Moving In and Out of the Canon and Anti-Canon

    One of the most interesting questions about canonicity is whether it is possible for cases to change their canonical or anti-canonical status.  Lochner is current an anti-canonical case, but it is at least imaginable that it might one day be moved out of the anti-canon.

    To the extent that narratives shape canonicity, it may well be the case that new narratives can move cases in or out of the canon or anti-canon.  For example, many important cases occurred during era when racism, colonialism, sexism, and other negative forces played a role in shaping the decisions of the Supreme Court.  If a formerly, neutral is recast by a debunking narrative, it might be moved to anti-canonical status.  Likewise, a case that that had seemed unimportant might be moved into the canon by a vindicating narrative.

    Skepticism About the Canon and Anti-Canon

    The discussion so far has taken canonicity for granted, but it could be argued that canonicity should not have normative force.  The normative status of a case might be based on strong intuitions.  If those intuitions are supported by reflective equilibrium, then they can become “considered judgments,” to use Rawls’s phrase.  But the notion that our judgments about cases are unquestionable seems suspicious.  It is one thing to say, that our belief that Brown was correct is strongly supported by reason.  It is quite a different thing to say that our evaluation of Brown cannot be questioned or subject to reasoned evaluation.  The appeal to canonical cases as a matter of rhetoric and persuasion is one thing; arguing from canonical cases may be effective.  But the use of canonical cases to put an end to argument and to avoid the engagement of reason is something quite different.  The very fact that the canon changes over time suggests that the questioning of canonical cases is a legitimate move in legal theory.

    Sometimes, a canonical case is used as a conversation stopper.  Someone argues, “Your theory is inconsistent with Brown v. Board.  Game over.  You lose.”  In this crude form, the argument from canonical cases is not a very good argument.  As stated, there really isn’t even a reasoned argument at all, but rather, it is a rhetorical move.  But this does not mean that there isn’t a better version of the argument.  “Your theory is inconsistent with Brown v. Board.  There is a widely shared and deeply held belief that Brown was rightly decided.  The burden of persuasion is on you to explain why your theory is correct, despite this powerful evidence to the contrary.”

    Theory Dependent Canonical Status

    Another perspective on the idea of canonicity is provided by introducing the possibility that canonicity is theory dependent.  That is, the obvious correctness or incorrectness of a particular decision is relative to a normative legal theory.  For example, if decision is constitutional, the relevant normative theories would include originalism and living constitutionalism, in their various forms.  Brown v. Board might be a canonical case for living constitutionalists, but the question whether it is correct might be less clear from an originalist perspective–even if most originalist believe that Brown was correctly decided.

    Once the notion that canonical status is theory dependent is introduced, it seems hard to resist.  Canonicity and anti-canonicity are judgments that must be made from some normative perspective.  If, at the end of the day, a case that once seemed canonical turns out to be inconsistent with the dominant normative theory, it seems highly unlikely that it will retain its status as unquestionably correct.  Seen in this light, the prominence of the canonical cases argument in constitutional theory might be seen as a symptom of the rise of originalism and the decline of living constitutionalism.  New Deal decisions like Wickard v. Filburn seemed unquestionably correct at the height of living constitutionalism during the late Warren Court and early Burger Court eras, but after the rise of originalism in the 1980s, these decisions seem questionable, even if the Court is unlikely to overturn them anytime soon.

    Conclusion

    There is much more to be said about canonical cases, but I hope this Lexicon entry has gotten you started.  There is quite a literature on this topic, but the bibliography provides you an entry point.  I especially recommend Jamal Green’s The Anticanon and Balkin and Levinson’s The Canons of Constitutional Law.

    Bibliography

    Jack M. Balkin, “Wrong the Day It Was Decided”: Lochner and Constitutional Historicism, 85 B.U. L. Rev. 677, 681 (2005)

    J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963 (1998)

    Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011)

    Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 Duke L.J. 243 (1998)

    Cass R. Sunstein, In Defense of Liberal Education, 43 J. Legal Educ. 22, 23 (1993)

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    (Last modified on November 15, 2025.)

  • Legal Theory Lexicon 084: Corpus Linguistics

    Introduction

    Law students quickly learn that the interpretation of legal texts is an important component of legal practice.  Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision.  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called “corpus linguistics,” has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  As always, the Lexicon is aimed at law students with an interest in legal theory.

    Situating Corpus Linguistics

    Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflecting in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or “plain meaning textualism”) has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.

    The turn to textualism and originalism is based in part on a recognition of the importance of two theoretical distinctions.  The first distinction is between “communicative content” and “legal content.”  Legal texts communicate content to readers: the communicative content of a text is roughly what we call the “linguistic meaning” of the text.  But operative legal texts also create “legal content.”  For example, constitutional provisions give rise to doctrines of constitutional law.  These legal rules may be direct translations of the linguistic meaning of the text, but sometimes the legal content can be significantly different from the communicative content: the First Amendment to the United States Constitution begins “Congress shall pass no law,” but the legal doctrines that implement the freedoms of speech and press apply to judicial and executive action.

    Closely related to the distinction between communicative content and legal content is the interpretation-construction distinction.  When this distinction is made, the meaning of “interpretation” is the discovery of the communicative content, whereas “construction” means the determination of legal effect.  One important component of communicative content is “conventional semantic meaning”–the meaning that assigned to words and phrases by patterns of usage.  Dictionary definitions, if they are accurate, report conventional semantic meanings.

    During the period when living constitutionalism and purposivism were the dominant approaches to the interpretation and construction of statutes, the precise linguistic meaning of statutory and constitutional provisions was relatively unimportant.  Because courts did not consider themselves bound by the meaning of the words and phrases, fine distinctions about meaning were much less important than the identification of the purposes and values that would determine the outcome of constitutional and statutory disputes.  But with the turn to formalist approaches like originalism and textualism, questions of meaning became significantly more important.

    One approach to conventional semantic meanings relies on linguistic intuitions and dictionary definitions.  But this method has important limitations.  Linguistic intuitions are not infallible, and they may be affected by motivated reasoning.  Dictionary definitions are based on limited data collection and subjective judgments by the lexicographers who compile the dictionaries.  This raises the question whether there are better, more accurate, and more objective approaches.

    The gradual ascent in the importance of the linguistic meaning of legal texts occurred at roughly the same time as another important development in the legal academy–the rise of interdisciplinary approaches in general and of empirical legal studies in particular.  This focus on empirical and interdisciplinary methods lead legal scholars (especially those with training in linguistics and the philosophy of language) to corpus linguistics–a data driven approach to linguistic meaning.

    In sum, the turn to corpus linguistics in law is (at least in part) a result of the new emphasis on the meaning of legal texts (formalism) and the turn to interdisciplinary methods (empirical legal studies and linguistics).

    How Does Corpus Linguistics Work?

    Corpus linguistics begins with data sets, singular “corpus” or plural “corpora.”  These data can be very large–with millions or even billions of words.  For example, the Corpus of Contemporary American English (COCA) consists of approximately 520 million words.  News on the Web (NOW) consists of more than 5.21 billion words.

    Corpus lexicography uses these datasets to investigate the meaning of words and phrases.  Whereas traditional dictionary lexicography relied on researchers compiling instances of usage by reading various sources, the corpus approach allows random sampling from large databases with blind coding by multiple coders.

    A complete description of the methods of corpus lexicography is beyond the scope of this brief Lexicon entry, but there are two search techniques that can be described briefly.  The first of these is the Key-word-in-context (or KWIC) search.  This method is simple: a corpus is searched for the occurrence of a string (a word or phrase) and reports back the context in which the string occurs.  The individual instances can then be coded for meaning.  The result will be a set of meanings and data about the frequency of the meanings with the sample.  The second method involves a search for the collocates of a word or phrase: for example, the word “bank” might have collocates like “river,” “shady,” “deposit,” and “ATM.”  Collocates may help to disambiguate a word like “bank” that has multiple meanings.

    Application of Corpus Linguistics to Legal Interpretation

    How can the techniques of corpus lexicography be applied to the interpretation of legal texts?  The primary role of the corpus approach is the identification of conventional semantic meanings for words and phrases.  This use of corpus linguistics was pioneered by Associate Chief Justice Thomas Lee of the Utah Supreme Court.  In State v. Rasabout, the defendant was convicted of violating a Utah statute that made it a crime to “discharge any kind of dangerous weapon or firearm . . . from an automobile . . . ; from, upon, or across any highway; . . . or . . . within 600 feet of . . . a house.”  The word “discharge” has two meanings relevant to firearms: one meaning is roughly “to shoot” and another is “to unload.”  The former meaning would result in a violation for each shot fired, but the second would result in only one violation for emptying all of the bullets contained in the firearm.  In a concurring opinion, Justice Lee used a COCA search to demonstrate that the sense of discharge that applies to a single shot is much more common than the alternative sense.  Justice Lee reasoned that this frequency data supported an inference that the ordinary or plain meaning of the statute supported a conviction for multiple violations of the statute.

    The use of corpus lexicography may be even more important in the case of constitutional or statutory provisions that were drafted long ago, for example, the provisions of the United States Constitution drafted at the Philadelphia Convention were written using the linguistic conventions of the late eighteenth century–well more than two centuries ago.  Because of linguistic drift, the meaning of some of the words and phrases may have changed over time.  For example, the phrase “domestic violence” now refers to violence with a family such as spouse abuse, but in the late eighteenth century it referred to activities like riots and insurrections within the boundaries of a state.  By using date restricted searches from corpora that include usage in the late eighteenth century, corpus linguistics can be used to identify the range of semantic meanings during the time the unamended constitution was drafted.

    Limitations on Corpus Linguistics

    Corpus lexicography can identify the set of conventional semantic meanings that were available to the drafters of a contract, will, rule, regulation, statute or constitutional provision, but there are important limitations, including the following:

    • Technical meanings: Many legal texts employ “terms of art” or technical language, including, of course, the specialized usages of lawyers.  Coding a random sample of usages from a general-purpose corpus is not a good technique for sorting out technical usages, but using a corpus that is comprised of legal texts from the relevant community of lawyers would enable identification of the relevant range of technical meanings.
    • Limits on the Probative Value of Frequency Data:  Frequency data may be useful in identifying the “ordinary” or “plain” meaning of a legal text–especially if one sense of an ambiguous word or phrase is overwhelming predominant.  But where there are multiple sense of a word or phrase, frequency data, although relevant, should be supplemented by context, which often will reveal which sense was communicated to the intended readership.
    • The Special Problem of Modulation:  Corpus approaches may not be suited to the identification of what are called “modulations”–the use of a word in a new sense.  For example, the Recess Appointments Clause may have used the word “recess” in a new modulated sense, in which the recess of the Senate is defined in contrast to the “session” of the Senate.  This modulated sense of the word recess would apply to “intersession recesses” but would not apply to other breaks (including short lunch breaks) that are within the literal meaning of the word “recess.”
    • Semantics versus Pragmatics (especially contextual enrichment):  Corpus lexicography has an important role to play in determining the semantic meaning of legal texts, but the bare semantic meaning of a text is not necessarily equivalent to the text’s full communicative content.  One of the reasons that communicative content is richer than semantic content (literal meaning) is that authors can convey additional meaning through what are called “contextual enrichments.”  For example, the great philosopher of language identified the phenomenon of “implicature,” whereby an author can communicate content without stating it.  Grice’s famous example is a letter of recommendation: the letter states that the candidate was punctual and attended class regularly.  The semantic content is mildly positive, but in the context of a recommendation, this is “damning with faint praise” and communicates the message that the candidate is not qualified for the position.

    Because of these limitations, corpus linguistics does not provide a complete method of statutory or constitutional interpretation.  For example, in the case of the United States Constitution, the method of corpus linguistics could be combined with study of the constitutional record and immersion of the linguistic world of the period in which a given constitutional provision was written.

    Conclusion

    The introduction of a new methodology to legal theory is a rare event, but corpus linguistics is one of the black swans.  It is still early days, but the use of corpus methods has already begun in earnest–both in the courts and the academy.  The Bibliography provides many of the key sources in a literature that still can easily be read in just a few days.

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    Bibliography

    Cases

    • State v. Rasabout, 356 P.3d 1258 (Utah 2015)
    • People v. Harris, 885 N.W.2d 832, 838–39 (Mich. 2016).

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    (This entry was last revised on November 7, 2025.)

  • Legal Theory Lexicon 083: Normativity, Morality, & Ethics by Lawrence B. Solum

    Introduction

    Normative legal theory is concerned with reasons for legal actions, including reasons for adopting legislation or for judge-made law.  This very brief entry in the Legal Theory Lexicon attempts to sort out some the terminology by discussing the terms “normativity,” “morality,” and “ethics” in their various forms and meanings.  As always, the Lexicon is aimed at law students with an interest in legal theory.

    A Word About Definitions and Usage

    In ordinary English, the words we frequently use words like “normative,” “moral,” and “ethical” in loose and imprecise ways.  Sometimes, these terms are used interchangeably, and so one could say that a “normative argument” is an “ethical argument” and that both of those phrases are equivalent to “moral argument.”  There is nothing wrong these usages–as long as they are clear.  But we may have a need for more precise terminology that allows us to make distinctions between different kinds of reasons for action.  In the discussion that follows, I will lay out a proposed set of stipulated technical definitions for these terms.

    Normative

    Let’s begin with the term “normative.”  The Merriam Webster online dictionary offers the following as one definition: “of, relating to, or determining norms or standards” and “norm” is variously defined as “an authoritative standard” or “a principle of right action binding upon the members of a group and serving to guide, control, or regulate proper and acceptable behavior.”

    These definitions capture standard meanings of “normative,” but there is another sense of this term that is important for legal theory.  “Normative” can be used to refer to reasons for action of all kinds, including laws, rules of etiquette, social norms, and reasons of ethics and morality.  This broad sense of normative allows us to draw an important contrast between “normative” and “positive” statements or propositions.  And it also allows us to identify an important common characteristics of legal norms, social norms, and moral norms–all of which give reasons for action.

    Moral

    Using this terminology, we can then draw and important distinction between legal norms, on the one hand, and moral norms, on the other.  Legal norms purport to give reasons for action.  That some action is against the law is a kind of reason not to engage in that action.  Moral norms also give reasons for action, but most accounts of morality insist that moral reasons trump all other kinds of reasons.  Thus, if an action is morally forbidden but legally required, then all things considered, one should not engage in the action.  Of course, the fact that an action is legally forbidden or required is a fact that morality can take into account; for example, the fact that an action would trigger legal punishment might be relevant to the question whether the action is morally required.

    Another way to see the difference between moral norms and legal norms is via consideration of moral theories to the law.  A moral theory like consequentialism provides a standard for judging the law–for determining whether a particular law is good or whether there are reasons to change the law.  Deontological theories and aretaic (virtue-centered) theories perform a similar role.

    Ethics

    The word “moral” was coined by Cicero to translate the greek word that is the ancestor of our word “ethical” into Latin.  And the words “ethics” and “morality” are frequently used as synonyms.  Some writers distinguish the two in ways that might be useful to legal theorists.  For example, we might use the word “ethics” to refer to the normative standards that apply to some specific groups.  Thus, we might distinguish “legal ethics” or “medical ethics” from the all-things-considered moral obligations of lawyers and doctors.

    Unfortunately, the terms are used to mark other distinctions as well.  Sometimes “morality” is used to refer to the moral norms of a particular community–as opposed to “ethics” understood as the objectively correct normative standards that have universal application.  But sometimes this relationship is flipped, with “ethics” used to refer to community-relative standards and “morality” used for objectively-valid universal standards.

    Avoiding Confusion Via Stipulation

    Because of the variations in usage, legal theorists can only achieve clarity in their usage of “normativity,” “morality,” and “ethics” by stipulating definitions.  Once the stipulations are in place, readers will be able to clearly distinguish the way in which the terms are being employed.

    If I might be permitted to offer a recommendation, I would suggest that “normative” should generally be used by legal theorists in its general sense that encompasses legal norms, social norms, and moral norms.  My suggestion is to use the word “morality” to refer to the kind of all-things-considered reasons that general moral theories (such as consequentialism) purport to offer. I have no particular recommendation for use of the term “ethics,” except to note that its use in the phrase “professional ethics” is standard.

    Conclusion

    This entry in the Legal Theory Lexicon introduced some of the terminological difficulties that can attend usage of the terms “normativity,” “morality,” and “ethics” by legal theorists.  These terms are frequently used in imprecise ways that can generate confusion!  But the solution is simple: stipulate!

    Bibliography

    Bernard Gert & Joshua Gert, The Definition of Morality, The Stanford Encyclopedia of Philosophy (Fall 2020 Edition), Edward N. Zalta (ed.).

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    (Last updated on November 2, 2025.)

  • Legal Theory Lexicon 082: Reasoned Elaboration by Lawrence B. Solum

    Introduction

    In many ways, the “Legal Process” approach to positive and normative legal theory dominated American legal thought in the second half of the twentieth century.  There was more than one version of “legal process” theorizing, but this entry in the Legal Theory Lexicon will focus on the idea of “reasoned elaboration” that is associated with with the Legal Process materials authored by Henry Hart and Albert Sacks and exemplified by the The Federal Courts and the Federal System, a casebook authored by Hart and Herbert Wechsler.  Other figures that are associated with this version of the legal process approach include Lon Fuller, Alexander Bickel, and John Hart Ely.  Among contemporary theorists, William Eskridge Jr. is strongly identified with an evolving version of legal process theory.

    It is difficult to capture the content of legal process theory in an explicit set of propositions.  The Legal Process teaching materials do not amount to a programmatic exposition of a theory, and much of the development of legal process was done via example.  There is no canonical monograph or article that precisely states the theoretical content of legal process theory.

    Nonetheless, one of the key ideas of the legal process school, “reasoned elaboration,” remains influential, both implicitly and explicitly, in both legal scholarship and legal practice.  The basic idea is that judicial decisionmaking should include reference to normative propositions (values, purposes, goals, principles, and policies) that are immanent in the legal materials, broadly understood to include constitutions, statutes, rules, regulations, and judicial decisions, and including commitments to policy goals and principles of fairness that can be inferred from these materials or which are explicitly stated by policymakers.

    As always, this entry in the Legal Theory Lexicon is aimed at law students with an interest in legal theory.  As with every Lexicon entry, the exposition is basic.  In the case of this Lexicon entry, readers should be aware that because of the lack of definitive theoretical texts, there can different and competing understandings of the legal process approach in general and the idea of reasoned elaboration in particular.

    Between Realism and Formalism

    One way to approach the idea of reasoned elaboration is by situating it in the great debate between legal realists and legal formalists.  The critique of legal formalism by the American legal realists is too complex and diverse to summarize, but a very simple version of that critique could be stated as follows: legal texts (e.g., constitutions, statues, and judicial decisions) do not and should not fully determine the outcome of legal disputes.  The legal process school accepted the realist idea that judicial decisions are not the outcome of a mechanical jurisprudence that simply applies the authority (e.g., constitutional or statutory provision) to the case, but instead includes considerations of policy and principle.  But unlike the more radical versions of legal realism (and later, the critical legal studies movement), the legal process school did not believe that judging was pure politics or simply legislation by judges.  The value choices made by judges could be guided and constrained by reasoned elaboration of the policy goals and principles of fairness that were imminent in the preexisting materials.

    Viewed in this way, the point of the idea of reasoned elaboration was to provide a middle ground.  Avoiding the Scylla of realist nihlism and the Charybdis of mechanical jurisprudence, reasoned elaboration provided a distinctive role for judges that was both responsive to values and constrained by the existing legal materials.  Judges discover the law, but the process of discovery is not mechanical.  Judges make policy choices, but reasoned elaboration makes judges subordinate to democratic policymaking.  The choices that judges make are supposed to be interstitial and guided by value choices that have already been made by legislatures, regulators, or constitutional conventions.

    Relationship to Dworkin’s Theory

    Although the key figures in the early legal process school did not write programmatic theoretical statements, Ronald Dworkin’s theory, Law as Integrity, was elaborated in a variety of articles and in his major theoretical monograph, Law’s Empire.  Viewed from one angle, Dworkin’s theory can be seen as a refinement and explicit theorization of ideas advanced by legal process theorists.  Dworkin’s idealized judge, Hercules, decides cases on the basis of the moral theory that best fits and justifies the legal materials as a whole.  This method of decisionmaking bears clear affinities with the method of reasoned elaboration.

    On the other hand, there are major differences between Dworkin’s theory and the legal process approach.  Dworkin affirms the Right Answer Thesis–there is one and only one legally corrected outcome to each and every case that might be presented to a judge.  The legal process theorists (as I understand them) are not committed to this Dworkinian claim: there may be better and worse reasoned elaborations of the law, but they do not explicitly commit to the idea of a unique right answer to every legal question.  Dworkin draws a sharp distinction between considerations of policy (consequentialist concerns) and those of principle (fairness concerns).  Dworkin believes that judicial decisions must be based solely on principle and cannot take policy into account, but the legal process theorists seem to allow for judicial consideration of policy and hence of consequentialist arguments–so long as the policy goal is found in the legal materials rather than imposed by the judge.  Dworkin’s approach is more philosophical than the legal process approach: where Dworkin engages in conceptual assent to general theories of equality or freedom of expression, the legal process approach emphasizes policies and principles at a lower level of abstraction.

    Criticisms of the Method of Reasoned Elaboration

    The method of reasoned elaboration has been subject to so many criticisms that it is impossible to summarize them in a short Lexicon entry.  Here are a few of the arguments that have been made against reasoned elaboration:

    • Reasoned elaboration assumes that there are values (goals, policies, principles) that are immanent in the legal materials, but it is not clear that this idea is coherent.  Although the legal materials sometimes include value statements (e.g. in the preamble of a statute or constitution), operative legal materials cannot themselves have goals, only persons have the kind of mental states that constitute goals or purposes.
    • Reasoned elaboration in practice may not be significantly different from judicial legislation.  Different judges are likely to see different values imminent in the law, and those differences are themselves likely to reflect the policy preferences or ideologies held by the judges.
    • Assuming that the process of judging should be value driven, it is not clear why the values imminent in the law should trump the set of values supported by the best moral theory.  Legal process theory seems to require adherence to second-best values except in the rare case where the legal materials just happen to reflect the best moral theory.
    • The existing set of legal materials is the outcome of political struggles and not idealized policymaking.  Statutes represent comprises between competing sets of values and political ideologies.  For this reason, the process of reasoned elaboration may itself be indeterminate, and hence the attempt to define a middle way between formalism and realism may be doomed to failure.

    The Continued Influence of Reasoned Elaboration

    Explicit invocation of the idea of reasoned elaboration may be less frequent than it once was, but many legal scholars use a legal process approach–even if they are not consciously aware of that fact.  Every reader of contemporary legal scholarship will see a reflection of reasoned elaboration in what continues to be the most popular genre of legal scholarship–the law review article that makes a normative recommendation for future judicial decisions based on policies or principles that the author argues are to be found in the existing legal materials.  This method is so common that many of its practitioners do not even recognize that they are relying on a controversial set of theoretical assumptions.

    Conclusion

    Every legal scholar needs to understand the legal process school and its central idea of reasoned elaboration.  Some scholars may decide after reflection to self-consciously employ a refined version of the idea of reasoned elaboration.  Others will reject this approach, opting instead for rival views, including contemporary versions of legal formalism (such as plain meaning textualism or public meaning originalism) or a first-best normative theory (whether it be a form of consequentialism such as welfarism or some version of deontological theory such as Rawls’s justice as fairness).  And their are many other views as well, including Posner’s legal pragmatism and critical theories including feminist jurisprudence and critical race theory.  The aim of this entry in the Legal Theory Lexicon has been to equip the reader with a basic understanding of the idea of reasoned elaboration and enable further investigation and reflection.

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    Bibliography

    • Donald A. Dripps, Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School, 3 Ohio St. J. Crim. L. 125, 126 (2005).
    • Neil Duxbury, Faith in Reason: The Process Tradition in American Jurisprudence, 15 Cardozo L. Rev. 601 (1993)
    • Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vand. L. Rev. 953, 964-6 (1994).
    • Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958).
    • Henry M. Hart, Jr. and Herbert Wechsler, The Federal Courts and the Federal System (1953).
    • Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L Rev. 1 (1959).

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    (Last revised on October 15, 2025.)

  • Legal Theory Lexicon 081: The Bad Man Thought Experiment

    By Lawrence Solum

    Introduction

    In The Path of the Law, Supreme Court Justice Oliver Wendell Holmes, Jr., wrote,

    If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy.

    Most law students encounter the bad-man thought experiment of the law at some point in their legal education.  And they may encounter a more formal and ambitious version theory–the so-called “prediction theory of law” that also makes an appearance in Holmes’s The Path of the Law, including the following passage from the beginning of the essay:

    We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

    This entry in the Legal Theory Lexicon provides a basic introduction to the bad-man thought experiment and the prediction theory of law–and to some of the criticisms of Holmes’s view.  As always, this is an elementary introduction, aimed at law students with an interest in legal theory.

    I will use the phrase “bad man” rather than a gender neutral alternative such as “bad person,” because this was Holmes’s phrase and because it has been standard usage in legal theory.

    The Bad Mad Thought Experiment

    Most discussion of the bad-man thought experiment moves quickly to the predictive theory of the law, but the thought experiment is important even if the prediction theory is ultimately incorrect.  The basic idea of the thought experiment is simple: we are asked to take up the perspective of the bad men, who does not internalize legal norms but is instead concerned only with the effects that the legal system would have on themselves.  In the case of criminal prohibition, the bad man would be concerned with sanctions and punishments, but in other contexts, the bad man might see the law as providing benefits and rewards–for example, when the bad man could use tort, contract, or property law to obtain a damage award, a beneficial injunction, or title to and possession of a piece of property.

    When we evaluate legal rules, we can take up the perspective of the bad man and ask the question how the bad man would view the rule and what effect the rule would have on the bad man’s behavior.  An example of this use of the bad man thought experiment is provided in Justice Souter’s opinion in Exxon Shipping Co. v. Baker:

    Whatever may be the constitutional significance of the unpredictability of high punitive awards, this feature of happenstance is in tension with the function of the awards as punitive, just because of the implication of unfairness that an eccentrically high punitive verdict carries in a system whose commonly held notion of law rests on a sense of fairness in dealing with one another. Thus, a penalty should be reasonably predictable in its severity, so that even Justice Holmes’s “bad man” can look ahead with some ability to know what the stakes are in choosing one course of action or another.
     
    554 U.S. 471, 502 (2008).  
     
    More generally, the bad man thought experiment goes to one of the most important distinctions in legal theory–the distinction between “the law on the books” and “the law in action.”  The bad man does not care about the law on the books, except insofar as the law on the books influences the law in action in a way that affects the interests or preferences of the bad man.
     
    The Prediction Theory of Law
     
    Holmes deployed the bad man thought experiment in expressing general views about the nature of law.  There are important questions of exegesis as to whether the prediction theory that has been discussed by its critics was actually held by Holmes, but I am going to set those questions to the side and present a very simplified version of the prediction theory that is (rightly or wrongly) attributed to Holmes.
     
    Holmes has been read as proposing a general theory that maintains the legal content (the content of the law) is a set of predictions about what courts and other legal institutions will do.  This account of the nature of law draws out the intuitions that Holmes lays out in The Path of the Law in the passages quoted above.  We might call this view of the nature of law “functionalist”–the true nature of law is reviewed by the way that the law functions (the law in action) and not by what the law says.  The law may say things that the law does not put into action, and these statements are not properly viewed as part of the true content of the law.  The prediction theory of law is that legal content consists of propositions that accurately predict the way the law will function.
     
    The bad man thought experiment brings out an intuition that supports the prediction theory.  The bad man cares only about the functional content of the law and does not care about law on the books that does not translate into the law in action.  Why should the bad man care if the law says contracts must be performed, when the only sanction for breach is a damage award that would cost the bad man less than performance?  The law-on-the-books obligation to perform would not motivate the bad man unless it were backed up by a sanction sufficient to make performance in the bad man’s self interest.
     
    Criticisms of the Prediction Theory
     
    One of the most influential criticisms of the prediction theory of the law in general and the bad man thought experiment in particular is associated with the great legal philosopher, H.L.A. Hart, whose concept of the internal point of view is described in a Lexicon entry.  The internal point of view plays an important role in Hart’s own theory of law: officials, including judges, take up the internal point of view when they comply with rules, especially the rules that define their own powers and duties.  The internal point of view is obvious distinct from the self-interested perspective of Holmes’s bad man.  Here is how Scott Shapiro describes Hart’s point:
     
    The problem with “bad man” theories such as Holmes’s is that they assume that people are motivated to follow the law solely to avoid sanctions, rather than because rules require such behavior. These theories, Hart says, “define [the internal point of view] out of existence.”
     
    More generally, the prediction theory, insofar as it relies on the bad man thought experiment, fails to take into account the “good person” who complies with the law because they believe that they are obligated to do so–even when there is no chance that they will be punished or sanctioned.
     
    A related criticism of the prediction theory of the law is based on the failure of the theory to account for the phenomenology of judging.  Judges (at least sometimes) believe that their decisions are guided by the law.  In the case of a court of last resort, the prediction theory would seem to imply that judges must be making predictions about how they themselves will behave in the future, but this account seems circular, because their future selves would also be making predictions and at some point there must be something outside of these predictions that actually guides their behavior.
     
    Although it is possible that the prediction theory could be fixed up to take these objections into account, I think it is safe to say that the theory has very few contemporary adherents–at least in the world of Anglophone legal philosophy.
     
    Conclusion
     
    Although the prediction theory of the nature of law is usually discounted, that does not mean that the bad man thought experiment should also be set to the side.  The thought experiment may be valuable as a tool for thinking about the law in action–even if it does not describe the behavior of all legal actors.  The aim of this Lexicon entry has been to provide a basic understanding of the bad man thought experiments and the way it can be used in both general legal theory and in thinking about particular legal problems. 
     
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    (Last updated on June 8, 2024.)

  • Legal Theory Lexicon 080: Narrative and Normativity

    Introduction

    Many law students learn about “narrative” at some point in law school.  Of course, narratives (or more simply “stories”) are all over the law.  Individual cases include narratives in their recitation of the facts and procedural history.  Sequences of cases can be studied as narratives, with events both internal and external to the law woven into a story about how and why the law changed.  Some legal narratives stress the internal development of the law: the law works itself pure.  Other legal narratives lay emphasis on forces external to the law: a Marxist narrative might explain legal change as a response to the interests of the capitalist class.  Narratives like these seek to explain legal change.  We might call them “causal narratives.”

    But in addition to the role of narrative in causal explanation, stories about the law can play a normative role.  By telling a story that explains how the law came to be the way it is, we may also be making implicit or explicit normative claims about the goodness or badness of the content of the law (or of a theory about law).  This entry in the Legal Theory Lexicon is about the normative role of narrative in law and legal theory.  As always, the Lexicon provides a short introduction aimed at law students with an interest in legal theory.

    How Narratives Go Normative

    Not all historical narratives are strongly normative–although all legal narratives may have some normative elements.  We can distinguish between narratives which primarily aim to give causal explanations and those narratives which primarily aim at influencing normative evaluation of the actions and events recounted in the narrative.  Thus, we might distinguish between “causally implicated narratives” and “normative charged narratives.”  Almost all narratives are causally implicated; stories explain actions by invoking folk psychological explanations: “Ben voted for the legislation in order to get reelected.”  Ben’s action, voting for the bill, is explained by a motive, to get reelected.  Stories implicitly explain actions and events–even when they do not make explicit causal claims.

    How do narratives acquire a “normative charge”?  The normative claims of narratives are frequently implicit and they rarely come in the form of fully developed normative arguments. The deep normative assumptions of narrative frequently come to the surface in the form of value-laden descriptions. Actions are explained by motives that are characterized as selfish or altruistic, progressive or conservative, foolish or wise. Events are characterized as disasters or triumphs. At one level, the normativity of narrative is inescapable.  Many of the stories that interest humans are “morality plays,” with heroes and villains, happy endings and tragic finales, poetic justice and cruel twists of fate. No one should expect narrators to engage in “normative abstinence.”

    Narrative and Identity

    Narratives can acquire normative significance in another way, by telling a story about that ties the identity of some group to some trajectory of historical development.  The entanglement of narrative with identity is common in constitutional history.  Consider the following example, which presents a very simplified and somewhat altered version of a narrative account of the New Deal associated with Bruce Ackerman:

    Suppose that the transformation of constitutional law during the New Deal was an act by “We the People” that (1) rejected formalist doctrines that hobbled the development of a national administrative state and (2) empowered the President to make transformative appointments to the Supreme Court.  These appointments resulted in a New Deal constitutional moment that authorized Congress and the President to solve the pressing problems of the Great Depression. Our current identity as Americans (as part of “We the People”) is tied to support for these constitutional changes. Because the New Deal constitutional moment is part of our identity as a people, supporting this historical event is part of “being American” or being one of “We the People”–and conversely, rejection of the New Deal constitutional moment is rejection of one’s connection to American history and hence of one’s status as “one of us,” a member of “We the People.”

    Of course, this narrative is contestable–another story could be told about the New Deal constitutional moment that portrayed it as a usurpation that lead to an out-of-control bureaucracy that has hobbled the economy and endangered democracy.  The point is that this kind of constitutional narrative is normatively charged–even if it does not explicitly make normative claims or employ the conventional resources of normative legal theory.

    Narratives and the Normative Evaluation of Beliefs: Debunking and Vindicating Narratives

    Some narratives are about beliefs.  These narratives tell a story about how we came to have our beliefs about some aspect of law.  Some of these narratives “debunk,” aiming to delegitimate a belief–by showing that the origins of the belief are such that the belief is unreliable or tainted.  Other narratives “vindicate,” aim to establish the process by which the belief was formed is reliable and hence that the belief is likely true.  Similarly, the origins of a belief might be associated with right actions or good people, suggesting that the belief itself is good.

    The use of debunking and vindicating narratives is especially relevant to legal theory when a story is told about the development of a legal theory itself.  For example, a vindicating narrative about American legal realism might begin by identifying legal formalism with the interests of the wealthy and powerful and rationalization of injustice for the poor and powerless.  Legal realism, the narrative might continue, was championed by progressives, who developed the new legal theory in order to put law in the service of the common good and the struggle against injustice and oppression.  Formalist beliefs, the narrative suggests, are “bad,” whereas realists beliefs are “good.”  In this toy example, the narrative vindicates legal realism and debunks legal formalism.

    The Genetic Fallacy

    Although normative narratives may be rhetorically powerful, some critics of the normative use of narrative are worried that their persuasive force may rely on rhetoric rather than reason.  One version of this worry is expressed by invocation of the “genetic fallacy”–one of the informal fallacies identified in standard accounts of informal logic.  The key idea is that the origins of an idea or belief may not be relevant to its truth or falsity.  Sometimes this is clear.  From the fact that Hitler was a vegetarian, it does not follow that vegetarianism is morally abhorrent.  From the fact that Franklyn Delano Roosevelt, Jr., a great President, approved the internment of Japanese Americans, it does not follow that their detention was morally permissible.

    Likewise, it is not clear that narratives that a link between some legal phenomenon and identity provides good reasons for supporting the legal phenomenon.  From the fact that a narrative associates some historical development with a particular identity (e.g., being an American), it does not follow that the development is good, right, or justice.  The fact that a given legal practice is part of a group’s identity is consistent with that practice being thoroughly bad: if racism is part of American identity, it does not follow that racist laws are good.  Although identity claims may be persuasive, it is not clear that they rest on valid arguments.

    Although some normative narratives about beliefs or theories commit the genetic fallacy, this is not always the case.  In other cases, the origins of a belief truly are debunking–because it can be shown that the causal mechanism that induces the belief is such that it is inconsistent with the truth of the belief.  Or the debunking explanation might show that whether or not the belief is true, the causal mechanisms that induced the belief did not rely on good evidence and hence that the belief is not well grounded–even if it might turn out to be true upon further investigation.  In either event, the debunking narrative provides good reason to question the belief.  What is sometimes called “critique of ideology” works in this way.  If it could be shown that the ideal of the rule of law is an ideological construct that was developed in order to further the interests of the capitalist class, that would be a good reason to question the belief that the rule of law is normatively valuable.

    Conclusion

    Normative narratives are common in contemporary legal theory, but the theoretical foundations for the claims that narratives have normative significance are seldom made explicit.  This aim of this entry in the Legal Theory Lexicon was to provide an introduction to these issues and to give readers a basis for reflection.

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    (Last modified on October 12, 2025.)