Legal Theory Lexicon

  • Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory

    By Lawrence B. Solum

    Introduction

    The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory.  One aspect of this idea connects with the notions of “judicial activism” and “strict construction” that are discussed in a previous Legal Theory Lexicon entry.  Another aspect of this discourse concerns the ideas of judicial restraint and constraint.

    One of the difficulties with discussion of restraint and constraint is that these ideas have been imprecise and ambiguous.  Is restraint simply inaction?  Or does constraint have to do with the idea that courts should be bound by the constitution?  These two notions are not the same.  The constitution might require action that interferes with the political branches, but it might require inaction as well.

    Thomas Colby has made a metalinguistic proposal to sort out the potential confusion.  Here is the way he put the suggestion:

    (“[A]lthough originalism in its New incarnation no longer emphasizes judicial restraint–in the sense of deference to legislative majorities–it continues to a substantial degree to emphasize judicial constraint–in the sense of promising to narrow the discretion of judges. New Originalists believe that the courts should sometimes be quite active in preserving (or restoring) the original constitutional meaning, but they do not believe that the courts are unconstrained in that activism. They are constrained by their obligation to remain faithful to the original meaning.”).

    Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).  Colby’s idea is that we can stipulate that “restraint” refers to deference and that “constraint” refers to a requirement of consistency with the constitutional text.

    The remainder of this Lexicon entry develops Colby’s metalinguistic proposal.

    The Restraint-Constraint Distinction

    Let’s begin with stipulated definitions of “restraint” and “constraint.”  We can stipulate as follows:

    Restraint: A judicial decision is stipulated to be “restrained” if and only if the decision defers to decisions made by executive officials or statutes enacted by a legislative body.  Example: Refusing to strike down a statute would be an instance of restraint.

    Constraint: Constitutional practice (by judges or other officials) is stipulated to be “constrained” if and only if the actions taken by officials are consistent with the communicative content of the constitutional text.  Example: Striking down a statute because it violates the original meaning of the First Amendment would be an instance of constraint.

    Notice that only judicial decisions can be restrained in the stipulated sense, but that the actions of any official can be constrained by a requirement of consistency with the communicative content of the constitutional text. We can represent the possible interactions between constraint and restraint via the following table:

    Restrained Unrestrained
    Constrained Restrained & Constrained Unrestrained & Constrained
    Unconstrained Restrained & Unconstrained Unrestrained & Unconstrained

     

    The stipulated version of the restraint-constraint distinction allows us to disentangle some of the confusions in discourse about the proper role of the courts.  Critics of the Warren Court were especially concerned about cases that they saw as properly classified in the lower-right quadrant of the two-by-two matrix.  For example, some critics of the Warren Court may have believed that the Court’s privacy decisions (e.g., Griswold v. Connecticut) were cases in which the Court had acted in a way that was both unrestrained (interfering with an action by the state legislature) and unconstrained (not based on the constitutional text).  But what about actions that fall in the lower left quadrant–cases in which the Court upholds legislation but in a way that is inconsistent with constitutional text?  For example, some constitutional lawyers believe that many of the New Deal cases should be classified as restrained but unconstrained.  The decision in Wickard v. Filburn might be an example: the Court deferred to Congress but acted in a way that is inconsistent with the constitutional text–by assumption for the purposes of the example.  On such cases, critics of the Court may split, with some agreeing that  these New Deal cases are praiseworthy because they illustrate judicial restraint, but others complaining that these decisions are contrary to the text and hence unconstrained.

    The Relationship Between Restraint and Constraint is Contingent

    The discussion so far has assumed that restraint and constraint are independent, but that is not necessarily the case. It might be argued that restraint is built into the original meaning of the constitutional text. There is substantial evidence that early constitutional practice involved judicial deference to legislative interpretations and constructions of the constitutional text. The question whether this deference is baked into Article III is complex and evidence dependent, but this is a conceptual possibility. If deference is required by the constitution itself in some domain of cases, then restraint and constraint would be aligned for that domain.

    Connection with Judicial Activism

    The  restraint-constraint distinction enables us to understand why “judicial activism” became an ambiguous concept.  “Activism” became a contrast word for both restraint and constraint and sometimes for just a lack of restraint or just a lack of constraint.  When applied to cases in the lower right quadrant of the matrix (unrestrained and unconstrained), everyone could agree that the label “judicial activism” properly applies, but when the case fell into either the upper right quadrant (unrestrained but constrained) or the lower-left quadrant (restrained but unconstrained), the ambiguity in the meaning of “judicial activism” is revealed.

    This leads to a proposal for the disambiguation of “judicial activism”: we can reserve this term for decisions that are unrestrained and hence are in the left-hand column of the two-by-two matrix.  This would end confusion about the meaning of “judicial activism” and hence improve the quality of discourse about constitutional theory.

    Stipulation versus Metalinguistic Negotiation

    So far, I have been suggesting the constitutional theorists stipulate the meaning of “judicial restraint” and “judicial constraint” along the lines suggested by Colby.  So long as the stipulations are clearly presented and understood, that should be sufficient to reduce the level of confusion in academic writing about constitutional theory.  But we can go one step further and engage in what philosophers of language have called “metalinguistic negotiation.”  That is, we can try to change the way that the words are used so that the stipulated definitions become the accepted meanings.

    Engaging in explicit metalinguistic negotiation requires that we present reasons for our metalinguistic proposal.  Why should we use the phrases “judicial restraint” and “judicial constraint” in the way that Colby proposed (and I endorse)?  That is, we need to advance arguments of conceptual and linguistic ethics–arguments about what concepts we should employ and what words we should use to represent those concepts.  The conceptual advantages of the restraint-constraint distinction have already been explored: the distinction makes debates in constitutional theory clearer and more precise.  And I think there are linguistic advantages as well.  The ordinary meaning of “constraint” is well adapted to the role that word plays in the concept of judicial constraint that Colby proposes.  The ordinary meaning of “restraint” serves well to express the deference-related concept of judicial restraint.

    Conclusion

    As always, this entry in the Legal Theory Lexicon is addressed to students (and especially first-year law students) who are interested in legal theory.  There are many further complications that take off from this introduction, including conceptual issues about the precise definitions and possible variations of restraint and constraint and theoretical issues about the very idea of metalinguistic negotiation.  But I hope that this simplified introduction is sufficient to enable readers to think further about these issues.

    One final point.  Constitutional theory is a highly impacted field of discourse.  Saying something genuinely new is rare; saying something that is both new and useful is even rarer.  I do not know for sure that Thomas Colby was the first to use the restraint-constraint distinction, but I think he was.  We all owe him thanks.

    Related Lexicon Entries

    Bibliography

    • Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).
    • David Plunkett & Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response, in Pragmatism, Law, and Language 56–75 (G. Hubb & D. Lind eds., 2014).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory

    (Last revised, April 27, 2024.)

  • Legal Theory Lexicon 073: Persuasive Authority

    By Lawrence B. Solum

    Introduction

    The first year of law school usually includes an introduction of some kind to the doctrine of stare decisis (or precedent) and the related concepts of dicta and holdings.  For the basics, see the Lexicon entry on holdings. The core idea is that majority opinions usually have a holding, which is a rule implied by the reasoning necessary to reach the decision in the case, given the legally salient facts.

    This time the Lexicon is focusing on the idea of persuasive authority.  The basic idea is intuitive: the reasoning in a decision can persuade even if it does not bind.  But what does that mean?  How does the persuasion  work?  This Lexicon entry investigates those questions.  As always, the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

    Four Ways That Authority Can Persuade

    Although the notion that authority can persuade might seem obvious, there are actually at least four different ways in which a persuasive authority might influence judges: 1) persuasion by reasons, 2) persuasion by epistemic authority, 3) persuasion by predictive power, and 4) persuasion by legitimation.  Let’s take a look at each of these four ideas.

    Persuasion by Reasons

    First, persuasion by the force of reasons is independent of the person or institution that provides the reasons: in this regard, the reasons of Supreme Court Justices are equally persuasive as the same reasons when provided by a student law review note.  Persuasion by reasons operates through what Jürgen Habermas felicitously describes as the “unforced force of the better argument.”  A sound argument has true premises and a valid or otherwise reasonable argumentative structure.  The premises of an argument might be supported by evidence, intuition, or some other form of support.  Valid arguments can have many different structures.  Deductive arguments are valid if the conclusion logically follows from the premises.  Inductive arguments do not guarantee the truth of their conclusions but purport instead to make their conclusions more likely.  “Inference to the best explanation” or “abduction” is yet a third category of reason: if you are not familiar with this idea, take a look at the Stanford Encyclopedia of Philosophy article on Abduction.  (Aside: The idea of inference to the best explanation is pervasive in legal discourse!  If you master this idea early on in your career as a legal thinker, there will be an enormous payoff.)

    In sum, a cited authority can persuade through the arguments that it makes and the evidence that it cites.  This kind of persuasion does not depend on the author’s credentials or institutional power.  It depends on the quality of the reasons offered by the source that is cited.

    Persuasion by Epistemic Authority

    Second, consider persuasion by epistemic authority. Of course, most of us are inclined to regard what is written by a Supreme Court Justice or an eminent scholar as more persuasive than what is written in student notes, even though it is sometimes the case that the latter are sometimes correct when they disagree with either of the former. This is because we regard some persons or institutions as epistemic authorities. In the sense in which I am using the term, an “epistemic authority” is someone to whom some group defers because of the authority’s expertise.

    In law, the idea of epistemic authority is usually based on the fact that some judges or scholars are viewed as especially learned, trustworthy, and smart.  Thus, the opinions of some Supreme Court Justices may be viewed as epistemic authorities because of the belief in the legal expertise of the Justices.  Or the author of a respected treatise (Wigmore on Evidence, for example) might have been viewed as an epistemic authority on matters within the scope of the author’s expertise.  Similarly, the Restatements might be viewed as epistemic authorities–on the assumption that the complex process by which they are produced combines the expertise of many lawyers and scholars.

    The relationship that creates epistemic authority might be viewed as dyadic—a relationship between a pair consisting of the possible epistemic authority and the individual who might defer to the epistemic authority. A given lower court judge, say Learned Hand, might not view a given Supreme Court Justice, say Tom Clark, as an epistemic authority or even as an epistemic peer or equal. But many judges, lawyers, and scholars are likely to view Supreme Court Justices as epistemic authorities, at least on some topics.  Likewise, an eminent scholar might regard herself as without epistemic peers on the topic of her expertise: if this were the case, she might not regard any source as having true epistemic authority.  For example, an eminent Nietzsche scholar might believe that they know Nietzsche’s work better than any other scholar: given this belief, their stance might be that other scholars should defer to their views, but that they should not defer to anyone else.

    Persuasion by Predictive Power

    Third, opinions of some courts may persuade because of their predictive value. Lower court judges may view the opinions of the Supreme Court as persuasive because they provide a basis for predicting the future behavior of the Court and hence the likelihood that the Court would reverse a lower court’s decision. Lower court judges may wish to avoid reversal, and hence may view dicta that is clearly endorsed by the majority of a higher court as a good source of predictions about the likely decisions of that court in the future.  Even if lower court judges do not care about reversal for personal reasons, they may believe that it is a good idea for lower courts to cooperate with higher courts to enhance the stability, certainty, and predictability of the law.  This aspect of persuasive authority is likely to degrade over time as the composition of the higher court changes. Predictive power is greatest when all of the judges who joined the prior decision are still on the court, and weakest when none of those judges remain.

    Persuasion by Legitimation

    Fourth, there are some legal authorities (such as opinions of the Supreme Court) that may have what we might call “legitimating authority.” Given legal culture, legal arguments may be viewed as requiring legitimacy.  For example, if a lawyer can cite a Supreme Court opinion as the basis for an argument, this may be sufficient to establish the legitimacy of the argument.  A student note may not have the same legitimating force–even if the reasons offered by the student note provide cogent arguments while the Supreme Court opinion might not even provide a supporting argument.  Some arguments are “on the table” whereas others are “off the wall.” Inclusion of an argument in the opinion of a Supreme Court Justice might be sufficient to move an argument from “off the wall” to “on the table.”

    Integrating the Four Types of Persuasion

    Putting these pieces together, we might postulate that the full persuasive force of a statement by a purported authority  is a complex function of the reasons it provides, the epistemic authority of the author, the predictive value of the statement (if any), and its legitimating effect. Different judges may have different “persuasion functions”—some may count reasons heavily and predictive value lightly, or vice versa. For example, one lower court judge might care very much about the likelihood of reversal and for that reason follow dicta that the judge thought was poorly reasoned.

    Types of Persuasive Authority

    In law, we use the word “authority” to designate a source cited by a lawyer, judge, or scholar in support of a legal argument.  The conventional view is that the holdings of decisions of a higher court are binding on lower courts within the scope of the hierarchy of authority.  Those same decisions may be persuasive authority in other jurisdictions.  And dicta in a higher court decision may be persuasive authority, even if it is not binding.  Treatises and scholarly articles are never binding authority, but they may be persuasive. Similarly, the Restatements are sometimes considered to be highly persuasive and particular Restatements might function as if they provided quasi-binding authority.

    Provisions of constitutions, statutes, regulations, and rules are usually thought of as binding authority, but this idea is subject to a complex set of qualifications.  A statute that has been given an authoritative construction may only be binding “as construed,” even if the construction is tantamount to judicial amendment or nullification of the statute.  This is a large topic, and this Lexicon entry can do no more than to note the existence of the complications.

    A Qualification re the Idea of Authority

    In this Lexicon entry, I am using the word “authority” to refer to cited sources–a standard usage in law.  In legal philosophy, the same word is sometimes used to refer to the concept of authority–in the sense in which a legal system claims authority over persons within its jurisdiction.  One theory of authority (associated with Joseph Raz) maintains that the notion of a peremptory or exclusive reason is baked into our notion of authority.  Just to be clear: I am not using the word “authority” in that sense.

    Conclusion

    The notion of persuasive authority may seem simple, but I hope this Lexicon entry has given you a sense of the complications.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 073: Persuasive Authority

    (Last modified on April 13, 2024.)

  • Legal Theory Lexicon 072: Scalars and Binaries

    By Lawrence B. Solum

    Introduction

    The law frequently requires that we answer a question “yes” or “no”.  Was the defendant guilty?  Was the defendant negligent?  Was the trial court’s finding of fact clearly erroneous?  These questions seem to demand a “yes” or “no” answer.

    When an issue must be resolved in one (and only one) of two possible ways, we can call that issue “binary”.  That is, the law frequently demands that we see the world in blacks and whites.  The real world (the world outside of the legal system) is frequently all shades of gray.  Our beliefs about whether the defendant was guilty, whether the defendant was negligent, or whether the trial court erred may be a matter of probabilities or degrees.  When an issue or finding is a matter of degree, we can call it a “scalar”.

    This entry in the Legal Theory Lexicon is about the scalar/binary distinction in legal theory.  As always, it is primarily addressed to law students, especially first-year students, with an interest in legal theory.  If you have further questions about the distinction and the role it plays in legal theory, you will want to consult “Scalar Properties, Binary Judgments,” by the great legal theorist, Larry Alexander.

    What is the Scalar-Binary Distinction?

    One way to explain the scalar-binary distinction is via an analogy with related distinction between scalar and discrete variables in mathematics.  A variable is scalar if it can assume any value within a range.  A variable is discrete if it can only assume some values.  For example, weight is a scalar variable.  If we weigh a group of humans, their weights can assume any value.  An infant could be 8.5 pounds, an adult 180 pounds, and any value in between is possible, including 80.8715 pounds or 13.025 pounds.  Technically, we also need to distinguish scalars (which have only one dimension) from vectors (which have multiple dimensions).

    Another metaphor for a continuous variable is a “spectrum.”  For example, the frequency of a radio broadcast is a value on a spectrum.  Similarly, we can also use the term “continuum” to refer to the same idea that is captured by the notion of a scalar.  We also use the phrase “matter of degree” to get at the same basic notion.  More technically, sometimes the phrase “range property” is used to refer to scalars.

    A discrete variable can only assume particular values.  For example, if we toss a coin three times and count the number of heads, the only possible outcomes are 3, 2, 1, and 0.  The number of heads cannot be 1.5 or 2.00786.  Binary variables are special cases of discrete variables; a binary variable can only assume one of two values.  If we toss a coin once, the only possible values are 1 and 0.  When someone says, “The answer to this question is either a ‘yes” or a ‘no,” they are saying the question involves a binary judgment.  Multiple-choice questions are discrete, but not binary if there are more than two possible answers.

    The law is full of binary judgments.  The defendant must be found “guilty” or “not guilty.”  The plaintiff’s injury was either “caused” or “not caused” by defendant’s conduct.  The trial court’s finding of fact was either “clearly erroneous” or “not clearly erroneous.”  Sometimes, however, the law requires that a judgment be made on a scale.  For example, in a comparative negligence jurisdiction, the jury might be required to decide whether the plaintiff’s injury was 100% caused by plaintiff’s negligence or 0% caused by plaintiff or any value in between.

    Scalar Properties, Binary Judgments

    Sometimes, the law requires that we translate our beliefs about a scalar property into a binary judgment.  For example, we might think that the likelihood that a trial judge made an error in a finding of fact is a matter of degrees, ranging from a 0% chance of error to a 100% chance of error.  But when an appellate court reviews a trial court judge’s factual determinations it must make a binary judgment, either “clearly erroneous” or “not clearly erroneous.”  This phenomenon, where the law demands a binary judgment about a scalar is pervasive in the law.

    Vagueness and the Line-Drawing Problem in Binary Judgments

    The demand for binary judgments results in a particular problem when there is no precise threshold for the binary categorization of the scalar property of the real world.  One example is the balancing test, which allows us to translate a complex set of scalar properties into a simple yes-no judgment; either the balance of interests tips one way, or the other.

    Sometimes, there is a bright line, a precise threshold that allows us to translate our scalar determinations into binary judgments.  For example, in civil cases the burden of persuasion is usually “preponderance of the evidence.”  One understanding of the meaning of that standard is that it requires that the evidence establish that the likelihood is greater than 0.5.  In other words, the plaintiff needs to show that the likelihood that defendant caused plaintiff’s injury is greater than 50%.  This rule allows the translation of a scalar (probability) into a binary (“preponderance of the evidence” or “not preponderance of the evidence”).  Let’s call this kind of rule a “bright-line translation rule.”

    But in other cases, the translation rule does not provide a bright line, because the rule is vague.  For example, the clearly-erroneous rule is not associated with some precise bright-line probability of error.  Instead, the clearly-erroneous rule is vague.  In some cases, we are certain that the judge was in error and hence the finding of fact is definitely “clear error.”  In other cases, we are very uncertain about the error; we might think the judge was wrong, but just barely so.  This would be a case where we would definitely say the error was not “clear error.”  But there is no bright line, so there will be some cases on the borderline or in a zone of underdetermination.  In those cases, appellate judges may disagree about whether the error was clear, and even the same judge might make the call differently at different times.

    Smooth and Bumpy Laws

    The relationship between binaries and scalars can be conceptualized as one case of a more general phenomenon–which Adam Kolber has called “smooth and bumpy laws.”  His idea is that legal input and outputs can be “smooth” (gradual) or “bumpy” (uneven).  Scalars are smooth, but binaries are bumpy.  This conceptualization allows the insight behind the scalar-binary distinction to be extended to situations in which the output is discontinuous or uneven in some other way, but not a true binary.

    Conclusion

    This entry in the Legal Theory Lexicon introduces the scalar-binary distinction and illustrates some of the issues and problems that the distinction illuminates.

    Related Lexicon Entries

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    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 072: Scalars and Binaries

    (Last revised on April 7, 2024.)

  • Legal Theory Lexicon 071: The New Originalism

    By Lawrence B. Solum

    Introduction

    Most law students will encounter “originalism” in their first course in constitutional law. Depending on the instructor, this encounter could be quite short or very extensive. Most law students will know that originalist constitutional theory is concerned with “original meaning,” but they may not know about the differences between versions of originalism that focus on “the original public meaning” versus “the original intentions of the framers,” much less “the original understandings of the ratifiers” or “the original methods of constitutional interpretation.” Most students are likely to encounter what is sometimes called “the Old Originalism”—the version of originalism that existed in embryonic form in the 1970s and early 1980s. The old originalism is associated with the idea that the constitution should be interpreted to conform to the original intentions of the framers—the group that drafted each provision. For the bulk of the constitutional text, drafting occurred in the Philadelphia Convention, but each of the amendments has its own drafting history. But in the 1980s and 1990s originalism began to change in significant ways, and in the late 1990s and early 2000s, scholars began to refer to “the New Originalism.”

    This entry in the Legal Theory Lexicon focuses on what is called “New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, “New Originalism” refers to a cluster of originalist theories that reject a set of ideas from older originalist theory, including (1) original intent originalism (in the form that focuses on the application preferences of the Framers) and (2) the idea that the application beliefs of the Framers are binding.

    Many New Originalist theories also endorse the following two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. But some theorists who are called “New Originalists” endorse other theories of original meaning, such as “original methods originalism” and reject the idea that the constitutional text is substantially underdeterminate.

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

    What Is Originalism?

    There is a separate entry in the Legal Theory Lexicon on Originalism. In brief, we can think of originalism as a family of constitutional theories that are organized around two core ideas:

    • The Fixation Thesis: The linguistic meaning of the constitution is fixed at the time each provision is framed and ratified.
    • The Constraint Principle: Constitutional practice (e.g. judicial decision of constitutional controversies) should be constrained by the original meaning. At a minimum, constitutional doctrines and decisions should be consistent with the original meaning.

    Older versions of originalism focused on the original intentions of the framers. So old originalists believed that the meaning of the constitutional text was fixed by the framer’s intentions and that judges should decide cases in a manner that is consistent with or even fully determined by those intentions.

    What is “the New Originalism”?

    The phrase “New Originalism” was first used by Evan Nadel in 1996, but the phrase was popularized by Randy Barnett and Keith Whittington a few years later. Of course, this phrase is just a name that theorists use, and it has been used in different ways. For our purposes, we can think of the New Originalism as a subfamily of originalist theories that accept the Fixation Thesis and the Constraint Principle, and reject the old originalist idea that a particular kind of intention (the purposes or expectations of the framers) is the touchstone.

    Some, but not all, of the new originalists add the following three ideas:

    • The Public Meaning Thesis: The original meaning of the constitution is the public meaning that each provision had at the time it was framed and ratified.
    • The Interpretation-Construction Distinction: Constitutional practice consists of two distinct activities:
      • Constitutional Interpretation is the discovery of the linguistic meaning of the constitutional text.
      • Constitutional Construction is the determination of the legal effect given to the text, including (a) doctrines of constitutional law, and (b) decision of constitutional cases.
    • The Fact of Constitutional Underdeterminacy: The constitutional text is not fully determinate for various reasons, especially because some constitutional provisions are vague or open-textured.

    These three ideas have several implications, but one implication is especially important. The Old Originalism is associated with an antipathy to judicial discretion in constitutional interpretation and construction. One of the motives for the Old Originalism was the belief that the Warren Court had broken the tether between the constitutional text and constitutional law and that judges were now importing their own moral and political beliefs into constitutional doctrine. Ideally, originalist judging would be both constrained and restrained. Constrained, in that the original meaning would provide an objective basis for the resolution of all or almost all constitutional cases. Restrained, in that originalist judges would rarely use the power of judicial review to strike down legislation or executive action.

    The ideas associated with the New Originalism did not fit the old idea of perfect constraint and restraint. First, public meaning seems less constraining than original intent. The public meanings of some provisions of the Constitution are vague or open textured (at least on the surface). Phrases like “freedom of speech” or “legislative power” may have a core of determinate meaning, but they also seem to have a penumbra—a set of borderline cases. New Originalists call this area of underdeterminacy, “the Construction Zone.” If there is a substantial construction zone, then the constitutional text cannot do all the work of deciding constitutional cases.

    Moreover, some of the theorists who are called “New Originalists” have theories of constitutional construction that permit normative considerations to enter into the decision of cases inside the construction zone: Jack Balkin’s “living originalism” or “framework originalism” is a prominent example.  In contrast to Balkin’s approach, other originalists have approaches to constitutional construction that may be more constraining, some of which are discussed below.

    Disputes within New Originalism, Criticisms from Nonoriginalists

    The New Originalism has given rise to a new set of disputes, both within originalism and between originalists and nonoriginalists.  From the conservative side some theorists who might be called “new originalists,” have focused on restraint and constraint. John McGinnis and Michael Rappaport have argued that constitutional construction is unnecessary. Their argument reflects their distinctive version of originalism, “Original Methods Originalism.” They argue that by using the original methods of constitutional interpretation, judges can eliminate or almost eliminate ambiguity and vagueness; in the most recent iteration of their theory, they claim that the constitution is written “the language of the law” and that legal concepts are more precise and determinate than are public meanings.

    A different approach to the problem of constraint has been developed by Gary Lawson and Michael Paulsen. They each argue that the problem of vagueness can be solved by a principle of judicial restraint. When the text is vague or ambiguous, judges should defer to the decisions made by elected officials. So even if there is a “construction zone,” there is no need for judicial discretion or morally informed decision making.

    Finally, Randy Barnett and Evan Bernick have argued that cases in the construction zone should be resolved by implementing rules that conform to the original purpose or function of the relevant constitutional provision(s).  Their approach requires judges to act in good faith, discovering original purposes and not acting on their own beliefs about what the purpose of a given constitutional provision ought to be.

    Progressive criticism of the New Originalism has focused on a different set of issues. Some progressive critics have argued against the notion that the public meaning of the constitutional text can do the work of resolving constitutional controversies. One version of this criticism emphasizes historical context. Because the original understanding of the text was embedded in particular historical circumstances, that understanding cannot be transported to modern circumstances.

    Another line of progressive criticism suggests that the New Originalism no longer provides sufficient constraint and restraint to serve as a real rival for Living Constitutionalism. Thomas Colby has made a version of this argument, and a similar argument has been advanced by Peter Smith. Together, Colby and Smith have also argued that new versions of originalism are so varied in content that it no longer makes sense to think of originalism as a coherent constitutional theory.

    Conclusion

    Like many Lexicon entries, this one is both too short and too long. Too short, because we have barely begun to scratch the surface of the New Originalism. Too long, because a good Lexicon entry should be short enough to read in just a few minutes. Nonetheless, I hope this exploration of the New Originalism has opened the door for further investigation.

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    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 071: The New Originalism

    (This Legal Theory Lexicon entry was last revised on June 5, 2022.)

  • Legal Theory Lexicon 070: Uncertainty, Risk, and Ignorance

    By Lawrence B. Solum

    Introduction

    First year students soon learn that the law must deal with uncertainty–imperfect knowledge about the past, present, or future.  What level of precaution is required by the duty of reasonable care when engaging in behavior that might or might not cause a harm?  How should regulators deal with a new technology (e.g., genetically modified organisms when they were first introduced) when the possible harms (and benefits) are speculative?  What should a jury do when conflicting evidence makes it uncertain whether a defendant is innocent or guilty?  What should a judge do when crucial evidence has been destroyed and we cannot know which side it would have (decisively) favored?

    Questions like these can be made more tractable with tools developed by decision theorists, economists, policy scientists, and philosophers.  In this entry in the Legal Theory Lexicon, we will explore three ideas, “uncertainty,” “risk,” and “ignorance”–and some related notions, “expected utility,” “maximin,” and “maximax.”  As always, the Lexicon is aimed at law students–especially first year law students–with an interest in legal theory.

    Vocabulary

    Unfortunately, the central ideas that we will investigate are not described by a standard vocabulary that is shared across disciplines.  So the first thing we need to do is define some terms.  After that, we can discuss alternative vocabularies used to describe the same underlying ideas.

    Here are the definitions:

    • Certainty: The term “certainty” will be used to designate indisputable or indubitable knowledge about a state of affairs.  Thus, an event is certain to occur if it is 100% likely that it will come about.  An historical fact is certainly true if there is no basis for doubting or disputing its truth.
    • Uncertainty: The term “uncertainty” will be used to designate any belief that falls short of certain knowledge.  Thus, the occurrence of an event is not certain if there is a chance that it will not come about.  Our knowledge about the occurrence of an event in the past is uncertain, if there are (all things considered) reasons to dispute or doubt that the event occurred.
    • Risk: Risk is quantifiable uncertainty.  For example, if I toss a balanced coin, the chance of its coming up heads is 0.5 (or 50%).
    • Ignorance:  Ignorance is uncertainty that cannot be quantified.  Examples are tricky here.  Suppose that someone has put 100 balls in an urn.  You do know the balls are either white or black, but you do not know whether there are 100 black balls and 0 white balls, or 99 black balls and 1 white ball, or 98 black balls, and 2 white balls, or any other combination (the sequence ends with 0 black balls and 100 white balls).  What are the chances that a randomly selected ball from the urn will be black?  We lack sufficient information to assign a probability.  It could be 100% or 0% or any other whole number percentage in between.

    So there are two different kinds of uncertainty, risk and ignorance.  “Risk” is “quantifiable uncertainty,” and “ignorance” is “unquantifiable uncertainty.”

    Unfortunately, this vocabulary is not used by everyone who writes about uncertainty.  In particular, many economists use the word “uncertainty” to mean both a lack of certainty and “ignorance” (as I have defined it).  This terminological carelessness can be traced back to an important paper by Frank Knight:

    Uncertainty must be taken in a sense radically distinct from the familiar notion of Risk, from which it has never been properly separated. The term “risk,” as loosely used in everyday speech and in economic discussion, really covers two things which, functionally at least, in their causal relations to the phenomena of economic organization, are categorically different. … The essential fact is that “risk” means in some cases a quantity susceptible of measurement, while at other times it is something distinctly not of this character; and there are far-reaching and crucial differences in the bearings of the phenomenon depending on which of the two is really present and operating. … It will appear that a measurable uncertainty, or “risk” proper, as we shall use the term, is so far different from an unmeasurable one that it is not in effect an uncertainty at all. We … accordingly restrict the term “uncertainty” to cases of the non-quantitive type. (Knight, 1921, p. 19)

    Knight uses the word “risk” to name measurable uncertainty and “uncertainty” to name unmeasurable uncertainty.  As long as you are careful to distinguish the two different senses of the word uncertainty, you can avoid confusion, but the best way to avoid terminological confusion is to avoid ambiguity altogether.  For the remainder of the Lexicon, I will use “uncertainty,” “risk,” and “ignorance” as defined above.  Economists sometimes use the phrase “Knightian uncertainty” to express the idea that I am calling “ignorance.”

    Varieties of Risk and Ignorance

    I’ve defined risk and ignorance as if they were mutually exclusive, but that is a bit too simple.  For example, we might have some knowledge about probabilities.  For example, we might know that the probability of event is within a range.  Consider our urn of red and black balls.  Suppose that you know that there are at least ten white balls, but nothing more than that.  There could be 100 white balls or 99 or 98 or any other value that is no greater than 100 but no less than 10.  In these circumstances, you know that there is at least a 10% chance of drawing a white ball and no more than a 90% chance of drawing a black ball.  That means there are some bets that you should take.  If someone offers you 100 to 1 odds on bet that a white ball will be drawn, you should jump on it.  But what if someone offered you 1 to 1 odds on a bet that a black ball will be drawn?  It doesn’t seem like you have enough information to calculate the odds.

    Likewise, we can imagine having second-order information about probabilities.  You might know the probabilities for certain.  Or you might know that there is a 0.5 chance that our hypothetical urn contains 100 white balls and a 0.5 chance that it contains 10 white balls.  The second-order information would permit you to calculate the likelihood of drawing a white ball.  It is (0.5 * 1.0) + (0.5 * 0.1) = .55 or 55%.  In that case, we would still have a condition of risk.  But we can also imagine scenarios in which we have incomplete second-order information about probabilities–and hence a combination of risk and ignorance.

    For the remainder of the Lexicon entry, I will assume that risk and ignorance are mutually exclusive and I will ignore the complexities introduced by second-order information about risk and ignorance.

    Risk and Expected Utilities

    Decision theory is the discipline that studies rational choice using formal (e.g., mathematical) tools.  If we put aside the possibility of risk aversion (a desire to avoid risk), then rational choice under conditions of risk requires that we maximize the expected utilities of our actions.

    Take a simple example.  Suppose I have a choice.  I can bet $1.00 on a coin toss.  A payout of 1 to 1 means that if  win, I keep my $1.00 and my opponent pays me an additional $1.00.  This bet has an expected net value of zero.  When I win, I net a one dollar profit.  When I lose, I have net one dollar loss.  My expected value is $0.50 plus -$0.50 = $0.00.

    But if the payout is 2 for 1, I should take the bet.  There is a 0.5 chance of heads with a payoff of $2.00 (and 0.5 * $2.00 = $1.00), and there is a 0.5 chance of tails with a loss of $1.00 (and 0.5 * -$1.00 = -$0.50).  That means that the expected value of the bet is $0.50, the sum of $1.00 and negative $0.50.  If I decline the bet, the expected value is $0.00, so if I want to maximize my expected utility, then I should take the bet.  (I am assuming that I derive utility from the opportunities created by having the additional $2.00 as compared to the alternative of no gain.)

    The expected utility of a decision is the payoff associated with each possible outcome of the decision discounted by the probability of the outcomes occurrence.  Maximizing expected utilities is simply making the choice that will produce the largest expected utility.

    Decision Making under Conditions of Ignorance

    Suppose we have to make a decision under conditions of ignorance.  We now lack the information to maximize our expected utility.  So how might we decide when we lack information about the probabilities of possible outcomes?

    For example, suppose it were the case that the introduction of a genetically modified organism (GMO) into agriculture would produce one of two outcomes.  The first outcome is an increase in the production of a valuable foodstuff with no negative side effects.  The second outcome is an environmental catastrophe that causes the deaths of millions of persons.  We don’t have enough information to know how likely the second outcome is, but we do know that it is possible.  What is the rational choice in this situation?

    Decision theorists have suggested a number of possibilities.  Here are some:

    • Assume that each possible outcome is equally likely.  That assumption permits us to calculate expected utilities.  We would weigh the benefits of the GMO discounted by 50% against the costs of the environmental catastrophe (also discounted by 50%).
    • Assume the worst case scenario.  Decision theorists sometimes call this second strategy the maximin principle.  We maximize the minimum payoff.  Some versions of the “precautionary principle” are versions of the maximin strategy.  In our GMO hypothetical, this means we would assume that ecological catastrophe will occur–and presumably the rational decision would be to prevent introduction of the GMO.
    • Assume the best case scenario.  This strategy requires us to maximize the maximum payoff–hence it can be called the maximax strategy.  This strategy means that in the GMO case, we would assume that the GMO will produce all the benefits and none of the costs–and hence the rational strategy would be to deploy the new genetically modified crop.

    We can imagine more complex strategies.  For example, we choose the outcome with the highest value of the average of the maximum payoff and the minimum payoff.

    Each of these strategies has problems.  For example, the maximin principle requires us to decide solely on the basis of the worst case scenario.  That might require us to forgo large benefits to avoid dangers to which we could not assign probabilities–even though we might later gain knowledge that would show that the likelihood of catastrophe was vanishingly small.  Once we had this knowledge, we might regret having adopted the maximin principle.  The maximin principle has strong connections with what is sometimes called “the precautionary principle”–which is sometimes invoked in debates about environmental risks (for example, climate change).

    Another problem with some of these methods is that they are sensitive to variations in the way that outcomes are described and categorized.  Consider the choice strategy that assumes that each outcome is equally probable.  That means that adding new categories of possible outcomes will affect the probabilities, and (as you can easily demonstrate for yourself) different ways of slicing and dicing the outcomes pie will result in different decisions becoming the rational choice.  Sometimes, the set of outcomes is defined naturally (heads or tails), but sometimes the outcomes are shorthand for alternatives that are complex and can be described in many different ways, each of which is correct.  And even in the coin toss case, it may turn out that there are neglected possible outcomes (e.g., the coin ends up perfectly balanced on its side or is snatched in midair by a magpie).

    I haven’t even begun to scratch the surface.  It is not clear that there is any general strategy for decisionmaking under conditions of uncertainty that can be justified as the rational strategy–but that is a topic for a whole discipline and not a Lexicon entry.

    Conclusion

    Remember, the point of this Lexicon entry is to give you a rough understanding of uncertainty, risk, and ignorance.  The difference between risk and ignorance is fundamental–and every legal theorist needs to understand its significance.

    Related Lexicon Entries

    Bibliography

    • Daniel A. Farber, Uncertainty, 99 Georgetown Law Journal 901 (2011).
    • Frank Hyneman Knight, Risk, Uncertainty and Profit (Houghton Mifflin Company, 1921).
    • Stephen Senn, Dicing with Death: Chance, Risk and Health (Cambridge University Press, 2003).
    • Uncertainty and Risk: Multidisciplinary Perspectives (Gabriele Bammer & Michael Smithson eds., Earthscan 2008).

    Resources on the Internet

    • Sven Ove Hansson, Risk, Stanford Encyclopedia of Philosophy
    • Understanding Uncertainty (website produced by the Winton programme for the public understanding of risk based in the Statistical Laboratory in the University of Cambridge).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 070: Uncertainty, Risk, and Ignorance

    (Last revised on May 29, 2022.)

  • Legal Theory Lexicon 069: Reflective Equilibrium

    By Lawrence B. Solum

    Introduction

    When we argue about the law we frequently deploy normative arguments.  Sometimes our normative arguments appeal directly to our intuitions (or considered judgments) about particular cases; sometimes we rely on general theories (e.g., welfarism or Locke’s social contract theory).  This leads to the question: how can we justify our normative judgments and theories?  One answer to this question is provided by the idea of “reflective equilibrium,” strongly associated with the work of John Rawls.  We could take our intuitions about particular cases and test them against our more general beliefs, e.g., moral principles or theories–and vice versa.  Through a process of revision and reflection, we could aim for a consistent set of beliefs–where our judgments about particular cases were consistent with a coherent set of general principles.  We can call this point of repose, “reflective equilibrium.”

    This entry is in the Legal Theory Lexicon provides a short introduction to the idea of reflective equilibrium for law students (especially first-year students) with an interest in legal theory.  Although the primary emphasis will be on the role of reflective equilibrium in normative legal theory, we will also investigate reflective equilibrium as a method for legal reasoning.

    The Basic Idea

    Legal theory is full of normative judgments.  We argue that a particular statute is just or that it produces morally good consequences.  We believe that a particular court decision is wrong in the moral sense–that it violates someone’s rights or that its on balance effect is harmful.

    How can we justify our normative judgments?  We might try the method of geometry–beginning with indubitable moral axioms and then reaching particular cases by chains of deductive argument, but this method will run into difficulties if someone challenges the self-evidence of our starting premises.  The method of reflective equilibrium offers an alternative to the method of geometry.  It 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.

    Two Clarifications

    Intuitions versus Considered Judgments

    Sometimes the method of reflective equilibrium is said to rely on “intuitions” or our intuitive judgments about particular cases.  This might be problematic, because our intuitive judgments might be defective–for example, they could be the product of prejudice, self-deception, or ideological indoctrination.  Rawls introduces the notion of a “considered judgment” to reflect the idea that our prereflective intuitions can be examined, both for sources of error and for coherence with each other.

    Levels of Generality

    Another misunderstanding of reflective equilibrium is the notion that it must start with our judgments about particular cases, i.e., that it proceeds from the particular to the general.  This might be the case, but it need not be.  The method can operate on our judgments at any level of generality.  For example, we could examine our judgments about moral principles and test their consistency with each other.

    Wide and Narrow Reflective Equilibrium

    In more advanced discussions of reflective equilibrium, a distinction is sometimes made between “wide” and “narrow” reflective equilibrium.  For the purposes of this post, we can characterize the difference this way:

    Narrow Reflective Equilibrium:  The considered judgments of an individual on constitutional theory are in narrow reflective equilibrium when they are consistent and mutually supportive with each other.

    Wide Reflective Equilibrium: The considered judgments of an individual on constitutional theory are in wide reflective if they consider the “conditions under which it would be fair for reasonable people to choose among competing principles [of constitutional theory], as well as evidence that the resulting principles constitute a feasible or stable conception of justice, that is, that people could sustain their commitment to such principles.”

    Wide reflective equilibrium takes into account the reasonable views of others, whereas narrow reflective equilibrium can be reached on the basis of an individual’s own views.

    Reflective Equilibrium and Normative Legal Theory

    So how can the legal theorist use the idea of reflective equilibrium?  The most obvious deployment of this idea is as a method of justification in normative legal theory.  This might occur at the “macro” level–for example, as a method for justifying welfarism as a normative theory of law.  Or it might occur with respect to domain specific normative legal theories, e.g., as a justification for a corrective-justice theory of tort law or a retributivist theory of criminal punishment.

    Similarly, reflective equilibrium could play a critical role.  One might argue against a normative legal theory on the ground that the theory is inconsistent with our considered judgments about particular cases or case types.  Of course, this use of reflective equilibrium is tricky–since one can argue that the recalcitrant judgments should be modified in order to achieve reflective equilibrium.

    Reflective Equilibrium and Legal Reasoning

    Sometimes the content of the law can be determined by roughly formalist methods.  There is an authoritative legal text (a clause in the constitution, a statutory provisions, a rule or regulation); the text provides a more or less bright-line rule that guides behavior or resolves a dispute.  But sometimes the content of the law is less clear.  This is especially noticeable in common-law systems, in which the content of the rules is determined in a complex way by cases.  What do we do when the results of the cases are not fully consistent or when different cases state the rules in varying and inconsistent language?  One possible answer to this question is “use the method of reflective equilibrium!”

    For example, we might take the decided cases as providing the equivalent of considered judgments about particular cases, and we could take rule statements as the equivalent of moral principles.  Our quest would be for the set of rules that accounts for the greatest number of cases and possesses the maximal degree of internal coherence.  If the cases are in tension with one another, some cases will have to be counted as “mistakes”–the doctrine in reflective equilibrium would call for them to be overruled or confined to their facts.

    Of course, something like this method is familiar to most law students, because courts do seem to seek something like “reflective equilibrium” at least some of the time.  In legal theory, the method of reflective equilibrium resembles Dworkin’s theory, “law as integrity” and the “reasoned elaboration of the law” associated with the “Legal Process” school.

    Criticisms of the Method of Reflective Equilibrium

    The method of reflective equilibrium is controversial.  One might argue that the method relies on our “intuitions” about particular cases and that these intuitions are unreliable.  Or one might argue that reflective equilibrium can always be satisfied by moral principles with multitudinous exceptions for recalcitrant judgments about particular cases.  And these simplistic objections are just the beginning.

    Applications in Legal Theory

    The method of reflective equilibrium has found important applications in legal theory, particularly in normative constitutional theory. Richard Fallon has developed what he calls the “Reflective Equilibrium Hypothesis” as both a descriptive and normative account of constitutional decision-making. On Fallon’s view, constitutional actors seek reflective equilibrium between their prior methodological assumptions and their intuitions about appropriate results in particular cases, with adjustment possible on either end — methodological commitments may be refined by case-specific intuitions, and intuitions may be revised in light of general methodological commitments. See Richard H. Fallon Jr., Arguing in Good Faith about the Constitution: Ideology, Methodology, and Reflective Equilibrium, 84 U. Chi. L. Rev. 123 (2017).

    The way that reflective equilibrium plays out in normative legal theory may depend on the distinction between outcome reasons and process reasons. In Outcome Reasons and Process Reasons in Normative Constitutional Theory, I distinguish between outcome reasons — justifications that turn on judgments about which constitutional outcomes are good or bad — and process reasons — justifications based on considerations such as legitimacy, the rule of law, and institutional capacities. I argue that sound constitutional theory requires a holistic assessment of both types of reasons via the method of reflective equilibrium. The outcome effects of high level normative theories (such as constitutional pluralism or originalism) are very difficult to predict, whereas the process characteristics such as legitimacy and the rule of law are by their nature stable. For this reason, it can be argued that in reaching reflective equilibrium, process values should have greater force than outcome reasons. See Lawrence B. Solum, Outcome Reasons and Process Reasons in Normative Constitutional Theory, 172 U. Pa. L. Rev. (2024). SSRN.

    Conclusion

    Reflective equilibrium is one of the most important tools in the legal theorist’s toolkit. And even if you don’t embrace this method yourself, you are sure to run into others who rely on it.

    Related Lexicon Entries

    Bibliography

    • John Rawls, A Theory of Justice: Original Edition (Harvard University Press 1971) & A Theory of Justice Revised Edition.
    • John Rawls, Outline of a Decision Procedure for Ethics, 60 Philosophical Review 177–97 (1951), reprinted in John Rawls, Collected Papers (Samuel Freeman ed., Harvard University Press 1999).
    • Norman Daniels, Wide Reflective Equilibrium and Theory Acceptance in Ethics, 76 Journal of Philosophy 256–82 (1979), reprinted in Norman Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (Cambridge University Press, 1996).
    • John Mikhail, Rawls’ Concept of Reflective Equilibrium and its Original Function in ‘A Theory of Justice’, 3 Washington University Jurisprudence Review 1 (2010).

    Resources on the Internet

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 069: Reflective Equilibrium

    (This entry in the Legal Theory Lexicon was last revised on March 23, 2024.)

  • Legal Theory Lexicon 068: Welfare, Well-Being, and Happiness

    By Lawrence B. Solum

    Introduction

    Normative legal theory is concerned with the ends and justifications for the law as a whole and for particular legal rules.  Previous entries in the Lexicon have examined exemplars of the three great traditions in normative theory–consequentialist, deontological, and aretaic (or virtue-centered) perspectives.  There are important differences between these three families of theories at a very general and abstract level: for example, deontologists emphasize rights and wrongs while consequentialists emphasize the goodness or badness of states of affairs.  And there are differences between particular theories within the broad families: within consequentialism, for example, welfarists emphasize preference satisfaction, whereas hedonistic utilitarians emphasize pleasure and pain.

    Despite these disagreements, I think it is fair to say that many or most of the reasonable views about normative theory agree that what is good or bad for individual humans is morally salient.  Welfarists believe that humans are better off if their preferences are satisfied.  Hedonistic utilitarians believe an individual is better off if she experiences more pleasure and less pain.  Aristotle believed that humans flourish if they have lives of social and rational activity that expresses the human excellences or virtues under conditions of peace and prosperity.  A deontologist who believes that autonomy is the central value might believe that humans are better off if they are autonomous and worse off if they are not  In other words, a wide variety of moral theories agree that what is good for humans is morally salient.

    This entry in the Legal Theory Lexicon will examine three related concepts that are related to the good for humans, welfare, well-being, and happiness–and along the way we will explore some related ideas like pleasure, satisfaction, pain, flourishing, and eudaimonia.  Of course, the nature of the human good is a deep topic–one that has been debated by philosophers, psychologists, economists, theologians, and others for millennia.  All of the great moral and political philosophers, from Plato and Aristotle, through Hobbes, Hume, Kant, Bentham, and Mill, to contemporary figures like Thomas Scanlon and Derek Parfit have engaged in debates about the nature of the human good.  This entry in the Legal Theory Lexicon will only scratch the surface of these debates.  As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

    Three Concepts

    Let’s begin by saying a few words about each of the three concepts.  Our aim in this section is not to provide a canonical definition, but instead is to give a sense for the way these terms are used in normative legal theory:

    Welfare–The term “welfare” is heavily theory laden.  For contemporary law-and-economics scholars, welfare sometimes operates as a technical term.  One’s welfare is a function of one’s utility, and most contemporary economists understand utility as a function of one’s preferences over states of affairs.  If I prefer a world in which I eat an ice cream cone after lunch to one in which I am abstemious, then the ice cream cone increases my welfare.  But the term “welfare” is also used in a much broader sense, in which my “welfare” is a function of what is good (and bad) for me.  In this sense, my “welfare” might be synonymous with my “well-being” or “flourishing or “happiness.”  We might say that there are competing conceptions of the general concept of welfare.

    Well-Being–The term “well-being” is similar to “welfare” in the broad and nontechnical sense.  In ordinary language, we frequently associate “well-being” with health–primarily physical health but mental health as well.  Philosophers use this term to refer to what is noninstrumentally good for someone.

    Happiness–In ordinary language, the term “happiness” is frequently used to refer to a mental state.  One might think of happiness as a feeling of pleasure, contentment, satisfaction, or enjoyment.  But the word “happiness” is also used as a translation for the Greek word eudaimonia, which can also be translated “flourishing,” and even in ordinary talk the use of phrases like “true happiness” suggests that not only can one have pleasant feelings from moment to moment, but lack “happiness.”  Some theorists would reserve the term “happiness” for a stable or enduring quality that is produced by the appropriate features of one’s life.  Thus, it might be the case that “a job well done” can make you “happy,” but a delicious dessert can only give you “pleasure” or “enjoyment.”

    As is apparent from this very brief introduction of these three concepts, they are connected with others like “pleasure,” “pain,” “preference,” “utility,” “flourishing,” “enjoyment,” and so forth.  But rather than defining each of these concepts, we will now move to a more abstract level and discuss three general views about the nature of human well-being (or welfare in the broad sense).  These three views are offered only as illustrations.  I am not going to attempt to provide a comprehensive catalog.

    Three Theories of the Human Good

    One way for us to get a better handle on the concepts of welfare, well-being, and happiness is to examine three particular theories of the good for humans:

    Hedonism: Philosophical hedonism (which may or may not be related to the view that the good human life is produced by lots of sex, drugs, and rock ‘n roll) is the view that the good for humans is pleasure (or more generally positive or enjoyable mental states) and bad for humans is pain (or negative mental states).  Hedonists might believe that pleasure is a distinctive brain state that varies continuously, with the intense pleasure induced by opiates or cocaine at one end of the spectrum, and that pain is similar, with the intense pain of passing a kidney stone at the other end.  But some hedonists believe that pleasures differ qualitatively.  John Stuart Mill, for example, thought that there were higher pleasures (e.g., from listening to great music or reading a great novel) and lower pleasures (e.g., from strong drink, drugs, or playing video games).  There are deep questions about the nature of pleasure and pain, but for our purposes let us simplify greatly and assume that all hedonic values (positive or negative) consist of mental states (or brain states, which may or may not be equivalent) that are experienced as positive or negative.

    Welfarism: In the legal academy, “welfarism” is strongly associated with normative law and economics.  (But in other disciplines, the terms “welfare” and “welfarism” have other meanings.)  Of course, economists differ among themselves on the nature of welfare, but let us stipulate (for the sake of simplicity) that “welfare” in the economic sense is a function of “utility” and that utility for an individual is a function of the individual’s ordinal preferences among states of affairs.  If my preferences are satisfied, then my utility and welfare goes up.  If the world moves in a direction that I would rank lower (and hence disprefer), then my level of welfare goes down.  We might call this theory of “welfare” a “preference satisfaction” theory.

    Eudaimonism: The third view that I will outline is based on Aristotle’s claim that the highest humanly achievable good is “eudaimonia,” which I will translate as “flourishing”.  Aristotle believed that humans flourished if they both fared well (lived under the right circumstances) and did well (engaged in valuable activities): hence, Aristotle’s claim was that eudaimonia consisted in faring well and doing well.  Let’s put faring well aside, and focus on doing well.  Aristotle believed that the nature of “doing well” depends on human nature.  Humans are rational and social creatures.  So a flourishing human life consists of rational and social activities done well.  “Done well” for Aristotle means “expressing the human excellences or virtues.”  In sum, a flourishing human life is a life of rational and social activity that expresses the human excellences, and hence a life under conditions of peace and prosperity sufficient to support or enable such activity.

    Let’s try to make this more concrete by offering examples of three different lives:

    The Life of Pleasure: The first life is lived by Ben, who takes great pleasure in sex, drugs, and rock ‘n roll.  Ben does what it takes to get enough money to party hard.  He is careful not to overdo or to party so hard that he screws up his life.  Ben’s wits are somewhat dulled, and his social interactions might be a bit superficial, but he has a ton of fun almost every day.  It turns out that lots of the time, things don’t go the way that Ben prefers–his favorite bands always break up, he doesn’t get job he wants, his girlfriends cheat on him.  But Bob doesn’t let disappointment interfere with pleasure–if things don’t go well, he grabs a brewski, takes a couple of tokes, and chills.

    The Life of Satisfaction:  The second life is lived by Alice, who has many preferences about how things should go.  She wants her children to get a good education and live up to their potential.  She wants her city to care for the homeless.  She wants endangered species to be saved.  She works for those things, and as a result of her efforts, her kids do well.  For reasons that were largely out of her control, her city does care for the homeless and many endangered species are saved.  Things go as she wants them to go, but because Alice worries a lot, her satisfaction is only rarely translated into pleasure.  Some of Alice’s friends observe that she had the potential to do more with her life, but as things turned out, she has what she wants.

    The Life of Accomplishment:  The third life is lived by Philippa, who grows up in an loving and nurturing family and gets an excellent education.  As a result, she becomes an adult who is smart, wise, courageous, temperate, good tempered, caring, responsible: she is a truly excellent human beings, or to put it differently, she is virtuous.  She is reasonable fortunate in her life circumstances as well, so she has a good and stable relationship with her partner, many friends, and meaningful work as an architect.  She lives a balanced life, with periods of intense and difficult work, but also times for fun.  Many of her preferences are satisfied, but many are not.

    I hope the description of the three lives is not so oversimplified that it becomes unrealistic.  The point is that the three theories we have described will evaluate the three lives differently.  At least some varieties of hedonism will count Ben’s life as the best life–it is a life of pleasure.  There may be pleasure in Alice and Philippa’s lives as well, but not as much as in Ben’s.  A welfarist who counts all preferences equally might view Alice’s life as the life that goes the best: her preferences are satisfied.  Although she doesn’t get as much pleasure as Ben, she doesn’t prefer a life of pleasure; likewise, she doesn’t want to live up to her potential for excellence: she is satisfied with a more passive life.  Philippa gets much of what she wants and experiences her share of pleasures, but as things turn out, her life is worse than Ben and Alice’s lives are if the scale is either pleasure or preference satisfaction.  A eudaimonist or virtue theorist will nonetheless say that Philippa’s life is the best life.

    The Conceptual Space of Debates about the Nature of the Good for Humans

    Things are about to get abstract, so watch out.  The next step we will take involves mapping the ways in which the three theories of human good differ.  This is not the only way we could map the conceptual space, but it illuminates some of the important issues.  This map is going to rely on a distinction between the subjective (which is associated with our minds or inner lives) and the objective (which is associated with the world, including our bodies and our environment).  That distinction will then be applied in two dimensions: one concerned with the source of the standards for value and the other concerned with the things that can satisfy those standards.  I warned you–this is abstract, but bear with me.

    Objective and Subjective Views of the Sources of the Standards for Human Good: What is the source of our criteria for well-being, happiness, welfare, or the human good?  One possibility is the standards are subjective–they are relative to what we think or feel.  Another possibility is that the standards are objective–they depends on the nature of the world and not our feelings or beliefs about it.

    Objective and Subjective Views of the Conditions to Which the Standards for Human Good Are Applied: Once we have standard for human good, we need to apply them to something.  We could apply them to things that are subjective–to our mental states.  Or we could apply them to things that are objective–to states of the world.

    OK.  Now we can characterize our three theories of value in light of the two dimensions in which a theory of human value can be objective or subjective.

    Hedonism is usually understood as having both a subjective understanding of the sources of value and a subjective understanding of what those standards apply to.  Our mental states determine what is good or bad for us: it depends on what we get our kicks from and what makes us feel bad.  And our mental states or subjective experiences are what the standards apply to.  So hedonism is subjective in both senses.

    Welfarism is committed to a subjective view of what is good and bad for humans.  Our preferences (which are mental states) provide the criteria or standards by which utility and welfare are judged.  But welfarists are objectivists about what these standards are applied to.  Utility is a function of preference over states of the world.  My utility goes up if the world moves to a state I prefer.

    Eudaimonism as I have described is a hybrid theory on both levels.  The basic standard of a flourishing life is objective–it is derived from an account of human nature and the virtues.  But for any particular individual, a flourishing life will also be a function of that individuals plans and goals and also a function of what that individual finds satisfying, rewarding, and to some extent pleasurable.  Likewise, a virtue-centered theory of human flourishing takes how one fares (faring well) and how one does (doing well) as the conditions to which the theory is applied.  So the conditions are partially objective.  But the human virtues involve subjective states.  Doing well involves doing the right action for the right reason.  A flourishing human being has the right preferences and takes enjoyment from the right kinds of things: for this reason, the conditions to which the criteria for the human good are applied are partially subjective.

    In other words, hedonism is a subjective-subjective view, welfarism is a subjective-objective view, and eudaimonism is a hybrid-hybrid view.  One can imagine views that might be objective-objective: for example, if you believed that well-being was cashed out by a list of objective goods, such as health, meaningful work, and an active social life, you might have a view that the standards for human good are objective and that they are satisfied by objective features of particular human lives.

    Arguing About (or Investigating) the Nature of Welfare, Well-Being, and Happiness

    Which of these rival accounts is the best one?  Of course, the nature of the human good has been the subject of philosophical debate and cultural strife for more than two millennia.  So it will surprise no one that the Legal Theory Lexicon will just skim the surface of the arguments that can be made for and against various conceptions of welfare, well-being, and happiness.

    Let’s begin with methodology.  What kinds of reasons might be offered for and against various conceptions of the human good?  Now that is a big topic in itself, but we can identify three of the common strategies used to advance our thinking about this topic:

    Reflective Equilibrium: One strategy is to attack the problem directly using the method of reflective equilibrium.  We can begin with intuitions (our unreflective beliefs and the opinions of others) about the topic at hand.  Some of those beliefs will be general and abstract (e.g. “happiness is a feeling”).  And some of those beliefs will be quite particular: a serious illness involves a loss of well-being even if the pain is completely managed).  We can then attempt to formulate a theory of the good for humans (or of welfare, well-being, or happiness) that best fits those intuitions.  Some of our intuitions may need to be revised in light of the tentative theory, and some aspects of the theory may need to be revised in light of recalcitrant intuitions.  Eventually, we can reach a reflective equilibrium between beliefs that have become well-considered judgments and our general theory.

    Ethical Theory & Metaethics:  There is a second method that we might employ.  We might begin with our best understanding of metaethics (at what we might think of as the highest level or “top” of normative theory.)  We could then work down through ethical theory to our conception of the human good.  For example, if we adopted an internalist view of moral motivation (i.e., that what is morally good necessarily provides motivation) then we might conclude that our view of the human good must have a certain form if it is to play this motivational role.  We might call this the top-down strategy: we proceed from axioms of metaethics to deduce the postulates and lemmas of our theory of the human good.

    Thought Experiments: The notion of a thought experiment (or “hypothetical”) is familiar to all legal theorists.  One of the problems of the method of reflective equilibrium may be the tendency of various conceptions of human good to coincide or converge in particular cases.  Our preferences and subjective experiences of happiness may align with elements of objective well-being such as health.  In order to pry these things apart, we might want to construct thought experiments in which force us to evaluate cases in which our subjective happiness diverges from our preferences or health.

    The Experience Machine

    Robert Nozick is famous for a thought experiment that can be used to test the subjective experience conception of well-being.  Suppose you have a choice between two lives.  One is roughly equivalent to your current life (or a typical human life).  You experience pleasure and pain; some of your preferences are satisfied and some aren’t.  The other life involves your being attached to an experience machine that directly feeds experiences into your brain.  You will be given an amnesiac when you are attached so that you will forget the fact that you are on the experience machine: it will seems as if you current life is continuing.  But your life on the experience machine will be supremely good from the subjective point of view.  You will feel supremely happy.  You will be successful, adored by your friends and partners, and everything that makes you feel good (whether it be career success or Jimmy Choo shoes) will come your way.  This life will involve very little or no pain, frustration, or disappointment.  Finally, the experience machine is well tested, and you are truly convinced that it will cause you no serious physical harm.  Which life would you choose?

    Many people would choose a normal life with real experiences and would believe that their life on the experience machine would go very badly–although it would seem as if it were going well.  If you have this reaction to the thought experiments, then you have a reason to believe that you have metaethical intuitions that are inconsistent with a hedonistic-subjectivist conception of well-being.

    Of course, this thought experiment can be criticized in various ways.  It might be argued that you aversion to the experience machine is improperly influenced by a reaction that being on the machine would be “yucky”–when (by hypothesis) it would not be.  Or it might be the case that you distrust the long-range effectiveness of the machine.  These issues have to be considered carefully before we place too much stock in the results of a thought experiment.

    There is so much more to be said about the inquiry into the nature of the human good, and my discussion of methodology and one thought experiment does not even begin to scratch the surface.  Nonetheless, I hope I have given you an idea of how you might begin to think and argue about this topic.

    Why Does the Human Good Matter to Legal Theory?

    I imagine that most readers of the Lexicon can see that the nature of the human good has important implications for legal policy.  If the preference satisfaction view of welfare were correct, then normative law and economics might provide the correct methodology for normative legal theory.  If the hedonistic approach were correct, then we would want to pay close attention to empirical research on subjective happiness.  Normative evaluation of legal policy is one of the central activities of legal scholars, and one’s views about the human good surely plays a big role in such evaluations.  Of course, some normative theories (e.g., consequentialism) will give the human good a decisive role in the evaluation of legal policy, whereas others, e.g., deontological or rights based theories might give the human good a less decisive role.

    Can We Do Normative Legal Theory Without a Conception of the Human Good?

    Given the difficulty of arriving at confident conclusions about the nature of the human good, you might ask, “Can we ever reach confident conclusions in applied normative legal theory?”  Or to put the question differently, “If I can’t make up my mind about the nature of the human good, can I still reach confident conclusions about what legal rules are better than others?”  One answer to this question might invoke the Rawlsian idea of an overlapping consensus.  There may be a wide range of cases where the most plausible theories of the human good converge, and legal theorists might focus on those cases.  A related strategy might invoke the idea of “public reasons,” and argue that controversial conceptions of the human good are inappropriate as reasons for public policy.  Another strategy might involve a kind of what is called “pragmatism.”  (I am using the scare quotes, because I have doubts about the use of that term, but those doubts can be set aside for now.)  That is, we could invoke the theory of the human good that seems most appropriate or salient for each context.  When we do tax policy, we might use the welfarist conception of the human good, but when we are thinking about health policy, we might focus on objective health outcomes.  Of course, there is always the option of abandoning normative theory altogether.  You might come to the conclusion that legal scholars can only describe existing doctrine and provide information about the probable effects of changing that doctrine.

    Conclusion

    As usual, the Lexicon is both too short and too long.  Too short to even give you an elementary introduction to the issues, but too long for a one minute read.  Nonetheless, I hope to have given you the tools that can help you to identify questions about the human good and to read intelligently about this topic.

    Related Lexicon Entries

    Other Resources on the Web

    Bibliography

    • Adler, M. (2019) Measuring Social Welfare: An Introduction.
    • Bentham, J. (1789) An Introduction to the Principles of Morals and Legislation.
    • Feldman, F. (2004) Pleasure and the Good Life (Oxford: Clarendon Press).
    • Griffin, J. (1986) Well-being (Oxford: Clarendon Press).
    • Kraut, R. (2007) What Is Good and Why: The Ethics of Well-Being (Cambridge: Harvard University Press).
    • Mill, J.S. (1863) Utilitarianism.
    • Nozick, R. (1974) Anarchy, State, and Utopia (Oxford: Basil Blackwell).
    • Nussbaum, M. and A. Sen (eds.) (1993) The Quality of Life (Oxford: Clarendon Press).
    • Scanlon, T. (1998) What Do We Owe to Each Other? (Cambridge: Harvard Belknap Press).
    • Sumner, W. (1996) Welfare, Happiness, and Ethics (Oxford: Clarendon Press).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 068: Welfare, Well-Being, and Happiness

    (This entry in the Legal Theory Lexicon was last revised on March 17, 2024.)

  • Legal Theory Lexicon 067: The Priority of the Particular

    By Lawrence B. Solum

    Introduction

    One kind of legal theory attempts to relate the mass of legal materials (cases, clauses, statutes, etc.) to a systematic set of principles.  Such theories may be normative: that is, some legal theories are frameworks for the prescriptive evaluation of legal rules.  Or the theory might be doctrinal: some legal theories attempt to describe the results in particular cases through the articulation of a set of general rules or principles.  Finally, there are legal theories that combine the normative and the descriptive: Dworkin’s interpretive theory of law aims at producing a general theory of law that best “fits” and “justifies” the legal materials.  In each of these three cases, there is a metatheoretical question: what role do particulars (e.g., judgments about or the outcomes of individual cases) play in relationship to the more abstract, general, and universal propositions that make up the theory?

    Once we begin to focus on this general theoretical question, it becomes apparent that many legal theorists assume that we must move from the particular to the general and that our general theories have priority over our particular judgments in cases of conflict.  But is this true?  This entry in the Legal Theory Lexicon examines “particularism”–the general view that particulars have priority over the general (or universal) in positive, normative, or interpretive legal theory.  As always, the Lexicon is written for law students, especially first year law students with an interest in legal theory.

    The Basic Idea

    Simplifying greatly, we can imagine two different relationships between the particular and the general in legal theory.

    First, we might think that general propositions have priority, and that recalcitrant particulars must give way.  On this view, the legally correct outcomes in individual cases are determined by general propositions of law–for doctrinal theories.  And our moral intuitions about individual cases must give way to general moral propositions–for normative theories.

    Second, we might think that the particular has priority, and that general theories are falsified if they conflict with individual cases.  On this view, the legally correct outcomes in individual cases are determined by the way that legal actors (e.g., judges) have treated those cases: if a general statement of the law (in a court’s reasoning or a statute) conflicts with particular judgment, then the general statement must be abandoned or qualified–for doctrinal theories.  Similarly, for normative legal theories, the priority of the particular implies that normative legal theory must answer to intuitions (or perhaps considered judgments) about particular cases.  This second view of the relationship between the general and the particular is sometimes summarized by the phrase, “the priority of the particular.”

    A Puzzle About Particulars in Legal Theory

    At this point, you might be thinking, “What is all the fuss about?” or “Why should we care about the priority of the particular?”  Particularism is a metatheoretical view–it goes to two highly abstract questions: (1) how are theories about law confirmed or validated?, and (2) what is the relationship between normative theorizing and normative perceptions, intuitions, or judgments?

    In moral theory, these questions are in the domain of metaethics; we might call the equivalent realm of legal theory “metajurisprudence.”  Lawyers and legal scholars rarely focus explicitly on these meta questions.  Even legal theorists rarely engage in systematic debate or discussion of this kind of question.  Nonetheless, there are some obvious puzzles about the relationship of particulars to general legal theories.  Consider the role of particulars (data or observations) in the empirical sciences.  If well-confirmed data conflict a scientific theory, there is a sense in which the theory is in serious trouble.  Of course, observation may be theory laden, and the interpretation of data is subject to revision.  But in some sense, we believe scientific theories are answerable to our particular beliefs about the world, and we don’t think it is good scientific practice to “revise the data” in order to “fit the theory.”

    But in legal theory, the data does not seem recalcitrant in quite the same way.  If we have a powerful normative theory, then perhaps our intuitions are in error.  If we have a doctrinal theory that fits most of the cases, then perhaps the rest of the cases are in error.  Perhaps, but this sort of revision is called into question by the priority of the particular.  Particularism suggests that our beliefs about individual cases are more reliable than our general theories.

    Pragmatism and Anti-Theory

    Particularism in legal theory may be related to another big idea–“pragmatism” or “legal pragmatism.”  Pragmatists tend to be skeptical about the value of big theories, and for that reason may be attracted to particularism.  A similar set of attitudes about the value of abstract theorizing underlies what is sometimes called “anti-theory.”  Perhaps we can do without general, abstract, and universal theories altogether.  A strong version of particularism would seem to imply some kind of anti-theoretical view–at least at the level of first-order normative, descriptive, or interpretive theories.

    Alternatives to Particularism: The Method of Geometry and Reflective Equilibrium

    What are the alternatives to particularism?  One possibility is what Rawls called “the method of geometry.”  We start with normative axioms, normative propositions that are self-evidently true.  In the case of descriptive legal theory, it seems obvious that this method faces difficulties, because it is not clear what the set of legal axioms would be.  Indeed, the idea of “description” seems to assume that our starting point must be actual legal particulars and not a set of legal axioms.

    The method of geometry seems more promising in the case of normative legal theory.  We would start with moral truths and then deduce the standards for normal evaluation of legal norms from those truths.  The difficulty with this method in a pluralist society is that the set of “moral truths” that are the subject of agreement may not be sufficiently rich to generate a normative legal theory that is both complete and capable of generating support.  For example, if we start with consequentialist axioms, deontologists will reject the theory–and vice versa.  Likewise, with religious and secular premises.

    Another alternative to particularism is the method of reflective equilibrium, which is the subject of a separate entry in the Legal Theory Lexicon.

    Conclusion

    The issues raised by the priority of the particular are deep ones, and this Lexicon post hardly limns their surface–much less resolves them.  If you are interested in these issues, there is a substantial literature on particularism in moral philosophy–that’s a good place to begin a more systematic investigation of particularism.

    Related Lexicon Entries

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    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 067: The Priority of the Particular

    (Last modified on March, 2024.)

  • Legal Theory Lexicon 066: Baselines

    Lawrence B. Solum

    Introduction

    Many undergraduates are likely to become acquainted with John Stuart and Harriet Mill’s famous harm principle at some point.  Here is how they stated the principle in On Liberty:
    The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

    The harm principle is itself a fascinating topic (perhaps for another Lexicon entry), but on this occasion, we are using it to ask the question: what constitutes harm to others?  Of course, we can all enumerate examples of harm.  Alice kicks Ben in the shin and bruises him.  Carla steals David’s lunch.  Eun Hee falsely accuses Arturo of plagiarism.  But all of these examples assume that we can distinguish the infliction of harm from something else–the denial of a privilege or advantage.  Gertrude denies Harry a job.  Ingrid decides not to invite Jim to her party.  Karl refuses to share his collection of vintage vinyl records files with Laurie.  Are these harms or not?

    The problem of distinguishing harm from denial of advantage or rights from privileges involves one of the most interesting concepts in legal theory–the notion of a baseline.  This entry in the Legal Theory Lexicon introduces the baseline problem.  As always, the Lexicon is aimed at law students, especially first-year students, with an interest in legal theory. 

    The Function of a Baseline

    A variety of important legal concepts are relative in the following sense: an action, event, or state of affairs falls under the concept by comparison to some alternative.  The Mills’s idea of “harm” has this property: an event is a “harming” only in comparison to some prior or alternative state of affairs.  A similar point could be made about “injury,” “advantage,” “benefit,” and similar terms.

    There is where the notion of a baseline comes in.  For example, we might use a temporal baseline to define harm: action X is a harm to individual P if and only if P is worse off after X and this change in welfare is causally produced by X.  This sounds plausible, but it isn’t difficult to cook up examples where this formula doesn’t match our intuitive understanding of harm.  Mary asks Nancy to repay a $10 loan, and Nancy agrees to do so. Nancy is worse off, but it isn’t clear that Mary has harmed Nancy–even though her request for payment is the cause of Nancy’s being worse off (financially) than she was before the request for repayment. A similar point could be made about advantage. Mary forgives Nancy’s debt. Nancy’s financial circumstances aren’t improved relative to a temporal baseline, but we might believe that Mary has conferred an advantage on Nancy. In both examples, the temporal baseline doesn’t capture our intuitive sense that the relevant baseline ought to be defined in terms of Mary and Nancy’s respective entitlements.

    Possible Legal Baselines

    So how could the law identify baselines?  Let’s just list a few possibilities:
    Positive Entitlements: The law could take one’s existing entitlements (as defined by the positive law) as the baseline for measuring legal harm or advantage.

    Common law: Another option would be to take the common law system of property, contract, and tort law as the definition of baseline entitlements.  Official actions that worsened an individual’s position relative to the common-law baseline could be defined as harms, and actions that bettered the common-law baseline could be defined as advantages.

    Natural rights: Yet another possibility would be the baseline could be defined by a theory of natural rights.  One such theory is offered by theories of the state of nature and the social contract.  The baseline of natural rights could be identified with those rights that would be retained by rational individuals who agreed to enter into civil society from a state of nature.

    Human rights: Another source of a baseline might be the bundle of entitlements identified by international human rights law.
    At this point, I’m sure that Lexicon readers will have recognized that the identification of a baseline can be crucially important to answering the question whether an injury has occurred.  If positive law identifies the baseline, then there are no injuries unless a legal entitlement is violated.  But if natural right sets the baseline, then there can be injury without violation of the positive law.

    Contexts in which Baselines Matter

    Baselines are important in a variety of contexts.  How do we distinguish offers from threats?  Nozick’s clever distinction is that a threat is an offer you would rather not receive, but underlying his point is the notion of a baseline.

    Baselines have played an especially prominent role in constitutional theory.  In that context, the baseline problem is strongly associated with Cass Sunstein, and especially with his analysis of the United States Supreme Court’s decision in Lochner v. New York.  As most readers of the Lexicon will know, the Supreme Court invalidated a New York statute that regulated the number of hours that could be worked by bakers on the basis of the due process clause of the 14th Amendment of the United States Constitution.  The statute was challenged on the basis that it deprived bakery owners of liberty.  The question is what determines the baseline.  Sunstein argued that the Court had erroneously assumed that the common-law provides a natural baseline, when in fact the system of common-law rights is itself a product of positive law and hence subject to redefinition by legislative action.  The following passage provides the flavor of Sunstein’s argument:
    The Lochner Court required government neutrality and was skeptical of government “intervention”; it defined both notions in terms of whether the state had threatened to alter the common law distribution of entitlements and wealth, which was taken to be a part of nature rather than a legal construct. Once the common law system came to be seen as a product of legal rules, the baseline from which constitutional decisions were made had to shift. When the Lochner framework was abandoned in West Coast Hotel, the common law system itself appeared to be a subsidy to employers. The West Coast Hotel Court thus adopted an alternative baseline and rejected Lochner era understandings of neutrality and action. (Sunstein, Lochner’s Legacy, p. 917)
    Of course, the system of common-law rights could be used as a baseline.  Sunstein’s point is that the common-law is not more “natural” than any other baseline derived from the positive law.

    One can imagine a variety of replies to Sunstein’s argument.  One possibility is to argue that the common-law system of rights does have some special status.  For example, it might be argued that common-law property, contract, and tort rights instantiate a system of natural rights.  Or it might be argued that the common law reflects deeply held and wide shared social norms that provide the content of a shared social sense of justice.  Whether arguments like this will succeed on the merits is certainly contestable, but for our purposes the important point is that baselines must be justified–they cannot just be assumed.

    Conclusion

    Concepts like harm, injury, advantage, and benefit are pervasive in legal theory.  Understanding these concepts requires an appreciation of the baseline problem.  The point of this Lexicon entry is to give the reader a basic understanding of what baselines are and how they can be challenged and defended.  Of course, there is much more to be said, and the bibliography provides some additional sources to investigate.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 066: Baselines

    (This entry was last revised on March 20, 2026. My thanks to Kenneth Simons for his comments.)

  • Legal Theory Lexicon 065: The Nature of Law

    By Lawrence B. Solum

    Introduction

    What is the nature of law?  This question has occupied center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurisprudence.  This entry in the Legal Theory Lexicon aims to give an overview of the “What is Law?” debate.

    Historically, the answer to the question, “What is law?,” is thought to have two competing answers.  The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice.  The modern answer is provided by legal positivism, which, as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

    Contemporary debates over the nature of law focus on a revised set of positions.  Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Scott Shapiro. There is another strand of legal positivism that is represented by Hans Kelsen; this version is very influential in Europe and elsewhere, but not as prominent in Anglophone legal philosophy.

    The natural law tradition is defended by John Finnis.  And a new position, interpretivism is represented by the work of the late Ronald Dworkin.

    In some ways, the title of this Lexicon entry is misleading, because of our focus on the “What is law?” question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law’s functions rather than the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

    This Lexicon entry maps the territory of the “What is Law?” controversy, and provides introductory sketches of the major positions.  As always, the Lexicon is written for law students, especially first-year law students, with an interest in legal theory.

    Natural Law Theory

    Natural law theory is strongly associated with classical and medieval thought, especially Aristotle, Roman jurisprudence, and St. Thomas Aquinas.  There are several challenges associated with the task of explicating natural law theory, and one of the most important tasks of this introductory entry is simply to identify these challenges.

    First, there are two interrelated but distinct views that are called “natural law theory.”  One is a view about the nature of morality: this view asserts that there are natural moral laws, and it is not essential to this view that it take any particular stand on the “What is law?” debate.  A second view that is called “natural law theory” is a theory about “law” as an institution or practice–that is the view that is implicated in the “What is law?” controversy.

    Second, contemporary understandings of “natural law theory” have been strongly influenced by the legal positivists critique.  When the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition.  When Holmes referred to a “brooding omnipresence in the sky” he was not offering a sympathetic or charitable reading of the natural law tradition.

    For the purposes of this broad overview, we might use the latin phrase lex injusta est non lex as a starting point.  Natural law theory could be understood as affirming something like the following:
    An unjust “law” is not a true law.

    This formulation differs from a literal translation–an unjust law is not a law.  Formulated in that way, natural law theory seems to be committed to a contradiction: something which is a law (but also is unjust) is not a law.  The quotation marks around “law” and the phrase true law make it clear that natural law theory is asserting something else, that something which might be called a “law” is not in fact a law if it is unjust.  Usually, this notion is accompanied by some explication of the characteristics that are required for status as a “true law,” a “focal case of law,” or perhaps “valid law.”

    Legal Positivism

    It is difficult to know where the positivist tradition begins.  Hobbes’s theory of law shares some characteristics with the theories offered by Jeremy Bentham and John Austin–both of them clearly in the positivist tradition.  Jeremy Bentham developed a very sophisticated version of legal positivism, but for a variety of reasons, the more influential and widely known view was that of Bentham’s student, John Austin, the author of The Province of Jurisprudence Determined (1861).

    Austin’s theory was that a given rule was a law if and only if the rule was the command of the sovereign to subjects of that sovereign backed by the threat of punishment.  A sovereign is some person or institution who is habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.

    Austin’s positivist theory does an excellent job of explaining the rules of criminal law, which forbid certain actions and impose punishments on those who engage in the forbidden actions.  But this theory has a difficult time accounting for other aspects of law, and especially for those rules that create legal powers, such as the power to create contracts, trusts, wills, and so forth.  This difficulty is most acute with respect to rules that define the basic institutional arrangements that define the sovereign itself, e.g., the rules of constitutional law in the United States.

    These deficiencies in Austin’s theory prompted H.L.A. Hart to develop a more sophisticated version of legal positivism.  One feature of that theory is the distinction between primary rules (which would include criminal prohibitions) and secondary rules (which allow for the creation, alteration, and termination of primary rules).  Hart replaced the notion of a sovereign with that of a rule of recognition–a social rule that specifies what counts as a law and what does not.

    Moral Facts, Social Facts, and Legal Content

    The contemporary approach to these issues is the product of almost sixty years of thinking within the tradition that is sometimes called “analytic jurisprudence.”  Beginning with the work of H.L.A. Hart in the 1950s, through its publication of The Concept of Law in 1961, and extending through Ronald Dworkin’s critique of Hart, and the reformulation of the positivist tradition by both Joseph Raz and Jules Coleman, the basic issues and questions have gone through several transformations.

    One useful way to get at the heart of these developments is to conceive of the debate about the nature of law as centrally concerned with the relationship between social facts, moral facts, and legal content.  Our question is “What determines legal content?,” where “legal content” is simply understood as the content of the legal norms.

    • One answer to this question takes the form: It is necessarily the case that only social facts determine legal content.  This is exclusive legal positivism–a view that is strongly associated with Joseph Raz.
    • A second answer to this question takes the form: It is possibly the case that moral facts determine legal content, but only if social facts give the moral facts this role.  This is inclusive legal positivism–and this view is most strongly associated with Jules Coleman.
    • A third answer to the question takes the form: It is necessarily the case that moral facts determine legal content.  This view would include natural law theory and interpretivism–the view that is strongly associated with Ronald Dworkin.
    • Legal Theory Lexicon 105: The Rule of Recognition (forthcoming)

    By framing the “What is law?” debate in terms of the relationship between social facts, moral facts, and legal content, we get a precise mapping of the conceptual space.  In the rest of this Lexicon entry, we will take a somewhat less shallow look at the three options.

    Not everyone accepts this way of framing the debate about the nature of law. Brian Leiter has argued against characterizing jurisprudential debates in terms of how “legal facts” are determined by “social facts” and “moral facts.” In his view, this framing distorts the historical debates in jurisprudence, which concerned legal validity rather than legal content, and imposes metaphysical demands that are both unmotivated and irrelevant to the important questions in the field. See Brian Leiter, Against the Metaphysical Turn in Recent American Jurisprudence, SSRN (forthcoming in From a Realist Point of View (Oxford University Press, 2026)).

    Inclusive and Exclusive Legal Positivism

    Exclusive legal positivism is the view that only social facts can determine legal content.  Joseph Raz famously argued for exclusive legal positivism based on the premise that law claims authority, that authority consists in displacing other reasons for actions, and therefore law must displace moral reasons for action.  (That was a very short and inadequate summary of a long and complex argument.)

    Inclusive legal positivism is the view that moral facts can play a role in determining legal content, but only if there are some social facts that give the moral facts this role.  For example, a constitution might include an clause that make a moral conception of human equality a legal rule.  This would give the morality of equality a role in determining legal rights, but this role would exist because a social fact (the Constitution) made it so.

    Contemporary Natural Law Theory

    The positivist critique of classical natural law theory resulted in a major restatement by John Finnis.  Finnis’s theory is subtle and complex and no thumbnail sketch can do it full justice, but for the purpose of the Lexicon, one of his ideas can serve to illustrate the flavor of his theory.  Finnis argues that the natural-law claim that an unjust “law” is not a true law can be explicated via the idea of the “focal meaning” of “law.”  This argument that concedes that unjust enactments are “laws” in a sense, but that the focal sense of “law” is limited to laws that are not unjust.  Finnis’s position has both critics and defenders, but his magisterial book Natural Law and Natural Rights is must reading for anyone interested in contemporary natural law theory.

    Interpretivism

    The final view is “interpretivism,” strongly associated with Ronald Dworkin.  For Dworkin, social facts, such as constitutions, statutes, and court decisions, do not directly determine legal content.  Instead, Dworkin believes that the content of the law is given by the theory that best fits and justifies the legal materials.  Dworkin makes this theory vivid by imagining a judge, Hercules, who is able to construct a grand theory of political morality that provides a constructive interpretation of the entire institutional history of a given society.  Because this theory is a theory of that institutional history, it is constrained.  For example, the best constructive interpretation of the institutional history of the United States will have to acknowledge that our federal legislature is bicameral and that it includes a Senate with equal representation of each state.  But this constraint does not require a perfect match between a literal interpretation of every legal text and the content of the law.  So some precedents may be categorized as mistakes, and some statutory or constitutional provisions may be given a constructive interpretation that makes them morally more attractive but does not follow every jot and tittle of the text.

    Conclusion

    This very brief introduction to the “What is law?” debate is necessarily incomplete and shallow.  But I hope that it gives you a general sense of the various positions that have been taken on the nature of law.

    Related Legal Theory Lexicon Entries

    Bibliography

    Resources on the Internet

    • John Finnis, Natural Law Theories, Stanford Encyclopedia of Philosophy.
    • Leslie Green, Legal Obligation and Authority, Stanford Encyclopedia of Philosophy
    • Leslie Green, Legal Positivism, Stanford Encyclopedia of Philosophy.
    • Andrei Marmor, The Nature of Law, Stanford Encyclopedia of Philosophy.
    • Nicos Stavropoulos, Interpretivist Theories of Law, Stanford Encyclopedia of Philosophy.
    • Brian Tamanaha, Law, Oxford International Encyclopedia of Legal History, 2008.
    • Brian Leiter, Against the Metaphysical Turn in Recent American Jurisprudence, SSRN (forthcoming in From a Realist Point of View (Oxford University Press, 2026)).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 065: The Nature of Law

    (This entry was last revised on February 25, 2024.)