Legal Theory Lexicon

  • Legal Theory Lexicon 064: Possibility and Necessity

    By Lawrence B. Solum

    Introduction

    What policy choices are feasible and which options are “pie in the sky,” “utopian,” or “politically impossible”?  What is “necessary” and what is merely “probable”?  The Legal Theory Lexicon includes two entries that deal with aspects of these questions, Legal Theory Lexicon 011: Second Best and Legal Theory Lexicon 062: Path Dependency.  In this post, we will investigate the concepts of “possibility” and “necessity.”  These ideas are ubiquitous in theoretical discourse, but they are rarely defined or explicated.  One way to get clear about possibility and necessity is via the powerful philosophical idea of a possible world, made famous by Leibniz and deployed in contemporary metaphysics by David Lewis, Saul Kripke, and others.

    As always, the Legal Theory Lexicon is aimed at law students, especially first year law students with an interest in legal theory.  Although “possible worlds” talk may sound complex, the core ideas and terminology can easily be mastered.

    Modality

    Before proceeding any further, we need to introduce two important terms, the adjective “modal” and its noun form “modality.”  These words are probably unfamiliar to anyone who wasn’t a philosophy major, but you may dimly recall that “could” and “must” are called “modal verbs” in texts on English grammar.  “Could” is a modal verb because it expresses possibility: if something could happen, it is possible.  “Must” is a modal verb because it expresses necessity: if something must happen, it is necessary.  When I use the word “modality” in this post, I am simply referring to the general concept that includes both necessity and possibility in all their forms.

    Possible Worlds Semantics

    The phrase “possible worlds semantics” sounds pretty intimidating, but it is really based on a very intuitive and simple set of ideas.  Possible worlds talk translates talk about possibility and necessity into talk about possible worlds.

    Begin with the notion of a possible world. This notion is similar to the notion of a “state of affairs,” which may be familiar from economics. The philosophical idea of a “possible world,” is understood as a complete history of a whole universe. If some thing is possible, say event X, we say that X occurs in some possible world. Complementary to the concept of possibility is the concept of necessity. Let us say that an event Y is necessary if Y occurs in all possible worlds; a proposition, p, is a necessary truth if it is true in all possible worlds.

    The next step is to add the notion of the “actual world,” where actual is an indexical term that separates this world from all possible worlds.  You may not be familiar with the idea of indexical terms.  “Here” is an indexical: its meaning is indexed to the place where the word is uttered.  Likewise, “now” is an indexical: Its meaning is indexed to the time the word “now” is uttered.  And when “actual” is used in the philosophical sense, its meaning is indexed to this possible world: the actual world is the possible world that we inhabit.

    Varieties of Possibility

    Now that we have the idea of a possible world in place, we can talk about different kinds of possibility.  For example, “logical possibility” requires only logical consistency, and, in the logical sense, possibility is rarely implicated by debates in normative legal theory.  That is because almost anything that legal theorists would care to talk about is logically possible: it is logically possible that the Constitution will be amended next year to abolish the Electoral College and eliminate the Senate, but no one thinks that these possibilities are even worth discussing as real world options in that time frame.

    Practical Possibility

    The notion that there are different types of possibility can be made very precise by using the notion of a possible world.  Let’s try to develop a concept of “practical possibility” that captures the claims made by legal theorists that same legal options are not in the feasible choice set.  We can do this by narrowing the set of possible worlds that are the domain of legal necessity in a series of steps.

    Each step can be expressed in terms of the idea of an accessibility relation. The phrase “accessibility relation” may sound obscure, but an example will make it crystal clear. For practical purposes, normative constitutional theory may sometimes only be interested in those worlds that are possible future states of the actual world. Such worlds share the history of the actual world up to this moment, and we call worlds that have this property “historically accessible” from the actual world.  Notice that talk about historical accessibility frequently can be translated into talk about “path dependency.”  The feasible choice set–the future choices that are possible–may be (or is) constrained by history.

    But “historical accessibility” is not a sufficient limitation for the purposes of normative legal theory. Why not? Because it is logically possible that the future states of the actual world could be just about anything you can imagine; there is no logical contradiction in a possible world that shares the history of the world up until now but in which the United States instantly becomes a parliamentary democracy at the next snap of Jeremy Waldron’s fingers. For the purposes of normative legal theory, we should restrict the domain of possible worlds to those that share the basic laws of nature (physics, etc.) with the actual world; these worlds are called “nomologically accessible.”  In nomologically accessible worlds, Waldron’s finger snaps do not produce constitutional revolutions. The historically and nomologically accessible worlds, then, are those that share the history of the actual world up to now and that share our laws of nature.

    At this point it is useful to introduce the idea of “distance” between the actual world and some possible world. Adjacent possible worlds are “close” to the actual world. A possible world that was just like the actual world, except that this entry in the Legal Theory Lexicon was never written, would be very close, i.e., adjacent, to the actual world.  Remote worlds are “distant” from the actual world. A possible world in which complete essays appear without effort, simply by wishing upon a star would be more remote. Even more distant worlds are easy to imagine. In ascending degree of remoteness, we can imagine a world in which the Mongols conquered Europe and the Renaissance did not occur, a world in which humans never evolved, or a world in which subtle variations in physical laws made the evolution of carbon-based life impossible.

    The possibilities that concern normative legal theory are primarily those that exist in historically and nomologically accessible possible worlds that are adjacent to the actual world. One set of accessibility relationships is especially relevant to legal discourse: these relationships concern human psychology, institutional capacities, social norms, and political attitudes. Some legal options will not work, given what is true about human psychology: they make unrealistic assumptions about what officials or citizens are capable of doing. Other legal options would require dramatic changes in social norms: their success relies on unrealistic assumptions about what citizens and officials believe is acceptable or unacceptable conduct. Some options make counterfactual assumptions about institutional capacities. And yet other legal options are politically infeasible: they presuppose political attitudes that only exist in possible worlds that are remote from the actual world.

    But normative legal discourse requires what we might call “normative space.”  That is, normative discourse assumes that minds can be changed and the attitudes are not entirely fixed. We can call worlds that conform to the laws of psychology and sociology but in which attitudes and beliefs are constrained but not fixed “psychologically and politically accessible worlds.”

    Practically Accessible Possible Worlds

    Sometimes normative legal theory has practical aims: it is concerned with how we should act in the actual world. Let us call those actions that change legal relationships or statuses in the actual world “legal practice.”  Legal practice is not concerned with historically and nomologically accessible possible worlds that cannot come into being given the limits on human choices. If there is nothing that any agent (individual, institutional, or collective) does in any historically and nomologically accessible world that brings a future state of the world about, then the future state is outside the feasible choice set. Let us call the worlds that are open to human choice in the sense just specified “practically accessible.”  A practically accessible world must be nomologically and historically accessible through human agency. Legal practice is, by stipulation, concerned with possible worlds that are practically accessible.

    Epistemological Accessibility

    One final accessibility relation requires a brief mention. We can distinguish between those worlds that are consistent with our knowledge of the actual world and those which are inconsistent with such knowledge. We can use the phrase “epistemologically accessible” to capture this idea. Worlds that are consistent with everything we know about the actual world are epistemologically accessible. Worlds that have a feature contradicted by our knowledge of the actual world are epistemologically inaccessible. Not all epistemologically accessible worlds are nomologically and historically accessible; there may be historical facts or natural laws of which we are unaware.

    The Feasible Choice Set

    We are now in a position to define the notion of a feasible choice set. A claim that a given legal option is outside the feasible choice set is a claim about constitutional practice, and hence a claim about which possible worlds are practically accessible. Usually, a claim that a given legal option is infeasible will rest (either explicitly or implicitly) on a claim about human psychology, anthropology, economics, sociology, or political science.

    For example, the claim that a constitutional amendment banning abortion is politically infeasible, if fully articulated, would rest on claims: (i) about the legal requirements for constitutional amendments, (ii) about beliefs and desires causally relevant to the motivations of constitutional actors such as congresspersons and state legislators, and (iii) about the beliefs and desires of citizens. Thus, the claim might be that, given the legal requirements, the motives of those whose assent is legally required for a constitutional amendment, and the attitudes of voters, a constitutional amendment banning abortion is impossible. In possible worlds talk, we might say that worlds in which such amendments become law are relatively remote from our own; in these worlds, political actors behave much differently or many citizens have different attitudes about abortion or the legal requirements for a constitutional amendment have been altered. This remoteness is the underlying reason for our judgment that such a constitutional amendment is outside the feasible choice set.

    Legal options that exist only in possible worlds that are either historically or nomologically inaccessible are outside the feasible choice set in a very strong sense. They cannot come about in a future state of the actual world given the natural laws that govern this world. Legal options that exist in historically and nomologically accessible worlds may nonetheless be only remote possibilities: they may depend on changes in beliefs, desires, or institutions that depend on unlikely contingencies. When such possibilities are sufficiently remote, we may say they are outside the feasible choice set, but if we speak in this way, we are using “feasibility” in a sense that diverges from historical and nomological possibility.

    Agent Relativity and Collective Action

    One more point about the feasible choice set is that it may be “agent relative.”  Consider again, the claim that a constitutional amendment banning abortion is infeasible.  When this claim is cashed out, the relevant kind of “possibility” is likely to hinge on the assumption that the beliefs and desires of certain agents are held constant.  Given political attitudes (as they currently exist in the actual world), such an amendment could not be ratified by the requisite three-quarters of the fifty state legislatures.  So from the point of view of particular political actors (e.g. an advocacy group), the constitutional-amendment option is outside the feasible choice set.  In other words, relevant to a particular agent (e.g., an advocacy group), the feasible choice set is constrained by the political attitudes of other agents.

    But now suppose that we are asking a different question: is a constitutional amendment possible for the collective agent that consists of the Congress and fifty state legislatures?  From the point of view of that agent, the same legal action (the constitutional amendment) is within the political choice set–it is within the set of options that it is possible for that collective agent to choose.  In other words, practical possibility can be “agent relative”–where a choice that is infeasible for one agent is feasible for another.

    I am sure that many readers of Legal Theory Blog will recognize that this aspect of legal possibility is related to what are called “collective action problems.”  For an example, see the Legal Theory Lexicon entry on the prisoners’ dilemma (Legal Theory Lexicon 007: The Prisoners’ Dilemma).  Some actions require cooperation between multiple agents, but if we make certain assumptions about the motivations of the needed cooperators (as rational choice theory does), then cooperation and hence the collective action may be outside the feasible choice set.

    Two Mistakes About Possibility

    The Mistake of Reducing Possibility to Cost

    Positive and normative law and economics provide powerful frameworks for thinking about the law and policy. Part of that power derives from a focus on costs and benefits. Frequently, we can understand and predict behavior by focusing on the expected costs and benefits of alternative actions. Sometimes, the action that is morally best is the action that accrues the greatest benefits or minimizes costs. If carried to an extreme, this focus on costs and benefits might lead to the conclusion that talk about possibility and feasibility can be reduced to talk about costs. We might come to believe that the sentence, “Outcome A is impossible,” can be reduced to, “Outcome A is too costly to be seriously considered.” Or “Choice B is not feasible,” might be equivalent to “Choice B is so costly that it should not be considered as an alternative.”

    Possibility cannot be reduced to cost for several reasons:

    First, some kinds of impossibility are unrelated to cost (in even the broadest sense of that term). The number of Senators apportioned to each state cannot simultaneously be equal and proportionate to population; given unequal population size, this would be a logical impossibility.

    Second, the attribution of costs to options is dependent upon a prior notion of possibility. Thus, if we say that option A entails the accrual of cost n, that assertion depends on the prior assumption that a state of affairs in which option A is chosen, but cost n is not accrued is not a possible state.

    Third, even when costs play a causal role in establishing impossibility, agent relativity differentiates between costs as factors to be weighed in decisionmaking and costs that make certain outcomes practically impossible. For example, if respecting the freedom of speech is costly in cases involving advocacy of terrorism, the Supreme Court (as a relevant constitutional agent) might take that fact into account. And in some circumstances, high costs might lead the court to view a given constitutional rule as “infeasible.” But this is quite different from the court reaching the conclusion that compliance with a rule would be impossible, because the costs associated with compliance would be too large for the affected governmental entity to bear. In the first case, the costs are factors to be weighed in making the decision. In the second case, the costs are causal influences that determine which outcomes are possible from the point of view of the Court.

    The Mistake of Reducing Possibility to Probability

    Another tempting error is to equate possibility and probability. Possibility is normally understood as a binary function. An action, outcome, or event is either possible or impossible—once we specify the “sense of possibility” or, more technically, the accessibility relationships that define the relevant set of possible worlds. Probability, however, is a scalar: a given outcome may be “more or less likely” or, more formally, its probability may assume any real value from 0 to 1. The tempting mistake is to equate “possible” with “probability greater than zero” and “impossible” with “probability equal to zero.” Given this move, an even more serious error becomes tempting: one might then say that assertions of “impossibility” are actually assertions of “extreme improbability,” with the consequence that the concept of impossibility would turn out to be confused or mistaken. But the equation of possibility and probability is, in fact, based on conceptual confusion. The nature of the error is easiest to see in the case of logical possibility. It simply does not make sense to assert that it is merely improbable that the following two statements are both true: (1) this article was written entirely in the twenty-first century, and (2) this article was not written entirely in the twenty-first century. It is logically impossible that both statements are true, and the concept of improbability has no application to this kind of case. If someone were to assert the following: “The probability of both statements being true is zero,” we would understand that they were using probability in a figurative or metaphorical sense. There may be cases where “impossible” means “probability of zero,” but not all cases are like this. In some cases, talk of probabilities is simply inappropriate.

    Avoiding Double Standards

    One last point before we conclude.  Arguments about legal possibility should avoid double standards. That is, if one argues against a legal alternative on the ground that it is outside the feasible choice set, then one is obligated to show that the preferred option or options are inside the set—on the basis of the same criteria and in light of available evidence.

    The possibility of a double standard can be illustrated by reference to a hypothetical dispute between advocates of constitutional originalism and Dworkin’s view of law as integrity. Originalists might claim that their approach is superior because it provides objective standards for correct constitutional interpretation. A Dworkinian might attempt to refute this claim by arguing actual judges are incapable of discerning the original public meaning of the Constitution; in the actual world, the argument might go, judges and justices lack both the historical chops and the capacity to set aside their own preferences. But if the Dworkinian (or quasi-Dworkinian) were then to appeal to Dworkin’s ideal judge, Hercules, when the feasibility of law as integrity was assessed, a double standard would have been imposed. In the actual world, the same judges who lack historical chops may lack Hercules’s capacity to construct the theory that best fits and justifies the law as a whole; in the actual world, the same biases that distort originalist judges could distort the method of law as integrity. Of course, we can easily imagine that the tables are turned and that it is the originalists who deploy a double standard.

    Conclusion

    The concepts of “possibility” and “necessity” do a lot of work, but legal theorists frequently make arguments about feasibility without a theory.  This leads to confusion and creates the possibility of double standards.  The aim of this entry in the Legal Theory Lexicon has been to give you the tools to think clearly and consistently about legal possibilities.

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    Legal Theory Lexicon 064: Possibility and Necessity

    (This entry was last revised on March 24, 2026.)

  • Legal Theory Lexicon 063: Interpretation and Construction

    By Lawrence B. Solum

    Introduction

    Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex.  What does the text mean?  How does that meaning translate into legal doctrine?  And how does the doctrine apply in the context of the facts of the case?  One way to think more clearly about this process is to distinguish between interpretation and construction.  We can roughly define these two activities as follows:

    • Construction: The activity of determining the legal effect (or legal content) of a legal text.

    Those definitions sound pretty technical, but I hope you are starting to get the idea.  We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.

    Courts and legal theorists use the distinction between interpretation and construction in a variety of legal contexts, including contract law and constitutional law.  In a contracts case, for example, the Iowa Supreme Court stated, “Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect.” Fashion Fabrics of Iowa v. Retail Investment Corporation, 266 N.W. 2d 25 (Iowa 1978).

    This introduction to the interpretation-construction distinction is aimed at law students (especially first year law students) with an interest in legal theory.

    Some Background Concepts

    Before we get back to interpretation and construction, it may be helpful to clarify some of the background concepts and ideas.  We can begin with the idea of meaning itself.
    Meaning

    What does the word “meaning” mean?  This question (which may sound pedantic) is actually incredibly important, and a good deal of confusion can be avoided if we are careful about the way we use this slippery word.  Consider the following senses of the word meaning:
    Linguistic meaning  The primary sense of “meaning” is used in expressions like, “What does that word mean?” or “What did he mean by that?”  In this sense, when we ask what a constitutional or statutory provisions means, we are asking for its semantic content.

    Teleological meaning

    But sometimes we use the word meaning in another sense.  When we ask for the meaning of a statute, we can be asking why the statute was enacted?  When someone says, “by passing that statute, Congress meant to benefit the construction industry,” they are not referring to the semantic content of the statute, they are referring to the purpose or teleological meaning of the statute.

    Applicative meaning  Lawyers sometimes use meaning in a third sense, to refer to the implications that a legal text has for a particular case.  “What does the Second Amendment mean for my client?”–this question is not about the semantic content or the purpose of the statute, it is about the way the statute will apply.

    Back to the interpretation-construction distinction for just a moment.  Interpretation is about meaning in the linguistic sense.

    Vagueness and Ambiguity  The interpretation-construction distinction is closely connected to another distinction–between vagueness and ambiguity.

    There is an entry in the Legal Theory Lexicon on vagueness and ambiguity so I will be very brief here.  A word, phrase, sentence, or clause is ambiguous if it has more than one sense: for example, the word “cool” is ambiguous because it can mean (a) hip, (b) of low temperature, or (c) of even temperament.  A word or phrase is vague when it has borderline cases: for example, the word “tall” is vague, because there is no bright line between those individuals who are tall and those who are not.  The same word can be both ambiguous and vague in one of its senses: cool is ambiguous and each sense of cool is vague.

    Sometimes legal texts are vague.  Sometimes they are ambiguous.  Sometimes they are both vague and ambiguous.  And sometimes they are neither vague nor ambiguous.  For example, the provision of the United States Constitution that gives each state two senators is neither vague nor ambiguous: in context, neither “two” nor “Senator” is ambiguous.  And Senators come only in whole numbers, so “two” is not vague.  But many provisions of the constitution are vague: What constitutes an “infringement” of “freedom of speech”?

    Characteristically, interpretation resolves ambiguity and construction creates subsidiary rules that resolve vagueness.  Why?  

    Interpretation resolves ambiguity, because it is usually the case that there is a linguistic fact of the matter about the semantic meaning of a text that is ambiguous.  For example, the phrase “domestic violence” is used in Article I of the United States Constitution: does it mean “spouse abuse” or “riot, rebellion, or insurrection”?  In context, it is clear that the linguistic meaning of “domestic violence” was the latter and not the former.

    Construction resolves vagueness, because interpretation cannot do that work.  When a word or phrase has a linguistic meaning that is vague, then interpretation has done all the work it is capable of doing.  At that point, what we need is a construction that allows us to draw a line (making the vague provision more specific) or that gives us a decision procedure (allowing case-by-case resolution of the vagueness).

    One point of clarification is important.  Although ambiguity is typically resolved by interpretation and vagueness by construction, both interpretation and construction are always involved in the process.  We determine linguistic meaning when we conclude that it is vague.  Once an ambiguous text has been clarified by interpretation, we still need to engage in construction (giving the text legal effect) in order to apply the text to a particular case.  Interpretation and construction are two moments (or stages) in legal practice.

    What Work Does the Interpretation-Construction Distinction Do?

    Is this interpretation-construction distinction really necessary?  What work does it do?  Does the distinction reflect a real and fundamental difference between different modes of legal practice?

    One way to think about these question is to imagine what things would look like if we didn’t have the interpretation-construction distinction.  What if we called everything “interpretation” and didn’t recognize construction as a distinct activity?  Well, we could reinvent the distinction within the concept of interpretation.  You can imagine talking about two stages of interpretation–stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction.  But if we did that, we would simply be using different labels to refer to the same concepts.

    So let’s do a thought experiment that involves our failing to distinguish between the linguistic meaning and legal effect of legal texts.  Judges and legal theorists have actually done that (so I guess it isn’t really a “thought experiment).  For example, Allan Farnsworth once wrote, “[Courts] have more often ignored [the interpretation-construction] by characterizing the process of ‘construction’ as that of ‘interpretation’ in order to obscure the extent of their control over private agreement.”  If courts deliberately ignore the distinction in order to make their role opaque rather than transparent, then legal theorists can deploy the interpretation-construction distinction in order to expose what is really going on.  (There is a Legal Theory Lexicon entry on transparency.)

    But sometimes courts run interpretation and construction together without any awareness of the what they are doing.  That is, the court may not realize that there is a difference between the inquiry into the linguistic meaning of a legal text and the creation or application of subsidiary rules that translate the semantic content into legal content.  When courts (or legal theorists) are confused in this way, it is not surprising that their reasoning is likely to be confused or incoherent.  On the one hand, they may try to squeeze constructions out of linguistic facts.  On the other hand, they may try to reach conclusions about the actual linguistic meaning of a text on the basis of policy considerations.  (Making the egregious error of arguing for the existence of a fact from its desirability.)  When this happens, the interpretation-construction distinction allows the legal theorist to step in and reconstruct the arguments so that they make sense (or if they don’t, then in a way that exposes the error).

    So is the interpretation-construction distinction real and significant?  Of course, it isn’t the particular terminology that matters, but the substance of the distinction is not something that legal theorists can do without.  The linguistic meaning of a legal text and the content of legal rules are really two different things.

    History of the Interpretation-Construction Distinction

    My impression is that many legal scholars believe that the interpretation-construction distinction was introduced by Keith Whittington and popularized by Randy Barnett as part of the emergence of the “new originalism” in the late 1990s.  The distinction did play an important role in the emergence of one strand of the new originalism–more on that in a moment.  But the distinction is an old one in American legal theory, going back to the first half of the Nineteenth Century in the work of Franz Lieber and playing an important role in the work of Arthur Corbin in the Twentieth Century.  Greg Klass has done important work on the history–some of which is linked to below.

    The Interpretation-Construction Distinction and the New Originalism

    One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called “New Originalism.”  One way in which the “New Originalism” may be new is that it embraces the interpretation-construction distinction.  (This is especially clear in the work of Keith Whittington and Randy Barnett.)  The “Old Originalism” focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation.  Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work.  New Originalists deny that this is true.  They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene.

    Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the “construction zone” where the linguistic meaning of the Constitution underdetermines results.  We might call the view that original meaning and a living constitutionalism are consistent “compatibilism”–the case for this view has been made by Jack Balkin.

    This also suggests the possibility that continued appeals to “original intentions” or “original expected applications” beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning.  Some originalists who resist compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction.

    This is just one example of the interpretation-construction in action.  It is relevant in a number of other doctrinal contexts, including contract law, trusts and wills, and the theory of statutory interpretation and construction.

    Theories of Constitutional Construction

    Once the construction zone is identified, a further question arises: what principles should guide constitutional construction? Several approaches have been proposed.

    One influential approach is developed by Randy E. Barnett and Evan D. Bernick in The Letter and the Spirit: A Unified Theory of Originalism. Barnett and Bernick argue that judges stand in a fiduciary relationship with the citizenry and are therefore bound to engage in good-faith construction. Good-faith construction requires identifying both the Constitution’s letter—its original public meaning—and its spirit—the original function or purpose of its particular provisions. A judge must then devise implementing rules that give effect to both. Bad-faith construction, by contrast, opportunistically exploits the discretion inherent in constitutional implementation to evade the original letter or spirit in pursuit of the judge’s own extraconstitutional preferences.

    A second approach proposes a default rule of deference to the political branches. On this view, when interpretation cannot fully resolve a constitutional question—when the text is vague or otherwise underdeterminate—courts should defer to Congress or other democratically accountable institutions rather than supply their own policy choices. This approach draws on the work of James Bradley Thayer, who argued that courts should invalidate legislation only when it is clearly unconstitutional. Applied to the construction zone, Thayerian deference treats legislative judgment as the default rule when original meaning runs out. This view raises important questions about the scope of deference and its relationship to the judicial role.

    For extended discussion of these and other approaches to constitutional construction, see Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).

    Conclusion

    Once you become aware of the interpretation-construction distinction, you will begin to notice its ubiquity and subterranean quality.  The distinction is ubiquitous, because the law in theory and practice is almost always about the application of legal texts to particular cases.  The distinction is subterranean, because of the failure of theorists, judges, and lawyers to observe the distinction, with resultant deception or confusion.  With the distinction at hand, your own thinking about the law can become clearer and more transparent, and you possess a powerful tool for understanding or criticizing the work of others.

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    (This entry was last modified on February 11, 2024.)

  • Legal Theory Lexicon 062: Path Dependency

    By Lawrence B. Solum

    Introduction

    The phrase “path dependency” is used to express the idea that history matters–choices made in the past can affect the feasibility (possibility or cost) of choices made in the future.  This entry in the Legal Theory Lexicon introduces this idea to law students, especially first-year law students, with an interest in legal theory.

    The General Idea of “Path Dependency” 

    The general idea of path dependency is that prior decisions constrain (or expand) the subsequent range of possible or feasible choices.  That is, a decision, d, made at a time, t1, may affect the choice set, S = (c1, c2, . . . cn) at t2.  We can define a choice set as a set of actions that a given agent could take.  Or to expand the path metaphor, if we imagine a network of paths through time, from past to future, decisions to branch at an earlier point on the chosen path may affect the destinations that one can reach from a later point on the path.  Sometimes, if we choose the left fork, we may be able to reach exactly the same destinations we could have reached via the right fork, but sometimes, our choices foreclose some possibilities altogether.  It isn’t always the case that in the long run, there’s still time to change the road you’re on.

    The notion of path dependency is associated with the discipline of economics and also with political science.  In the context of economics, there is a tendency to associate “path dependency” with effects on the costs of various options.  But the phrase “path dependency” can be (and is) used in a more general sense–to encompass the ideas of feasibility and possibility.  The terminology doesn’t matter for its own sake, but it is important to be clear about the meaning of the phrase when discussing the ideas that are called “path dependency.”

    Specifying Path Dependency

    This general notion of path dependency can be specified in various ways–(1) by the type of effect, (2) by causal mechanisms, and (3) by remediability.   Each of these ideas requires further explanation.

    The Type of Effect First, we can specify the type of effect that d1 has on the choice set.  One type of effect is an effect on which actions are members of the choice set.  Thus, by making a decision d at t1, the resulting choice set at t2 would have members c1, c2, and c3, but if the decision had been d′ (d prime), then the choice set at t2 would have members c1, c3, and c4.  In this illustrative case, making decision d rather than d′ both added and subtracted from the choice set at t2.  Another type of effect is an effect on the costs associated with the actions that are members of the choice set.  That is, decision, d, might result in the price of a given choice P(c1) being greater than that price would have been if an alternative decision, d′, had been made.  Notice, however, that if we include price in the specification (or description) that designates a choice, then the second type of effect (that is, cost effects) are reducible to the first type of effect (possibility effects).

    What Causal Mechanisms?  A second way in which we can specify the general notion of path dependency is to describe the causal pathway by which decisions affect future choices.  On the one hand, one might use the phrase “path dependency” to refer to all causal mechanisms.  On the other hand, we could reserve the phrase for a specific type of causal mechanism.  For example, Paul Pierson has suggested that the notion of path dependency should be limited to what he calls “positive feedback.”  Positive feedback (or self-reinforcement) involves the idea that as time progresses, the relative benefit of maintaining some feature of the system (and hence the relatively costliness of modifying or eliminating that feature) increases.  Once a constitution has been adopted and gone into effect, it becomes more costly to adopt a different constitution.  Once a federal system has been created out of sovereign subunits, it becomes more costly to eliminate the federal (or national) government.  Once a judicial precedent has been established and relied upon, the costs of reversal grow.

    Remediable and Nonremediable Path Dependency  A third way in which we can specify the idea of path dependency is by differentiating between “remediable” and “nonremediable” path dependency.  Path dependency is remediable if there are some points on the path at which there is an alternative decision, d′, such that if the decision had been d′ rather than d, the outcome would have been better (relative to some goal or criteria for evaluation).  Path dependency is nonremediable if no alternative could have improved the outcome.  For the idea of nonremediable path dependency to be plausible, we must assume that we are talking about particular choices in relationship to particular consequences within some time frame.  Thus, the framers’ decision to create equal suffrage in the Senate might be nonremediable with respect to the goal of establishing majoritarian democracy if all of the alternatives (say, vetoes of national legislation by a single state governor) had been worse with respect to this goal.

    Applications in Normative Legal Theory

    Path dependency interacts with legal theory in a variety of ways.  One simple example–stare decisis–is described by Oona Hathaway:

    Path dependence theory is relevant to the common law system for a simple reason: the doctrine of stare decisis. Under the doctrine of stare decisis et non quieta movere–“let the decision stand and do not disturb things which have been settled” –decisions of higher courts are controlling in subsequent cases involving similar circumstances.  Courts also give their own prior decisions great weight, though they are not strictly bound to follow their own precedents.  Furthermore, even when decisions of other courts are not explicitly binding, they can provide persuasive authority.  Judges who follow the doctrine thus generally apply decision rules that entail explicit reliance on earlier choices and thereby generate path dependence.

    Another example is provided by a recent article by Lucian Arye Bebchuk and Mark J. Roe.  They argue that initial decisions made about the form of corporate organization create path dependencies–making changes in form more costly or infeasible.  And a final example is provided by Article V of the United States Constitution.  Article V makes amendment difficult by subjecting amendments to a supermajoritarian process of proposal and ratification.  Once the Constitution of 1789 had been adopted and gained legitimacy, “path dependency” made substantial changes without supermajority support infeasible.

    Conclusion

    The idea of path dependency is now a familiar one to many legal theorists, but its use in academic legal discourse is frequently vague or ambiguous.  I hope this brief introduction will give you a more precise sense of what is meant by “path dependency.”

    Related Lexicon Entries

    Online Resources

    Bibliography

    • Lucian Arye Bebchuk & Mark J. Roe, A Theory of Path Dependence in Corporate Ownership and Governance, 52 Stan. L. Rev. 127 (1999).
    • Taylor C. Boas, Conceptualizing Continuity and Change: The Composite-Standard Model of Path Dependence, Journal of Theoretical Politics 19(1): 33-54 (2007).
    • Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601 (2001).
    • Lewis A. Kornhauser, Modeling Collegial Courts I: Path Dependence, 12 International Review of Law and Economics 169 (1992).
    • S.J. Liebowitz & Stephen E. Margolis, Path Dependence, Lock-In, and History, 11 J.L. Econ. & Org. 205 (1995).
    • Paul Pierson, Increasing Returns, Path Dependence, and the Study of Politics, 94 American Political Science Review 251 (2000).
    • Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton University Press 2004).
    • William H. Sewell, Three Temporalities: Towards an Eventful Sociology, The Historic Turn in the Human Sciences 262-63 (Ann Arbor, University of Michigan Press 1996).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 062: Path Dependency

    (This entry was last revised on February 4, 2024.)

  • Legal Theory Lexicon 061: Feminist Legal Theory

    By Ann Bartow

    Introduction

    A while back Larry Solum asked me to write a short post about feminist legal theory for his excellent Legal Theory Blog. What follows is a brief (though longer than it probably should be) overview of this scholarly subject area. With two exceptions, I don’t mention any feminist legal theorists by name, but at the very end there are links to several feminist legal theory bibliographies.

    Most feminist legal theory starts, at least implicitly, with the belief that women are not treated the same as men are by the law or by legal actors. Women should be treated equally to men because we really are not very different, in terms of our hopes and dreams and desires and abilities. Women are in some ways different from men, but those differences are not weaknesses or deficiencies, and when the law accounts for them correctly, this promotes broadly accepted notions of justice and equality.

    In her book “The Second Sex,” feminist philosopher Simone de Beauvoir explained the concept of “woman as other,” writing that “humanity is male and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being.” Feminist legal theory acknowledges the “otherness” of women by recognizing that laws are made, interpreted and enforced by men, and for men. When the justicial interests of women and men are conterminous and congruent, that isn’t problematic for women, but when they are not, it is. Feminist legal theory seeks to identify ways in which the legal system treats women less favorably than men, and to recommend remedial legal reforms.

    Subject Areas

    The most important writings and practical applications of feminist legal theory have primarily occurred in the family law, criminal law, reproductive rights, and employment law arenas. These areas of the law tend to have the most immediate and extensive relationships to the general population of women. Important theoretical feminist work has also been done in legal disciplines such as property law, tax law, and corporate law. Eventually there will be multiple feminist critiques of every legal subject area.

    Four Analytic Approaches: Equality, Difference, Dominance, and Intersectionality

    To prevent this from becoming The Never Ending Feminist Legal Theory Blogpost, I’m going to greatly oversimplify a very rich and diverse field by breaking feminist legal critiques down into four categories. I warn the reader that while the categories are defined quite broadly, they still probably fail to capture important strains of feminist legal thought. None of these categorical approaches is mutually exclusive, but there are times when independently applying various approaches to a particular issue will lead to oppositional outcomes.

    Equal Treatment The first category of feminist legal theory concerns itself with equality. It attacks laws that explicitly treat women differently than men, and recommends laws that promulgate change in social policies or practices that put women in inferior positions. Examples: “Equal pay for equal work” was a very powerful rallying cry when women with identical skills and responsibilities were paid less than identically situated men, and laws like the Equal Pay Act of 1963 made a tremendous positive impact on the lives of working women. Reflecting on far more ancient history, feminist legal scholars know that women were not “given” the right to vote, they had to fight very hard for passage of the Nineteenth Amendment, which states in pertinent part: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

    Attaining the right to own property was also an important “equality” triumph, and in some ways a battle that is still being fought, as women are still discriminated against by landlords, by mortgage lenders, and in myriad other ways that affect our ability to acquire and possess property so that we can live independently. Future equality battles will likely address issues like the status of women in the military, and practices in the medical and insurance industries.

    Recognition of Difference The second category of feminist legal theory addresses ways in which the legal system intersects with cognizable differences (both biological and socially constructed) between women and men. “Difference” feminist legal theory critiques facially neutral laws that affect women and men disparately, and recommends laws that ease the burdens that gendered expectations place on people, usually to the detriment of women.

    Examples: Laws against pregnancy discrimination are an obvious example of legislation that is specifically related to gender differences. The “comparable worth” approach to pay equity posits that the law should guarantee equal pay for comparable as well as equal work, to accommodate the fact that many occupations are highly segregated by gender. The fact that because they are “different,” women may choose certain occupations over others, one argument goes, shouldn’t condemn them to lower salaries if they are working just as hard and skillfully as if they were in male dominated professions with higher pay scales.

    The Sometimes Symbiosis of “Equality” and “Difference” The “equality” and “difference” approaches to feminist legal theory are sometimes described as being in tension with each other, but I think that concern is exaggerated by people who feel threatened by the idea of making women a more explicit focal point of the legal system. There are certainly people who describe themselves as “equality feminists” who assert that once all laws are facially neutral, the work of feminism is done, but few feminist legal theorists take this position. Nor I am aware of any “difference” proponents, legal scholars or otherwise, who assert that all laws need to explicitly take account of differences between women and men. Many feminist legal scholars adopt a blended approach, believing that for women to achieve true and meaningful equality, sometimes the law needs to treat women and men as equals, and other times it needs to acknowledge and control for differences related to gender.

    Dominance and Subordination The third categorical feminist legal approach is that of dominance theory. It recommends stepping back from scrutiny of individual laws and social constraints, and viewing the entire legal system as an overarching mechanism of dominance and subordination. This returns us with a vengeance to the concept of “otherness” articulated by Simone de Beauvoir. In her 1984 essay, “Difference and Dominance: On Sex Discrimination,” Catharine MacKinnon asserted that to treat issues of sex equality as issues of sameness and difference was to take an approach that concealed the substantive way in which men were the measure of all things, writing:

    Under the sameness standard, women are measured according to our correspondence with man, our equality judged by our proximity to his measure. Under the difference standard, we are measured accord8ing to our lack of correspondence with him, our womanhood judged by our distance from his measure. Gender neutrality is thus simply the male standard, and the special protection rule is simply the female standard, but do not be deceived: masculinity, or maleness, is the referent for both. Think about it like those anatomy models in medical school. A male body is the human body; all those extra things women have are studied in ob/gyn. It truly is a situation in which more is less. Approaching sex discrimination in this way – as if sex questions are different questions and equality are sameness questions – provided two ways for the law to hold women to a male standard and call that sex equality.

    Under the dominance theory approach, when a law has differential effects on the binary gender categories of “female” and “male,” this is an exercise of power, a way in which women are subordinated to men. Limiting activism to changing discreet laws means all that can realistically be achieved by women is less inequality in targeted contexts. Fighting male dominance in any substantive way requires working for political changes that invest women with equal power in all aspects of social life.

    Anti-Essentialism and Intersectionality Finally, the fourth category can be described as either the “anti-essentialist” or “intersectionality” approach to feminist legal critique. This approach rejects the idea that gender issues in the law can or should be considered in isolation. Because in real life women can not be stripped down to an “essential” assortment of gender characteristics, legal analysis shouldn’t attempt this either. Other human attributes such as race and sexual orientation inseparably intersect with gender in the physical world, so the anti-essentialist approach demands that they always be considered together with gender in theory as well as practice. It also strongly encourages conterminous consideration of issues like class and religion, which, while not as legally immutable as race and gender, are viewed as having important connections to gendered constructs that should inform and animate feminist legal theory.

    Feminist Legal Theory and the Power of Personal Experiences

    One important tool of feminist legal theory is the use of personal narratives. Personal narratives sometimes get written off by anti-feminists as self-serving stories of little consequence, up until they point that they are immortalized in appellate opinions, when they suddenly become Important Statements of Law. Feminist legal theorists recognize the importance of personal stories to the project of identifying gender-related problems that are caused by the legal system, or that could be improved by the legal system. One oft invoked feminist phrase is that “the personal is political,” which for feminist legal theorists means that lurking within personal narratives are important political issues that are or can be affected by laws. When women began telling personal stories about bosses who groped them or demanded sexual favors, quid pro quo sexual harassment emerged as a political issue with a legal solution. When individual women began talking about experiences with sexual abuse, among other things an understanding that rape laws required reform emerged. Sharing stories reveals that women have many common experiences, and knowing that “it’s not just me” can be validating and empowering for women who feel disadvantaged or oppressed by gender-related issues.

    Quilts

    My scholarly specialty is intellectual property law, which is comprised of three discreet areas: Copyright law, patent law, and trademark law. Cyberspace law sometimes gets thrown in for good measure as well, since so many legal issues on the Internet involve some facet of intellectual property law. Using the personal narrative format, I will try to illustrate the categories of feminist legal theory I set out above, and I will do this by talking about quilts.

    Quilting is a largely female identified art form that does not mesh well with copyright law because quilts are functional, rather than being merely decorative; because quilters use a lot of repetition, such as a particular pattern to represent a wedding, or to symbolize the birth of a child, and these features are intentionally echoed (indeed “copied”) in many later quilts; and because quilts are often designed and executed by amorphous groups (e.g. during “quilting bees”) rather than by a single heroic author. Congress has never attempted to write a provision of the Copyright Act that was specifically applicable to quilts, even though it has done so for many other discreet art forms, categories of writings, and specific technologies. Is this because quilting is viewed as unimportant? And if so, is quilting viewed as unimportant because it is perceived to be the provenance of women? These are the sorts of queries feminist legal theory raises. The equality approach might ask whether there were “male identified” art forms that are similarly ignored by copyright law. The difference approach might ask whether women are better served by keeping copyright laws away from quilting. The dominance approach might ask why women were quilting at all, instead of using their time and talents to pursue more lucrative and culturally respected art forms. The intersectionality approach might ask whether women of particular races or economic classes quilted more than others, and if this could be part of the explanation for why copyright law ignored quilts.

    I would initially try to use all these approaches to analyze the interplay (or lack thereof) of quilting and copyright law. However, if I wanted to do more than describe the situation, I’d have to recommend either a change in the law, or a change in the way courts apply and interpret current law. This would require me to favor one theoretical approach over the others, based on what I though the superior normative solution was.

    Because I believe that a “low barriers” approach to copyright law is best, I’d be reluctant to recommend adding a specific quilting provision to the Copyright Act if it meant that quilters could more easily assert copyright claims against each other. This would degrade the quilting culture of copying and group authorship that strikes me as socially valuable, so I would reject an “equality” approach that made quilting “equal” to drawings and sculptures. In doing so I would be embracing the “difference” approach, because my views clearly reflect a belief that quilting is different in part because it is women identified, and these differences are beneficial, so the law should preserve them. However, by reifying difference in this manner, I might also be condemning quilting to second class status. It is certainly possible that if the copyright laws treated a quilt more like an oil painting, society might follow suit, and this would elevate the social and economic status of quilters. Valuing “difference” too greatly might preclude this.

    Applying dominance theory would require me to recognize that women may turn to quilting because they are subordinated by men who deny them access to other creative outlets. It would therefore make more sense to devote resources to reducing impediments to women’s full participation in the fine arts, rather than simply attempting to amend the Copyright Act on behalf of quilting. One problem with this approach is that quilters may be deeply offended, and wonder why what they do is not being valued. Some will question whether the merits of quilting are being disregarded because quilting is so closely aligned with women: Is quilting getting short shrift because it has “girl cooties”? Others will ask whether, because they prefer quilting to oil painting, they are being accused of “false consciousness,” meaning they are assumed not to recognize that by quilting rather than pursuing other artistic endeavors, they are complicit in their own oppression. I struggle with all this, because while I recognize that framing the world in terms of dominance and subordination tends to abrade the sensitivities of many women, it also seems intuitively correct to me. When I visit a major museum and notice that only a tiny fraction of the exhibited works have been created by women, I don’t blame quilting. I love well made handmade quilts, and I know that producing them requires a lot of specialized effort and skill But I also recognize that the artistry responsible for them might have been channeled into more “museum worthy” forms of artistic expression if the talents and skills of women had been nurtured and developed for centuries along with those of men. It is very difficult to reassure quilters that you value and appreciate their work, while simultaneously asserting that quilting is a symptom of subordination. How can upsetting and offending quilters possibly forward the goals of feminism? It’s a very hard question, and one that reappears in some form or another every time dominance theory is applied to social phenomenon. The intersectionality approach requires me to consciously stop thinking about quilting from a white, middle class perspective and do some research about the role of quilting in the artistic, social and economic lives of women of difference races and in different economic groups than my own. If I specifically determine that the importance of quilting to (for example) poor women is greater than it is to more affluent women, I need to make sure my analysis, and any recommendations I make, take this into consideration. Maybe this means that I will recommend legal changes that would privilege quilt makers (who are mostly women) over quilt sellers (who may be mostly women), and also over quilt buyers (who may also be mostly women). Thinking about the relationships and conflicts between various groups of women can be difficult, but it is also both worthwhile and necessary. While it is certainly possible that if we took over the world, women would start acting just like men, I hold out hope (quite possibly “essentialist” hope, if truth be told) that we could do a bit better, and intersectionality theorists remind feminists that our true project is to build a better world for all women, not just ourselves.

    Bibliographies Compiled By Others

    External bibliographies of books and articles about feminist legal theory include:

    http://www.rdg.ac.uk/law/femlegalnet/index.htm

    http://www.library.wisc.edu/libraries/womensstudies/core/crlaw.htm

    http://72.14.209.104/search?q=cache:kI-ZMIaWIQ4J:library.law.pace.edu/research/flt.doc+feminist+legal+theory+bibliography&hl=en&gl=us&ct=clnk&cd=8&client=firefox-a

    http://www.cddc.vt.edu/feminism/law.html

    http://www.library.ucsb.edu/subjects/blackfeminism/soc_legaltheory.html

    (Entry last revised on February 1, 2009.)

  • Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

    By Lawrence B. Solum

    Introduction

    Almost every law student receives some introduction to normative law and economics in their first year of law school.  One of the basic ideas of normative law and economics is that the law should be “efficient.”  But what does efficiency mean?  For economists, “efficiency” is a technical idea–with only a tangential connection to the use of “efficiency” in ordinary speech.  In order to understand economic efficiency, we will look at what are called the Pareto principles and a related idea that is sometimes called Kaldor-Hicks efficiency.

    In addition to explicating the idea of efficiency, we will take a quick look at some of the criticisms that might be made of this concept.  Although many economists operate on the assumption that “efficiency” is an uncontroversial good, that assumption is controversial both inside and outside of the discipline of economics.

    As always, the Legal Theory Lexicon is aimed at law students, especially first-year students, with an interest in legal theory.  This is very much a “quick and dirty” look at a topic upon which whole books can be written.

    The Idea of Utility and the Problem of Measurement

    There are several plausible formulations of normative economics, but almost all of normative economics begins with the fundamental idea of utility as a conception or measure of the good. Economists may disagree about the nature of utility, the relationship of utility to social welfare, and the role of welfare in public policy, but most (but not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing.

    Historically, one of the most important interpretation of utility is associated with the great English philosopher and legal theorist Jeremy Bentham.  Bentham defined utility in terms of pleasure (and the absence of pain).  Bentham argued that laws and policies could be evaluated by a “hedonic calculus”–the best policy produces the greatest number of “hedons”–units of pleasure.  But Bentham’s idea did not provide a workable basis for the science of economics, because there has been no workable method for measuring hedonic values.  This assumption has been undermined by the work of some economists and psychologists, who have been trying to develop workable measures of “happiness.”  (For discussion of this development, see Legal Theory Lexicon 068: Welfare, Well-Being, and Happiness.)

    Contemporary economists have interpreted the idea of “utility” as a function of preferences–the subjective values that individuals place on states of affairs.  If individual I prefers state of affairs X to state of affairs Y, then X produces more utility for I than does Y.

    The move to preferences as the basis for utility offered economists the possibility of solving the problem of measurement.  How can we measure preferences?  In order to understand the way that economists answer this question, we need to distinguish between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual I prefers possible world X to possible world Y, but it doesn’t tell us whether X is much better than Y or only a little better.  A cardinal utility function yields a real-number value for each possible world. If we assume that utility functions yield values expressed in units of utility or utiles, then individual I’s utility function might score possible world (or “state of affairs”) P at 80 utiles and possible world Q at 120 utiles.

    The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, “utilitarianism” can be stipulated to refer to the view that an action is the best action if and only if the action maximizes utility when compared with all possible alternative actions. For technical reasons, utilitarianism requires both cardinality and full interpersonal comparability.  But both cardinality and interpersonal utility comparisons are problematic.  It is difficult to measure cardinal utilities for even a single individual.

    And it is even more difficult to compare utilities among different persons.  How can we compare the value that one individual, I1, assigns to consuming a glass of fine wine with the value that another individual, I2, assigns to imbibing a fine single-malt scotch?  And some things seem even more incommensurable: how do we compare the value that Ben derives from viewing a beautiful photograph by Ansel Adams to the joy that Alice takes in serving meals to the homeless on Thanksgiving Day?  Or Ben’s satisfaction from solving difficult math problem with Alice’s pleasure in a new pair of Jimmy Choo’s?  These examples suggest that the problem of interpersonal comparison may be compounded by the problem of incommensurability–the idea that some preferences may not be comparable on the same scale.

    This point about the difficulties faced by utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory. Both cardinality and interpersonal comparability pose measurement problems for economists. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require cardinal and interpersonally-comparable utilities.

    The Pareto Principles

    This is the point at which the Pareto principles arrive on the scene. Suppose that all the information we have about individual utilities is ordinal and not interpersonally comparable.  In other words, each individual can rank order states of affairs, but we (the analysts or policymakers) cannot compare the rank orderings across persons. The weak Pareto principle suggests that a state of affairs P is socially preferable to state of affairs Q, if everyone’s ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn’t get us very far, because such unanimity of preferences among all persons is rare.

    The strong Pareto principle suggests that state of affairs P is socially preferable to state of affairs Q, if at least one person ranks P higher than Q and no one ranks Q higher than P.  Or to put it more colloquially: strong Pareto says that it is good to make one person better off if no one will be made worse off. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions. The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals I1 and I2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient—and hence satisfies the strong Pareto principle. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient.  (A “negative externality” here simply means that at least one person, e.g., individual I3, prefers the state of affairs in which the trade does not take place.)

    From Pareto to Kaldor-Hicks

    Because Pareto efficiency assumes no negative externalities, it has significant limits as a normative concept.  For example, there are many questions of legal policy in which externalities are particularly important–pollution is a classic example.  If I operate a factory that pollutes the air or water, my action may cause harms to my neighbors.  If even one person would lose (as measured by that person’s preferences) by the move from state P to state Q, then that move is not Pareto efficient.  So if Pareto efficiency were the only normative principle available to law and economics, the consequence would be that economics would have nothing to say about many of the most important legal questions, e.g. many questions of environmental law.  (The point in this paragraph connects to the Coase Theorem, which suggests that the Pareto efficient outcome will be reached so long as it isn’t precluded by transaction costs. See Legal Theory Lexicon 002: The Coase Theorem).

    Kaldor-Hicks is a technique for extending the normative implications of economic analysis.  Here is how it works.  We take a situation in which there are externalities, e.g. pollution that affects third parties. Let’s assume that markets can’t reach a Pareto-efficient outcome.  That assumption might be accurate because of high transactions costs, as in the case where the pollution impacts on so many individuals that bargaining is impractical or costly.  Counterfactually, however, we can imagine that there were zero transaction costs.  We can then ask what outcome would occur if those who were affected by the externality (the pollution) entered into a Pareto-efficient bargain that compensated them for their losses.  Outcomes that would be Pareto-efficient if there were zero transaction costs are Kaldor-Hicks efficient.

    Kaldor-Hicks extends normative law and economics to a wide range of situations in which externalities and transaction costs prevent markets from reaching Pareto-efficient outcomes.

    Criticisms of Efficiency

    Does efficiency (either Pareto or Kaldor-Hicks) provide an attractive normative yardstick by which legal policies may be judged?  That’s a complex question, but we can quickly explore a few critical ideas:
    Wealth Effects

    When Pareto is applied to market transactions, preferences (or utility) is interpreted as a function of willingness to engage in market transactions (or willingness to pay).  But willingness to pay is a function of wealth.  Thus, someone who is very poor may be willing to engage in degrading or dangerous work, because they have no real alternative.  But this does not mean that the efficient transaction is better than non-Pareto-efficient alternatives, which might involve a redistribution of wealth that would obviate willingness to engage in degrading work. (These alternatives will not be Pareto efficient, assuming that redistribution would not be preferred by all, including those whose wealth is being redistributed.)

    Bad Preferences  Pareto and Kaldor-Hicks assume that state A is better than state B on the basis of individual preferences.  But preferences aren’t fixed.  Preferences can change for a variety of reasons and some preferences may be better than others.  For example, the preference to sexually abuse children is considered evil–satisfying it is not a moral good.  Efficiency takes preferences as a given: it can’t tell us whether the law should attempt to shape or alter preferences.  But outside of the discipline of economics, there is almost universal agreement that satisfaction of evil preferences is intrinsically bad.  And many people believe that society has a legitimate interest in undertaking measures that will change such preferences.

    Kaldor-Hicks and Rights  Kaldor-Hicks characterizes a move from state P to state Q as efficient even if a third party is injured by the move.  That injury may involve unfairness or a violation of the third party’s rights.  From a consequentialist perspective, rights violations may have no significance in themselves, but deontological normative theories do afford moral significance to rights.  From a deontological point of view, taking rights seriously may require government to forbid some Kaldor-Hicks efficient transactions.

    Efficiency & Social Welfare Functions

    Some economists move beyond Pareto and Kaldor-Hicks and embrace what are called “Bergson-Samuelson Social Welfare Functions.”  There is a separate entry on this idea (Social Welfare Functions) in the Legal Theory Lexicon, but the general idea is to reintroduce interpersonal comparability for individual utilities.  The key difference between Kaldor-Hicks and Bergson-Samuelson arises in cases where the hypothetical compensation seems unusually large, and an extreme version of this would be the case of someone who would not accept any level of compensation–the hold out problem.  Bergson-Samuelson permits us to assign an interpersonally comparably utility value to the welfare that the “hold out” would lose, and that value may be much lower than the demanded compensation would suggest.

    Conclusion

    Efficiency is one of the bedrock ideas for normative law and economics.  The point of this Lexicon entry is to give you the tools to understand what economists mean by efficiency.

    Related Lexicon Entries

    Bibliography

    Resources on the Internet

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

    (This entry was last revised on January 27, 2024.)

  • Legal Theory Lexicon 059: The Law Is A Seamless Web

    By Lawrence B. Solum

    Introduction

    F.W. Maitland, the famous legal historian wrote, “Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web.”  (A Prologue to a History of English Law, 14 L. Qtrly Rev. 13 (1898))  Maitland didn’t actually say that the “law is a seamless web,” but he is usually given credit for the idea that the law forms some kind of “organic unity” or is characterized by pervasive, systematic, and strong interconnections.  The idea that the law is a seamless web is ambiguous–the aphorism expresses different ideas on different occasions.  This post in the Legal Theory Lexicon series will explicate the seamless web metaphor and its several implications for legal theory.

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

    The Seamless Web and the Interconnectedness of Legal Doctrine 

    One idea expressed by the metaphor of the seamless web is the interconnectedness of legal doctrine.  If the law is a seamless web, then the categorization of legal doctrine into discrete fields (torts, property, contracts, and so forth) does not accurately capture the nature of the law.  A classic example of this idea can be found by examining the line between torts and contracts.  It might be thought that there is some “seam” or dividing line that sharply separates these two doctrinal fields.  For example, we might think that contracts is the law of voluntary transactions, whereas torts deals with involuntary (or unconsented-to) transactions.  Of course, there is something to this idea.  Face-to-face bargaining resulting in a written and signed agreement is the paradigm of a contract and also represents a paradigmatically voluntary transaction.  Battery–an unconsented-to, harmful touching–represents both a clear instance of tort law and clearly involuntary transaction.

    But the thesis that the law is a seamless web is not inconsistent with there being paradigm cases of conceptually distinct doctrinal fields.  Rather, the idea is that these paradigm cases blend into one another through a series of small and barely noticeable steps–so that there is no sharp boundary, no “seam,” between tort and contract.  For example, first year law students quickly learn that not all of contract law involves agreement or bargain.  “Quasi-contract” and reliance-based liability involve transactions that are involuntary or at least not fully voluntary, and this cluster of doctrine is neither clearly tort  nor clearly contract.  One interpretation of the seamless web metaphor is that it asserts that the law is always or almost always like that–the organizing principles of various rules fade gradually into one another, and hence, there are no sharp boundaries in the web of the law.

    We might say that this first interpretation of the seamless web metaphor is ontological: “law is a seamless web” could be an assertion about the nature of doctrinal categories–they are interconnected and not isolated.  On the ontological interpretation, the law is a seamless web of legal doctrines–rules, standards, and principles.

    Epistemological Holism

    A second interpretation of the seamless web metaphor is “epistemological” rather than “ontological.”  What does that mean?  By epistemological, I mean that we might be talking about our knowledge of the law rather than the law itself.  Here the idea might be that understanding or comprehending any piece of legal doctrine requires knowledge of the surrounding areas of law and knowledge of those areas requires knowledge of yet more distant areas–so that a complete understanding of any one legal rule requires knowledge of the law as a whole.

    An example may help.  Suppose we are trying to understanding a rule regarding consent in criminal law.  Understanding the legal concept of consent may require us to go beyond criminal law.  The criminal law concept of consent may borrow from tort concepts, contract concepts, and so forth.  Moreover, gaining knowledge of the criminal law doctrine of consent may require us to understand the relationship between the authority of the courts to shape the criminal law and the authority of legislatures to pass statutes that change common-law doctrines.  Understanding that relationship requires knowledge of the law of statutory interpretation (which is contained in opinions on many different statutes dealing with many distinct doctrinal areas) as well as constitutional law governing the separation of powers and the nature of judicial power and legislative power.  One might think that one could learn everything one needed to know in order to understand consent in the criminal law concept of consent from criminal law statutes and cases, but if the law is a seamless web, then knowledge from torts, contracts, constitutional law, and so forth may be required for a full understanding.

    On the epistemological interpretation, the seamless web is a web of belief or knowledge.

    The Seamless Web of Fit and Justification

    Another use of the metaphor is found in the work of Ronald Dworkin.  In the Lexicon entry on Fit and Justification, we explored Dworkin’s idea that judges decide cases in the way that best “fits” and “justifies” the law.  Both “fit” and “justification” connect to the idea that the law is seamless web.  So when a judge decides a “hard case,” the judge’s decision must “fit” the existing legal landscape.  It must be coherent with the cases, statutes, constitutional provisions, and so forth.  This requirement of fit is holistic.  That is, the decision must fit all of the law–not just the law that is directly relevant to the case at hand.  So a rule of contract law is improper if that rule would violate the constitution or authorize violation of a statutory prohibition.

    Dworkin contends that legal decisions must fit the legal landscape, but that is not the end of the matter.  There may be more than one ruling that would satisfy the criterion of fit.  For example, an ambiguous statutory provision may have more than one reading that is consistent with the precedents, statutes, and other authoritative legal materials.  In that case, Dworkin argues, the judge should decide the case in the way that coheres with the best justification for the law.  In other words, the judge should ask, “What is the best normative theory that can justify the law as whole?”  That normative theory is then used to guide the judge’s decision in the particular case.  Like the criterion of fit, the criterion of justification is holistic.  Although judges may, as a practical matter, seek the justification for a particular area of legal doctrine, in theory the question is, “What justifies the whole of the law?”  This is another sense in which the law is a seamless web–it is the whole web and not a particular strand that is the object of normative justification.

    On the Dworkinian interpretation, the seamless web of the law is the object of the Herculean enterprise of producing the theory that best fits and justifies the law.

    Conclusion

    The phrase, “the law is a seamless web,” is one of those big ideas that students encounter early in their law school experience.  Almost every law student begins to think thoughts like, “What we are doing in contracts is connected to what we are doing in torts” or “It is all starting to fit together in one big picture.”  And sooner or later, these thoughts will run into the seamless web metaphor.  This entry in the Lexicon is designed to give you the tools to think about the aphorism in a nuanced and rigorous way.

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  • Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

    By Lawrence B. Solum

    Introduction

    Some of the key conceptual tools deployed by legal theorists are likely to be familiar to many law students from their undergraduate education.  One of these is the notion of the “social contract”–familiar from Hobbes, Locke, and Rousseau.  But unless you were an undergraduate philosophy major or have some graduate work in philosophy, you may not be as familiar with some of the ideas that have grown out of the social-contract tradition.  One of these is the development of social contract theory in the political philosophy of John Rawls.  Two additional ideas are “contractarianism” and “contractualism”–distinctive positions in the social-contract tradition that are respectively associated with David Gauthier and Thomas Scanlon–and many others, of course.

    This entry in the Legal Theory Lexicon explores the “social contract” and its contemporary variants.  As always, the Lexicon is pitched at law students, especially first year law students, with an interest in legal theory.  It goes without saying that social contract theory or any one of its modern variants cannot be summarized accurately in a long article, much less a short Lexicon entry.

    Classical Social Contract Theory 

    The classical social contract tradition is most strongly associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau.  There are very important differences between these thinkers, but I am going to collapse the differences and present a sort of “generic” version of the social contract.  Here goes.
    The State of Nature

    Social contract theory begins with the notion of a “state of nature”.  What is the state of nature?  That turns out to be a tricky question.  The core idea is that the state of nature does not have a government or similar social institution that can provide security, public order, and other public goods.  In the state of nature, individuals must resort to self-help to resolve disputes.  There are no institutions that protect property rights or rights of personal security.

    What are the characteristics of life in a state of nature?  This is one of the topics upon which social contract theorists disagree.  Hobbes is famous for his argument that a state of nature is a state of war of all against all.  As a consequence, “the life of man [would be] solitary, poore, nasty, brutish, and short.”  For Locke, the state of nature, while not a state of war, would be a state of inconvenience: because the lack of a common judge would mean that everyone would be a judge in their own case, disputes would frequently be resolved by private violence.  Both Hobbes and Locke agree that the state of nature would be no utopia–it would be a relatively violent and insecure environment.

    A Social Contract

    The insecurity that characterizes the state of nature creates the motivation to enter into a social contract or social compact.  There are a number of possible variations of this agreement, and it is worth our while to break some of them down:
    Who is a party to the social contract?  One possibility is that the social contract is an agreement among individuals but not an agreement with the government or sovereign.  That is, the parties in the state of nature, A, B, & C, agree one with another to institute some other person, S, (or organized group of persons) as the sovereign or government.  On this view, the sovereign is not a party to the social contract.  A second possibility is that the social contract is an agreement between the individuals in the state of nature and the sovereign.  That is, A, B, & C agree with S.  I’m sure you can see immediately that this difference will be important: if the sovereign is a party to the social contract, its provision will bind the sovereign, but if the only parties are the individuals who become citizens, then only they will be bound by the contract.

    What is the content of the social contract?

    Another question about the social contract concerns its content.  For example, the social contract could simply obligate citizens to obey the sovereign irrespective of the content of the sovereign’s commands (or laws).  Hobbes’s view of the social contract is close to this extreme–although Hobbes argues that citizens do not bind themselves to obey the sovereign if the sovereign commands them to lay down their own lives.  On the other hand, the social contract could impose strict limits on the powers of the sovereign.  For example, the contract could obligate the sovereign to protect the security of persons and property.  On this understanding, laws that actually invaded personal security or attempted to appropriate property would be invalid as contrary to the provisions of the contract.  Locke’s view was something like this.

    What is the consequence of a breach of the contract? Another question might concern the consequences that would attend breach of the social contract.  If the sovereign breaches the contract, one possible consequence is that citizens are released from their obligation to obey the commands of the sovereign or are entitled to engage in revolution.  Another possibility, especially interesting to legal theorists, is that violations of the social contract by the legislative or executive branches are not “law” and hence should not be enforced by the judicial branch.

    The natural rights dimension of social contract theory has direct implications for constitutional law. Jud Campbell has argued that Founding-era understandings of free speech and press were grounded in the social-contractarian tradition: expressive freedom was understood as a natural right retained when citizens entered the social compact, subject to government regulation only to promote the public good with the consent of the governed. This natural-rights framework differs fundamentally from modern First Amendment doctrine. See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246 (2017).

    Problems with Classical Social Contract Theory

    There are a number of well known problems with classical versions of social contract theory–and answers to these problems–and answers to the answers.  (It is an “impacted field of argument” to say the least.)  I am going to focus on just one cluster of problems–having to do with the question whether the state of nature is actual or hypothetical.

    Is the state of nature an actual historical state or is it a hypothetical state?

    One line of criticism begins with the contention that the state of nature cannot be an actual historical condition of human society.  If there never was a historical condition like the state of nature and therefore, no actual “social contract”, so the argument might go, then what is its normative significance.  The fact that fictional individuals might have agreed to a social contract under fictional conditions seems to lack normative oomph.

    The standard reply to this objection is that the state of nature is hypothetical and not actual, but that hypothetical consent does have normative force, because it tells us that the authority of government is preferable to the alternative–a state without government.

    Are the conditions of a hypothetical state of nature arbitrary or unfair?

    But the argument does not end with the introduction of a hypothetical state of nature.  It is just getting started.  Now that we know that the state of nature is hypothetical, it becomes clear that the description of the setup of the state of nature is very important.  Depending on how the conditions of the state of nature are described, the parties may agree to different versions of the social contract or may not agree to a social contract at all.  If the state of nature is really truly awful–a Hobbesian state of war of all against all–then we may agree to an absolute sovereign.  On the other hand, if the state of nature is merely inconvenient, we may agree only to a more limited government–perhaps a Lockean state with powers that are constrained by a narrow conception of the purpose of the state.  (Of course, the last two sentences vastly oversimplify huge issues.)

    If the setup of the state of nature is crucial to the content of the social contract and if both the state of nature are the social contract are merely hypothetical, then we might ask how the setup is justified.  Lacking justification, the setup of the state of nature is potentially arbitrary and unfair.  “Arbitrary”–because the setup is not constrained by actual social conditions.  “Unfair”–because the setup may advantage some individuals over others.

    Contemporary Social Contract Theory: Rawls and the Original Position 

    One reaction to criticism that a hypothetical social contract can be arbitrary and unfair is represented by John Rawls’s theory of the original position.  (There is a separate Lexicon entry on The Veil of Ignorance that provides additional detail on Rawls’s idea.)  Rawls’s theory does not have a “social contract” or a “state of nature.”  Instead, Rawls tries to set up a hypothetical choice situation that is neither arbitrary nor unfair.  In other words, Rawls asks the question, “What hypothetical choice situation would produced a “fair” agreement?”  Rawls calls this hypothetical choice situation “the original position.”  Simplifying vastly, parties in the original position represent citizens and choose principles of justice that are to regulate the basic structure of society.  They do this behind a “veil of ignorance” that masks the identities and other characteristics of the citizens they represent.  The veil of ignorance is designed to insure that the choice situation is fair: no one is unfairly advantaged because the characteristics that might create an advantage are excluded via the veil.  Rawls argues that under these conditions the parties would unanimously agree on two principles of justice–the liberty principle (that guarantees an adequate scheme of basic liberties such as freedom of conscience, freedom of speech, and procedural fairness) and the difference principle (that provides the differences in the allocation of what Rawls calls the “primary goods” (including wealth and income) must be arranged so as to benefit the least well-off group in society.

    Rawls’s theory is not a social contract theory.  There is no state of nature and no social compact.  But Rawls sees his theory as an extension of the social contract tradition.  We might say that Rawls’s theory is contractualist or contractarian because it is based on the idea of hypothetical agreement.

    The Distinction Between Contractarianism and Contractualism

    Rawls has a version of social contract theory, which we just said could be “contractualist” or “contractarian.”  When Rawls wrote, these labels might have been used interchangeably, but contemporary political philosophers now distinguish between two different kinds of theory in the social contract tradition.
    Contractarianism–The term “contractarianism” applies to theories that focus on self-interest; a contractarian justification for civil society would attempt to show that cooperation with government is interest of each citizen.

    Contractualism–The term “contractualism” applies to theories that focus on reasonableness or justifiability to others.  Contractualist theories might emphasize the idea that each reasonable person will endorse social arrangements that could be accepted by all reasonable persons–with the idea of reasonable justification acting as a constraint on pure self interest.

    The contractarian branch of the social-contract tradition is represented by David Gauthier’s Morals by Agreement, one of the most important works in contractarian moral philosophy, but in this post I am going to emphasize the contractualist branch and its development in the work of Thomas Scanlon.

    Scanlon’s contractualism is inspired by the classical social-contract notion of hypothetical agreement or hypothetical consent.  But Scanlon’s theory is not a political theory–it is not about the relative powers and duties of individuals and the state.  Rather his theory is a moral theory, about what “we owe to each other”.  Scanlon’s theory is deep and rich–and it defies easy summary.  But you can get a flavor of Scanlon’s view by thinking about his very famous formulation of contractualism:

    An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of behaviour which no one could reasonably reject as a basis for informed, unforced general agreement.’ T.M. Scanlon, ‘Contractualism and Utilitarianism’ in A. Sen and B. Williams (eds), Utilitarianism and Beyond 110 (Cambridge: Cambridge University Press, 1982)

    I’m sure you can already see how precise Scanlon’s formulation is, including the following elements: (1) actions are right or wrong in virtue of their being allowed or disallowed by a “system of rules,” (2) the system of rules must be one that is for the “general regulation of behavior,” and (3) the system must be such that no one could “reasonably reject” the system as the basis for an “informed, unforced general agreement.”  The core idea is that morality is based on rules that could form the basis for informed and unforced agreement: “informed and unforced agreement” expresses the contractualist dimension of Scanlon’s view.  An action is morally wrong if it is contrary to the general system of moral rules upon which there could be informed and unforced agreement.

    Scanlon’s contractualism is a form of deontological moral theory, because it makes the rightness or wrongness of action depend on its conformity to a set of moral rules.  Deontological theories can be contrasted with consequentialist theories and aretaic (or virtue-centered) theories.  There are Legal Theory Lexicon entries on each of these ideas.

    The Rivals of Contractarianism and Contractualism

    Before we close, let us situate contractualism and contractarianism in all their forms by looking briefly at some rival views.  In moral philosophy, contractarian ethics are usually viewed as a form of deontology.  Scanlon’s contractualist deontology could be contrasted with Kant’s idea that the content of morality can be specified by the categorical imperative, one formulation of which is “act so that the maxim of your action could be willed as a universal law of nature.”  Outside of deontology, contractarian ethics competes with consequentialisms of various forms, most prominently utilitarianism.  Another rival of moral contractarianism is virtue ethics, which posits excellence of character as the fundamental organizing principle of moral theory.

    In the political realm, social contract theory has a variety of rivals.  Utilitarianism can be the basis of a political theory as well as a moral theory.  Democratic legitimacy may rival contractarianism as the fundamental grounding principle of social organization.  In recent years, communitarianism and civic republicanism have also been articulated as rivals of social contract theory.  Libertarian and anarchist political theories reject the strong role for the state that is implicit in Hobbes or in Rawls’s modern variant of political contractarianism.

    Conclusion

    I hope this entry in the Legal Theory Lexicon has given you a lively sense of the broad outlines of the contractarian tradition in moral philosophy and political theory.  Of course, I’ve barely scratched the surface!  I’ve provided some links and references for additional reading and investigation.

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  • Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories

    By Lawrence B. Solum

    Introduction

    Many of the Legal Theory Lexicon entries provide tools–the argumentative moves and theoretical constructs that should be in any legal theorist’s toolkit.  Lots of these are drawn from other disciplines: for example, the distinction between “Concepts” and “Conceptions” is taken from philosophy and the The Coase Theorem, with its powerful idea of a transaction cost, is drawn from economics.  But some of the most powerful moves are generated from within legal theory.  One of those, which I am going to call “realist deconstruction of formal legal categories,” is powerfully associated with American legal realism.  This move is especially associated with judges influenced by the realist tradition and some realist scholars.  Other strands of realist thought are concerned with other matters.

    This move is incredibly nifty, and it will be especially useful to first year law students with an interest in legal theory.  As always, the Lexicon is aimed at that group, and what is offered here is only a sketch of ideas and arguments that can be the subject of whole articles and even books.

    The Basic Idea

    The American legal realists were skeptical about legal formalism.  In particular, they were skeptical about the idea that “logic” and abstract legal concepts were doing the work in deciding cases.  One source of skepticism is the identification of certain pattern in formalist reasoning.  Here is one way that we might schematize or outline the pattern:
    Step One: Categorization.  A given fact situation, F, is categorized as falling into some formal legal category, C.

    Step Two: Rule Identification.  A legal rule that incorporates the category is identified and stated.  The simplest rules have the following form: If the fact situation, F, falls under category, C, then legal rule R, requires outcome, O.

    Step Three: Rule Application: In the instant case, F is C, therefore O.  In other words, in the case before the court, the fact situation does fall under the relevant legal category and so the rule requires a particular outcome.

    This form or style of reasoning suggests that the legal work is really done in step two–where we identify the legal rule that produces the outcome.  Step one looks like it is just factfinding, we are just describing the facts in terms of a legal category.  The legal realists were famous for showing that step one frequently concealed something that was not factfinding at all.  When the facts were categorized, what was really going on was an instrumentalist or policy-driven process, where the judge was deciding which legal category to apply on the basis of the judge’s decision about which outcome was best.  In other words, seemingly formalist categorization in Step One is actually driven by consideration of the policy consequences that flow from Step Three.

    This insight deconstructs the process of legal reasoning–showing that the apparent form of the legal argument conceals the real process of legal decisionmaking.  Let’s do an example and then we can come back to the theory.

    An Example: Personal Jurisdiction Over Corporations

    Law students may not always know it, but they learn the realist technique for deconstruction when they study Pennoyer v. Neff  and International Shoe in the first year of law school.  (This may get a few people mad at me, but I can’t help but editorializing here.  If your civil procedure professor skips Pennoyer and goes straight for the modern approach to personal jurisdiction, they are depriving you of one of the four or five most valuable moments in a first-year legal education. Shame on them!)

    Here is how it works.  The nineteenth century approach to personal jurisdiction (the Pennoyer approach) made jurisdiction hinge on power over territory.  In order to assert jurisdiction over a person, a state had to have de facto power over the person–and de facto state power is limited by territory.  The state of Illinois can’t send its police force into Indiana.  If you have studied Pennoyer, you know that there is a piece of legal jargon (in law Latin!) that describes lawsuits in which the claim is against an individual person; these suits are called in personam actions.  Here comes the tricky part: “corporations” are considered legal persons and they can be named as defendants in in personam actions.  What does all that jargon mean?  It means that when you sue McDonalds Inc., the law treats McDonalds as if it were a natural person like Dwayne Johnson.  But corporations are different from natural persons in one crucial respect: they don’t have a physical location.  Dwayne Johnson is always located in some specific space; he is either in Illinois or not in Illinois.  The McDonald’s corporation doesn’t have a body: to use the legal jargon, McDonalds is an artificial or incorporeal person.  Corporations are a web of legal relationships–contractual relationships, property relationships, fiduciary duties, and so forth.  So McDonald’s does not have a “physical location.”

    One of the most famous passages in all of theoretical legal scholarship was about this problem.  It comes from  Felix Cohen’s famous article, Transcendental Nonsense and the Functionalist Approach.  Cohen’s brilliant move was to argue that when courts decided “where” a corporation was located, they were actually deciding the personal jurisdiction issue.  And since a corporation doesn’t have an actual or real physical location, something else must be doing the work.  What is the something else?  Cohen argued that the something else must be some consideration of policy.

    Here is an excerpt from Cohen’s article (the whole thing is available at Hein Online):

    Clearly the question of where a corporation is, when it incorporates in one state and has agents transacting corporate business in another state, is not a question that can be answered by empirical observation.  Nor is it a question that demands for its solution any analysis of political considerations or social ideals.  It is, in fact, a question identical in metaphysical status with the question which scholastic theologians are supposed to have argued at great length, “How many angels can stand on the point of a needle?”  Now it is extremely doubtful whether any of the scholastics ever actually discussed this question.  Yet the question has become, for us, a symbol of an age in which thought without roots in reality was an object of high esteem.

    Will future historians deal more charitably with such legal questions as “Where is a corporation?”  Nobody has ever seen a corporation.  What right have we to believe in corporations if we don’t believe in angels?  To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.).  But this does not give us the right to hypostatize, to “thingify,” the corporation, and to assume that it travels about from State to State as mortal men travel.  Surely we are qualifying as inmates of von Jhering’s heaven of legal concepts when we approach a legal problem in these essentially supernatural terms.

    Yet it is exactly in these terms of transcendental nonsense that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in New York State.  “The essential thing,” said Judge Cardozo, writing for a unanimous court, “is that the corporation shall have come into the State.”  Why this journey is essential, or how it is possible, we are not informed.  The opinion notes that the corporation has an office in the state, with eight salesmen and eleven desks, and concludes that the corporation is really “in” New York State.  From this inference it easily follows that since a person who is in New York can be sued here, and since a corporation is a person, the Susquehanna coal Company is subject to suit in a New York court.

    The Realist Reconstruction of Formalist Argument

    We can take this realist move and reconstruct the true or underlying structure of legal arguments.  Here is how it might go:

    Step A: Instrumentalist Assessment of Outcomes.  Given the facts of the case, which of the possible legal outcomes is best on policy grounds?  Or more formally: given fact situation F, which outcome O is the best outcome on policy grounds, P.

    Step B: Identification of the Legal Rule.  The legal rule that will decide the case is identified and stated.  The simplest rules have the following form: If the fact situation, F, falls under category, C, then legal rule R, requires outcome, O.

    Step C: Outcome Driven Categorization.  Given that the judge wants to reach the best outcome, B, what categorization, C, is necessary under rule R to reach B?  Categorize the facts, F, so as to reach that outcome.

    In other words, the legal realists believe that all the real work of formalist argument is done in formalist Step One (Instrumentalist Assessment of Outcomes).  The realist understanding of the actual decision process is reconstructed as Steps A, B, and C in the realist deconstruction of the formalist argument.  Steps Two and Three of formalist argument are simply the process by which judges dress up their policy-driven decisions in formalist clothing.

    Conclusion

    Of course, there is a lot more to be said about this realist move.  In the context of personal jurisdiction over corporations, the realist deconstruction was especially compelling because the physical location of a corporation is a legal fiction–and hence, the legal rule and ordinary factfinding can’t really be driving the decision.  But this is not always the case.  In order to truly master realist deconstruction, you need to recognize that it works in some cases but doesn’t in others.

    But realist deconstruction of formalist legal reasoning is a lot of fun, especially when you first begin to master the technique.  I hope this post has given you the tools to attempt your applications of the technique.

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  • Legal Theory Lexicon 056: Pragmatism

    By Lawrence B. Solum

    Introduction

    Back in the day (by which I mean the mid-70s through the mid-90s) big normative theories were all the rage in the legal academy.  It’s hard to be sure, but one suspects that it started with Rawls: when A Theory of Justice hit the legal academy, it produced a dramatic shift in the practice of normative legal argument in the academy (and even had ripples in legal practice).  Rawls’s big normative theory was “justice as fairness” with two famous principles, the liberty principle and the difference principle supported by a complex argument employing ideas like the original position, the veil of ignorance, and reflective equilibrium.  From Rawls, it was only a hop, skip, and jump to a variety of other theories drawn from moral and political philosophy–Kantian deontology, utilitarianism, welfarism, and other forms of consequentialism, Nozick’s libertarianism, civic civic republicanism, and on and on and on.

    Ronald Dworkin played a key role in this movement with his famous distinction between the criteria of “fit” and “justification.”  When two or more views of the law have sufficient “fit” with the cases, statutes, and other legal materials, Dworkin argued, hard cases must be resolved by asking which view accords with the best justification for the law.  So if there are two or more interpretations of the equal protection clause that fit the text and the cases, we should choose the interpretation that accords with our best theory of equality–and that is likely to be a big normative theory.

    Indeed, there was a time when those in the know, the cognoscenti of the legal academy, subscribed to what was sometimes called the “theory of the month club.”  But something became quite clear as the years became decades: there were no winners in the debates between and among the advocates of big normative theories.  Skirmishes and battles were won and lost, but there were no declarations of victory, surrenders, or peace treaties in the theory wars.

    So it was probably inevitable that there should be some sort of reaction–an antitheoretical counterrevolution.  And there was–or rather, there were several reactions.  One move was away from the normative altogether and towards positive law and economics and empirical legal studies.  Another move was away from abstract theories and towards contextual approaches to feminist legal theory and critical race theory.  And yet another move was to pragmatism–a term that resonates with both the heritage of American philosophical pragmatism (Peirce, James, and Dewey) and the appeal of common sense in its particularly lawyerly form–the preoccupation with the practical. Note that “pragmatism” as a general approach to legal theory is conceptually distinct from “pragmatics” as used in theoretical linguistics and in discussions of legal interpretation—a distinction explored in Legal Theory Lexicon 099: Semantics and Pragmatics.

    This entry in the Legal Theory Lexicon provides an introduction to “legal pragmatism” for law students, especially first-year law students, with an interest in legal theory.  As always, the Lexicon provides a “quick and dirty” introduction to a topic on which whole articles and books can and have been written.

    Philosophical Pragmatism

    Legal pragmatism is related to (but distinct from) philosophical pragmatism.  Pragmatism is usually associated with three American philosophers–Charles Sanders Peirce (pronounced “purse”), William James, and John Dewey.  Attempting to define a conceptual core of philosophical pragmatism is an enterprise fraught with peril–the major pragmatists disagreed among themselves and there never was a “pragmatism program” with a set of common tenets or principles.  One idea that is associated with pragmatism is the notion that beliefs are neither true nor false, but instead are helpful or unhelpful for the accomplishment of goals or the success of actions.  Another notion is the idea that “truth” is a function of practices of verification (the making and testing of predictions).

    The following passage from William James’s Pragmatism is both famous and gives the flavor (if not the philosophical substance) of philosophical pragmatism:
    Pragmatism asks its usual question. “Grant an idea or belief to be true,” it says, “what concrete difference will its being true make in anyone’s actual life? How will the truth be realized? What experiences will be different from those which would obtain if the belief were false? What, in short, is the truth’s cash-value in experiential terms?”

    William James, Pragmatism (1907).

    Legal Pragmatism: Three Ideas

    As you might expect, legal pragmatism focuses on neither the theory of truth nor the theory of meaning and is instead directed at the normative and the role of normative theory in legal practice.  There are many ways in which we might approach this relationship.  Let’s focus on three ideas that illuminate legal pragmatism: (1) the idea of practical judgment, (2) the idea of particularism, and (3) the notion of antitheory.

    Practical Judgment

    One way to think about legal pragmatism begins with the distinction between “practical judgment” (and the allied notion of “practical wisdom”) and “theoretical judgment.”  No one doubts that legal practice involves “practical judgment.”  Judges and lawyers cannot limit their activity to the theoretical realm.  The decision of a case is always contextual–conditioned by a history of facts and by the concrete consequences that attend to a decision.  Legal pragmatism emphasizes the idea that practical judgment is an ineliminable part of legal reasoning and may even make the stronger claim that the practical trumps the theoretical if the two are in conflict.

    Particularism

    Another way to approach legal pragmatism is via an idea that is sometimes called “the priority of the particular.”  This phrase is shorthand for the assertion that judgments (or intuitions or considered judgments) about particular cases have priority over theoretical judgments about broad classes or categories of cases.  What does “priority” mean in this context?  One answer to this question is that the priority of the particular means that our judgments about particular cases are firmer, more grounded, and less subject to revision than are our beliefs about theory.  In other words, when a theory collides with a firmly held belief about what is right or wrong in a particular case, it is the theory and not the judgment about the case that will have to give way.

    Antitheory (or Antifoundationalism)

    And a final way to approach legal pragmatism is based on the notion that legal pragmatism is antitheoretical (or antifoundational).  Let me back up a bit to explain this point.  Some philosophers are suspicious of “big” “top down” normative theories generally, and there are “antitheoretical” positions in moral and political philosophy.  What does it mean to be antitheoretical?  One formulation expresses opposition to deductive systems–to be antitheoretical is to be opposed to a method that begins with axioms and then proceeds to deduce the theorems and corollaries that guide normative practice.  Another formulation uses “top down” and “bottom up” as metaphors.  Being antitheoretical is being against “top down” construction of legal arguments that move from abstract and general propositions to conclusions about particular cases.  The alternative approach is “bottom up,” starting with judgments about particular cases and ending with “low level” principles that are more concrete and contextual than abstract and general.
    Pragmatism and Pluralism

    Another strand of legal pragmatism is associated with pluralism in legal theory.  The most fully developed form of theoretical pluralism of which I am aware is constitutional pluralism: this approach is strongly associated with the work of Phillip Bobbitt, who argued that constitutional norms are made true or valid by the modalities of constitutional discourse, including text, history, structure, precedent, and so forth.  Not all pluralists are pragmatists, but some pragmatist seem to be pluralists.  The central idea of this version of legal pragmatism is that no single theory (e.g., textualism, purposivism, intentionalism in the statutory realm) should govern across the board.  Instead, judges should pick the theoretical perspective that will produce consequences for the issue at hand.  Thus, a judge might decide to adopt a textualist approach to some constitutional or statutory provisions, but adopt a purposivist or intentionalist approach to others.

    Ad Hoc Legal Pragmatism

    So far, I’ve tried to get at what I think is the core conceptual content of legal pragmatism–in its best and most intellectually defensible forms.  But there is another version of “legal pragmatism” that deserves some discussion.  Sometimes, the phrase “legal pragmatism” is used in a very casual way as a kind of evasion or escape from serious objections.  For example, someone might make a series of normative arguments that rest on inconsistent theoretical premises–affirming some form of consequentialism at one point and then relying on strong deontological premises at another.  When confronted with inconsistency, they might say, “Oh, I’m a pragmatist.”  And they might be, but “pragmatism” is not a “Get Out of Jail Free” card that somehow magically nullifies contradictions or reconciles inconsistent theoretical premises.  The best uses of legal pragmatism always ground specific pragmatic moves in some metatheoretical framework.

    There is no official name for “sloppy pragmatism,” but I use the label “ad hoc pragmatism” as a short-hand label for the attempt to use “pragmatism” as an excuse for theoretical inconsistency or for gaps in a theoretical argument.  “Pragmatism” should be the term we use to describe a family of metatheoretical arguments; it is not an excuse for avoiding such arguments.

    Conclusion

    “Pragmatism” is tricky.  In philosophy, the term “pragmatism” is both vague and ambiguous referring to a family of related but distinct philosophical positions, some of which are inconsistent and most of which are highly general and abstract.  Similarly “legal pragmatism” is not really a single well-defined metatheoretical position, but is, instead, a label that is applied to a number of different moves in general legal theory.

    Bibliography

    Resources on the Internet

    • Brian Edgar Butler, Legal Pragmatism, Internet Encyclopedia of Philosophy (2005)
    • Jonathan Dancy, Moral Particularism, Stanford Encyclopedia of Philosophy
    • Christopher Hookway, Pragmatism, Stanford Encyclopedia of Philosophy

    Related Lexicon Entries

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 056: Pragmatism

    (This post was last revised on December 31, 2023.)

  • Legal Theory Lexicon 055: Principles in Constitutional Theory

    By Lawrence B. Solum

    Introduction

    When studying constitutional law, students are likely to be exposed to the idea that interpretation of the United States Constitution may include reference to what are sometimes called “constitutional principles”–general and abstract normative ideas that can aid or guide attempts to glean meaning from the text and may even provide “extraconstitutional” or “nontextual” reasons for decisions in constitutional cases.  For example, interpretation of the equal protection clause of the fourteenth amendment might be guided by an “antisubordination principle” or an “equal citizenship principle.”  Similarly, the federalism provisions of the constitution might be interpreted in light of a principle of “dual sovereignty” or a principle of “state sovereign immunity.”

    What are constitutional principles?  How do they relate to legal theory more generally?  Where do they come from?  What role can they play in constitutional interpretation and the decision of particular cases?  This entry in the Lexicon explores these questions and examines the role of principles in constitutional interpretation.  As always, the Lexicon is aimed at law students, especially first-year law student, with an interest in legal theory.

    What are “constitutional principles”?

    The phrase “constitutional principle” is used in a variety of senses.  For example, the phrase “constitutional principle” could simply be another way of describe a constitutional “rule” or “standard.”  (This seems to be the sense in which principle is used in Wechsler’s famous conception of “neutral principles” of constitutional law. See Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).  Or we might use the phrase to pick out matters of “principle” that are to be distinguished from matters of “prudence” or “pragmatism.”  This Lexicon entry will focus on a more specialized or technical meaning of “principle.”  As I use the phrase, “constitutional principles” will be general and abstract normative propositions that are not themselves part of the constitutional text.  Constitutional principles can be distinguished from rules and standards of constitutional law–principles provide normative guidance at a higher level of abstraction and generality than do “hard edged” constitutional rules or more “open textured” constitutional standards.  This use of principle is related to Ronald Dworkin’s use in his early essay Hard Cases and in his book on constitutional theory, A Matter of Principle.

    An example will help.  Here is a passage from the majority opinion in Gonzales v. Raich:

    For example, cases such as Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), and New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), affirm that a law is not ” ‘proper for carrying into Execution the Commerce Clause’ ” “[w]hen [it] violates [a constitutional] principle of state sovereignty.”
    The constitutional principle of state sovereignty is not in the text of the constitution.  The text never uses the term “sovereign” or “sovereignty” and it never refers to the states as “sovereign”.  State sovereignty is not a rule of constitutional law.  The principle doesn’t provide any specific command, requirement, prohibition, or power.  Instead, the principle of state sovereignty is best understand as shorthand for a normative conception of the powers and immunities of the states in the federal system.

    This is a bit tricky.  The notion of a constitutional principle is a bit “vague around the edges” and I haven’t provided a set of necessary and sufficient conditions that sharply define what counts as a constitutional principle.  Nonetheless, this is a familiar idea that is frequently invoked in constitutional theory and practice.  For an example of sophisticated use of “constitutional principles,” by a contemporary legal theorist, check out the links Jack Balkin’s work on the method of “text and principle” at the end of this Lexicon entry.

    Where to constitutional principles come from?

    Or to put the question just a bit differently, what are the sources of constitutional principles?  Let’s focus on three ways in which we might derive a constitutional principle:
    Principles derived from particular clauses.  Some constitutional principles may be derived from particular clauses or provisions of the Constitution.  For example, the “free speech” clause is vague, general, and abstract.  What is the “freedom of speech”?  What constitutes an “abridgement”?  On approach to answering these questions is to posit a constitutional principle that states the central purpose or function that the clause serves.  For example, the free speech clause might stand for a “principle of freedom of expression” or a “principle of equality of communicative opportunity.”

    Principles derived from constitutional structure.Another possibility is that constitutional principles might be derived from the structure of the constitution–either of the whole constitution or of some identifiable part.  For example, there may be a constitutional principle of state sovereign immunity.  There is not “sovereign immunity clause” of the constitution, but it might be argued that the Eleventh Amendment, Article III, the Tenth Amendment, and the importance of the States to the whole structure of federalism are the source of a general principle that favors the immunity of states from suits in federal court.

    Principles Derived from Political or Constitutional Theory.  Another possibility is that some constitutional principles might be derived from a source outside the text, for exampe, from background considerations of political morality or constitutional theory.  For example, constitutions do not provide their own sources of normative legitimacy, but the conditions for constitutional legitimacy could be seen as the source of principles that would shape constitutional law.  Suppose, for example, that we concluded that the constitution is legitimated by a theory of popular sovereignty–the constitution is legitimate because it was ratified by the people when originally adopted or because it is accepted by the people today.  That theory of legitimacy might then provide a constitutional principle that would guide the interpretation of various provisions of the constitution.

    The Role of Constitutional Principles in Constitutional Interpretation

    What role do (or should) constitutional principles play in the interpretation of the constitution and in its application to particular cases, either inside or outside the courts?  This is a complex issue, but we can simplify it by contrasting two uses of constitutional principle–which I shall call “direct” and “textualist.”

    Direct Application of Constitutional Principle  Constitutional principles might be considered to play a role in constitutional interpretation that is equal or even superior to the role of the text.  Here, in schematic form, is how it might go:

    Step One: Identify a constitutional principle (on the basis of (a) the text of a specific clause, (b) a structural feature of the constitution, or (c) some extraconstitutional consideration of political morality or constitutional theory.

    Step Two: Apply the constitutional principle directly to a question of constitutional law, using the principle as the justification for a constitutional rule or doctrine that resolves a particular case.

    Textualist Use of Constitutional PrinciplesThere is an alternative way that constitutional principles might play a role in constitutional interpretation or adjudication.  A “textualist” use of constitutional principle might proceed as follows:

    Step One: Determine the relevant textual provisions of the constitution.  If these provisions are neither ambiguous nor vague with respect to constitutional question at hand, then apply the text, but if there is relevant vagueness or ambiguity, then proceed to step two.

    Step Two:Identify the constitutional principles that are relevant to the meaning of the vague or ambiguous constitutional provision.

    Step Three: Resolve the ambiguity and/or adopt a construction of the vague provision on the basis of the relevant principle (or principles).

    Step Four: Apply the disambiguated provision or the vagueness-resolving construction to the constitutional question at issue.

    The Difference Between Direct and Textualist Use of Constitutional Principles

    Most readers will immediately grasp the theoretical significance of the distinction between direct and textualist use of constitutional principles.  Some theories of constitutional interpretation insist that the text of the constitution plays an essential role in constitutional law.  “Textualism” or “original meaning originalism,” for example, insist that the linguistic meaning of the constitution is given by the “original public meaning” of the constitutional text.  It might be thought that these theories are inconsistent with constitutional principles, but, as we have seen, this is not necessarily the case.  If constitutional principles are used to resolve ambiguity or vagueness, then their use may be entirely consistent with an approach that gives pride of place to the original public meaning of the constitutional text.

    On the other hand, there are alternative constitutional theories that seem more consistent with the direct use of constitutional principles.  For example, some forms of original intentions originalism conceptualize the original intentions of the framers as general principles: these principles (or intentions) can then be applied directly to resolve particular cases.  Similarly, Ronald Dworkin’s approach to constitutional interpretation could be understood as consistent with the direct approach to constitutional principle.

    Berman’s Theory of Constitutional Principles

    The latest wrinkle in the use of principles in constitutional theory is found in Mitch Berman’s article “Our Principled Constitution.” Berman develops what he calls principled positivism—a constitutive theory of constitutional law that explains what gives constitutional rules their content. His central claim is that constitutional rules are the upshots of constitutional principles—general normative propositions that are not equivalent to constitutional text but are nonetheless genuinely part of the law. These principles have a Dworkinian “dimension of weight,” bearing on legal questions without necessarily determining outcomes, and their contents, contours, and weights determine what specific constitutional rules require. Crucially, Berman insists that these are legal principles whose existence is fixed by legal practices, not moral principles that the law merely incorporates—and his account thus remains within a broadly positivist framework. Principled positivism occupies a distinctive middle ground between strict positivism, which holds that law consists only of explicitly enacted norms, and Dworkin’s law-as-integrity, which derives legal content from the best moral theory that fits and justifies legal practice.

    Conclusion

    There is much more to be said about the idea of constitutional principles.  And of course, the use of principles in legal theory is not limited to constitutional theory.  Principles can play a similar role in statutory interpretation and in common-law reasoning.  Nonetheless, I hope this Lexicon entry has given you a basic introduction that will enable you to think about the role of principles in constitutional theory.

    Related Entries

    The topics raised in this Lexicon entry are connected to several others in the Lexicon series.  Here are few related entries that you might want to explore:

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 055: Principles in Constitutional Theory

    (This entry was last revised on August 10, 2025.)