Legal Theory Lexicon

  • Legal Theory Lexicon 082: Reasoned Elaboration

    By Lawrence B. Solum

    Introduction

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

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

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

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

    Between Realism and Formalism

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

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

    Relationship to Dworkin’s Theory

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

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

    Criticisms of the Method of Reasoned Elaboration

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

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

    The Continued Influence of Reasoned Elaboration

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

    Conclusion

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

    Related Lexicon Entries

    Bibliography

    • Donald A. Dripps, Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School, 3 Ohio St. J. Crim. L. 125, 126 (2005).
    • Neil Duxbury, Faith in Reason: The Process Tradition in American Jurisprudence, 15 Cardozo L. Rev. 601 (1993).
    • Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vand. L. Rev. 953, 964–66 (1994).
    • Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (originally 1958).
    • Henry M. Hart, Jr. & Herbert Wechsler, The Federal Courts and the Federal System (1953).
    • Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 082: Reasoned Elaboration

    (Last revised on October 15, 2025.)

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  • Legal Theory Lexicon 081: The Bad Man Thought Experiment

    By Lawrence B. Solum

    Introduction

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

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

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

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

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

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

    The Bad Man Thought Experiment

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

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

    Whatever may be the constitutional significance of the unpredictability of high punitive awards, this feature of happenstance is in tension with the function of the awards as punitive, just because of the implication of unfairness that an eccentrically high punitive verdict carries in a system whose commonly held notion of law rests on a sense of fairness in dealing with one another. Thus, a penalty should be reasonably predictable in its severity, so that even Justice Holmes’s “bad man” can look ahead with some ability to know what the stakes are in choosing one course of action or another.
    554 U.S. 471, 502 (2008).
    More generally, the bad man thought experiment goes to one of the most important distinctions in legal theory–the distinction between “the law on the books” and “the law in action.”  The bad man does not care about the law on the books, except insofar as the law on the books influences the law in action in a way that affects the interests or preferences of the bad man.
    The Prediction Theory of Law
    Holmes deployed the bad man thought experiment in expressing general views about the nature of law.  There are important questions of exegesis as to whether the prediction theory that has been discussed by its critics was actually held by Holmes, but I am going to set those questions to the side and present a very simplified version of the prediction theory that is (rightly or wrongly) attributed to Holmes.
    Holmes has been read as proposing a general theory that maintains the legal content (the content of the law) is a set of predictions about what courts and other legal institutions will do.  This account of the nature of law draws out the intuitions that Holmes lays out in The Path of the Law in the passages quoted above.  We might call this view of the nature of law “functionalist”–the true nature of law is revealed by the way that the law functions (the law in action) and not by what the law says.  The law may say things that the law does not put into action, and these statements are not properly viewed as part of the true content of the law.  The prediction theory of law is that legal content consists of propositions that accurately predict the way the law will function.
    The bad man thought experiment brings out an intuition that supports the prediction theory.  The bad man cares only about the functional content of the law and does not care about law on the books that does not translate into the law in action.  Why should the bad man care if the law says contracts must be performed, when the only sanction for breach is a damage award that would cost the bad man less than performance?  The law-on-the-books obligation to perform would not motivate the bad man unless it were backed up by a sanction sufficient to make performance in the bad man’s self interest.
    Criticisms of the Prediction Theory
    One of the most influential criticisms of the prediction theory of the law in general and the bad man thought experiment in particular is associated with the great legal philosopher, H.L.A. Hart, whose concept of the internal point of view is described in a Lexicon entry.  The internal point of view plays an important role in Hart’s own theory of law: officials, including judges, take up the internal point of view when they comply with rules, especially the rules that define their own powers and duties.  The internal point of view is obviously distinct from the self-interested perspective of Holmes’s bad man.  Here is how Scott Shapiro describes Hart’s point:
    The problem with “bad man” theories such as Holmes’s is that they assume that people are motivated to follow the law solely to avoid sanctions, rather than because rules require such behavior. These theories, Hart says, “define [the internal point of view] out of existence.”
    More generally, the prediction theory, insofar as it relies on the bad man thought experiment, fails to take into account the “good person” who complies with the law because they believe that they are obligated to do so–even when there is no chance that they will be punished or sanctioned.
    A related criticism of the prediction theory of the law is based on the failure of the theory to account for the phenomenology of judging.  Judges (at least sometimes) believe that their decisions are guided by the law.  In the case of a court of last resort, the prediction theory would seem to imply that judges must be making predictions about how they themselves will behave in the future, but this account seems circular, because their future selves would also be making predictions and at some point there must be something outside of these predictions that actually guides their behavior.
    Although it is possible that the prediction theory could be fixed up to take these objections into account, I think it is safe to say that the theory has very few contemporary adherents–at least in the world of Anglophone legal philosophy.
    Was Holmes a Prediction Theorist?
    Although “The Path of the Law” is commonly read as advancing a prediction theory of the nature of law, some scholars have questioned whether that attribution is accurate. Albert Alschuler has argued that the bad-man passage and the prediction-of-courts language are better read as a “heuristic device”—a rhetorical provocation designed to shift attention toward law in action—rather than as the foundation of a general theory of law. Anthony D’Amato has contended that the standard interpretation of Holmes as a prediction theorist rests on a fundamental misreading: on D’Amato’s account, Holmes’s deeper claim was that the prediction itself constitutes the law, not merely that lawyers predict what courts will do. And Dan Priel has argued that “The Path of the Law” is best understood as a work of evolutionary jurisprudence—an account of the historical development of law—and that the prediction passage plays only a subordinate role in that larger argument. On these readings, the common attribution of a prediction theory of the nature of law to Holmes may reflect a selective reading of a rhetorically complex essay.
    Conclusion
    Although the prediction theory of the nature of law is usually discounted, that does not mean that the bad man thought experiment should also be set to the side.  The thought experiment may be valuable as a tool for thinking about the law in action–even if it does not describe the behavior of all legal actors.  The aim of this Lexicon entry has been to provide a basic understanding of the bad man thought experiment and the way it can be used in both general legal theory and in thinking about particular legal problems.
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    Legal Theory Lexicon 081: The Bad Man Thought Experiment

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  • Legal Theory Lexicon 080: Narrative and Normativity

    By Lawrence B. Solum

    Introduction

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

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

    How Narratives Go Normative

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

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

    Narrative and Identity

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

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

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

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

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

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

    The Genetic Fallacy

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

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

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

    Conclusion

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

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    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 080: Narrative and Normativity

    (Last modified on October 12, 2025.)

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  • Legal Theory Lexicon 079: Communicative Content and Legal Content

    By Lawrence B. Solum

    Introduction

    One of the most basic ideas in legal theory is the distinction between “communicative content” and “legal content.”  That sounds fancy, but this fundamental idea is very simple.  Legal texts of all kinds communicate; they say things.  Roughly, what they say is their linguistic meaning–the meaning of the words and phrases in context.  Some legal texts, those that are valid, create legal norms.  Other legal texts, those that are invalid or no longer in effect, do not create any legal content at all or, if they once created legal content, they no longer do so.  The Confederate Constitution has communicative content.  We can read it and discern its meaning, but that document no longer generates legal content.  There are no currently valid propositions of law that are derived from the Confederate Constitution.  The legal content of documents like the Confederate Constitution is not the same as their communicative content.  This example illustrates the possibility of divergence between linguistic meaning and legal meaning.

    This Legal Theory Lexicon post provides a basic introduction to the distinction between communicative content and legal content that is aimed at law students with an interest in legal theory.

    What is Communicative Content?

    Texts consists of symbols, letters and punctuation marks.  The marks are organized into meaningful units, words and phrases, that are related by syntax (including what we call grammar and conventions of punctuation), and form meaningful expressions, sentences, that can be organized into larger units, such as the clauses or sections found in even larger units, like contracts, rules, regulations, statutes, and constitutions.  Constitutions, statutes, contracts, and other legal texts have communicative content.

    Roughly, “communicative content” is the linguistic meaning that is conveyed by a writing or utterance, but we can be a bit more precise.  Words and phrases convey concepts, names, and relationships between these things.  If you haven’t taken a course in the philosophy of language, you may not be familiar with the terminological distinction between “words” and “concepts,” but you probably already grasp this distinction intuitively.  Take the concept of the element designated by the word “gold” in English.  That same concept can be represented by other words in English.  For example, the phrase, “the element with the atomic number 79” refers to the same concept as the phrase “the element gold.”  And this concept can be represented by other words in languages other than English.  The Catalan word “or,” the Dutch word “goud,” and the Latin word “aurum” express the same concept as the English word “gold.”  The word “gold” is a linguistic form, but the concept gold can be expressed by different words.

    As concepts are to words, so propositions are to sentences.  The English sentence “Snow is white” expresses the same proposition as the Dutch sentence “Sneeuw is wit” and the Catalan sentence “La neu és blanca.”  The communicative content of a sentence is the proposition that is communicated by the sentence. These relationships are explored in Words and Concepts, Sentences and Propositions: Legal Theory Lexicon 094.

    Legal Content

    What is legal content?  You might assume that the communicative content of a legally valid text that is currently in force is identical to its legal content.  Sometimes this is true, but not always.  Law students quickly learn about cases in which the legal content associated with a legally valid text that is currently in force is different from the communicative content of that text.  Here are some examples:

    • The communicative content of the First Amendment includes the phrase “Congress shall pass no law” but the legal content of the First Amendment extends to things other than laws passed by Congress, including actions by the executive and by the judiciary.
    • The communicative content of the “freedom of speech” looks on its surface to be sparse and perhaps open textured, but the legal content of free speech doctrine is very rich, including complex legal rules that limit the ability of government to regulate billboards and campaign-related expenditures.  Clearly, the phrase “freedom of speech” did not and still does not communicate propositions related to billboards.
    • The communicative content of Federal Rule of Civil Procedure 8(a)(2) requires pleadings to be “short and simple,” but the Supreme Court’s interpretation of that rule in cases like Twombly and Iqbal seems to require long and complex pleadings.

    Mark Greenberg has written about the idea that communicative content and legal content diverge in his important article, The Standard Picture and its Discontents.  I urge you to read Greenberg’s article; even if you disagree with some of Greenberg’s conclusions, you will learn from his discussion.

    We might say that the legal content derived from a legal text is the set of legal propositions that the text and its legal promulgation has produced, and that the set of so-produced legal propositions is not necessarily identical to the set of propositions communicated by the text.  In other words, legal content is not necessarily identical to communicative content.  The communicative content of “Congress shall pass no law” in the First Amendment is not identical to the legal content produced by that phrase.

    The Relationship of the Distinction Between Communicative and Legal Content to the Interpretation-Construction Distinction

    Frequent readers of Legal Theory Blog will recognize that the distinction between legal content and communicative content is closely related to the interpretation-construction distinction.  Recall that the word “interpretation” can be used to represent the activity of discovering the communicative content of a text, whereas “construction” can be used to refer to the activity of determining the legal effect of the text.  One of the most important ways in which courts give texts like constitutions and statutes legal effect is through the construction of legal doctrines–authoritative glosses on the text that articulate the legal content given to the text. The interpretation-construction distinction is discussed in Interpretation and Construction: Legal Theory Lexicon 063.

    Some Implications for the Debates Between Formalists and Realists

    One of the important ways to use the distinction between communicative content and legal content arises in connection with the debate between formalists and realists about the interpretation of constitutions, statutes, and other legal texts.  Formalists maintain that the legal content associated with a text should be constrained by the communicative content conveyed by the text, whereas legal realists frequently argue that legal content should not be so constrained.  For example, constitutional originalists maintain that when courts engage in the construction of legal doctrines, they should consider themselves bound by the original public meaning (communicative content) of the text, whereas nonoriginalist living constitutionalists argue that the legal content of constitutional doctrines can modify, override, or even nullify the original public meaning.  Similarly, plain meaning textualists argue that courts engaged in statutory construction should consider themselves bound by the communicative content of the statutory text, whereas the more realist purposivists believe that courts may override the plain meaning of the text in order to serve the purpose or function that an ideally reasonable legislature would have had in enacting the text.

    Conclusion

    There is much more to be said about communicative content and legal content, but I hope that this Lexicon entry has given you an introduction that will permit you to use these ideas in your own thinking about legal texts.

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    Legal Theory Lexicon 079: Communicative Content and Legal Content

    (Last updated on October 5, 2025.)

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  • Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction

    Lawrence B. Solum

    Introduction

    Although the first year of law school is weighted towards the study of common law subjects (contracts, common law crimes, property, and torts) with perhaps some civil procedure and constitutional law, most modern law involves statutes and regulations.  This entry in the Legal Theory Lexicon provides a basic introduction to theories of statutory interpretation and construction with an emphasis on the three most basic approaches to statutory interpretation (textualism, intentionalism, and purposivism).  As always, the Lexicon is aimed at law students with an interest in legal theory.

    Interpretation and Construction

    For the purpose of this Lexicon entry, the terms “interpretation” and “construction” are given technical definitions, as follows:

    Interpretation refers to the activity of discovering the linguistic meaning of the statutory text.

    Construction refers to the activity of determining the legal effect to be given to a statutory provision.

    Many legal theorists use these terms interchangeably to refer to the conjunction of these two ideas.  For the purposes of this Legal Theory Lexicon entry, a complete theory of statutory interpretation and construction would both provide an account of the communicative content (linguistic meaning in context) of the statutory text (interpretation) and the legal effect to be given that meaning (construction).  This distinction is discussed in more detail in the Lexicon entry on the interpretation-construction distinction.

    Most of the theoretical disagreements about statutory interpretation and construction actually concern “construction”–although there are some controversies about “interpretation” as well.  Textualists believe that statutory construction should be constrained by statutory interpretation: legal effect should follow linguistic meaning and context.  But intentionalists and purposivists have a different view; they believe that the linguistic meaning of statutory texts ought to be subordinated to other considerations (subjective legislative intent or objective statutory purpose).

    Let us take a look at the three most basic approaches to statutory interpretation and construction: textualism, intentionalism, and purposivism.

    Textualism

    The first approach is “textualism” or “plain meaning textualism.”  The core idea of this approach is simple: the legal effect of a statute should be consistent with the statute’s linguistic meaning in context.  So when a judge interprets a statute, the judge ought to determine what the language of the statute means.  That meaning (or communicative content) can then be translated into an authoritative construction of the statute and applied to particular issues and cases.

    There is more than one possible candidate for the “linguistic meaning” of a statute.  The least plausible candidate is the “literal meaning” of the words.  The problem with literal meaning is that it fails to take context into account, but without consideration of context, most statutes are likely to be irreducibly ambiguous.  For example, context is necessary in order to determine whether a statute that regulates “banks” is targeted at river banks or financial institutions.  One version of what is called “plain meaning textualism” takes context into account by focusing on the meaning of the statutory text that can be grasped by considerations of the whole statute and those aspects of context that would be accessible to those governed by the statute. The words of the statute control, but when those words are ambiguous or incomplete, they are to be understood contextually. This role of context in textualism is explored in my article Pragmatics and Textualism.

    Subjective Intentionalism

    A second approach to statutory interpretation focuses on the intentions of the lawmakers.  In the case of a federal statute, that relevant body is Congress and hence intentionalists aim for a construction of the statute that accords with congressional intent.

    Intentions are mental states, but the legislators who draft and then enact statutes can have many different mental states that are relevant to statutory interpretation and construction.  One kind of intention can be called the “communicative intention” of the legislature.  Communicative intentions specify the content that the legislature intended readers of the statute to grasp.  If the drafters of the statute used words in their usual and ordinary senses, we would expect that the communicative intentions of the legislators would be very similar to the plain meaning of the statutory text.

    But there is another kind of legislative intent that might be relevant to statutory interpretation and construction.  Legislators may intend for a statute to produce certain effects; for example, they may intend that the statute serve certain purposes, achieve certain goals, or be applied in certain ways.  These subjective intentions may be reflected in the legislative history of a statute and could then be used to guide the process of statutory construction–determining the legal effect that courts will give the statutory text.

    Whereas plain meaning textualism focuses on the meaning of the text itself, this second kind of intentionalism prioritizes legislative history–in cases in which the legislative history provides clear evidence of what effects, purposes, goals, or applications were intended by the legislature.  As I am using the word “intentionalism,” it refers to the view of statutory interpretation that prioritizes the will of the legislature as expressed in the legislative history of the statute.

    Objective Purposivism

    One way of using the phrase “statutory purpose” could refer to the subjective intentions of the legislature, but the phrase can be used in another way to refer to the “objective purpose of a statute”–the purpose that a reasonable, public-spirited, or ideal legislature would have had if it had passed the statute.  Anyone who is familiar with the ways in which actual legislatures operate in the “real world” will realize that the actual purposes of legislators concerned with raising money and pleasing constituents may be quite different from the idealized purposes of reasonable legislators.  Real-world legislators may pass legislation with the aim of favoring a politically powerful special interest group, whereas an ideal legislature will always have a purpose that advances the public good.

    As I am using the term “purposivism” it refers to the approach to statutory interpretation that maintains that the legal effect of a statute should be determined by the objective purpose of the statute.  That is, statutes should be interpreted to have their reasonable meaning–even if that meaning diverges from the plain meaning of the text or the subjective intentions of the actual lawmakers.

    The relationship between “intentionalism” and “purposivism” is tricky.  Some theorists run these two approaches together, and others use the terminology in different ways.  For the purposes of this Lexicon entry, intentionalism is a subjective approach that emphasizes legislative history as guide to the will of the legislature whereas purposivism is an objective approach that focuses on an inquiry into the purposes that an ideal legislature would have had if it had enacted the statute to achieve the public good.

    Other Approaches to Statutory Interpretation and Construction

    The three simple approaches to statutory interpretation and construction outlined above just scratch the surface of the theoretical landscape.  One of the most important contemporary theorists of statutory interpretation is Professor William Eskridge, who is an advocate of the approach that he calls “dynamic statutory interpretation.”  The dynamic approach, as defined by Eskridge, requires judges to interpret statutes “in light of their present societal, political, and legal context.”  Judge Richard Posner has developed an approach to statutory interpretation that reflects his general approach to jurisprudence, which he calls “pragmatism.”  And there are many other contemporary approaches to the theory of statutory interpretation and construction.

    Descriptive and Normative Theories

    As in other areas of the law, it is important to distinguish between descriptive and normative theories of statutory interpretation and construction.  The descriptive question is what do courts actually do when they engage in statutory interpretation and construction.  The best answer to this question may be somewhat messy.  Different judges apply different approaches in statutory cases, and even the same judge may use different methods on different occasions.  The normative question asks what judges should do when they interpret statutes.  The arguments for textualism are likely to emphasize the idea of the rule of law and the concerns for legitimacy and separation of powers that counsel a modest judicial role.  The arguments for textualism are likely to be based on the superior democratic legitimacy of legislatures and the idea that the role of judges should be that of a faithful agent of the legislature.  The arguments for purposivism and for dynamic and pragmatic approaches are likely to focus on outcomes and the idea that judges can improve statutes if they are given authority to consider arguments of policy and principle when they determine what legal effect should be given to statutory text.

    Conclusion

    Statutory interpretation and construction is certainly one of the most important topics in contemporary legal theory.  This Lexicon entry provides a very basic introduction to the three basic approaches (textualism, intentionalism, and purposivism).

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    Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction

    (Last updated on May 19, 2024.)

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  • Legal Theory Lexicon 077: Living Constitutionalism

    By Lawrence B. Solum

    Introduction

    Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about “originalism.”  But what about originalism’s great historic rival, “living constitutionalism?”  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

    Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

    This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism.  As always, the Lexicon provides a short introduction to a concept in legal theory for law students.

    The History of Living Constitutionalism

    The phrase “living constitutionalism” seems to be derived from the title of a book by Howard Lee McBain, The Living Constitution, first published in 1927.  This slim volume ranges across a variety of topics, and it was not intended as rigorous constitutional theory.  The following passage illustrates McBain’s notion of a living constitution:

    “A word”, says Mr. Justice Holmes, “is the skin of a living thought.”  As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed.  The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase.

    In 1936, Charles Beard echoed McBain’s title in an essay published in the Annals of the American Academy of Political and Social Science.  Beard wrote,

    Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings, it follows that the Constitution as practice is a living thing. The document can be read at any moment.  What the judges and other expounders have said in the past can be discovered in thousands of printed pages.  From the records of history, we can get some idea of past practices under the instrument. But what the Constitution as practice is today is what citizens, judges, administrators, lawmakers, and those concerned with the execution of the laws do in bringing about changes in the relations of persons and property in the United States, or in preserving existing relations.  It is the living word and deed of living persons, positive where positive, and subject to their interpretation where open to variant readings. How could it be otherwise? How could intelligence, as distinguished from sophisticated interest, conceive the document as practice in any other terms?[

    Another important formulation was provided by Charles Reich in his 1963 article, Mr. Justice Black and the Living Constitution:

    [I]n a dynamic society the Bill of Rights must keep changing in its application or lose even its original meaning. There is no such thing as a constitutional provision with a static meaning. If it stays the same while other provisions of the Constitution change and society itself changes, the provision will atrophy. That, indeed, is what has happened to some of the safeguards of the Bill of Rights. A constitutional provision can maintain its integrity only by moving in the same direction and at the same rate as the rest of society. In constitutions, constancy requires change.

    And a fourth influential formulation of living constitutionalism was offered in 1986 by Justice William Brennan:

    To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of the substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances.  The Framers discerned fundamental principles through struggles against particular malefactions of the Crown: the struggle shapes the particular contours of the articulated principles.  But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours.

    The opponents of living constitutionalism offered their own definitions: for example, in 1976, then Associate Justice William Rehnquist wrote The Notion of a Living Constitution, which explicitly criticized living constitutionalism and implicitly endorsed originalism based on the writings of the framers.

    Contemporary theorists continue to use the phrase in a variety of ways.  Adam Winkler writes,

    The pattern– critiquing originalism, insisting that the interpretation of the constitutional text evolve to meet changed conditions in society, and pursuing reform through litigation strategies that made evolution central to judicial reasoning–has come to define modern living constitutionalism.

    Nelson Lund characterizes “living constitutionalism” as the view that “the scope of a constitutional right is defined largely by judicial perceptions of current social mores.”

    Like “originalism,” the term “living constitutionalism” is best viewed as the name for a family of theories, some of which are explored below.  Our next step is to explore the relationship between originalism and living constitutionalism.

    Living Constitutionalism versus Originalism

    Like other theoretical terms, “living constitutionalism” and “originalism” have meanings that are disputed.  This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, whereas other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism.  The most prominent example of compatibilism is Jack Balkin’s theory, which he explicated and defended in his book, Living Originalism.

    The following definitions of “living constitutionalism” and “originalism” illustrate the possibility of compatibilism:

    Originalism:  A constitutional theory is “originalist” if it affirms (1) the fixation thesis (the linguistic meaning of the constitutional text is fixed at the time each provision is framed and ratified), and (2) the constraint principle (the fixed original meaning should constraint constitutional practice).

    Living Constitutionalism: A constitutional theory is “living constitutionalist” if it affirms that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

    Nonoriginalism: A constitutional theory is “nonoriginalist” if it denies either the fixation thesis or the constraint principle.

    Given these definitions, “living originalism” is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine.  Such underdetermination may occur if the constitution contains provisions that are vague or open textured.  Such provisions could be said to create “construction zones,” areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules.  Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.

    Many participants in debates about living constitutionalism and originalism seem to reject the idea of compatibilism.  One reason for such rejection may be a dispute over the definitions of the terms “living constitutionalism” and “originalism” could be defined as mutually exclusive positions.  This way of carving up the conceptual space has the advantage that it puts the two views in opposition to each other.  To the extent that the definitions are contested, the result would be “metalinguistic negotiation,” which is discussed in another Legal Theory Lexicon entry.

    While some constitutional theorists reject the idea of compatibilism for definitional reasons, others may oppose compatibilism on the basis of substantive concerns.  For example, some originalists may embrace the proposition that the constitutional text is fully determinate and hence that embracing the constraint principle entails that constitutional doctrine does not change.  It is important to remember that this kind of determinacy does not entail the further conclusion that constitutional applications are fixed.  Thus, one can believe that the original meaning of the Second Amendment creates a rule that forbids government regulations that ban the possession of weapons that can be carried by a person, but reject the idea that the category of weapons is limited to weapons that existed in 1791 when the Second Amendment was adopted.

    If you accept the definitions offered above, then compatibilism and hence “living originalism’ is at least a conceptual possibility.  If you reject these definitions, the theories that affirm some elements of living constitutionalism and some elements of originalism might be called “hybrid views.”

    Forms of Living Constitutionalism

    Given the highly abstract definition of “living constitutionalism,” it should not be surprising that there are many different versions.  Living constitutionalism is best viewed as a family of theories.  A full survey of the members of the family is too much for a Lexicon entry, but here are some of the most important members:

    Constitutional Pluralism: This is the view that law is a complex argumentative practice with plural forms of constitutional argument. There is a Lexicon entry on Constitutional Pluralism.

    Moral Readings: This is Ronald Dworkin’s theory, also called “law as integrity” or the “constructive interpretation” theory.

    Common Law Constitutionalism: This is the view that the content of constitutional law should be determined by a common-law process.

    Popular Constitutionalism: This is the view that “We the People” can legitimately change the Constitution through processes such as transformative appointments that do not formally amend the text.

    Multiple Meanings: This is the view that the constitutional text has multiple linguistic meanings and that constitutional practice should choose between these meanings on a case by case basis.

    Superlegislature: This is the view that the Supreme Court should act as an ongoing committee of constitutional revision with the power to adopt amending constructions of the constitutional text on the basis of the same kinds of reasons that would be admissible in a constitutional convention.

    Contemporary Meaning:  This is the view that the meaning of the constitutional text does change and that it is the contemporary meaning and not the original meaning that should constraint constitutional practice.  Unlike other versions of living constitutionalism, this view denies the fixation thesis, but not the constraint principle.

    Thayerianism: This is a family of views that require courts to defer to Congress, with three variants:

    Constrained Thayerianism is the view that courts should defer to Congress but that Congress itself should be constrained by the original meaning of the constitutional text.

    Unconstrained Thayerianism is the view that courts should defer to Congress and that Congress should have the constitutional power to revise the constitutional text, either by adopting amending legislation or by creating implicit amendments through ordinary statutes.

    Representation Reinforcement Thayerianism is the view that courts should defer to Congress except when judicial review is necessary to preserve democracy, including protection of discrete and insular minorities and protection of democratic processes.

    Constitutional Antitheory:  There are four views that are “antitheoretical” in the sense that they deny that constitutional practice should be guided by any normative theory, whether that theory be originalist or nonoriginalist:

    Particularism is the view that constitutional practice should be guided by salient situation-specific normative considerations in particular constitutional situations.

    Pragmatism is the similar view, associated with Judge Richard Posner (and in a different form with Daniel Farber and Suzanna Sherry) that constitutional decisions should be made pragmatically on the basis of various normative considerations.

    Eclecticism is the view that different judges should embrace different approaches to constitutional interpretation and construction, and that even a single judge should adopt different approaches on different occasions.

    Opportunism is the view that theoretical stances should be deployed strategically to achieve ideological or partisan goals.

    One of the things we learn from this brief survey is that there are important differences between the various forms of living constitutionalism.  Common law constitutionalism and Thayerianism are radically different from each other, and both of them are quite different from the moral readings approach.

    Conclusion

    “Living constitutionalism” is frequently invoked in debates about constitutional theory, but it is rarely defined in a precise way.  The aim of this Legal Theory Lexicon entry has been to give you a brief introduction to this important idea, its history, and some of the forms that it takes.

    Related Lexicon Entries

    Bibliography(with pinpoint cites to quotations above)

    • Jack Balkin, Living Originalism (Harvard University Press 2012).
    • Charles A. Beard, The Living Constitution, 185 Annals of the American Academy of Political and Social Science 29 (1936).
    • William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433 (1986).
    • Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343 (2009).
    • Howard Lee McBain, The Living Constitution 33 (1947) (note that this is not the original edition).
    • Charles A. Reich, Mr. Justice Black and the Living Constitution, 76 Harv. L. Rev. 673 (1963).
    • William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).
    • Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1 (2015).
    • Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).
    • Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory (SSRN 2011).
    • Adam Winkler, A Revolution Too Soon: Woman Suffragists and the “Living Constitution”, 76 N.Y.U. L. Rev. 1456 (2001).

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  • Legal Theory Lexicon 076: Natural Kinds and Moral Kinds

    By Lawrence B. Solum

    Introduction

    One approach to the meaning of language emphasizes the idea that meaning is conventional.  Thus, when we interpret a constitutional or statutory provision, we might look for the conventional semantic meaning of the word or phrase.  But there is another view in the philosophy of language that rejects the idea that all meaning is conventional.  This approach has its greatest intuitive appeal in the case of words like “gold” or “water” that refer to natural kinds.  Thus gold is the name of an element with an atomic structure, and water is the name for a substance defined by a molecular structure (H₂O).

    The idea of natural kinds that have an essential structure could be extended to what might be called “moral kinds” or “functional kinds.”  Thus it could be argued that legal concepts like “cruelty,” “guilt,” “reasonableness,” or “causation” are not defined conventionally, but instead have an essence that defines their true nature.

    This entry in the Legal Theory Lexicon provides a very short introduction to the idea of natural and moral kinds.  As always, the Lexicon is aimed at law students with an interest in legal theory.

    Natural Kinds

    A conventional approach to language might lead to the conclusion that a word like “gold” or “water” has whatever meaning is revealed by the patterns of usage that establish its conventional meaning, but there is a powerful argument that this is not the case.  Gold and water are natural kinds, the nature of which can be determined by scientific investigation.  Whether something really is gold or water doesn’t depend on the way we talk, it depends on physics and chemistry.  A famous example is “jade,” which was once thought to be a single substance.  When modern science revealed that what we had been calling “jade” was actually two different substances (“jade” and “jadeite”), we learned that we had been making a mistake when we called jadeite “jade.”

    The idea of natural kinds was developed by philosophers.  The key figures are Saul Kripke and Hilary Putnam.  Some of their writings are cited in the bibliography below.

    Natural kind terms play a role in the law, but that role is limited.  For example, the United States Constitution refers to gold and silver in Article One.  If these substances are natural kinds, then their meaning in the constitutional text might be determined by the best scientific theory of their nature.  But the law frequently uses terms that do not refer to natural kinds that are investigated by science.  Examples might include “unreasonable” in the Fourth Amendment, “cruel” in the Eighth Amendment, or “freedom of speech” in the First Amendment.

    Moral and Functional Kinds

    The existence of natural kinds with essences that are revealed by natural science is relatively uncontroversial.  More controversial is the idea that there might be moral or functional kinds.  If this idea is correct, it would have important implications for the interpretation of legal texts.  When judges were trying to determine what is “unreasonable” they would investigate the nature of reasonableness; the best theory of what is reasonable would then guide the determination of what searches are “unreasonable” for Fourth Amendment purposes.  Likewise, judges interpreting the First Amendment would try to determine the true nature of “freedom of speech” and then apply that theory to determine what constitutes a violation of the First Amendment.

    This idea has been most extensively developed by the great legal philosopher Michael Moore; his most important article on the notion of functional kinds and its role in legal interpretation is cited in the bibliography that appears below.  Moore’s idea is very different from the use of the concept-conception distinction by Ronald Dworkin: that notion is explored in a separate Legal Theory Lexicon entry.

    Conclusion

    The notion of natural kinds and the related ideas of moral and functional kinds pose an important challenge to conventionalist accounts of legal interpretation.  This is a deep topic, but my hope is that this Lexicon entry provides a basic introduction that is accessible to students without background in philosophy.

    Related Lexicon Entries

    Bibliography

    • Alexander Bird & Emma Tobin, Natural Kinds, Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., Spring 2017).
    • Saul Kripke, Naming and Necessity (Harvard University Press 1980).
    • Michael Moore, The Semantics of Judging, 54 S. Cal. L. Rev. 151 (1981).

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  • Legal Theory Lexicon 075: Metalinguistic Negotiation and Contestation

    By Lawrence B. Solum

    Introduction

    At some point, law students are likely to encounter a topic where the debate moves away from substantive disagreement and towards what might seem like matters of definition.  For example, in debates about constitutional interpretation, some protagonists argue that the word “interpretation” refers to the activity of discovering the linguistic meaning of the text, but others believe that “interpretation” refers to a broader activity that allows normative considerations to determine the legal effect that the text will have.

    What kind of dispute is this?  One possibility is that it is a dispute about “definitions” that might be resolved by looking to a dictionary, but usually dictionary definitions will fail to address the real grounds of dispute.  At this point, one can imagine the disputants simply agreeing to disagree about the meaning of the disputed word or term, but frequently this move fails, because neither side will yield on the question what “interpretation” (or some other legal concept really is.

    It is at this point that the concept of metalinguistic negotiation may help us to understand what is really going on.  In metalinguistic negotiation, the parties to a dispute attempt to reach agreement on how words should be used and what shape concepts should have.  This entry in the Theory Lexicon will provide a brief introduction to this idea.  As always, the introduction is aimed at first year law students with an interest in legal theory.

    Here is how the philosopher David Plunkett articulates the idea of metalinguistic negotiation:

    In basic terms, a metalinguistic negotiation (or, equivalently, a normative metalinguistic dispute) is a dispute in which speakers each use (rather than mention) a term to advocate for a normative view about how that term should be used.

    A simple example of metalinguistic negotiation in action is provided by the debate that ensued when the magazine Sports Illustrated listed Secretariat as one of the greatest 50 athletes of the 20th Century.  Some sports fans argued that Secretariat wasn’t eligible to be an athlete; others argued to the contrary.  The dispute wasn’t about the facts: everyone could agree that Secretariat was an amazing racehorse.  The real dispute was about the character or general meaning of the term “athlete.”  (Plunkett, 2015)

    Words and Concepts

    Before we explore metalinguistic negotiation itself, we need to get clear on a prior distinction–the distinction between words and concepts.  Let us use quotation marks to designate words, and italics to designate concepts.

    The word “interpretation” represents a concept, interpretation.  That the word and the concept are different entities is easy to see from the fact that different words are used in different languages to represent the same concept.  Thus, the English word “interpretation” and the German word “Deutung” can be used to represent the same concept.

    Metalinguistic negotiation may seem to be focused on words, but at a deeper level the disagreement may well be about the concepts that the words represent.  When we debate about the meaning of the word “interpretation” our actual dispute may be about the shape of the concept interpretation that we use the word to represent.

    How to Proceed in Metalinguistic Negotiation

    Let’s take another example of metalinguistic negotiation, the dispute over the word “originalism” and the concept originalism for which the word stands.  Imagine the following conversation:

    Ben: Originalism is the theory that judges should be bound by the linguistic meaning of the constitutional text.

    Alice: That’s a dumb theory.  That would mean that we would be required to equate the word “arms” in the second amendment with muskets and flintlock pistols.

    Ben: No, originalism requires that we follow the original meaning of the text and the word “arms” means weapons that can be carried.  Modern pistols and rifles are “arms” given the original meaning.

    Alice: That isn’t “originalism.”  Originalism means we are limited to the applications that the framers and ratifiers expected.

    Ben: You are wrong.  Originalism is about public meanings not expected applications.

    At this point, the issue has been joined, but how can the discussion continue.  There are at least three options:

    Stipulate Definitions: One possibility is that the disputants could stipulate to definitions in order to continue the conversation.  For example, conversation between Ben and Alice could continue as follows:

    Alice: Okay.  Let’s stipulate that there are two forms of originalism, “original public meaning originalism” and “original expected applications originalism.”  You are talking about the first form of originalism, but I am talking about the second.

    Appeal to Linguistic Practice: Another possibility is that the disputants can appeal to the way the disputed words and concepts are actually used.  For example, the conversation between Ben and Alice might continue as follows:

    Alice: I don’t think you are right.  Originalists like Justice Scalia believe that the original beliefs about applications are binding on us today.  Our use of the word “originalism” ought to correspond to the concept that originalists actually employ when they practice originalism.

    Appeal to Theoretical Values:  Yet a third possibility is that the disputants will shift the conversation to questions about which version of a concept is theoretically more attractive, powerful, simple, and so forth.  For example, we can imagine, the conversation between Ben and Alice continuing as follows:

    Alice: But originalists do appeal to expected applications.

    Ben: That’s true, but the most powerful form of originalism relies on public meanings.  Expected applications should only play an evidentiary role.  We ought to be talking about a coherent and defensible concept of originalism–not a dumb version.

    Metalinguistic Contestation

    The phrase “metalinguistic negotiation” implies a cooperative endeavor in which meanings are negotiated by conversational partners, but in law and legal theory, the process might better be described as a contest or dispute. We can use the phrase “metalinguistic contestation” to represent exchanges like that between Alice and Ben where the parties’ relationship is conflictual rather than cooperative.

    Conclusion

    These simple examples illustrate some of the options for metalinguistic negotiation.  If you are interested in exploring this idea on a deeper level, you can consult the references provided below.

    Related Lexicon Entries

    Bibliography

    • David Plunkett & Timothy Sundell, Disagreement and the Semantics of Normative and Evaluative Terms, 13 Philosophers’ Imprint 23 (2013).
    • David Plunkett & Timothy Sundell, Dworkin’s Interpretivism and the Pragmatics of Legal Disputes, 19 Legal Theory 3 (2013).
    • David Plunkett & Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response, in Pragmatism, Law, and Language 56–75 (G. Hubb & D. Lind eds., 2014).
    • David Plunkett, Negotiating the Meaning of ‘Law’: The Metalinguistic Dimension of the Dispute Over Legal Positivism, 22 Legal Theory 205 (2016).
    • David Plunkett, Which Concepts Should We Use?: Metalinguistic Negotiations and the Methodology of Philosophy, 58 Inquiry 828 (2015).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 075: Metalinguistic Negotiation and Contestation

    (Last modified on April 27, 2024)

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

    By Lawrence B. Solum

    Introduction

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

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

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

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

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

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

    The Restraint-Constraint Distinction

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

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

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

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

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

     

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

    The Relationship Between Restraint and Constraint is Contingent

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

    Connection with Judicial Activism

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

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

    Stipulation versus Metalinguistic Negotiation

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

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

    Conclusion

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

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

    Related Lexicon Entries

    Bibliography

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

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory

    (Last revised, April 27, 2024.)

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  • Legal Theory Lexicon 073: Persuasive Authority

    By Lawrence B. Solum

    Introduction

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

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

    Four Ways That Authority Can Persuade

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

    Persuasion by Reasons

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

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

    Persuasion by Epistemic Authority

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

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

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

    Persuasion by Predictive Power

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

    Persuasion by Legitimation

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

    Integrating the Four Types of Persuasion

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

    Types of Persuasive Authority

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

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

    A Qualification re the Idea of Authority

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

    Conclusion

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

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 073: Persuasive Authority

    (Last modified on April 13, 2024.)

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