Brian Bix - Jurisprudence - Theory and Context-Sweet & Maxwell (1999)

JURISPRUDENCE:
THEORY AND
CONTEXT
Second Edition
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JURISPRUDENCE:
THEORY AND CONTEXT
Second Edition
BRIAN BIX
London
Sweet & Maxwell
1999
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Preface to the Second Edition
This book derives from past efforts to teach jurisprudence: in particular,

the struggle to explain some of the more difficult ideas in the area in a
way that could be understood by those new to the field, without at the
same fime simplifying the ideas to the point of distortion. This text is
groun ed in a combination of frustrations: the frustration I sometimes
felt as a teacher, when I was unable to get across the beauty and subtlety
of the great writers in legal theory1; and the frustration my students some¬
times felt, when they were unable to understand me, due to my inability
to explain the material in terms they could comprehend.
I do not underestimate the difficulty of the task I have set myself, and
I am sure that this text does not always achieve all that it sets out to do.
At the least, I hope that I do not appear to be hiding my failures behind
legal or philosophical jargon. H.L.A. Hart once wrote the following in the
course of discussing an assertion made by the American judge and theo¬
rist Oliver Wendell Holmes:
“To make this discovery with Holmes is to be with a guide whose words may leave
you unconvinced, sometimes even repelled, but never mystified. Like our own
[John] Austin,... Holmes was sometimes clearly wrong; but again like Austin he
was always wrong clearly.”2
I do not purport to be able to offer the powerful insights or the elegant

prose of Holmes and Hart, but I do strive to emulate them in the
more modest, but still difficult task, of expressing ideas in a sufficiently
straightforward manner such that when I am wrong, I am “wrong
clearly”.
This book is part introductory text and part commentary. In the
preface to his classic text, The Concept of Law, Hart stated his hope
that his book would “discourage the belief that a book on legal
theory is primarily a book from which one learns what other books
1 Unlike some writers, e.g. William Twining, “Academic Law and Legal Philosophy: The
Significance of Herbert Hart”, (1979) 95 L.Q.R. 557, at pp. 565-580,1 do not distinguish
between ‘Jurisprudence”, “legal theory”, and “legal philosophy”, and I will use those
terms interchangeably.
2 H.L.A. Hart, “Positivism and the Separation of Law and Morals”, 71 Harvard Law Review
593 (1958).
viii PREFACE TO THE SECOND EDITION
contain.”3 My aims are less ambitious: the present text is a book meant
to inform readers what other books contain—the idea being that the
primary texts are not always as accessible as they might be. However,
this book is distincdy not meant as a substitute for reading those primary
texts: the hope and the assumption is that readers will go to the primary
texts first, and will return to them again after obtaining whatever guid¬
ance is to be offered in these pages. Additionally, there are a number of
places in the text where I go beyond a mere reporting of the debate,
and try to add my own views to the discussion. This is especially true of
Chapters 2 and 11, but in a number of other places throughout the
book as well.
WHY JURISPRUDENCE?
Why study jurisprudence?

For many students, the question has a simple answer: for them, it is a
required course which they must pass in order to graduate. For students
in this situation, the questions about any jurisprudence book will be
whether it can help them to learn enough of the material to get them
where they need to be: passing the course (or doing sufficiently well in the
course that their overall class standing is not adversely affected). However,
even students who have such a minimal-survival attitude towards the
subject might want to know what further advantage they might obtain
from whatever knowledge of the subject they happen to pick up.
At the practical level, reading and participating in jurisprudential dis¬
cussions develops the ability to analyze and to think critically and cre¬
atively about the law. Such skills are always useful in legal practice,
particularly when facing novel questions within the law or when trying to
formulate and advocate novel approaches to legal problems. So even
those who need a “bottom line” justification for whatever they do should
be able to find reason to read legal theory.
There is also a sense that philosophy, even where it does not have direct
applications to grades or to practice, has many indirect benefits.
Philosophy trains one to think sharply and logically; one learns how to
find the weaknesses in other people’s arguments, and in one’s own; and
one learns how to evaluate and defend, as well as attack, claims and posi¬
tions. Philosophy could thus be seen as a kind of mental exercise
program, on a par with chess or bridge (or theology). Giving the central¬
ity of analytical skills to what both lawyers and law students do, one
3 H.L.A. Hart, The Concept of Law (Clarendon Press, Oxford, 1961) p. vi. (Except where
otherwise noted, references to The Concept of Law will be to the original edition; the
posthumously published second edition, which includes a reply to critics, has a slighdy
different pagination.)
PREFACE TO THE SECOND EDITION IX
should not quickly dismiss any activity that can help one improve those
skills.
At a professional level, jurisprudence is the way lawyers and judges
reflect on what they do and what their role is within society. This truth is
reflected by the way jurisprudence is taught as part of a university educa¬
tion in the law, where law is considered not merely as a trade to be learned
(like carpentry or fixing automobiles) but as an intellectual pursuit. For
those who believe that only the reflective life is worth living, and who also
spend most of their waking hours working within (or around) the legal
system, there are strong reasons to want to think deeply about the nature
and function of law, the legal system, and the legal profession.
Finally, for some (whether the blessed or the cursed one cannot say),
jurispri lence is interesting and enjoyable on its own, whatever its other
uses ar i benefits. There will always be some for whom learning is inter¬
esting and valuable in itself, even if it does not lead to greater wealth,
greater self-awareness, or greater social progress.
THE SELECTION OF TOPICS
One can find entire books on many of the topics discussed in the present
volume in short chapters (or parts of chapters). I have done my best to
offer overviews that do not sacrifice the difficulty of the subjects, but I fear
that some mis-reading is inevitable in any summary. In part to compen¬
sate for the necessarily abbreviated nature of what is offered, a list of
“Suggested Further Readings” is offered at the end of each chapter (and
there are footnote citations to the primary texts in the course of the chap¬
ters) for those who wish to locate longer and fuller discussions of certain
topics.
A related problem is that in the limited space available, I could not
include all the topics that are associated with.jurisprudence (a course
whose content varies greatly from university to university). The variety of
topics included in one source or another under the category of jurispru¬
dence is vast, so inevitably there always seems to be more missing from
than present in any text. Through my silence (or brevity), I do not mean
to imply that the topics not covered are not interesting, not important, or
are not properly part of jurisprudence.
It is inevitable that those using this book will find some chapters more
useful for their purposes than others, even (or especially) if they are stu¬
dents using this book to accompany a general jurisprudence course. The
topics in the first part of the book are usually not covered in university
courses, though I believe that thinking through some of the questions
raised there might help one gain a deeper or more coherent view of
jurisprudence as a whole.
One caveat I must offer is that references to legal practice offered
X PREFACE TO THE SECOND EDITION
in this book will be primarily to the practices in the American and

English4 legal systems, as these are the systems with which I am most
familiar. It is likely (though far from certain) that any comments based on
those two legal systems would be roughly generalizable to cover all
common law systems. The extent to which my lack of familiarity with
civil law systems biases my views about legal theory and about the nature
of law I must leave to others to judge.
In the preparation of the second edition of this book, some chapters
have been added (Chapter 8 on Justice, Chapter 9 on Punishment,
Chapter 13 on Common Law Reasoning and Precedent, Chapter 20 on
Law and Literature, and Chapter 21 on Pragmatism and
Postmodernism), and many other chapters have been expanded and
updated.
Work on this book often overlapped work I was doing for other smaller
projects: sometimes work done for the book was borrowed for other pro¬
jects, and sometimes I found that work done for other projects could be
usefully incorporated in the book. An earlier version of parts of Chapter
2 appeared in “Conceptual Questions and Jurisprudence”, 1 Legal Theory
415 (1995); earlier versions of parts of Chapters 5, 6, and 7 appeared in
“Natural Law Theory”, in A Companion to the Philosophy of Law and Legal
Theory (D. Patterson, ed., Oxford, Blackwell, 1996, pp. 223-240); an
earlier version of brief sections of Chapters 1 and 7 appeared in
“Questions in Legal Interpretation”, in Law and Interpretation (A. Marmor,
ed., Oxford, Clarendon Press, 1995, pp. 137-154); and an earlier version
of parts of Chapters 1, 2, and 14 appeared in “Questions in Legal
Interpretation”, 18 Tel Aviv Law Review 463 (1994) (translated into
Hebrew). I am grateful to the publishers of these texts for allowing me
permission to use material from those articles.
I would like to thank the following for their helpful comments and sug¬
gestions regarding the first or second edition of this book: Mark Addis,
Larry Alexander, Jack Balkin, Lisa Bernstein, Scott Brewer, Keith
Burgess-Jackson, Kenneth Campbell, Tom Campbell, Richard Delgado,
Anthony M. Dillof, Neil Duxbury, Neal Feigenson, John Finnis, Stephen
Gilles, Martin P. Golding, Matthew H. Kramer, Kenneth J. Kress, Brian
Leiter, Andrei Marmor, Jerry Mashaw, Linda R. Meyer, Martha Minow,
Thomas Morawetz, Martha C. Nussbaum, Frances Olsen, Dennis
Patterson, Stanley L. Paulson, Margaret Jane Radin, Frederick Schauer,
Scott Shapiro, A.J.B. Sirks, M.B.E. Smith, Larry Solum, Scott Sturgeon,
Brian Tamanaha, Adam Tomkins, Lloyd L. Weinreb, Tony Weir, James
Boyd White, and Kenneth Winston.
4 I am following the usual convention of using the term “English legal system” to refer to
the legal system that extends over both England and Wales.
Contents
Preface to the Second Edition vii

Why Jurisprudence? viii
The Selection of Topics ix
PART i. Legal Theory: Problems and Possibilities 1
Chapter One: Overview, Purpose and Methodology 3

Questions and Answers in Jurisprudence 3
Descriptive Theory 4
Transforming the Question 5
To What Extent is it Legal Theory? 7
Suggested Further Readings 8
Chapter Two: Conceptual Questions and Jurisprudence 9

The Possibility of General Jurisprudence 10
How Conceptual Theories Differ 12
Alternative Purposes 17
Conceptual Analysis and Naturalism 23
Boundary Lines in Law 25
Conclusion 27
PART B Individual Theories About the Nature of Law 29
Chapter Three: H.L.A. Hart and Legal Positivism 31

An Overview of Legal Positivism 31
Summary of Hart’s Position 33
The Rule of Recognition 36
The Internal Aspect of Rules (and of Law) 37
Open Texture 40
The Minimum Content of Natural Law 43
Later Developments 44
Non-Normative Approaches 47
Chapter Four: Hans Kelsen’s Pure Theory of Law 51

The Pure Theory of Law 52
Reduction and Legal Theory 55
xii CONTENTS
Hart v. Kelsen 56
On the Nature of Norms 58
Chapter Five: Natural Law Theory and John Finnis 61

Traditional Natural Law Theory 61
Medieval and Renaissance Theorists 66
John Finnis 68
Other Directions 71
Chapter Six: Understanding Lon Fuller 73

A Second Kind of Natural Law Theory 73
Fuller’s Approach 74
Fuller and Legal Process 78
Chapter Seven: Ronald Dworkin’s Interpretive Approach 81

Earlier Writings 81
Constructive Interpretation 83
Right Answers 87
Dworkin v. Hart 89
Debunking Questions 90
PART C Themes and Principles 93
Chapter Eight: Justice t 95

John Rawls and Social Contract Theory 96
Rawls’ Two Principles 100
Rawls’ Later Modifications 102
Robert Nozick and Libertarianism 102
Michael Sandel, Communitarianism and Civic Republicanism 104
Feminist Critiques 107
Chapter Nine: Punishment 109

Retribution 109
“Making Society Better”: Consequentialism/Utilitarianism 111
Other Objectives 112
Chapter Ten: Rights and Rights Talk 115

Hohfeld’s Analysis 117
Other Topics 118
Chapter Eleven: Will and Reason 121

Legal Positivism and Natural Law Theory 122
CONTENTS Xlll
Social Contracts and Economic Analysis 124

Chapter Twelve: Authority, Finality and Mistake 127

Chapter Thirteen: Common Faw Reasoning and Precedent 133

Chapter Fourteen: Statutory Interpretation and Legislative

Intentions 139
Legislative Intention 139
“Plain Meaning” 140
Chapter Fifteen: Legal Enforcement of Morality 145

Dividing Lines 145
Topics 146
Hart v. Devlin 147
A New Start 150
Chapter Sixteen: The Obligation to Obey the Law 155

Obligation and Consent 156
O ther Approaches 15 7
The Argument Against a General Moral Obligation to Obey 159
Connections 161
PART D Modern Perspectives on Legal Theory 163
Chapter Seventeen: American Legal Realism 165

The Target: Formalism 167
Realism and Legal Analysis 168
Realism and the Courts 171
An Overview and Postscript 17 3
Chapter Eighteen: Economic Analysis of Law 177

In Search of Consensus 178
Ronald Coase 183
Description and Analysis 187
Economics and Justice 189
Game Theory 192
Public Choice Theory 194
Other Variations 196
The Limits of Law and Economics 196
XIV CONTENTS
Chapter Nineteen: Modern Critical Perspectives 203

Critical Legal Studies 207
Outsider Jurisprudence 209
Feminist Legal Theory 209
Critical Race Theory 214
Chapter Twenty: Law and Literature 221

Interpretation and Constraint 221
Critics 224
Miscellaneous Connections 225
Chapter Twenty One: Pragmatism and Postmodernism 227

Pragmatism 227
Postmodernism 230
Bibliography 235
List of Cases 259
Index 261
PART A
Legal Theory: Problems

and Possibilities
It is surprising how often one can go through entire jurisprudence books
or entire jurisprudence courses without the most basic questions ever
being raised, let alone resolved. The purpose of the opening chapters is
to at least touch on some of these basic questions:
(1) In what sense is a general theory of law possible?
(2) What is the point of conceptual claims, and how can one evaluate
them?
(3) In which senses can one speak of the relative merits of different legal
theorists or of different approaches to law?
Some of these questions, and the answers suggested for them, will be
applicable primarily to the second part of this book, which covers a
number of individual theories about the law. Other questions will have
resonance that extends throughout all the book’s topics.
"■
l'v
Chapter One
Overview, Purpose and Methodology
QUESTIONS AND ANSWERS IN JURISPRUDENCE
Part of the purpose in writing this book was to counter a tendency to treat
jurisprudence as just another exercise in rote memorization. It is often
tempting for jurisprudence students, especially those whose background
is primarily in law rather than philosophy, to treat the major writers in the
area as just a variation on black-letter, doctrinal law: that is, as points,
positions and arguments to be memorized, in order that they can later be
repeated on the final examination.
A second problem in the way in which legal theory is presented and
studied is the tendency to see different legal theorists as offering compet¬
ing answers to simple questions. Thus, H.L.A. Hart and Lon Fuller are
thought to be debating certain easily stateable propositions in their 1958
exchange in the Harvard Law Review.1 The only thing allegedly left for the
student is to figure out which theorist was right and which one was wrong.
Legal theory would be more clearly (and more deeply) understood if
its issues and the writings of its theorists were approached through a focus
on questions rather than answers. Once one sees that different theorists
are answering different questions and responding to different concerns,
one can see how these theorists are often describing different aspects of
the s,ame phenomenon rather than as disagreeing about certain simple
claims about law. This text will focus on the questions being answered (the
problems to which the theories try to respond), and will frequendy point
out the extent to which apparently contradictory legal theories can be
shown to be compatible.
When reading a particular claim by a legal theorist, it is important to
ask a series of questions: Why is this theorist making this claim? Who
might disagree, and why? While many theorists can be criticized for not
593 (1958); Lon L. Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart”,
71 Harvard Law Review 630 (1958).
4 OVERVIEW, PURPOSE AND METHODOLOGY
making the significance of their claims clear, “charity” in interpretation is

still advisable: one should assume that there is something of importance,
or at least something controversial, in the theories. In the end, after a long
struggle to find what is worthy, significant, or controversial about a theory,
one might conclude that it is in fact trivial, poorly done, and a waste of the
reader’s time. However, that should never be one’s starting assumption.
DESCRIPTIVE THEORY
The approach discussed above, emphasizing the extent to which different

(and apparendy competing) theorists might be seen as answering different
questions, both derives from and helps to explain the under-discussed
matter of how we can have descriptive theories of an ongoing social phe¬
nomenon such as law. Legal systems, and people’s experiences of them,
are extremely complex. Inevitably, a theory about law can capture only a
portion of the relevant facts (this claim is not new to legal theory; the
claim and its implications are discussed insightfully and in detail by
H.L.A. Hart and John Finnis2, among others). Once one accepts the
importance of selection in constructing social theories, the focus then
turns to the basis on which selection occurs.
It is not surprising that different theorists might have had different cri¬
teria for selection, which correspond to the different issues which were
troubling them or to the differing topics that were their particular inter¬
ests. It may be open to someone to claim that there is only one proper
viewpoint for theory, or that one set of issues or values is clearly more
significant than all alternatives, but I have not found such arguments con¬
vincing, so this text will go forward on a different basis.
The possibility that claims in legal theory may sometimes be relative to
a particular purpose or a particular viewpoint does not empty legal theory
of all significance or interest. I think the opposite may be true. However,
it does mean that arguments within a theory or about a theory must be
more subtly and more carefully made.3 It is important to emphasize,
though, that not all arguments in legal theory can be so cleanly and
peacefully resolved.
In this text I will attempt to offer perspectives which may allow students
to understand the significance of various ideas in jurisprudence. I hope
2 Hart, TheConceptof Law, pp. 79 88;John Finnis, Natural I aw and Natural Rights (Clarendon
Press, Oxford, 1980), pp. 1-11.
3 Though the approach I advocate has some similarities with the more sophisticated ver¬
sions of this kind of relativism, it is also compatible with a more traditional approach to
truth. We need not say that there are many truths, only that the truth about a complex
social or moral phenomenon is unlikely to be captured completely by any single theory
alone.
TRANSFORMING THE QUESTION 5
to offer this assistance without harming the power or the complexity of

the theories I am discussing, but in the end there can never be any ade¬
quate substitute for reading the theorists in their own words.
Another theme that will arise regularly throughout these discussions
are the difficulties inherent in the project of legal theory. Partly this is the
difficulty of any type of social theory, a topic already touched upon.
There are also problems in legal theory that come from the fact that many
theorists appear to make “conceptual” claims, claims that purport to go
to the nature of a concept (e.g. “law” or “rights”) rather than to the
working of a social process or institution. It is then important to know
how to judge the success of such a project, and, even more basic, to deter¬
mine why such projects are worth attempting. Many of these general
questions will be explored in the next chapter, but the same themes will
be reflected in the later discussions of specific theorists and issues.
For those who have done some reading in jurisprudence, there is the
strange phenomenon of some ideas that seem simultaneously familiar yet
mysterious: one may know of Lon Fuller’s idea of the internal morality
of law, Kelsen’s concept of the Basic Norm, the law and economics
notion of wealth maximization, and the like, but not know why anyone
would put forward arguments that unusual or that counter-intuitive. In
this book, I hope to identify sufficiently the context—the problems being
considered, as well as the philosophical tradition in which the theorist was
writing—in which such ideas arise, that a reader might gain a better
understanding of why such arguments might be needed (and why they
might be persuasive).
TRANSFORMING THE QUESTION
In the first chapter of The Concept of Law, H.L.A. Hart considered the
standard question of legal theory: “What is Law?”.4 Past theorists had
given various answers to this question, from the mundane but unsatisfac¬
tory to the bizarre (among the responses quoted are “what officials do
about disputes”, and “the prophecies of what the courts will do”5 * * * * 10). What
4 Hart, The Concept of Law, pp. 1-6.

5 ibid, at p. 1. The first quotation is from Karl Llewellyn. See Karl N. Llewellyn, The Bramble
Bush: On Our Law and Its Study (Oceana, New York, 1930), p. 3: “This doing of something
about disputes, this doing of it reasonably is the business of law. And the people who have
the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are
officials of the law. What these officials do about disputes is, to my mind, the law itself.” (footnote
omitted). The second quotation is from Oliver Wendell Holmes, “The Path of the Law ,
10 Harvard Law Review 457 at 461 (1897): “The prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by the law”. The Holmes quota¬
tion, and the attitude towards law both quotations represent, will be discussed in greater
detail in Chap. 17 (“American Legal Realism”).
may be most remarkable about Hart’s discussion is that he never direcdy

answered the question he was considering. Instead, Hart’s discussion
achieved something far more subtle. The question is not so much
answered (or avoided or circumvented) as transformed. Hart’s argument
is that when one question is asked, we are actually seeking the solution to
an entirely different question or set of questions, and it is because we have
been asking the wrong question(s) that the answers given have been so
unsatisfactory.
Hart proposed that the question “What is Law?” is usually best seen as
an attempt to consider one of three issues: “How does law differ from and
how is it related to orders backed by threats? How does legal obligation
differ from, and how is it related to moral obligation? What are rules and
to what extent is law an affair of rules?”6 Whether one agrees with Hart’s
analysis or not, one can see how he has succeeded in diverting attention
from definitional obsessions to more mundane and manageable (though
still far from simple) questions. Hart’s response to the question, “What is
Law?” was basically to counter, “why do you ask?” This is an attempt to
simplify, or dissolve, a seemingly difficult or metaphysical question by
trying to convert it or reduce it to questions relating to the proper descrip¬
tions of our practices. As Ludwig Wittgenstein described philosophy in
general7, legal philosophy under a Hartian approach sees its primary
purpose as a kind of therapy: a way of overcoming the temptation to ask
metaphysical questions (“what is Law?” or “do norms exist”), and a
method of transforming such questions into (re-)descriptions of the way
we actually act.8
The way Ronald Dworkin dissolved the “debate” about whether the
Nazi regime had law or not could be seen as a variation of this type of
analysis. He wrote that when we look at matters closely, we may see that
there is no real disagreement between those who say that the Nazis did
have “law” and those who say that they did not. On one hand, we under¬
stand what people mean when they say that the Nazis did have law: that
the Nazi institutions resemble our own and share the same history and
original purposes. On the other hand, we also understand what people
are trying to say when they insist that the Nazi regime did not have law:
that what went on was so evil and procedurally flawed that the rules of
that regime did not create moral obligations to obey them, in the way such
rules do in just regimes.9 The two claims are both reasonable, and they
6 Hart, The Concept of Law, p. 13.

7 See, e.g. Ludwig Wittgenstein, Philosophical Investigations (3rd ed., Macmillan, New York,
1968), paras 133, 255.
8 ibid, at para 109; Brian Bix, “Questions in Legal Interpretation”, in Law and Interpretation
(A. Marmor ed., Clarendon Press, Oxford, 1995), at pp. 137-141.
9 Ronald Dworkin, “Legal Theory and the Problem of Sense”, in Issues in Contemporary
Jurisprudence (R. Gavison ed., Clarendon Press, Oxford, 1987), at pp. 15-17.
TO WHAT EXTENT IS IT LEGAL THEORY? 7
are also compatible. Seen in this way, the “debate” disappears, and we can
turn our attention to other, perhaps more substantial, disputes.
One should not expect all debates to dissolve, clarify, or become less
heated by being “transformed”—re-characterized or seen from a new
perspective. Many debates in jurisprudence, as elsewhere, reflect basic
moral or political controversies, and no amount of transformation will
relieve us of the obligations to make choices in these areas.10 The trick is
to separate true problems and true questions from muddles into which we
have been enticed by our own somewhat confused and confusing ways of
thinking and speaking. Unfortunately, there is no easy or foolproof
method of effecting this separation; one can only offer analyses and await
affirmation or rebuttal by one’s peers.
Finally, there is another way in which one can “transform the question”
in jurisprudence. One can move the focus back from the claims the theo¬
rists are making, and consider those theories in the contexts of the type of
questions that the theorist was trying to answer and the type of problems
that he or she was trying to solve. As Raymond Aron noted in another
context, the interest of a theory depends largely on whether the theorist
has asked, and attempted to answer, interesting questions.* 11 The basis for
this type of transformation, and how it might affect our thinking about
jurisprudential claims, is discussed in greater detail in the next Chapter.
TO WHAT EXTENT IS IT LEGAL THEORY?
To what extent is there or should there be legal theory? The question is

not quite as strange as it sounds. In many of the discussions that go on in
the name of jurisprudence, what is being considered is nothing more than
the application to law of some more general theory from another area (eg.
moral theory, political theory, social theory). For example, traditional
natural law theory (the topic of Chapter 5) is the application of a general
ethical theory to law; legal positivism (Chapters 3 and 4) is arguably the
application of general principles of social theory to law; feminist legal
theory, critical race theory and critical legal studies (Chapter 19) are the
application of particular critical social theories to law; and questions
about justice, punishment, and the moral obligation to obey the law
(Chapters 8, 9 and 16) are the application of general moral theories to
legal issues.
10 Elsewhere I have criticized theories that appear to be trying to elide difficult political and
moral decisions by offering complicated theories of meaning or ontology. See Brian Bix,
Law, Language, and Legal Determinacy (Clare ndon Press, Oxford, 1993), pp. 45—49, 153—154,
176-177.
11 Raymond Aron, Main Currents in Sociological Thought, (R. Howard and H. Weaver, trans.,
Anchor Books, New York, 1970), Vol. 2, p. 232.
Occasionally, there are arguments about what is or should be distinctive

about law. Lon Fuller’s discussion of the “internal morality of law”
(Chapter 6) arguably fits that category. The fact that issues within legal
theory are often mere instantiations of more general problems and
debates can help to keep jurisprudential arguments in perspective. Also,
this hints at a way of testing the answers offered by participants in the
jurisprudential debates: look at comparable responses in related areas of
investigation. For example, in considering hermeneutic theories of law,
we might consider the success or failure of hermeneutic theories in
anthropology and sociology; and in evaluating the usefulness of applying
economic analysis to legal questions, one might want to look at its track
record in other areas of non-market behaviour.
Suggested Further Readings
Brian Bix, “Questions in Legal Interpretation”, in Law and Interpretation (A.

Marmor ed., Clarendon Press, Oxford, 1995), pp. 137-154.
H.L.A. Hart, The Concept of Law (Clarendon Press, Oxford, 1961), pp. 1—17.
—, “Definition and Theory in Jurisprudence”, 70 L.QJi. 37-60 (1954), reprinted
in Essays in Jurisprudence and Philosophy (Clarendon Press, Oxford, 1983), pp.
21-48.
Thomas Morawetz, The Philosophy of Law: An Introduction (Macmillan, New York,
1980), pp. 1-52.
Chapter Two
Conceptual Questions and Jurisprudence
Conceptual analysis is an integral part of jurisprudence,1 but the nature

and purpose of such inquiries are often not clearly stated. This chapter
attempts to elaborate some of the differing reasons underlying attempts
at conceptual analysis, and what consequences may follow from choosing
one objective rather than another. Once one sees that divergent purposes
are often present in competing analyses of the same concept, one can
understand why some “debates” in the jurisprudential literature are best
understood as theorists talking past one another. While the chapter will
be discussing problems that are inherent to many types of conceptual
analysis, the primary focus will be on conceptual analysis within jurispru¬
dence.2 Along similar lines, since a significant portion of the conceptual
claims made within jurisprudence come from those offering general the¬
ories of law, the analysis will begin by considering some of the hidden
problems within such projects. Later sections of this chapter will consider
how conceptual theories differ from other types of theories; indicate some
connections between the problem of conceptual theories and other,
better-known problems in philosophy; outline alternative ways of
approaching the problem of conceptual theory; and discuss briefly the
argument that conceptual analysis in jurisprudence should be replaced by
naturalist analysis.3
1 For example, arguably the most important and influential book in the area in the last half
of this century is Hart, The Concept of Law, which presents itself as a work of conceptual
analysis. The work arguably most important to political theory during this same period,
John Rawls, A Theory of Justice (Harvard University Press, 1972), might also be character¬
ized as being devoted largely to conceptual theory. However, as Rawls was dealing with
a political-moral concept, justice, his analysis was always going to have more of a pre¬
scriptive cast to it.
2 For a provocative, parallel analysis of the problem of conceptual analysis in jurispru¬
dence, approached from the direction of the social sciences, see Brian Tamanaha,
Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Clarendon Press, Oxford,
1997), pp. 91-128.
3 For an interesting critique of an earlier version of this chapter which agrees with the
material in part, but also offers some criticisms and some suggested refinements, see
Andrew Halpin, “Concepts, Terms, and Fields of Enquiry”, 4 Legal Theory 187 (1998).
10 CONCEPTUAL QUESTIONS AND JURISPRUDENCE
THE POSSIBILITY OF GENERAL JURISPRUDENCE
Most theoretical discussions about the nature of law begin with a

confidence which belies the problems lurking at the foundations of any
such inquiry: on what basis can we even speak of a general theory of
“law” at all? One could, after all, have a theory which tried to analyze and
explain only one’s own legal system.4 However, most legal theorists are
making a broader claim: one about law “in general”.
To begin at the beginning, “law” is an English term which refers to a
particular collection of institutions and practices.5 Those institutions
and practices will vary from country to country, and in each country
over time. It is even more complicated when one goes to other countries
where English is not the primary language: those countries may have
institutions which are similar to those we call “law” and there may be a
term in the native language which seems to correspond roughly to our
term “law” (though even in the example of Germany, the word “Reckf ’
has connotations quite different from those of its English equivalent,
“law”6).
The problems obviously increase when we consider countries or soci¬
eties which do not have institutions and procedures even roughly similar
to our own7; this makes it all the more difficult to find a term in that
culture’s language which we could, with confidence, translate as “law”.
These may be societies where there appear to be no legal rules legislated
and imposed by the state, apart from what we would call the conventional
morality of the society, or where social pressure and mediation fulfill the
functions that adjudication takes in our society. On what basis do we keep
such social systems in—or out of—our definition of “law”?
The question is one of inclusion and exclusion. What societies or
systems does a theory about “law” purport to cover? If someone objects
that a theory presented is not true for international law, or for French Law,
or for the rules used by an aboriginal tribe in Australia, when can the
theorist legitimately respond that the objection is irrelevant, since the
counter-examples are “not really law”? This, in turn, leads to the inquiry
4 To a limited extent, this is in fact what the theorist Ronald Dworkin does. However, as
will be explained in Chap. 7, his theories of particular legal systems are examples of a general
(interpretive) approach to all social practices. There is thus at least that one general claim:
that this interpretive approach is appropriate for understanding all legal systems.
5 Even to make the few simple comments I make in this and the following paragraphs, I
have limited the word “law” to its application to municipal, institutional law. I have put
to one side the use of the term to apply to international law, religious law, scientific law,
the regulations of games and societies, and other uses of the term.
6 See Stanley L. Paulson, “Lon L. Fuller, Gustav Radbruch, and the ‘Positivist’ Theses”,
13 Law and Philosophy 313(1994), at 329-330.
7 See generally Laura Nader, “The Anthropological Study of Law”, 67 American
Anthropologist 3 (1965).
THE POSSIBILITY OF GENERAL JURISPRUDENCE 11
as to how the theorist comes by his or her conclusions regarding which

systems are and are not legal.
The theorist discussing “the nature of law” will probably have some
initial notion of which institutions and processes fit into the category that
he or she is trying to examine. However, one can wonder whether there
are any reasons for dividing up the social world, placing the “law”/“non¬
law” border one way rather than another.8 Looking at the same question
in another way, one might wonder [whether f makes sense to speak of
“law” as a self-defined or unitary group at all. Perhaps there are only a
large number of vaguely similar social institutions and practices, and
there is no more sense to theorizing about them as a group as there would
be for creating a theory about the similarities of all countries whose name
began with the letter “C”. One could also make the point in a slightly
different way: that perhaps law is in some sense a “class”, but not one
about which anything of (philosophical) interest can be said.9
As noted above, most legal theorists do not explore these foundational
questions at all; those who have considered the question have come to
different responses. For example, Michael Moore, who devoted an entire
article to the problem,10 denied that different legal systems share the same
nature in terms of sharing the same structure, institutions or processes.
However, he thought that there was an existing category of social systems
for study: all the systems which served the same function within their commu¬
nities or countries (for example, we might define “law” in terms of dispute
resolution or in terms of setting, interpreting and applying norms of
behaviour).
Ronald Dworkin rejected the value of (though not the possibility of) a
general theory of law, on the basis that any such theory (in his terms, any
such “interpretation”) that was valid for all the systems we would like it to
cover would be at such a high level of generality that it would not tell us
anything interesting.11 His alternative was to offer a theory (interpreta¬
tion) that applies only to a single legal system.
A third alternative,12 one that I favour, combines elements of the above
approaches. Under this alternative, legal theory is both a discussion of
law in general and focused on a particular legal system. We look at a
group of social systems, but as a means of understanding better our own
legal system. We therefore have an obvious, non-arbitrary basis for
8 Establishing a dividing line between “law” and “not law” has its purposes even within a
legal theory, as will be discussed in the section, “Boundary Lines in Law” later in this
chapter.
9 See Frederick Schauer, “Critical Notice”, 24 Canadian Journal of Philosophy 495 (1994) at
508.
10 Michael S. Moore, “Law as a Functional Kind”, Natural Law Theories (R. George ed.,
Oxford University Press, Oxford, 1992), pp. 188-242.
11 See Dworkin, “Legal Theory and the Problem of Sense”, p. 16.
12 It is based on comments made by Joseph Raz in informal conversations.
justifying discussing some countries’ and communities’ social systems

whilst ignoring those of others: we choose the social systems which
appear to us to be like our own legal system in significant ways. This
approach does not require any prior claims about “law” or “legal
systems” constituting a unitary, self-defined group. By losing the ambition
to say something “necessarily true” about all legal systems, existing, his¬
torical or imaginary, one also loses the need to enter the murky world of
metaphysical and social abstractions.
The above set of questions leads to a related line of inquiry: what is the
status of the claims made within theories of law? Are these claims of soci¬
ology, anthropology or psychology, discussing how people naturally or
inevitably act in large groups? Are they metaphysical claims, about the
“essence” or “nature” of Law?13 Or are they (merely) claims about the
way we use language (for example, the way we use the terms “law” or
“legal”)?
The short answer to the above is that different theories seem to be
responding to different types of inquiries and are making different kinds
of claims. As will be discussed in the remainder of this chapter, it is
common and perhaps inevitable that conceptual theories, of which most
general theories of law are examples, will “talk past one another”.
HOW CONCEPTUAL THEORIES DIFFER
Conceptual claims, conceptual theories and conceptual questions are

assertions or inquiries about labels (labels which often also serve as cate¬
gories): for example, “law”, “art” and “democracy”. The point of con¬
ceptual questions is often obscure to students, and there are times when
even the theorists involved in the exercise seem to lack a clear notion of
their objectives.14 Students sometimes react to long debates about “what
is law?” or about “the nature of rights”, by asking “who cares?” and “why
does this matter?”, while professionals often assume that such questions
are purely matters of definition and are therefore uninteresting. While
one by no means wants to encourage a dismissive or cynical approach to
legal theory, the sceptical questions—“what is the point?”, etc.—should
always be kept in mind, and it is only by keeping such questions in mind
that the issues (and the theorists) can be understood clearly and in depth.
13 See eg Ernest J. Weinrib, The Idea of Private Law (Harvard University Press, Cambridge,
Mass., 1995), discussing the essence or nature of (private) law.
14 This is by no means universal. Among the more articulate discussions of purpose are
those in Hart, The Concept of Law, Chap. 1; Jules L. Coleman, “Negative and Positive
Positivism”, 11 Journal of Legal Studies 139 (1982), reprinted in Coleman, Market, Morals
and the Law (Cambridge University Press, Cambridge, 1988), pp. 3-27; and Joseph Raz,
Ethics in the Public Domain (Clarendon Press, Oxford, 1994), pp. 179-193.
HOW CONCEPTUAL THEORIES DIFFER 13
Conceptual questions should be seen in contrast to other questions

theorists ask. Theories in the natural and social sciences usually attempt
to describe the world in such a way that we can better understand why past
events occurred or predict how future events will unfold.15 How is light dis¬
torted by travel through water? How do animals react to changes in
amounts of daylight? What effect did Protestant thought have on the rise
of Capitalism?,16 and so on. These are questions of cause and effect which
are in principle testable, through controlled experiments, careful observa¬
tion, or the analysis of past events. These theories are useful, and, perhaps
equally important, they are falsifiable (if “falsifiable” is too strong for some
tastes, one might be able to use “rebuttable” as a substitute). If the data
we collect in the future does not fit the predictions made according to the
theory, we should at least begin to suspect that the theory might be wrong.
Purely conceptual theories can be contrasted with two different kinds
of theories: (non-conceptual) theories in the natural sciences, and non-
conceptual theories in the social sciences. Theories in the natural sciences
“consider [] the general characteristics of phenomena and establish [] regular or

necessary relations between them. This elaboration tends toward the construction
of a system of laws or relations that are increasingly general and, insofar as pos¬
sible, of a mathematical nature.”17
Non-conceptual theories in the social sciences also tend toward conclusions

about causation and causal regularities, but (in contrast to non-conceptual
theories in the natural sciences) the selection of relevant data tends to turn
at least in part on complicated, and contested, value judgments.18
Matters are necessarily different with questions and theories whose
only purpose appears to be to offer definitions or to delimit categories: for
example, “what is law?” and “what is art?”. Consider, by way of example,
all the different reasons someone might give for a claim that some artifact
fails to be “art”: it does not have sufficient quality, it was not created with
the requisite intention, it is too functional or practical, or it is tied closely
into daily life or religious belief.19 If I believe that certain works by Man
15 One should also distinguish philosophical explanations that try to respond to problems
of the form “how is X possible, given Y and Z?” For example, “How is it possible that
we know anything, given the facts the skeptic enumerates . . .? [and] How is it possible
that motion occurs, given Zeno’s arguments?” Robert Nozick, Philosophical Explanations
(Harvard University Press, Cambridge, Mass., 1981), p. 8.
16 See Max Weber, The Protestant Ethic and the Spirit of Capitalism (T. Parsons, trans., Scribner,
New York, 1976).
17 Aron, Main Currents in Sociological Thought, Vol. 2, pp. 230-231.
18 ibid, at pp. 231-238.
19 As to the latter, see, e.g. Patricia Nelson Limerick, “More than Just Beads and Feathers”,
New York Times Book Review, January 8, 1995 (in the context of reviewing two books about
Native American artifacts, discussing the argument that Native American culture, unlike
“Western” culture, does not “quarantine” aesthetic experience).
Ray are “not really Art” while you disagree, or if I think that the old
Apartheid legal system in South Africa deserved to be called “law” and
you do not, what is the nature of our disagreement?20 What are we dis¬
agreeing about, and is it important? And how can we determine who is
right?
A conceptual claim, as opposed to a claim that is meant to be predic¬
tive or explanatory, is not falsifiable (rebuttable).21 However, as will be
explained, I do not mean to imply that purely conceptual theories are
immune to criticisms. As will be argued, one can criticize conceptual the¬
ories for having greater or lesser success relative to their stated (or implied)
purposes, and one can also criticize the theory’s purpose (e.g. on the basis
that it is not ambitious enough). It is important to clarify here: when I say
that conceptual claims are not falsifiable, I am referring to theories which
divide up the world into categories: this is “law” and this is not; or this is
“art” and this is not. Of course, once a division is accepted, and a claim
is made about a category {e.g. “all art is morally uplifting” or “all legal rules
give moral reasons for action”), that claim will usually be falsifiable.22
Conceptual theories define terms by necessary and sufficient condi¬
tions. Such definitions cannot be directly verified or rebutted by empiri¬
cal observation, though such definitions and theories are not entirely cut
off from the empirical world. Consider the differences between the con¬
ceptual claim “swans are white” and the empirical claim “all swans are
white”. The latter assumes that we have already defined the category
“swan” to our satisfaction, and it is a matter of discovering whether all
members of that category are coloured white. A conceptual claim about
swans, by contrast, could survive a discovery of a swan-like creature that
was not white. That creature would simply, by definition, not be a swan.
As Jay Rosenberg states (when discussing the contrast between philoso¬
phy and other forms of inquiry), the results of conceptual theory are not,
immediately or primarily, about discovering new facts, “but rather a new
clarity about what are and what aren’t the old facts.”23
The contrast is with scientific (and social scientific) theories that posit
an empirical, causal connection between events. The contrast is also with
20 Colin McGinn once argued that it did not make sense to speak of people disagreeing
about concepts; they could only be characterized as talking about different concepts.
Colin McGinn, Wittgenstein on Meaning (Basil Blackwell, Oxford, 1984), pp. 146-147.
21 I recognize that, at least in the opinion of some historians and theorists who take a her¬
meneutic approach to social theory, the reference to falsifiability may seem blunt or
perhaps naive. However, the term does work as a useful shorthand in summarizing the
differing criteria of success for conceptual theories as contrasted with other types of the¬
ories in the social sciences.
22 See Alan R. White, “Conceptual Analysis”, The Owl of Minerva (C J. Bontmepo and S.J.
Odell ed., McGraw-Hill, New York, 1975), pp. 108-109, 113.
23 Jay Rosenberg, The Practice of Philosophy (2nd ed., Prentice-Hall, Englewood Cliffs, N.J.,
1984), p. 8.
HOW CONCEPTUAL THEORIES DIFFER 15
historical theories that speak in terms of causation (e.g. “the development

of religious toleration leads to democracy”). However, within scientific
and historical theories, there may be elements of the theory which assume
or tacitly make a conceptual claim. (For example, one might ask: when
someone says “the development of religious toleration leads to democ¬
racy”, how are “religious toleration” and “democracy” being defined?)
The merit of a conceptual claim can only be evaluated once it is clear
what the purpose of the claim is. The thesis defended in this chapter is
that (descriptively or historically speaking) different conceptual claims
have different purposes. Further, theorists often do not clearly state what
purpose underlies their particular conceptual claims, which is what makes
it difficult to evaluate the merit of such claims, or to compare two
different claims.
It may be helpful to begin by placing the problem of conceptual theo¬
ries in context. Most conceptual theories in law are odd not only for not
being predictive or falsifiable, but also for being descriptive. There is
something basically paradoxical about putting forward a descriptive
theoiy about a social institution or a social phenomenon. Social practices
change, and therefore it is often inappropriate (or at least premature) to
use the regularities of the past to justify grand theoretical claims about a
practice.24
For example, a theorist might, after careful observation of past prac¬
tices within a given society or even within a number of societies, conclude
that all legislation begins with a statement of purpose. The declaration is
then made, that “all legislation contains a statement of purpose” or “a
statement of purpose is one of the essential or defining elements of leg¬
islation”. However, when the next enactment does not carry a statement
of purpose, how can one argue against a person who states that the enact¬
ment nonetheless still warrants the label “legislation”? Is this the same or
different from generalities in the natural sciences (as the discovery of a
creature that seemed clearly to be a swan but was black rebutted the con¬
tention “all swans are white”)?
This inquiry appears to be much like the old philosophical inquiry
regarding which properties of some object or class are accidental and
which are essential; similar questions are also raised in the modern phil¬
osophical topic of natural kinds theory.2’ Does the fact that legislation
always seems to have a statement of purpose make that statement of
purpose part of what makes a declaration “legislation”, an aspect of how
we can tell “legislation” from other types of documents? The problem is
24 I discuss in greater detail the problem of description in social sciences generally and in
law in particular in Brian Bix, “On Description and Legal Reasoning”, in Rules and
Reasoning {L.R. Meyer ed., Hart Publishing, Oxford, 1999), pp. 7-28.
25 See, e.g. Hilary Putnam, “The Meaning of ‘Meaning”, in Mind, Language and Reality
(Cambridge University Press, New York, 1975), pp. 215-271.
that talk about “essences” and the “nature” of items does not fit as com¬
fortably with human artifacts and social institutions as it does (say) with
biological species or chemical elements.26 The difference is in the way that
categories that refer to human artifacts and social institutions do not
figure in lawful explanations; that is, we neither expect nor find evidence
of necessary relationships among those categories or between those cat¬
egories and other phenomena. With human artifacts and social institu¬
tions, the categories themselves can be difficult to delimit; the basic
fluidity and contestedness of conceptual definitions can be seen to derive
from the fact that the boundaries of concepts like “art”, “law” or “rights”
are far from self-evident. This fluidity and contestedness of boundaries is
central to understanding the problems and possibilities of conceptual
analysis, and the theme will come up again later in this chapter.
If the problem regarding conceptual theories appears to have some
similarities with the notion of accidental versus essential properties, it also
seems related to the more modern rubric of “rule following”: how can we
tell the difference between a variation within a practice and a change to
a different practice?27 For example, can one change one of the rules of
chess and still be playing “chess”, or is it a different game that is only
related to chess? Similarly, is it still “legislation” without a statement of
purpose, and is it still “law” if it does not serve the common good? As
practices change, and the label some conceptual/descriptive theory
placed on the practice no longer fits the practice, are we to say that the
original label was “wrong” (whatever that might mean here), or that the
old practice is gone and a new practice has begun?
As noted at the beginning of the chapter, one basic reaction to all of
these kinds of inquiries is to wonder why or under what circumstances
these types of questions are even worth asking. Why does it matter if we
call the slighdy changed game “chess” or not, or call the unjust system of
dispute resolution “law” or not? This chapter is about articulating the
possible reasons for such debates.
One ground-level reason for conceptual inquiries is to maintain a
structure within which meaningful discussion can occur. The question of
identity is important, in this sense, for we want to know whether two
people who appear to be discussing the same subject are in fact doing so.
The idea is that without some agreed subject underlying our disagree¬
ments about “justice”, “democracy”, “law” and so on, the great debates
on these subjects would collapse into an uninteresting exchange of parties
talking past one another.28 To disagree is to disagree about something.
The common category grounding the discussion may be delimited by
26 See, e.g. John Dupre, “Natural Kinds and Biological Taxa”, 90 Philosophical Review 66
(1981); Bix, Law, Language and Legal Determinacy, pp. 162-171.
27 See, e.g. Wittgenstein, Philosophical Investigations, paras 143-242.
28 See, e.g. Susan Hurley, Natural Reasons (Oxford University Press, Oxford, 1989), pp. 30-32.
ALTERNATIVE PURPOSES 17
a proffered definition. For example, “when I talk about ‘legal systems’, I

mean the following: x, y, and z; and for all systems that fit that descrip¬
tion, I believe the following is true: . . The question then becomes on
what basis one selects one proffered definition over an alternative. I will
return to that question later in this chapter.
An alternative approach is sometimes helpful in understanding con¬
ceptual claims. Many of the misunderstandings regarding conceptual
debates arise because while conceptual claims purport (by their form if
not by some more express statement) to be merely descriptive, they almost
always have evaluative or prescriptive elements. Some of the disagree¬
ments present within conceptual “debates” might be better understood
as disagreements regarding the best answer to a particular question or
problem. For example, the various theories of “justice” could be seen as
competing answers to the question, “what are the morally best set of
rules, criteria or procedures for the distribution of goods in society?”.
However, while seeing some disagreements about concepts as really
being disagreements about the best answer to set (moral) questions may
work in a few cases, it is unlikely to succeed as a general method of under¬
standing conceptual theories. For example, we are still left with the
problem of how to explain disagreements about terms like “law” and
“democracy”. Those who disagree about whether a particular govern¬
mental system was “democratic” or not, might still agree about any nor¬
mative question put to them—for example, whether that governmental
system was the best one for the country which used it.
In summary, conceptual theories and claims set the boundaries of cat¬
egories. The drawing of such boundaries can be helpful in establishing a
common ground for investigation and discussion, but the placement of
the boundaries is often contested. The question remains, on what basis
can it be asserted that one conceptual theory is better than another? That
question will be the focus of the next section.
ALTERNATIVE PURPOSES
If most conceptual debates are not straightforward descriptions and they

are not alternative answers to simple normative questions, can these
debates be understood in a way that does not dismiss them as nonsensi¬
cal? They can be, if one starts by trying to understand the (various) pur¬
poses of conceptual definitions. One possible “purpose”, broadly
understood, is what one might consider as the default option: definition
as stipulation.
Though some might say that arbitrary stipulations are theories “without
purpose”, or perhaps “no theory at all”, for the present analysis, it is con¬
venient to consider them as an alternative to the other, “purpose-driven”
approaches. Additionally, one should not overstate the extent to which stip-
ulations are arbitrary: even where there is no strong purpose pointing

towards one possible definition over alternatives, some stipulations will
seem better than others, in the way that they track linguistic usage or help
to clarify certain issues.29 Wesley Hohfeld’s proposed categories relating to
rights and related normative concepts (which will be discussed in Chapter
10) is probably a good example of this approach: a stipulation meant to
make our analysis of familiar matters clearer and more precise.
Some might argue that conceptual definitions can only be arbitrary,
because there cannot be any one right way to divide up social reality. For
example, one might argue that regarding questions like whether we
describe the rules of wicked governments as “law”, or whether we con¬
sider international law as really being “law”, any answer is as true or as
legitimate as any other. Under this analysis, there cannot be a “right” or
“wrong” to conceptual definitions, only a “more or less convenient”, and
all that we can ask is that theorists be as clear as possible on the reasons
behind their boundary lines, if there are any such reasons, and that they
be consistent in their application of the boundaries.
Under this approach, a disagreement between two definitions of “law”
or “democracy” would not be important; it would just be evidence of
contrasting conventions. There would be no particular reason why you
should not adopt my convention, or I yours, for the purposes of discussing
some issue of mutual interest. However, if most conceptual definitions were
merely arbitrary, it would be hard to explain the often-vigorous disagree¬
ments over which definition of “law” or “democracy” or the like was to be
adopted; surely, these arguments are driven by more than pride that one’s
own arbitrary suggestion be accepted rather than another person’! On the
other hand, if the definitions are not arbitrary stipulations, there needs to
be some basis for claiming that one definition is better than another, and
this is where one needs reference to the purpose of the definition.30
In conceptual debates, theorists rarely claim simply that their
definitions of “law” or “democracy” “are true” or “better describe
reality” compared to the alternatives, for too many questions would be
begged by such a claim.31 What could it mean, for example, to say that
29 See the discussion of “virtuous stipulation” in Hatpin, “Concepts, Terms, and Fields of
Enquiry” at 195-198.
30 As discussed earlier, even with “arbitrary” stipulations, it is open to theorists to say that one
stipulation is “better” because it is more useful or more convenient for a particular purpose.
31 This is reminiscent of Lon Fuller’s criticism of (pre-H.L.A. Hart) legal positivism:
“[W]e encounter a series of definitional fiats. A rule of law is—that is to say, it really
and simply and always is—the command of a sovereign, a rule laid down by a judge,
a prediction of the future incidence of state force, a pattern of official behavior, etc.
When we ask what purpose these definitions serve, we receive the answer, ‘Why, no
purpose, except to describe accurately the social reality that corresponds to the word
“law.”’ When we reply, ‘But it doesn’t look like that to me,’ the answer comes back,
‘Well, it does to me.’ There the matter has to rest.”
Fuller, “Positivism and Fidelity to Law” at 631.
one’s conceptual analysis was “true”? Social reality simply does not come
so cleanly marked off.
Once past the default option of stipulation, conceptual definitions
usually have broadly one of three objectives: (1) they can be an attempt
to track and explain linguistic usage; (2) they can be an attempt to dis¬
cover the “significance” of a concept, hidden in our practices and intui¬
tions regarding usage; or (3) they can impose moral or qualitative criteria
which must be met before the label should be applied (perhaps on the
basis that such criteria are deeply embedded in our usage).
The distinction between the second and the third category may be
artificial or unnecessary, and I do not think anything turns on how many
categories one constructs. That said, I think that there is some basis for
distinguishing the second category, evaluations of “significance” that at
least purport to be morally neutral (as with Hart’s discussion of the
significance of legal rights discussed below), and the third category,
definitions which openly use and encourage moral judgments (as in the
works of natural law theorists, also discussed below).
One possible basis for claiming that one conceptual theory was super¬
ior to another would be that the definition proffered better reflects the
way we actually use the term. Occasionally one comes across a concep¬
tual theory whose ambition is no greater than to track usage,32 but this is
unusual. Conceptual analysis is often tied to usage, but the tie is usually a
loose one. This tie sometimes encourages the confusion that discussions
about “what is law” or “what are rights” and similar questions are merely
linguistic investigations.33 However, conceptual discussions are rarely
only about proper dictionary entries. Theorists who pay attention to
usage usually do so because they believe that usage reflects some deeper,
more interesting truth. At other times, to be sure, linguistic usage will not
reflect any underlying conceptual connection, and is simply the product
of accidents of style or philology.34
This leads us to consider the second justification for conceptual
definitions: that a particular way of dividing up a subject matter is
justified on the basis that this way better displays certain interesting or
important aspects of the practice, aspects which may be hinted at by our
linguistic practices.35
One example of this second approach can be seen in H.L.A. Hart’s
position in the debate about the best (conceptual) understanding of legal
32 See Raz, Ethics in the Public Domain, pp. 179-82 (discussing linguistic approaches to the
nature of law).
33 See, e.g. Ronald Dworkin, Law’s Empire (Harvard University Press, Cambridge, Mass.,
1986), pp. 31-44 (arguing against “semantic theories” of law).
34 See White, “Conceptual Analysis”, pp. 110-111.
35 See, e.g. Finnis, Natural Law and Natural Rights, pp. 3-11; Raz, Ethics in the Public Domain,
pp. 216-218.
rights.36 Hart defended his “claim theory” of legal rights, even against an
alternative definition that Hart conceded better fit the way we use the rel¬
evant legal terms, on the basis that his definition captured an important
aspect of the way people perceive and experience legal rights.37 The
“claim theory” asserts that what is most significant or most interesting
about legal rights is the role played by the right-holder’s power and ability
to choose. For most rights, the holder can waive the corresponding duty,
or if the duty is breached, waive enforcement, or waive compensation for
the breach, if it comes to that.
The alternative position is the “interest” or “benefit” theory of rights,
often represented by Jeremy Bentham or Neil MacCormick.38 Advocates
of this position point out that there are a number of situations where we
speak of rights where the putative right holder has no such power: on one
end, inalienable rights, and on the other end, rights ascribed to children,
legally incompetent adults, and animals. Therefore, it is better to define
rights in terms of a certain kind of legally protected interests. There are
some skirmishes on the boundaries: for instance, whether the example of
third-party beneficiaries to contracts (which in some jurisdictions have no
power to enforce the contract) offers “evidence” for either side. However,
mostly there is agreement about the overall situation: that “interest theo¬
ries” of legal rights can better track usage, but at the cost of a somewhat
awkward definition and no grand conclusion; by contrast, “claim will
theories” make an interesting assertion, but at the cost of a less than
optimal fit with how we use the term. If conceptual claims are about dis¬
closing what is “important” or “significant” about a concept, then Hart’s
theory of rights is tenable, despite its less than perfect fit with usage.
The problem with this second approach, conceptual definitions as
being about what is “interesting” or “important” regarding some practice
or attitude, is that these underlyingjudgments may be insufficiently objec¬
tive (“objective” here meaning sufficiently independent of individual
interests and perspectives that there would likely be a consensus on the
matter in question). Importance may be best seen as a statement of utility
—an appropriate answer to the question “why is X important” is
“because it helps to obtain Y”—however, we might then be left without
any consensus about proper ends (whether “Y” is worth pursuing, and,
even if so, whether “Z” might not be the more important objective here).
If we disagree about the purposes of a practice, we are also likely to dis-
36 Some other aspects of the jurisprudential debates about rights will be discussed later, in
Chap. 10.
37 See H.L.A. Hart, “Legal Rights” in Essays on Bentham (Clarendon Press, Oxford, 1982),
pp. 162-193.
38 See Hart, Essays on Bentham, pp. 164—170 (summarizing Bentham’s “benefit theory of
rights”); Neil MacCormick, “Rights in Legislation” in Law, Morality and Society (P.M.S.
Hacker andj. Raz ed., Clarendon Press, Oxford, 1977), pp. 189-209.
agree about which aspects of the practice are “important” or

“significant” and why they are so. The result is a certain kind of theoret¬
ical stalemate. For example, it would be difficult for a theorist, basing his
concept of “law” on a particular view of which ends law does or should
pursue, to persuade a second theorist, with a different view about law’s
objectives and (thus) a different theory, that the first theory was superior
to the second. (Arguably, this kind of unresolvable disagreement is part of
what is going on in the debates between legal positivism and its critics.39)
The third non-stipulative approach to conceptual questions is to set
standards: a test the object or activity must pass before the relevant label
has been earned. For example, one might believe that something should
only be called “literature” if it has “passed the test of time”, that is, if its
high critical standing has not been significandy diminished over many
years. Similarly, some might believe that a created object should only be
called “art” if it reaches a certain quality or significance.
One may wonder what sense there is to giving normative tests for con¬
cepts in the social sciences. It is one thing to say that “literature” is very
good fiction, where here the label becomes a short-hand for an evaluative
judgment (“her books are fiction, to be sure, but I would hardly call them
‘literature’”). However, when the term in question is one of general use,
like “law”, one could argue that it only invites confusion to use a term of
general description as also implying a statement of worth.40
Although the justification for this approach to conceptual definitions is
often not articulated, one possible argument for it often hinted at is as
follows: terms like “art”, “democracy”, and “law”, though they have a
strong descriptive element, are rarely simply descriptive. There is a resid¬
ual (positive) normative element that philosophers seeking analytical
clarity cannot simply wish away.41 In many circles, it would be considered
insulting to be told that one’s society did not really have “law” or that its
39 See, e.g. H.L.A. Hart, “Postscript”, in The Concept of Law (2nd ed., Clarendon Press,
Oxford, 1994), pp. 248-249, contrasting his view that the primary purpose of law is to
guide human behavior with Ronald Dworkin’s view that the primary purpose of law is
to offer a moral justification for state coercion.
40 See Hart, The Concept of Law, pp. 203-07. There are ethical concepts, described in the lit¬
erature as “thick concepts”, in which description and evaluation (or, to put the same point
another way, description and reasons for action) are inextricably entwined: e.g. “rude”,
“cowardly”, “brutal”. See, e.g Bernard Williams, Ethics and the Limits of Philosophy
(Harvard University Press, Cambridge, Mass., 1985), pp. 140-152; Philippa Foot,
“Moral Arguments”, 67 Mind 502 (1958) at 507-509.
41 Kenneth Winston, in summarizing the ideas of Morris Cohen and Lon Fuller, described
a comparable notion in different terms. As I understand Winston’s summary, a (teleolog¬
ical) “ideal element” is required for the intelligibility of all social institutions, including
law (the ideal being the “principle of order, a limiting conception”, which creates the con¬
ceptual structure within which actual subjects are perceived), and therefore any definition
which does not incorporate such an element would be defective. Kenneth Winston, “The
Ideal Element in a Definition of Law”, 5 Law and Philosophy 89 (1986) at 98, 105-106.
government was not really “democratic”. When we say, “we would not
call what Nazi Germany had ‘law’”, or “we would not speak of ‘a right’
to be punished for something we had done”, the theorist is trading on our
linguistic intuitions—when we think a label is appropriate and when
inappropriate—and these intuitions sometimes contain judgmental ele¬
ments. It is as if the intuitions reflect some truth about social phenomena,
some truth we understand at the intuitive level but not yet or not yet
clearly at an articulate level.
It may be helpful at this point to consider an example from the juris¬
prudential literature that cuts across different approaches to conceptual
definitions. Simon Roberts criticized H.L.A. Hart’s analysis of legal
systems42 arguing that under Hart’s analysis many communities (in par¬
ticular, small tribes and so-called “primitive” societies) would be held not
to have “law”, as many such communities do not have the centralized
legislative and adjudicative bodies Roberts believed to be assumed by
Hart’s model.43 However, it is not clear why Hart could not simply reply
to this challenge, that for his own purposes he has chosen an analysis and
definition of law and of legal systems that only covers certain Western
societies. He could have said: definitions are arbitrary; if other theorists
want a wider definition, they are welcome to set one. (I do not claim
that this was in fact Hart’s position, only that a position of this sort is
possible.)
It appears that there are two unstated premises in Roberts’ criticism:
first, that the conceptual definition of “law” is not (or should not be) an
arbitrary matter; second, that all (or almost all) societies should be held to
have legal systems. As regards the second point, the argument fnight be
that saying that a community has a legal system is implicitly to state that
this community is advanced, mature, and sophisticated, and that to say
that a community does not have one is to say that it is “primitive” and
unimportant. This type of argument fits into my third category, discussed
earlier. However, the point remains that until a theorist offers grounds for
judging conceptual definitions and the reasons for adopting one over
another, arguments about the “truth” or “correctness” of a conceptual
definition are ungrounded, and thus pointless.
Given all of the considerations discussed during the course of this
chapter, it is not surprising that often the different participants in the
conceptual “debates” in legal theory—debates about how the concepts
are best defined—are often best understood as talking past one
another. One example may be the famous jurisprudential “debate”
between H.L.A. Hart and Lon Fuller.44 This is not the place to argue
42 From Hart, The Concept of Law.

43 Simon Roberts, Order and Dispute (Penguin, Middlesex, England, 1979), pp. 23-25.
44 Hart, “Positivism and the Separation of Law and Morals”; Fuller, “Positivism and
Fidelity to Law”.
CONCEPTUAL ANALYSIS AND NATURALISM 23
the matter in detail,45 but briefly the summary would be as follows: Hart
offered an analysis of law with the purpose of maximizing clarity in dis¬
cussing law in general and particularly in the moral evaluation of legal
rules; while Fuller offered a. moral test for applying the term “law”,
based partly on usage and partly on viewing law as a form of social
ordering to be contrasted with other forms of social ordering.46 The two
positions are incompatible in the sense that a particular legal system
might fail to be “law” under Fuller’s analysis while it would be “law”
under Hart’s analysis. However, the two analyses are not inconsistent,
in the sense that one can argue, without contradiction, that both are val¬
uable and useful.
There is one further practical question to consider. I have argued that
conceptual theories and claims can only be evaluated in light of their
underlying purposes, but I have also noted that many, and perhaps most,
such theories and claims fail to articulate their purposes. How then can
any evaluation be done, if the reader must provide the standard against
which the text will be tested?
I suggest that the best approach is the following. Where a theorist has
not articulated a purpose for her claim, one should seek a purpose against
which the theory would have some claim to success, without making the
theory trivial.47 Thus, to interpret a theory as merely tracking linguistic
usage may make the theory largely successful, but (in the area of jurispru¬
dence anyway) this is a relatively unambitious purpose, and a reader
should see if the theory might also succeed at some more substantial
purpose.
CONCEPTUAL ANALYSIS AND NATURALISM
Some writers have begun to question how much of traditional jurispru¬

dence has been conceptual analysis, and, a related matter, how much of
jurisprudence should be conceptual analysis.
For example, in an article on American legal realism, Brian Leiter
argues that this school of thought has been misunderstood because com¬
mentators have assumed wrongly that the realists, like most legal theorists
45 There will be much more on Hart in Chap. 3 and on Fuller in Chap. 6.

46 Frederick Schauer has argued that Hart and Fuller could be seen to have had a common
purpose, in that both were trying to put forward theories which would make it more likely
that officials and citizens would resist unjust laws. See, e.g. Frederick Schauer, “Fuller’s
Internal Point of View”, 13 Law and Philosophy 285 (1994) at 289-294; see also Philip
Soper, “Choosing a Legal Theory on Moral Grounds”, in Philosophy and Law (J. Coleman
and E. F. Paul ed., Blackwell, Oxford, 1987), p. 31-48.
47 This type of analysis is related to Donald Davidson’s discussion of “charity” in interpre¬
tation. See Donald Davidson, Inquiries into Truth and Interpretation (Clarendon Press,
Oxford, 1984), pp. 196-97, 200-201.
this century, were offering conceptual analyses.48 Leiter argues that the
American legal realists, at least in their theorizing about judicial decision¬
making, were in fact philosophical naturalists.49
“Naturalism” is the belief that there is no area of philosophical inquiry
to which the sciences, broadly understood, are not applicable; in Leiter’s
terms, it is the belief that “philosophical theorizing ought to be continu¬
ous with and dependent upon empirical inquiry in the natural and social
sciences.”50 Examples of such “naturalist” approaches are certain
modern approaches to epistemology, which hold that considerations of
how people actually arrive at their beliefs are relevant to the inquiry' of
how we ought to arrive at our beliefs.51
Leiter’s observations about American legal realism are almost certainly
right, and a helpful corrective to the way those theorists are often per¬
ceived. However, Leiter also seems to hint at a more general, and more
controversial, claim about legal theory, when he comments at one point
that jurisprudence in general is decades behind other areas of philosophy
in abandoning pure conceptual analysis for naturalist analysis.52
An initial response is that it may be unwise to evaluate as a group all
conceptual theories, even all conceptual theories in jurisprudence. One
might argue that epistemology and judicial reasoning are to be distin¬
guished from the type of conceptual questions that are often raised in
jurisprudence. When considering how we know things or how judges
can/should decide legal questions, there is an immediate attraction to the
position that how people in fact do these activities should play an integral
part in the analysis of how they should do them.
However, questions like “what is law” (or “what is art”) and “the nature
of ‘rights’” are of a different type altogether, for it is less clear how empir¬
ical claims could enter the analysis. It is not that empirical facts—what
48 Brian Leiter, “Legal Realism”, in A Companion to the Philosophy of Law and Legal Theory (D.
Patterson ed., Blackwell, Oxford, 1996), pp. 262-265; see also Brian Leiter, “Rethinking
Legal Realism: Toward a Naturalized Jurisprudence”, 76 Texas Law Review 267 (1997).
American legal realism will be discussed in Chapter 17.
49 Leiter, “Legal Realism”, p. 263. Leiter does not claim that naturalist methodology com¬
pletely supplanted conceptual analysis for the legal realists. He argues that in conceptual
matters, the legal realists are best understood as having been “tacit legal positivists”. Ibid.
at 264.
50 ibid. For the consequences this approach has for a wide variety of different philosophical
inquiries, see David Papineau, Philosophical Naturalism (Basil Blackwell, Oxford, 1993).
51 See, e.g. the papers collected in Hilary Kornblith, Naturalizing Epistemology (2nd ed., MIT
Press, Cambridge, Mass., 1994).
02 Leiter, “Legal Realism” at 262-264. Leiter expanded on some of these claims in later
articles. See Brian Leiter, “Naturalism and Naturalized Jurisprudence”, in Analyzing Law:
New Essays in Legal Theory (Brian Bix ed., Clarendon Press, Oxford, 1998), pp. 79-104;
Brian Leiter, “Realism, Hard Positivism, and Conceptual Analysis”, 4 Legal Theory 533
(1998). For a response to the first of these articles, see Jules L. Coleman, “Second
Thoughts and Other First Impressions”, in Analyzing Law, pp. 278-285.
BOUNDARY LINES IN LAW 25
people actually do, or what there actually is—have no place at all in the
analysis; as noted earlier, many theorists see a role for actual linguistic
usage in constructing a conceptual theory Rather, the problem is that the
scope of the category (“law”, “rights”, “art”) is as contested as the best
way of understanding the items that fit within the category.53 Empirical
observation is not likely to setde these contests, as the role of empirical
facts (e.g. how important linguistic usage should be in constructing or eval¬
uating the theories) is itself highly contested.
For all the reasons that make conceptual analysis in legal and political
philosophy muddled, confused and confusing—the lack of articulation
of underlying purposes, the varying and contrary purposes, and the con¬
tested nature of conceptual boundaries—I doubt that these discussions
will (or should) soon be conquered by naturalism.54
BOUNDARY LINES IN LAW
One type of dispute within jurisprudence which can be understood as a

consequence of conceptual debates are the arguments about boundary
lines within law.
One such argument surrounds whether the collections of rules and
related institutions in a society should warrant the label “law” if the society
(and its legal system) was evil. A similar argument is sometimes raised
regarding an unjust rule within a particular legal system. This set of issues
will come up, in various guises, in the discussions about legal positivism (see
Chapter 3), and natural law theory (see Chapter 5). One gets a sense in those
discussions that the question of whether a particular rule or a particular rule
system is given the tide “law” or “legal” is not of great intrinsic importance.
After all, it is only a name, albeit one that can carry significant moral or
psychological reverberations. It is more that the label theorists give or with¬
hold in these situations reflects (is a symptom of) their general approach to
law—e.g. natural law theorists using law as an intermediate step in questions
about how to act, as contrasted with legal positivists’ quasi-scientific
approach to law as a social phenomenon to be studied dispassionately.
A very different kind of argument appears to be going on when theo¬
rists wonder about which standards among those judges are obligated to
apply, or among those judges in fact do apply, should carry the label “law”
53 While one might argue that the scope of categories central to other disputes, e.g. the cat¬
egory of “warranted assertion” in epistemology, is also sometimes contested, I would
argue that for such categories the disputes, if they exist at all, are very much at the
margins, as contrasted with conceptual disputes in legal and political theory, where the
disputes are pervasive and central.
54 For a response to an earlier version of this section, see Leiter, “Naturalism and
Naturalized Jurisprudence”, pp. 92-100 and n.75.
or “legal”.55 Such debates often arise in the context of a larger line¬

drawing question, raised by larger-scale jurisprudential theories. When a
theorist claims that a common law judge should always only declare the
law that is already present rather than legislate new law, that there is no
necessary connection between legal validity and moral value, or that one
can always determine the content of a law without recourse to moral
evaluation—in the context of such assertions much can turn on how (and
where) one distinguishes law from non-law, legal standards from non-legal
standards, and the like.
As was mentioned earlier in this chapter, drawing boundaries can be a
game where all the rules and underlying purposes are hidden or at best
vaguely stated. When a theory turns on the relation between two fluid,
contested concepts (for example, whether the content of “legal rules” can
always be determined without reference to “moral evaluation”), there will
always be doubts regarding whether neutral criteria can be found to arbi¬
trate the result, or whether every theory can simply define the terms in
the way which supports its own claims.
Sometimes boundary lines are placed in the service of significant polit¬
ical decisions. This may be best exemplified in discussions about the con¬
tinuity of legal systems—determining when one legal system ends and
another one begins. This apparently abstract discussion has been used as
the basis for determining under what circumstances legal rules and legal
institutions from a former regime were still valid after that regime had
been overthrown.56 These are difficult political and moral decisions, and
the judges may be excused if they search for an abstract and apparently
neutral basis for their decisions. (One might even argue that this' kind of
search is often central to the legal process, and is not a product only of
this particular controversy.) However, the judge’s strong reliance on
abstract analytical concepts and categories to decide these questions is
inappropriate—and the simplest of reasons for that conclusion is that the
abstract analytical concepts in question were not created with these
moral/political problems in mind.57 One should be hesitant to base deci-
55 The debate between Joseph Raz and Ronald Dworkin on this point appears in Raz,
“Legal Principles and the Limits of Law”, in Ronald Dworkin and Contemporary Jurisprudence
(M. Cohen ed., Duckworth, London, 1984), pp. 73-87; Ronald Dworkin, “A Reply by
Ronald Dworkin”, in ibid., pp. 260-263; and Raz, Ethics in the Public Domain, pp. 179-193.
56 See, e.g. Madzimbamuto (Stella) v. Lardner-Burke MO. 1968 (2) S.A. 284; Uganda v. Commissioner
of Prisons, ex p. Matovu [1966] E.A. 514; see generally John M. Finnis, “Revolutions and
Continuity of Law”, in Oxford Essays in Jurisprudence, Second Series (A.W.B. Simpson ed.,
Oxford University Press, Oxford, 1973), pp. 44-76; J.M. Eekelaar, “Principles of
Revolutionary Legality”, in ibid., pp. 22-43.
57 Another reason for caution is how poorly equipped the judges often are to understand
the concepts they are borrowing. Some of the “post-revolution” decisions turn on a badly
misunderstood version of Hans Kelsen’s remarks on “Change in the Basic Norm”. For
example, compare Madzimbamuto, at 314—321 with Hans Kelsen, General Theory of Law
and State (Russell & Russell, New York, 1945), pp. 117-118, 220-221.
CONCLUSION 27
sions that may cost individuals their freedom or property on a theorist’s

toying with boundary lines.
On one hand, one is skeptical when purely analytic discussions are
appropriated as the grounds to solve political and moral issues for which
the original discussions are not well-suited. It almost seems unfair to the
original theorists; perhaps they should have been put on notice that their
writings might be used as the justifications for actions on particular moral
problems, and the theorists could have reconsidered their positions with
that thought in mind. As it is, some theorists can come off seeming like
defenders of tyranny and injustice when that was neither their intentions
nor their nature.58
CONCLUSION
In summary, conceptual debates in jurisprudence (and elsewhere) are

often confusing because a central element in the discussion is left
unstated. In proposing a conceptual claim, or in evaluating such a claim,
it is critical to determine the purpose with which the claim is put forward.
When the purpose is not articulated, there is the danger, at the least, that
the participants in conceptual debates will misunderstand one another,
and offer arguments that do not meet.
In this chapter, I have offered four alternatives for conceptual claims:
(1) they are arbitrary stipulations; (2) they track linguistic usage; (3) they
try to explain what is “important” or “interesting” about some matter;
and (4) they establish an evaluative test for the label. My impression is that
most conceptual claims in legal theory belong to the third or fourth cat¬
egories.
Under the approach suggested in this chapter, one might not be able
to say that a particular conceptual analysis was “right” or “true”, at least
not in the sense that there would be only one unique “right” or “true”
theory for all conceptual questions, but I do not see this as a significant
loss. It should be sufficient that one can affirm (or deny) that an analysis
is good, or better than an alternative, for a particular purpose.
Isaiah Berlin, “The Purpose of Philosophy”, in Concepts and Categories (Penguin,

New York, 1981), pp. 1—11.
L. Jonathan Cohen, The Dialogue of Reason (Clarendon Press, Oxford, 1986).
58 One thinks of the long-standing argument about whether legal positivist theories helped
to encourage the growth, or at least the acceptance, of National Socialism in 1930s
Germany. See, e.g. Paulson, “Lon L. Fuller, Gustav Radbruch, and the ‘Posidvist’
Theses”.
Gilbert Harman, “Doubts About Conceptual Analysis”, in Philosophy in Mind: The

Place of Philosophy in the Study of Mind (M. Michael and J. O’Leary-Hawthorne
ed., Kluwer, Dordrecht, 1994), pp. 43—48.
Thomas Morawetz, “Law and Conceptual Analysis” in The Philosophy of Law: An
Introduction (Macmillan, New York, 1980), pp. 11-16.
Jay Rosenberg, The Practice of Philosophy (2nd ed., Prentice-Hall, Englewood Cliffs,
N.J., 1984), pp. 5-11.
Philip Soper, “Legal Theory and the Problem of Definition” (book review), 50
University of Chicago Law Review 1170 (1983).
Brian Z. Tamanaha, Realistic Socio-Legal Theory: Pragmatism and A Social Theory of
Law (Clarendon Press, Oxford, 1997), Chapter 4.
Alan R. White, “Conceptual Analysis” in The Owl of Minerva: Philosophers in
Philosophy (C.J. Bontmepo and S.J. Odell ed., McGraw-Hill, New York, 1975),
pp. 103-117.
Kenneth Winston, “The Ideal Element in a Definition of Law”, 5 Law and
Philosophy 89 (1986).
PART B
Individual Theories
About the Nature of Law
The heart of many jurisprudence courses is the discussion of the
approaches to law of various well-known individual theorists. The follow¬
ing chapters offer an overview of five of the most highly-regarded legal
theorists, locating some of the issues to which their theories were
responses, and placing the theories within the context of larger move¬
ments in jurisprudence.
Each of the five offers a distinct, coherent, and comprehensive vision,
not only of the nature of law but also of the nature of legal theory.
Chapter Three
H.L.A. Hart and Legal Positivism
AN OVERVIEW OF LEGAL POSITIVISM
Legal positivism is based on the simple assertion that the proper descrip¬
tion of law is a worthy objective, and a task that need be kept separate
from moral judgments (regarding the value of the present law, and
regarding how the law should be developed or changed). Early advocates
of legal positivism included Jeremy Bentham (1748-1832) and John
Austin (1790-1859). One could just as easily dig deeper, and place the
roots of modern legal positivism with the philosophers and political theo¬
rists Thomas Hobbes (1588-1679) and David Hume (1711-1776).1
In simple terms, legal positivism is built around the belief, the assump¬
tion, the dogma, that the question of what is the law is separate from, and
must be kept separate from, the question of what the law should be. The
position can be summarized in the words of John Austin:
“The existence of law is one thing; its merit or demerit is another. Whether it be
or be not is one enquiry; whether it be or be not conformable to an assumed stan¬
dard, is a different enquiry. A law, which actually exists, is a law, though we happen
to dislike it, or though it vary from the text, by which we regulate our approba¬
tion and disapprobation.”2
Legal positivism seeks from the study of law nothing more and nothing
less than what is considered the foundation of modern social theory: that
1 As the editors do in George Christie and Patrick Martin (ed.), Jurisprudence: Text and
Readings on the Philosophy of Law (2nd ed., St. Paul, Minn.; West Publishing, 1995), Chap.
5. John Finnis goes a few steps further, and states that the groundwork for legal positi¬
vism (the establishment of human-posited law as a separate subject-matter) was laid by
medieval writers, in particular by Thomas Aquinas. John Finnis, “The Truth in Legal
Positivism”, in The Autonomy of Law (R. George ed., Clarendon Press, Oxford, 1996), pp.
195-214. I discuss the connections and differences between Aquinas’ view and modern
legal positivism in Chap. 5.
2 John Austin, The Province of Jurisprudence Determined, Lecture V (W.E. Rumble ed.,
Cambridge University Press, Cambridge, 1995) (first published in 1832), p. 157.
32 H.L.A. HART AND LEGAL POSITIVISM
social institutions can be studied in an objective fashion, free from bias or

ideology.3 Such separation does not deny—in fact, theorists advocating
legal positivism usually strenuously assert—that something identified as
“a valid law” or “a valid legal system” may sometimes be sufficiendy evil
or unjust that it should not be obeyed.4
The notion that the description of a practice or an institution should
be prior to and separate from its evaluation seems to modern audiences
too obvious to need declaration, let alone justification.5 However, the con¬
troversial nature of legal positivism becomes clearer when we keep in
mind both the history of writing about law and the type of institution law
is.
As to the first point: historically, much of the writing about law in
general (as contrasted with writing about specific legal systems, which
discuss which rules are in force or should be in force) involved moral and
political inquiries regarding under what conditions government was legit¬
imate and (the apparently related question) under what conditions citi¬
zens have a moral obligation to obey the law. To some, the point of a
morally neutral description of law was unclear, especially if one thought
that one had a moral or religious basis for criticism and prescription.6
As to the second point, law is a practice so infused with moral-sound¬
ing claims (e.g. that citizens “ought to do X”, where “X” is some action
required by the legal rules) and moral-sounding terminology (e.g. legal
“rights” and “obligations”) that a strictly descriptive theory of law seems
either difficult or inappropriate, for the same reason that a “descriptive
theory of morality” or a “descriptive theory of justice” sound strange—
though one can find descriptive theories of both types.
The attempt to place the study of law on a “scientific” foundation—
objective and pure7 of bias—led many of the early legal positivists to try
3 This approach to social theory has been challenged in various ways, not least by those
who believe that social practices can only be understood in a “hermeneutic” way. On the
connection between legal positivism, hermeneutic theory, and the possibility of neutral
social and legal theory, see Stephen R. Perry, “Interpretation and Methodology in Legal
Theory”, in Law and Interpretation 97-135 (A. Marmor ed., Clarendon Press, Oxford,
1995); Brian Bix, “H.L.A. Hart and the Hermeneutic Turn in Legal Theory”, 52 SMU
Law Review 167 (1999).
4 See, e.g. Hart, “Positivism and the Separation of Law and Morals”, pp. 615-21.
5 This is also the reason why I discuss legal positivism prior to natural law theory in this
Book. Though the latter has a longer history, to many people’s way of thinking, legal pos¬
itivism, separating description and evaluation, would seem the usual or default view,
while natural law theory would seem the unusual position that needs to be explained or
justified. As recently as the 19th century, exactly the opposite was the case.
6 One still occasionally comes across such views even today. See, e.g. Richard Dien
Winfield, Law in Civil Society (University of Kansas Press, Lawrence, Kansas, 1995), p. 2:
“Only by adopting a normatively indifferent stance can one entertain law as a discrete
object of investigation warranting separate study.”.
7 Hans Kelsen referred to his theory as “reine Rechtslehre”, the “pure theory of law”. His view
is discussed in Chap. 4.
SUMMARY OF HART’S POSITION 33
to create a strictly empirical way of understanding legal actions and legal

concepts, thus understanding them as functions of past, current or future
facts. This search in legal theory can be seen as deriving from the broader
search for a “scientific” approach to the social sciences that could match
the approach used in the “hard sciences” {e.g. physics and chemistry)
whereby theories would be based only on “objective” observations of
events that could be easily reproduced or confirmed by other theorists (in
somewhat more technical language, the “normative” in law was reduced
to the “empirical”).8 Thus, legal rules were analyzed in terms of past ten¬
dencies to obey, the use by legislators of particular kinds of language, the
future likelihood of the imposition of sanctions, predictions of what
judges were likely to do, and so on.
H.L.A. Hart’s significance comes in part from the way he moved legal
positivism in a different direction. While he continued to insist on the
importance of the conceptual separation of law from morality (the sep¬
aration of describing what law is from advocating how law should be), he
criticized attempts to analyze law in stricdy empirical terms. In this, he
was following a growing and influential view, that the social sciences
require an approach distinctly different from that used in the hard sci¬
ences, an approach based on understanding not merely the actions that
occur, but also the meaning those actions have to the participants in the
practices or institutions being studied.9
SUMMARY OF HART’S POSITION
At the time that H.L.A. Hart (1907-1992) began forming his legal theory,
an influential view within the legal theory literature was that law was best
understood as the command of a sovereign to its subjects.10 Hart’s
approach to legal theory can be seen as a reaction to the command theory,
and he presented his theory in that way on a number of occasions, as will
become evident in the course of the following summary.11
8 This sort of “science envy” was also exemplified in the rise of “formalism” in legal edu¬
cation, in particular in tire influential ideas of Harvard Law School Dean Christopher
Columbus Langdell. See, e.g. Anthony T. Kronman, The Lost Lawyer (Harvard University
Press, Cambridge, Mass., 1993), pp. 170-174. I discuss Langdell and legal formalism
briefly at the beginning of Chap. 17.
9 See generally Max Weber, The Methodology of the Social Sciences (E. Shils and H. Finch ed., Free
Press, New York, 1949); Peter Winch, The Idea of a Social Science (Routledge, London, 1958).
10 This position is ascribed by Hart, and by many others, to John Austin. See, e.g. Hart, The
Concept of Law, pp. 18-25. Some have argued that this misstates Austin’s position, or at
least that it misses many of the subdeties of his argument. See, e.g. W.L. Morison, John
Austin (Edward Arnold, London, 1982), pp. 178-205; Roger Cotterrell, The Politics of
Jurisprudence (Butterworths, London, 1989), pp. 64—65, 74.
11 Hart, “The Separation of Law and Morality”, pp. 600-606; Hart, The Concept of Law,
pp. 18-120.
The “command theory” offered a picture of law as a matter of com¬

mands (orders backed by threats) by a sovereign (one who is habitually
obeyed by others, but who does not habitually obey anyone else) to citi¬
zens. Hart found weaknesses at almost every point. First, it was hard to
speak of there being a sovereign—a person or entity that is habitually
obeyed, but has no habit of obedience to any other person or entity—in
most modern governments, where even the highest governmental roles
and insdtutions are subject to legal restraints. Secondly, the concept of a
sovereign creates difficulty in explaining the continuity of law: for when
someone new takes over, that person has no history of being habitually
obeyed. Thirdly, there is much that is significant within legal systems that
is lost if one looks only to the commands backed by threats, or if one treats
all aspects of the law as variations of commands backed by threats.
In summary, from Hart’s perspective, the problem with Austin’s
approach to law, and indeed with most empirical approaches, was that
they are unable to distinguish pure power from an accepted set of insti¬
tutions, unable to distinguish the orders of terrorists from a legal system.
Hart’s alternative view of law is grounded on his views of rules, in
particular on a view of the difference between rules and habits. To an
outside observer, there may be no way to distinguish someone acting in
a particular way out of habit from her acting the same way in compli¬
ance with a rule. I may go to the movies every Saturday, but that is not
because I think that there is some legal, moral or social/conventional
rule that states that I should. According to Hart, the difference between
these two kinds of regularities of behaviour can be seen through the par-
ticipants’ attitudes. With habits, the statement of the behaviour is
nothing more than a description: I go to the movies every Saturday.
With a (rulef however, the statement can take on additional roles: as an
explanation, a justification, and a basis for criticizing deviation. The
statement has a normative role.12 Many people are not merely “in the
habit” of obeying the authorities; they have internalized the rules as
reasons for acting in certain ways and for criticizing others when they
do not act as required.
Hart’s theory, here as elsewhere, is responding to the idea that when
analyzing social institutions or social practices, a theory which takes
into account, or helps to explain, the way participants understand
those institutions or practices is, by that fact alone, significantly better
than one whichTloes noT do so. Hart described his own work as “an
essay in descriptive sociology”13, in that he often relied on distinctions
12 Hart, The Concept of Law, pp. 9-10, 54—57. For a recent provocative rethinking of the
nature of rules, with a discussion of implications for legal theory, see Scott J. Shapiro,
“The Difference That Rules Make”, in Analyzing Law (Brian Bix ed., Clarendon Press,
Oxford, 1998), pp. 33-62.
13 Hart, The Concept of Law, p. v.
SUMMARY OF HART’S POSITION 35
between concepts that were rooted in linguistic practice, linguistic

practice which was in turn based on differences in behaviour and atti¬
tude.
As for seeing law as being orders backed by threats, this view seems to
elide what had long seemed a basic distinction: that a legal system was
something different from, and presumably something better than, the
rule over a frightened populace by gangsters. Hart captured the core of
this distinction in his discussion of the difference between feeling obliged
and having an obligation.14 We feel obliged to act in the way ordered by
a gunmanfbecausew?fear the consequences if we do not act in that way.
However, the moment the fear of possible consequences is removed, we
would see no reason to act as demanded. Having an obligation under
some valid normative system (whether the rules of a game we are playing,
the canons of one’s religion, or society’s legal rules) is psychologically
more complex. One acts because one believes that one qughftotifo so, not
because, or not merely because, one fears the consequences of acting in
a contrary way.15
Against a view that reduced all legal rules to variations on some single
type, as (one reading of) Austin’s theory seemed to reduce all legal rules
to commands, Hart emphasized the multiplicity of Jaw. He contrasted
rules that imposed duties with those~tEat conferred powers (whether
power conferred on officials within the legal sysTgmToF the delegation of
certain legal powers to citizens, as can be said to occur through the oper¬
ation of rules for contracts, wills, trusts, and so on), and he contrasted
rules that applied directly to citizens (“primary rules”) and rules that gov¬
erned the operation of the rule-system itself (“secondary rules”). The sec¬
ondary rules include rules of change, rules of adjudication, and the rule
of recognition.16 Rules of change are the rules which empower people to
create new primary rules. This includes not only the authorization of leg¬
islative bodies, but also the empowerment of individuals to create new
rights and duties through contracts, wills, trusts, and the like.17 Rules of
adjudication “empower[ ] individuals to make authoritative determina¬
tions of the question whether, on a particular occasion, a primary rule has
14 As Randy Barnett has pointed out, Randy E. Barnett, The Structure of Liberty: Justice and
the Rule of Law (Clarendon Press, Oxford, 1998), p. 19, John Locke emphasized a similar
distinction, though in the context of discussing the connection between natural law and
positive law: “Certainly, positive civil laws are not binding by their own nature or force
or in any other way than in virtue of the law of nature, which orders obedience to super¬
iors and in keeping of public peace. Thus, without this law, the rules can perhaps by force
and with the aid of arms compel the multitude to obedience, but put them under an obli¬
gation they cannot.” John Locke, Essays on the law of Nature (W. von Leyden ed.,
Clarendon Press, Oxford, 1954), p. 119. Natural law will be discussed in Chap. 5.
16 ibid., pp. 89-96.
17 ibid., pp. 93-94.
been broken.”18 The nature and significance of “rule(s) of recognition”

will be discussed in the next section.19
There is no room here to discuss all aspects of Hart’s legal theory
in detail20; instead, I will offer brief discussions on four of the more
telling topics in Hart’s work: the rule of recognition, the internal aspect
of rules, the “open texture” of rules, and the “minimum content of
natural law”.
THE RULE OF RECOGNITION
Central to Hart’s theory is the concept of a rule of recognition: a set of

criteria by which the officials determine which rules are, and which rules
are not, part of the legal system. The standards applied are referred to as
justifications for the actions of the officials, though to some extent the
standards are also created by those actions. To explain: sometimes the
standards applied are written down in an official text (e.g; a written con¬
stitution) or at the least are clearly expressed in criteria that the officials
state that they are following (e.g. “to become valid law, proposed legisla¬
tion must be passed by a majority of each house of the Congress and then
signed by the President”). At other times, the standards the officials are
following can only be determined after the fact by reference to the deci¬
sions they have made.
A number of issues have been raised by later commentators regarding
the rule of recognition: e.g. whether it is best understood as a duty-impos¬
ing or power-conferring rule; and whether there can be more than one
rule of recognition within a given legal system.21 However, one should
focus primarily on what the concept of a rule of recognition indicates, i.e.
what it stands for. The rule of recognition expresses, or symbolizes, the
basic tenet of legal positivism: that there are conventional criteria, agreed
upon By officials, Tor determining which rules are and wHicFfare not part
of the legal system; this in turn points to the separation of the
18 ibid., p. 94.
19 Later commentators have pointed out that Hart was probably mistaken in his further
implication that the distinction between primary and secondary rules matches that
between duty-conferring and power-imposing rules; additionally, there are questions
regarding whether the rule of recognition is best understood as a duty-imposing or
power-conferring rule (or neither). See, e.g. Joseph Raz, The Concept of a Legal System (2nd
ed., Clarendon Press, Oxford, 1979), p. 199. However, for present purposes these are
matters of detail as against the general point that there is a variety of types of law, and
that our understanding of this type of social system would be distorted by any attempt
to analyze all of the law in terms of a single type of rule.
20 The two best sources for such an extended discussion are probably Neil MacCormick,
H.LA. Hart (Stanford University Press, Stanford, 1981); and Michael Bayles, Hart’s Legal
Philosophy: An Examination (Kluwer Academic Publishers, Dordrecht, 1992).
21 Joseph Raz, The Authority of Law (Clarendon Press, Oxford, 1979), pp. 95—96.
THE INTERNAL ASPECT OF RULES (AND OF LAW) 37
identification of the law from its moral evaluation, and the separation of
statements about what the law is from statements about what it should be.
THE INTERNAL ASPECT OF RULES (AND OF LAW)
The “internal aspect” of rules22 is central to Hart’s approach to law. It

can best be understood within the context of (and it has repercussions for)
certain general problems of constructing general social theories—a
subject touched upon in earlier chapters, and in an earlier section of this
chapter. There are two related problems to consider: how must social the¬
ories be different from theories in other areas, and to what extent can a
social theory be “scientific”.23
One problem that comes from trying to construct a theory of a social
process like law, a problem that does not trouble theories about atomic
composition, chemical interaction, photosynthesis and the like, is that law
is a human creation, meant to serve human purposes, and requiring
human participation. Because of these aspects, understanding any social
process, including law, will be different in kind from understanding pro¬
cesses which are purely physical, chemical or biological.
This is the context for understanding Hart’s concept of the internal
aspect of rules. The idea is that one cannot understand a social system
unless one understands how the people who created the system or who
participate in the system perceive it. This “hermeneutic” approach '
thafis, givlngpriority to trying to understand howotKer*people perceived
their situation—is always in tension with those who want social theory to
be more scientific.24
The “scientific” approach to social theory would rely only on data that
was “objective”, data on which different observers would always agree.
The “scientific” approach to legal theory might be exemplified in various
theorists’ writings: for example, Christopher Columbus Langdell’s view
of legal theory as the search for the system of basic principles within the
law,25 and the American legal realists (to some extent reacting against
Langdell’s view26) emphasizing what judges “actually do” as contrasted
22 See Hart, The Concept of Law, pp. 54-57, 79-88.

23 Some of the themes in this section are explored at greater length in Bix, “H.L.A. Hart
and the Hermeneutic Turn in Legal Theory”; see also Thomas Morawetz, “Law as
Experience: Theory and the Internal Aspect of Law , 52 SMU Law Review 21 (1999).
24 The foundational work advocating a hermeneutic approach to social theory is probably Max
Weber, “‘Objectivity’ in Social Science and Social Policy”, in The Methodology of the Social
Sciences, pp. 50-112. Hart’s immediate influence (and a source almost as important as Weber
on this topic) was Winch The Ldea of a Social Science; see Hart, The Concept of Law, p. 242.
25 See William Twining, Karl Llewellyn and the Realist Movement (University of Oklahoma
Press, Norman, Oklahoma, 1985), pp. 10-11.
26 See the discussion of American legal realism in Chap. 17.
with what they are saying that they are doing. Hart also specifically men¬
tioned the work of the Scandinavian Legal Realist Alf Ross, who (accord¬
ing to Hart) “claimed that the only method of representation of the law
fit to figure in a modern rational science of law was one which shared the
structure and logic of statements of empirical science.”27
Hart’s argument is that whatever advantage a “scientific” approach
might have, it simply is not adequate for a full understanding of law.28
One can only understand normative—rule-following—behaviour if one
leaves one’s spectator’s perspective and tries to understand the percep¬
tions of the participants in the system, that is, the perceptions of the
people who are following the rules, and who perceive themselves as doing
so. In Hart’s terms, to understand “any form of normative social struc¬
ture”, “the methodology of the empirical sciences is useless; what is
needed is a ‘hermeneutic’ method which involves portraying rule-gov¬
erned behaviour as it appears to its participants”.29
The attack on a purely scientific approach can be seen in Hart’s distinc¬
tion between habitual behaviour and rule-following, mentioned earlier.30
As noted, Hart emphasized the difference between rules and habits, a
difference that resided primarily in the participants’ perceptions of what
they were doing, and in their reactions to and attitudes towards the actions
about them. When an action was done “as a rule”, rather than “as a habit”,
the rule is given as a justification of the action, and the rule is also the basis
for any criticisms (including self-criticism) for any divergence from the pre¬
scribed actions.31 By contrast, we tend to have no justifications at hand (and
sometimes we are lacking for explanations of any kind) for our habits, and
we certainly do not criticize or expect criticisms when there are deviations
from those habits. Because a scientific, purely “external”, approach to law
would conflate habitual actions and rule-following, according to Hart it
would inevitably miss some matters which are at the essence of law.
However, to say that one is going to take the perspective of a partici¬
pant in the social practice is at best a first step. After all, most social prac¬
tices have a large number of participants, all of whom do not share the
same view of, or attitude towards, the practice. One prominent legal theo-
27 Hart, Essays in Jurisprudence and Philosophy, p. 13.

28 For an excellent discussion of the problems of methodology in jurisprudence, with par¬
ticular attention to Hart’s work, see Perry, “Interpretation and Methodology in Legal
Theory”.
29 Hart, Essays in Jurisprudence and Philosophy, p. 13.
30 Similarly, to a “scientific” observer, someone who obeyed the law merely out of fear of
sanctions would look the same as someone who obeyed the law because he or she believed
that the legal system was legitimate—though a legal positivist (with that position’s dog¬
matic separation of description and moral evaluation) might be foreclosed from referring
to that conflation as a basis for rejecting a purely external viewpoint.
31 For the suggestion that one needs to distinguish the “emotional” and “volitional” aspects
of the “internal point of view”, see Neil MacCormick, Legal Reasoning and Legal Theory
(Clarendon Press, Oxford, 1978), pp. 288-292; MacCormick, H.LA. Hart, pp. 33-34.
THE INTERNAL ASPECT OF RULES (AND OF LAW) 39
rist, John Finnis (who is discussed at greater length in Chapter 5) argues

that the perspective chosen should be that of a (hypothetical) practically
reasonable person, who applies appropriate moral reasoning to conclude
(if true) that the legal system creates binding (prima facie) moral obliga¬
tions.32 A second prominent legal theorist, Ronald Dworkin (the subject
of Chapter 7), argues that one should theorize as if one were a partici¬
pant in the social practice, offering an interpretation of that practice that
makes it the (morally) best practice it can be.33 Both of these perspectives
are, from Hart’s perspective, too extreme: he wants a legal theory that
would be free from moral evaluations or moral commitments (unlike
Finnis’ approach), while remaining a descriptive theory of the practice
rather than a participation in it (unlike Dvvorkin’s^approach).34
Hart was trying to maintain (a'difficult middle position.33)He argued
that a legal theory should be constructed around the perspective of
someone who accepted the legal system, but the theory itself (or, to put
the matter differently, the theorist herself) need not, and should not,
endorse the system (as one which is generally just or which creates binding
moral obligations). In other words, the theory simultaneously: (1)
attempts to take into account the participant’s perspective, and (2)
manages to choose among possible participants’ perspectives without
having to make moral judgments, while (3) keeping sufficient distance
from the participants’ perspective to allow for moral criticism of the
whole system/enterprise. The danger is of Hart’s position sliding towards
an Austin-like command theory on one side, and a position closer to
Finnis’ or Dworkin’s on the other.
To put the matter a different way, the question is how to take seriously
the need to accept the perspective of a participant in a practice while still
maintaining a sufficient distance to be able to criticize the practice (and
the participants). In social theory (or perhaps, more accurately, “social sci¬
ences meta-theory”), this has led to an ongoing debate regarding whether
an attempt to “explain each culture or society in its own terms . . . rules
out an account which shows them up as wrong, confused or deluded.”36
32 See Finnis, Natural Law and Natural Rights, pp. 3-18.

33 See generally Dworkin, Law’s Empire, pp. 45—113.
34 See Hart, “Introduction”, pp. 8-12; Hart, “Postscript”, pp. 240-244; Hart, “Comment”,
in Issues in Contemporary Legal Philosophy (R. Gavison ed., Clarendon Press, Oxford, 1987),
p. 39. As a matter of strict chronology, Hart’s most important works were written prior
to the works of Finnis and Dworkin; however, it is still accurate to say that Hart s posi¬
tion is a centrist position compared to the positions Hart rejected, but Finnis and
Dworkin were later to defend.
35 An analysis similar to what follows, though in greater detail, was offered in H. Hamner
Hill, “H.L.A. Hart’s IWim/Lm- On Some Methodological Difficulties in
The Concept of Law”, 3 Canadian Journal of Law and Jurisprudence 113 (January 1990).
36 Charles Taylor, Philosophy and the Human Sciences (Cambridge University Press, Cambridge,
1985), p. 123. Taylor defends the view that one can have an “interpretive” or “verstehen”
approach while still retaining the ability to criticize that which is being explained.
Someone might argue: if you claim to understand the perspective of the

believing participant of a particular practice, but you think the practice
is irrational and cruel, then you have not really understood or properly
incorporated the perspective of the believer, because that is not how it
looks to her.37 An additional complication, one whose implications are
hard to tease out, is that in the social sciences one must consider the role
of an internal point of view both in (1) the evaluation of data gathered,
and in (2) the gathering of the data to be evaluated.38 This additional
point is unclear in its implications because it ties into the debate on what
it would mean to “gather evidence” for a general theory of law, and what
kind of evidence one would want, a debate alluded to earlier in this book
(in Chapter 2).
One attempt at a defensible middle position between external points of
view and fully committed internal points of view was articulated by
Joseph Raz, in a position called “statements from a point of view” or
“detached normative statements”.39 These are statements which accept a
particular normative position for the purpose of making a limited claim,
but without endorsing that normative position. Thus, one can tell a veg¬
etarian friend at a restaurant, “given your beliefs, you should not order
that dish”, even though the speaker is not a vegetarian. In a similar way,
“[l]egal scholars—and this includes ordinary practising lawyers—can
use normative language when describing the law and make legal state¬
ments without thereby endorsing the law’s moral authority.”40 A lawyer
can say to a client: if you accept the law as valid (as imposing moral obli¬
gations), then you should do X or should avoid doing Y. Whether Hart’s
analysis, with or without the help of Raz’s addition, can maintain its pre¬
carious middle position is a difficult and important question.
OPEN TEXTURE
The problem of gaps in the law has been known for a long time. Aristode
wrote:
“When the law speaks universally, then, and a case arises on it which is not covered
by the universal statement, then it is right, when the legislator fails us and has erred
by over simplicity, to correct the omission—to say what the legislator himself would
have said had he been present, and would have put into his law if he had known.”41
37 This position, derived from Peter Winch and Jurgen Habermas, is well summarized in
Hill, “H.L.A. Hart’s Hermeneutic Positivism”, at 116-117.
38 Hill, “H.L.A. Hart’s Hermeneutic Positivism”, at 123-125.
39 See Raz, The Authority of Law, pp. 153—157; see also Hart, “Introduction”, pp. 14-15.
40 Raz, The Authority of Law, p. 156.
41 Aristotle, Mcomachean Ethics, Book V, 10:1137b, in The Complete Works of Aristotle, Vol. 2 (J.
Barnes ed., Princeton University Press, Princeton, 1984), p. 1796.
OPEN TEXTURE 41
There are a number of different ways in which legal rules might fail to
cover (unusual) factual situations that arise. Hart introduced the idea of
“open texture” to discuss one such way.42 If the legislators introduce a rule
to deal with a particular set of circumstances, how is a judge to apply the
rule to an entirely different type of situation? Hart’s example is the rule,
“No vehicles in the park”, introduced to remove automobiles from the
area, but then asking whether that rule should apply to motorcycles or
roller skates or other objects which may or may not be “vehicles”. Hart
argued that with all general rules, there will be a “core of certainty”—
central cases where the application is clear—and a “penumbra of
doubt”, where the application of the rule is uncertain.43
Part of the argument is that legislative purpose is incomplete or impre¬
cise: the legislators have not considered all possible situations, so that leg¬
islative intent, even if clearly known, will not answer all possible problems
in applying rules. Another part of the argument is that language is impre¬
cise: there will be many occasions when it will be uncertain whether a
general term (e.g. “vehicle”) applies to the particular object in question (e.g.
roller skates).
From these premises, Hart concluded that judges inevitably must use
their discretion to make new law, on occasions where the legal rules have
“open texture”. He also noted that judicial lawmaking at the margins was
a good thing, giving needed flexibility to the application of legal rules.44
Upon reflection, it is not a surprising conclusion that language is gen¬
erally clear, but there are occasions when it is not. How to obey or comply
with an order or request is usually obvious, but there are times when
circumstances make the matter uncertain. A directive that may seem
straightforward in one set of circumstances may seem confused or absurd
when applied after a significant change of circumstances. There are
aspects of the “open texture” debate that derive from the nature of lan¬
guage, aspects that derive from the nature of rules and rule-following, and
aspects that derive from suggestions about the best way to construct a
system for applying rules.45
Hart’s discussion derives from concerns about the ability of rules to
42 Hart, The Concept of Law, pp. 119-132. Hart’s concept was related to and derived from
an idea in Friedrich Waismann’s philosophy of language. I discuss the connections and
differences in greater detail in Bix, Law, Language, and Legal Determinacy, pp. 7-25.
43 Hart, The Concept of Law, p. 119. The idea and image of a core of certainty surrounded
by a penumbra of doubt might trace back either to the American judge and legal com¬
mentator Oliver Wendell Holmes, see, e.g. Oliver Wendell Holmes, The Common Law
(M. D. Howe ed., Litde Brown, Boston, 1963), p. 101 (originally published in 1881);
Thomas C. Grey, “Molecular Motions: The Holmesian Judge in Theory and Pracdce”,
37 William & Mary Law Review 191 at 34 and n.54 (1995); or to the British philosopher
Bertrand Russell, see Bertrand Russell, “Vagueness”, in Collected Papers of Bertrand Russell,
Vol. 9 (J. Slated ed., Unwin Hyman, London, 1988), p. 149.
45 See Bix, Law, Language and Legal Determinacy, pp. 22-25.
guide behaviour, and also about the need for, and advantages of, judicial
lawmaking at the margins. The same set of considerations raises other
problems that Hart did not consider in comparable length: for example,
problems about the nature of legislative intention and how it can be dis¬
covered or derived, and problems about when it is legitimate for a judge
to interpret a rule contrary to the rule’s clear meaning or contrary to leg¬
islative intentions. For a variety of reasons, English jurisprudence (at least
at the time Hart was writing) was not as focused on the legitimacy of judi¬
cial action as American jurisprudence has been in recent decades.46
In many ways, Hart’s discussion of “open texture” was preliminary:
there is much work that still must be done in disentangling arguments
based on the nature of language and arguments based on the nature of
rules, and Hart is probably too quick to conclude immediately from the
existence of “open texture” that judges do (or should) have discretion in
deciding hard cases.47 However, Hart’s primary purpose in putting
forward the notion of “open texture” was to counter arguments from two
directions. First, Hart was responding to the American legal realists48,
some of whom had argued that judicial legislation showed that legal rules
never or rarely determined the outcome in legal cases, and that rules were
of no importance in understanding the law. Secondly, Hart was respond¬
ing to the natural law theorists49, who argued that the way judges decided
difficult questions showed that there was, contrary to the legal positivists,
no conceptual separation between law and morality.50
To the point that rules by themselves do not always determine the
results of cases, Hart’s response was that this is true (and is caused by
“open texture”), but that this occurs in only a relatively small number of
cases. To the argument that judicial legislation shows the conceptual con¬
nection between law and morality, Hart responded that this way of seeing
the matter tended to cloud, not clarify, our understanding of law. Judges’
interstitial legislation may be based in part on moral standards, but it does
not follow that those standards are then best seen as having been “in the
legal rules” all along.51 Additionally, much judicial legislation is based on
46 Among the factors that create this more intense focus in the U.S. is the ability and will¬
ingness of American courts to invalidate legislation (under federal and state constitu¬
tional provisions), the controversial nature of some of those decisions, and the tension
between such decisions and tire strong democratic ethos in American political thought.
47 These matters are discussed in greater detail in Bix, Law, Language and Legal Determinacy
pp. 7-10, 17-35.
48 See Hart, The Concept of Law, pp. 132-144. American legal realism is discussed in Chap.
17.
49 Traditional natural law theory is discussed in Chap. 5; modern natural law theory, more
relevant to the critique of Hart’s legal positivism, is discussed in Chap. 6.
50 See, e.g. Hart, “Positivism and the Separation of Law and Morals”, pp. 606-615;
Anthony J. Sebok, “Finding Wittgenstein at the Core of the Rule of Recognition”, 52
SMULaw Review 75, 84—90 (1999).
51 See Hart, “Positivism and the Separation of Law and Morals”, pp. 614—615.
THE MINIMUM CONTENT OF NATURAL LAW 43
forwarding the purposes of legislation: purposes which can as easily be

morally neutral or evil as virtuous.
THE MINIMUM CONTENT OF NATURAL LAW
Some commentators have made a great deal of Hart’s discussion of “the

minimum content of natural law”,52 seeing it as a great concession that
undermines all that Hart had tried to claim earlier regarding the separa¬
tion of law and morality. This view, I would argue, is a clear misunder¬
standing of Hart’s discussion, though it may be that a certain lack of
clarity in the text invites the mis-reading.
The text occurs in the context of a general discussion of the ways that
law and morality can be said to overlap (for example, the way that con¬
ventional moral beliefs obviously affect the way that the law develops and
the fact that ideas about how law and society ought to be affect how stat¬
utes—in particular, ambiguous statutes—are interpreted53), in order to
show what is not claimed by the assertion that there is no necessary con¬
nection between law and morality (or, to put the point a different way,
what is not excluded by the claim). The “minimum content of natural
law” is just one more exploration along this borderline, a border that Hart
believes separates legal positivism from natural law theory.
The particular argument is that there are certain contingent facts of the
human situation in this century (and all past centuries): that we are all
mortal and vulnerable, that resources are limited, and that we are all
dependent to some extent on other people. These facts are contingent, in
that it is not impossible (however unlikely it may be) that future scientific
developments might change these facts (for example, some series of discov¬
eries might make us physically invulnerable). However, given these facts,
certain consequences are likely to follow. Among these, Hart speculated, is
that any legal or moral54 system that did not offer certain minimal protec¬
tions (against murder, serious assault and theft) to at least a significant
minority of the population would not—could not—survive for very long.
This is not a conceptual point, merely a prediction, and a reasonable
one. Even if one were to take it as a concession to the natural law theo¬
rists, it is a trivial one, for two reasons. First, we are not likely ever to
come across such a society; and if we did find a society which flouted
these minimal requirements and survived, the correct response would
be to change Hart’s series of criteria, not to conclude that either legal

53 ibid., pp. 199-210.
54 Here, Hart meant “moral” in the sense of the conventional morality which is accepted
within a society (or a sub-culture), restrains the actions of its members, and is enforced
by social sanctions of various kinds.
positivism or natural law theory had been proven wrong. Secondly, this
“minimum content” test does not reflect the usual lines of disagreement
between legal positivists and natural law theorists. Advocates of natural
law theory argue for a moral test for legal validity that sets far higher stan¬
dards, not just the Hobbesian moral minimum that Hart discussed.35
Most natural law theorists would want the right to declare as “not law”
legal systems, or certain rules of legal systems, that would otherwise easily
pass the minimal standards of Hart’s discussion.
LATER DEVELOPMENTS
A number of theorists have worked to carry on Hart’s project. Among

these have been David Lyons, Neil MacCormick, Jules Coleman,
Frederick Schauer, Wil Waluchow, and Tom Campbell.36 The most
influential writer in this tradition has probably been Joseph Raz
(1939— ).37 This section and the next one will offer a brief sample of die
directions in which legal positivism has developed.
Jules Coleman’s “Negative and Positive Positivism”58 offered a version
of Hartian legal positivism that seemed less vulnerable to the criticisms
raised by Ronald Dworkin (see Chapter 7). Under this approach, the rule
of recognition is a rule conventionally agreed among officials which could
(but need not) incorporate a community’s moral standards.39 This
friendly amendment to Hart’s approach creates “a form of positivism
which accepts the controversial [moral] nature of some legal reasoning,
while denying that this is incompatible with the essential, affirmative
claim of the theory that law is everywhere conventional in nature.”60
55 Hart, “The Separation of Law and Morality”, p. 623.

56 See, e.g. David Lyons, Ethics and the Rule of Law (Cambridge University Press, Cambridge,
1984); MacCormick, Legal Reasoning and Legal Theory; Jules L. Coleman, “Negadve and
Positive Positivism”, 11 Journal of Legal Studies 139 (1982), reprinted in Coleman, Market,
Morals and the Law (Cambridge University Press, Cambridge, 1988), pp. 3-27; Frederick
Schauer, “Positivism Through Thick and Thin”, in Analyzing Law (Brian Bix ed.,
Clarendon Press, Oxford, 1998), pp. 65-78; VVJ. Waluchow, Inclusive Legal Positivism
(Clarendon Press, Oxford, 1994); Tom D. Campbell, The Legal Theory of Ethical Positivism
(Aldershot, Dartmouth, 1996).
57 See, e.g. Raz, The Authority of Law; Raz, Ethics in the Public Domain.
58 Coleman, “Negative and Positive Positivism”, 11 Journal of Legal Studies 139 (1982),
reprinted in Coleman, Market, Morals and the Law, pp. 3-27.
59 See Jules L. Coleman, “Authority and Reason”, in The Autonomy of Law (R. George ed.,
Oxford University Press, Oxford, 1996), pp. 287-319; see also Jules L. Coleman, “Incorpo-
rationism, Conventionality, and the Practical Difference Thesis”, 4 Legal Theory 381 (1998).
60 Coleman, “Negative and Positive Positivism”, op. cit., p. 27. A similar position is defended
at length in Waluchow, Inclusive Legal Positivism. Hart later seemed to adopt or affirm a
position close to that advocated by Coleman and Waluchow. See Hart, “Postscript”,
pp. 250-254. For a detailed discussion of the issues raised by Hart’s “Postscript”, includ¬
ing some very useful discussions of legal positivism, the debates within legal positivism,
LATER DEVELOPMENTS 45
Raz’s approach to law is subtle and multi-faceted, and not easily sum¬
marized in a few sentences (or even a few dozen pages), but a short outline
will be attempted. Some of the key positions are as follows. First, Raz
offers the “social thesis” as the core of legal positivism: that what is law
and what is not are matters of social fact (Raz favours a strong version of
the social thesis that he dubs the “sources thesis”—that the existence and
content of every law are fully determined by social sources).61 This
restatement of the legal positivist’s separation between law and morality
is tied to, and supported by, a distinction between deliberating as part of
the process of coming to a decision, and the execution of the decision
once made.62 When judges are merely applying decisions already reached
(by the legislature or by prior court decisions), they are applying existing
law (determining what the law is); when judges consider moral factors in
the creating a new rule, or in considering possible changes to an existing
rule, that is determining what the law should be.
This view takes no position on whether it is a good thing or a bad thing
that judges legislate, or whether they should do so more often or less often
than they currently do.63 The point rather is that it is both analytically clearer,
and in line with the way we usually think and talk about the law, to maintain
a distinction between applying the law and making new law, between execu¬
tion and deliberation. This approach allows Raz to say that moral reasoning
has no part in stating “what the law is”; but it often does (and probably should)
have a part in saying how judges should decide cases “according to law”.64
and methodological issues, see the Symposium: “Postscript to H.L.A. Hart’s The Concept of
Law”, 4 Legal Theory 249-547 (1998). In Brian Bix, “Patrolling the Boundaries: Inclusive
Legal Positivism and the Nature of Jurisprudential Debate”, 12 Canadian Journal of Law
& Jurisprudence 17 (1999), I give a moderately skeptical overview of some the debates
within legal positivism. For a short article giving clear guidance on the similarities and
differences between the various positions within legal positivism and some forms of
natural law theory, see Keith Burgess-Jackson, “Teaching Legal Theory with Venn
Diagrams”, 29 Metaphilosophy 159 (1998).
61 See Raz, The Authority of Law, pp. 37-52.
62 See Raz, Ethics in the Public Domain, pp. 190-192. While some commentators have inter¬
preted the “sources thesis” and similar views as being about certainty and predictability
in the content of law, Raz himself insists: “The pursuit of certainty is no part of the
sources thesis. Finality is.” Joseph Raz, “Postema on Law’s Autonomy and Public
Practical Reasons: A Critical Comment”, 4 Legal Theory 1 at 13 (1998). And by “finality”,
Raz did not mean “nonrevisability”, but only that law should be seen as having settled
(at least for the moment) issues on which it speaks, ibid, at pp. 13-14 and n.30.
63 For the position that Raz’s strong separation thesis should be adopted, not as a philosoph¬
ical analysis of the nature of law, of the way law always is, but rather as a prescription for
how judicial decisions specifically and governments more generally ought to operate, see
Campbell, The Legal Theory of Ethical Positivism.
64 See Raz, “Postema on Law’s Autonomy and Public Practical Reasons”, pp. 4—6. Raz points
out, by way of example, that judges have recourse to moral reasoning when they decide,
often tacitly, that an existing moral rule is not so unjust diat it should be overturned.
Obviously, when judges decide, expressly, that the legal rule is so unjust that it should be
overturned, the role of morality in reaching this legal decision is clearer. See ibid, at p. 4.
Secondly, it is in the nature of law (of a legal system) that it has or

claims legitimate authority.65 This means that legal rules purport to be
“exclusionary reasons”: “reasons to exclude a consideration from being
the ground for a[] decision”.66 Raz’s analysis ties law, authority and prac¬
tical reasoning. For Raz, the connection between authority and practical
reasoning is a general one: authorities and authoritative reasons affect our
moral deliberations; where there is an authority (which we recognize as
such), our decision is based at least in part on what the authority (whether
that authority is the law, a sacred text, a religious leader, an army com¬
mander, etc.) states we should do; we incorporate the authority’s weigh¬
ing of the relevant factors rather than simply weighing all the relevant
considerations for ourselves. In Raz’s terms:
“The authority’s directives become our reasons. While the acceptance of the
authority is based on belief that its directives are well-founded in reason, they are
understood to yield the benefits they are meant to bring only if we do rely on them
rather than on our own independent judgment of the merits of each case to which
they apply.”67
Raz’s analysis of rules thus differs in basic ways from Hart’s analysis.
Hart was offering a “practice theory” of rules in that his analysis was such
that one could only speak of something being a rule in a community if
people there had an internal attitude towards it (that is, they used the rule
as a basis for justifying behaviour and criticizing deviation from behavi¬
our). Raz’s objections to the practice theory of norms was summarized
as follows: “It does not explain rules which are not practices; it fails to dis¬
tinguish between social rules and widely accepted reasons; and it deprives
rules of their normative character.”68 Raz allows that an analysis of legal
rules must make reference to a social practice, but that is because they are
legal rules—tied to a certain kind of social institution—rather than just
because they are rules.69 As noted, Raz’s alternative is to define rules in
terms of their role in practical reasoning (moral deliberation): rules are
“protected reasons” or “exclusionary reasons”.70
65 See Raz, Ethics in the Public Domain, pp. 194—221.

66 Joseph Raz, “Facing Up”, 62 Southern California Law Review 1153 at 1158 (1989).
67 Joseph Raz, Practical Reason and Norm (2nd ed., Princeton University Press, Princeton,
1990), p. 193. The phrase “the benefits they are meant to bring” refers to the argument
that one treats a source as authoritative if in following the directives of that source one
is more likely to get things right than if one deliberated and decided for oneself. See ibid.
68 ibid, at 53 (footnote omitted). These criticisms are elaborated ibid, at pp. 50-58. Ronald
Dworkin also offers a sharp criticism of Hart’s practice theory of rules in Ronald
Dworkin, Taking Rights Seriously (Duckworth, London, 1977), pp. 48-58. Hart accepts
some of these criticisms in Hart, “Postscript”, pp. 254—259.
69 Raz, Practical Reason and Norm, p. 53.
70 ibid, at pp. 49-84.
NON-NORMATIVE APPROACHES 47
NON-NORMATIVE APPROACHES
In his book Norm and Nature,1' Roger Shiner argued that legal positivism
inevitably develops, as it becomes more sophisticated and responds to
criticisms, towards positions close to those of natural law theory (he also
argued that, in turn, natural law theory, in its more sophisticated forms,
develops in the direction of legal positivism). The basis of that argument
can be seen in outline from issues discussed above. For example, an empir¬
ically-based theory of law like John Austin’s (in Shiner’s terminology, an
example of “simple positivism”) has a number of obvious defects, which
appear to be remedied in H.L.A. Hart’s theory (in Shiner’s terms, an
example of “sophisticated positivism”), with its use of an “internal point
of view”. However, as discussed earlier in this section, we are already
approaching natural law theory, in that the line seems quite thin between
viewing law through the perspective of citizens who accept the law as
creating (prima facie moral) obligations (Hart’s proposed “internal point
of view”), and constructing one’s theory around the conditions when law
in fact imposes valid (prima facie) moral obligations.
In a review of Norm and Nature12 Frederick Schauer agreed with
Shiner’s basic analysis, but held that Shiner’s view of “sophisticated legal
positivism” was not the inevitable path that this approach to law need
take. Schauer offered as an alternative an empirical, non-hermeneutic
version of legal positivism, arguing that in relation to the Hartian version
of legal positivism discussed above, his alternative was as tenable, but
without the dangers of sliding into natural law theory. In other words,
Schauer was offering a kind of “return to Austin”.73
Schauer’s basic argument is that one can construct a version of the
“internal point of view”, where citizens’ actions in conformity with the
law, and officials’ enforcement of the law, are all explained adequately on
prudential terms (for example, the citizens fearing legal sanctions, and the
officials fearing reprimand or removal from office, and hoping for
appointment to a higher office).74 The point of this transformed “inter¬
nal point of view” is that the aspect of “normativity” (the fact that citi¬
zens or officials accept the law as creating moral obligations, as offering
(additional) reasons to act in compliance with what the law prescribes) is
removed, and that it is that aspect of sophisticated legal positivism that
sends it sliding towards natural law theory.75
We are then returned to Hart (and his many and various followers) to
71 Roger Shiner, Norm and Nature (Clarendon Press, Oxford, 1992).

72 Frederick Schauer, “Critical Notice” (reviewing R. Shiner, Norm and Nature (1992)), 24
Canadian Journal of Philosophy 495 (1994).
73 See Schauer, “Positivism Through Thick and Thin”.
74 Schauer, “Critical Notice”, pp. 500-501.
75 ibid, at pp. 498-501.
discover why a theory based on such a “bad man’s view of the law”76 is con¬
sidered inadequate. Hart’s answer would appear to be: because it fails to
take into account the perspective of people who accept the law, those who
follow its prescriptions for non-prudential reasons.7' One argument is that
this is the “central” or “focal” sense of law, which any theory should try to
explain, while obeying the law for fear or favour is a “lesser” or “attenu¬
ated” sense of law.78 Schauer’s response is that centring one’s theory on cit¬
izens or officials who believe that law imposes moral obligations is dubious
when theorists themselves are far from united on law’s moral status, with a
number of legal positivists like Joseph Raz arguing strongly against the
proposition that law creates prima facie moral obligations (see Chapter 16).
The better approach, Schauer argues, is to leave the question completely
open at the definitional level; and argue the issue out in the open.'9
As against the conventional view (which, for what it is worth, is also this
author’s view) that Hart’s use of a (quasi-)hermeneutic approach in legal
theory constituted a significant advance in legal positivism in particular
and legal theory in general, Schauer’s analysis may provide a radical chal¬
lenge.
AUSTIN
John Austin, The Province of Jurisprudence Determined (W.E. Rumble ed., Cambridge
University Press, Cambridge, 1995).
W.L. Morison, John Austin (Stanford University Press, Stanford, 1982).
HART
Michael Bayles, Hart’s Legal Philosophy: An Examination (Kluwer Academic

Publishers, Dordrecht, 1992).
P.M.S. Hacker and Joseph Raz ed., Law, Morality, and Society: Essays in Honour of
H.L.A. Hart (Clarendon Press, Oxford, 1977).
76 See Holmes, “The Path of the Law”, pp. 460 461.

77 Hart was not entirely clear on whether prudential interests could be a sufficient basis for
an “internal point of view”. See Hart, The Concept of Law, p. 198 (including within an
internal view those who accept the law because of “calculations of long-term interest”).
78 See Finnis, Natural Law and Natural Rights, pp. 6-18. One could also argue that those who
accept the law (on non-prudential grounds) constitute a majority (or at least a significant
minority) of the population. This, however, is an empirical claim, with little evidence
available either in support or in opposition. See Schauer, “Critical Notice”, p. 502.
79 Schauer, “Critical Notice”, p. 503; Schauer, “Positivism Through Thick and Thin”,
pp. 73-78.
NON-NORMATIVE APPROACHES 49
H.L.A. Hart, The Concept of Law (2nd ed.) (P.A. Bulloch andj. Raz ed., Clarendon
Press, Oxford, 1994) (the second edition includes a “Postscript”, which is a
reply to critics).
—, Essays in Jurisprudence and Philosophy (Clarendon Press, Oxford, 1983).
—, “Positivism and the Separation of Law and Morals”, 71 Harvard Law Review
593 (1958).
Neil MacCormick, H.LA. Hart (Stanford University Press, Stanford, 1981).
Symposium on Hart’s Postscript, 4 Legal Theory 249-547 (1998) (includes contri¬
butions by Joseph Raz, Jules Coleman, Gerald Postema, Brian Leiter, Stephen
Perry, and Philip Soper).
LEGAL POSITIVISM
Jules L. Coleman and Brian Leiter, “Legal Positivism”, in A Companion to the

Philosophy of Law and Legal Theory (D. Patterson ed., Blackwell, Oxford, 1996),
pp. 241-260.
Robert P. George ed., The Autonomy of Law: Essays on Legal Positivism (Clarendon
Press, Oxford, 1996) (includes essays by Joseph Raz, Neil MacCormick, John
Finnis, Frederick Schauer, Jules Coleman, and Philip Soper).
David Lyons, Moral Aspects of Legal Theory (Cambridge University Press,
Cambridge, 1993).
Joseph Raz, The Authority of Law (Clarendon Press, Oxford, 1979).
—, Ethics in the Public Domain (Clarendon Press, Oxford, 1994).
•<
.
Chapter Four
Hans Kelsen’s Pure Theory of Law
Hans Kelsen (1881-1973) was a prolific and influential Austrian legal theo¬
rist, who spent the last decades of a long, productive life in the United States,
having escaped Europe at the time of Hider’s rise to power. His work was
important in international law as well as jurisprudence, and he was a central
figure in the drafting of the Austrian constitution after the First World War.
Over the course of four decades of jurisprudential writing, Kelsen
published dozens of books and articles,1 with his position on various
matters changing in subtle but important ways.2 This presents a difficulty
for any attempted summary of Kelsen’s view, a task already complicated
by the sophistication of Kelsen’s theory and the unfamiliarity (to
American and English audiences at least) of the philosophical traditions
within which Kelsen was working—in particular, neo-Kantianism, a
school of thought that attempted to apply Immanuel Kant’s ideas more
broadly to questions of social and ethical theory.3
1 “Dozens” is actually a bit of an understatement. By one count, Kelsen published 387 sep¬
arate works (approximately 100 of which dealt exclusively with legal theory). Of those 387
works, 18 books and 121 articles are available in English. Michael Hartney, “Appendix:
Bibliography of Kelsen’s Publications in English”, in Hans Kelsen, General Theory of Norms
(M. Hartney, trans. and ed., Clarendon Press, Oxford, 1991), pp. 440-454.
2 Especially if one takes into account Kelsen’s very last writings, which were unpublished
during his lifetime, some of his changes in ideas and attitude were actually quite dra¬
matic) at times appearing to support just the set of views he had most vigorously opposed
60 years earlier. See Stanley L. Paulson, “Kelsen’s Legal Theory: The Final Round”, 12
Oxford Journal of Legal Studies 265 at 265-266 (1992). On the different “phases” of Kelsen’s
work, see Hartney, “Introduction”, in Kelsen, General Theory of Norms, pp. xx-liii; Stanley
L. Paulson, “Towards a Periodization of the Pure Theory of Law”, in Hans Kelsen’s Legal
Theory (L. Gianformaggio ed., G. Giappichelli, Torino, 1990), pp. 11-47.
3 Because Kelsen wrote much of his important work in German (and until recendy was
poorly served by his English translators) and because he wrote out of a different philo¬
sophical tradition (a continental tradition strongly influenced by Kant), his work has not
been as central to the development of English-language legal theory as might have been
warranted (in many countries, Kelsen is far better known and far more influential than
Hart). For the above reasons, I used Hart rather than Kelsen to introduce the topic of
modern legal positivism, even though most of Kelsen’s works were published prior to the
publication of Hart’s most important works.
52 HANS KELSEN’S PURE THEORY OF LAW
The picture of Kelsen’s theory presented will attempt to contain the

general themes that continued throughout most of his writings, while
there will be little attention paid to the ways in which Kelsen’s view
changed. Inevitably, the portrayal will be a simplification relative both to
the full complexity of Kelsen’s theory and to its transformations over
time.
THE PURE THEORY OF LAW
Kelsen referred to his theory as “reine Rechtslehre”, a “pure theory of law”.

In Kelsen’s words, the theory was “pure” “because it only describes the
law and attempts to eliminate from the object of this description every¬
thing that is not stricdy ‘law’”.4 Moral judgments, political biases, and
sociological conclusions were all to be pushed aside as improper for a
“scientific” description of the social institution of law.5
Chapter three noted the importance of the normative aspect of law
for H.L.A. Hart’s legal theory (it is central to the “internal aspect of
rules”, which in turn is central to Hart’s theory and how it differs from
empirical theories like that of John Austin). Within Kelsen’s theory, the
normativity of law is, if anything, an even more central and dominat¬
ing factor. One could even say, with only slight exaggeration, that
explaining the normative nature of law is the sole purpose of Kelsen’s
theory (as contrasted, say, with Hart, who is also interested in the
difference between primary and secondary rules, the difference between
duty-imposing and power-conferring rules, the open texture'of rules,
and so on). Most of what is puzzling to readers of Kelsen’s legal theory
can be better understood if one keeps in mind the theory’s focus on nor¬
mativity.
There are two basic starting points for understanding Kelsen’s
approach to legal theory. First, normative claims—arguments for how
one ought to act or for how things ought to be—can be grounded only
on (justified by) other normative claims.6 This is the argument, usually
attributed to David Hume, that one cannot derive a normative conclu¬
sion from purely factual premises: “one cannot derive an ‘ought’ from an
‘is’”. In other words, a purely factual description of a situation will never
be sufficient, by itself, to justify a conclusion that something ought
4 Hans Kelsen, The Pure Theory of Law (M. Knight, trans., University of California Press,
California, 1967), p. 1.
5 One should not over-read Kelsen’s talks about a “science” of law. Here, “science” is the
translation of the German Wissenschaft, whose meaning and application generally is
broader than the English “science”. For example, it is usual and uncontroversial to use
the term Wissenschaft even when referring to literary theory.
6 See Kelsen, The Pure Theory of Law, pp. 4—10.
THE PURE THEORY OF LAW 53
(morally) to be done. One can only justify such a conclusion by first

accepting or inserting a moral premise.7
Secondly, such lines of justification must necessarily come to an end at
some point.8 In day-to-day discussions each (normative) argument put
forward is based on or justified by some more general or more basic argu¬
ment. We tend to forget that if we look closely enough at the chain of
arguments in favour of a particular position, we will eventually come to
an argument that is not justified by some other argument, and the valid¬
ity of this final argument can only be based on its being tacitly or expli-
cidy accepted (accepted “on faith”, as it were).
Consider the following example. A religious person tells you that it is
wrong to commit adultery. When you ask her why, she says, “because that
is what is said in the Bible.” Being in an obstinate mood, you say “so
what?”, to which her response is that the Bible is the word of God. To a
second “so what?”, her patient response would be that we should all do
as God tells us to do. However, if at this point, you ask why that is so, you
are likely to get no more than a puzzled look. This line of argument has
come to an end; either one accepts that one ought to do what God says
or one does not.9 And there is a sense in which the foundational argu¬
ment, “we ought to do what God says”, is entailed by or implied by the
religious person’s initial assertion that “one should not commit adultery”.
(This is not to say that one could not reach the same normative conclu¬
sion using other starting points, but only that for this particular person,
this conclusion derives from or implies that starting point.)
Kelsen’s argument was that there is a foundational argument implied
(“presupposed”) by legal statements just as there is a foundational argu¬
ment implied by religious statements. In more technical language, Kelsen
applied a “neo-Kantian” approach to legal theory, an approach based on
aspects of Kant’s theory of knowledge, in particular Kant’s
Transcendental Argument.10
The best way to understand Kelsen’s project may be to think of him as
7 Which is not to say that the moral premise will not be “obvious” or something “every¬
one agrees with”.
There are some philosophers who contest the general view that one cannot derive an
“ought” proposition from an “is” proposition. That is a complicated debate; for present
purposes, one need note only that Kelsen’s approach to law is grounded on the more con¬
ventional view that such a derivation is not possible.
8 See Kelsen, The Pure Theory of Law, pp. 193-195.
9 That the argument could be stretched a step or two further does not alter the basic anal¬
ysis. For example, the religious person could say, “one ought to do what God says because
He created humanity and all the world”, with the implied claim that one ought to obey
whoever (whatever) created us. However, there is no particular reason why everyone must
accept that normative position.
10 See, e.g. Kelsen, The Pure Theory of Law, pp. 201-205; Stanley L. Paulson, “The Neo-
Kantian Dimension of Kelsen’s Pure Theory of Law”, 12 Oxford Journal of Legal Studies
311 (1992).
asking: “what follows from the fact that someone treats legal rules as valid
norms?”11 Like many great philosophers, Kelsen tried to show us what is
interesting or paradoxical about matters which seem to us ordinary and
unremarkable. For Kelsen, the ordinary and unremarkable fact to be con¬
sidered is that while looking at a simple collection of actions, we some¬
times see those actions as normative. Whenever one looks at people
putting slips of paper into a box, and sees “voting”; or looks at a group of
people raising and lowering their hands in various sequences, and sees
“the passage of valid legislation”, this translates empirical actions into
normative meanings.12 The translation is clearer on the occasions when
someone says that since those certain actions have been done (the group
of people raising and lowering their hands), one now “ought” to do some¬
thing (e.g. pay a certain tax). The border between “is” and “ought" has
been crossed, and the question is: what can be derived from that?
Here we need to return to the idea of the normative chain of
justification. One starts with some simple legal-normative statement: for
example, “one cannot park here (it is illegal to do so)”. If the person
making this statement was asked why it was so, she would probably note
that this regulation was validly promulgated by some city council, judge,
or administrator. If the questioner pushes further, the chain could be fol¬
lowed back: e.g. that the administrator was authorized to act in this area
by an act of the legislature, and the act of the legislature was passed
according to the procedures set down in the constitudon.13 Things get
slightly trickier when one gets to the constitution itself. The document
might itself have been a modification of an earlier basic law, or it might
have been drawn up under the authorization of an earlier basic law.
However, again, we will eventually come to a point either so foundational
or so early in the society’s legal history that one cannot go any further
back, and no further justification can be offered.
Following the whole chain through then leads to the following implica¬
tion: to assert the (normative) validity of the individual legal rule (“one
cannot park on this street”) is implicitly to affirm the validity of the foun¬
dational link of the chain (e.g “one ought to do whatever is authorized by
11 See Paulson, “The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law”, p. 324.
12 See, e.g. Hans Kelsen, Introduction to the Problems of Legal Theory (B.L. Paulson and S.L.
Paulson, trans., Clarendon Press, Oxford, 1992), pp. 6-12. The notion that things are not
“normative in themselves”, but have normative meanings imposed upon them, can have
radical implications. Compare the parallel comment by the philosopher Friedrich
Nietzsche: “There are no moral phenomena at all, but only a moral interpretation of
phenomena Friedrich Nietzsche, Beyond Good and Evil (W. Kaufmann, trans., Vintage
Books, New York, 1966), (“Epigrams and Interludes”, no. 108) p. 85.
13 There are complications for Kelsen’s argument when an official acts within her area of
authorization, but acts in an unauthorized (illegal) way. See, e.g. Stanley L. Paulson,
“Material and Formal Authorisation in Kelsen’s Pure Theory”, 39 Cambridge Law Journal
172 (1980).
REDUCTION AND LEGAL THEORY 55
the historically first constitution”), for the same reason that affirming an
individual religious belief implicitly affirms the foundational norm of the
religion. To put the matter differendy, the affirmation of the foundational
norm is “presupposed” by any express or implied affirmation of individ¬
ual legal rules. This affirmation of the foundational norm is what Kelsen
calls the “Grundnorrri” or “Basic Norm”.14
REDUCTION AND LEGAL THEORY
Hans Kelsen believed thatfall legal norms could and should be under¬
stood in terms of an authorization to an official to impose sanctions: if A
(citizen) does Xfivrong action), then B (an official) is authorized to impose
Y (a sanction).16}
Thus, Kelsen would want us to translate “you shall not murder”, into
the following instruction to an official: if any citizen murders, you (the
official) have the authority to impose a sanction upon that person. As the
instruction to the official is only an authorization, one might wonder how
Kelsen can explain the fact that officials are bound to impose sanctions; it
is not usually just a matter within their discretion. Kelsen would say that
where officials have an obligation to act, this only means that there is
another norm, instructing a higher official to the effect: “if the lower
official does not impose a sanction in this situation, you are authorized to
impose a sanction on that official”— and so it would go up the hierarchy.
This is a slighdy awkward formalization of criminal laws as it stands,
but its awkwardness becomes far greater when we try to put civil laws, in
particular laws which confer powers, into the same form. For example, a
statute authorizing the formation of wills might read: if A creates a valid
will (by following certain procedural and substantive requirements), and
then dies, and A’s executor refuses to follow the instructions of the will,
then B (an official) has the authority to impose a sanction on A’s execu¬
tor.16
Reduction is the natural tendency whenever one posits a theory or a
model of behaviour. In some ways, it is the essence of the activity. To the
extent that one can discuss a complex social phenomenon, like law, in
terms of one or two concepts, the process of theorizing seems to be a
success. There is no point in a theory merely replicating the complexity
14 See, eg. Kelsen, Introduction to the Problems of Legal Theory, pp. 56-60.
15 Kelsen’s actual terminology is that the official “ought” to impose the sanction, but Kelsen
uses the word “ought” broadly, in a sense which is best summarized as “authorized to”
rather than “should perform”. See Hans Kelsen, “On the Basis of Legal Validity”, 26
American Journal of Jurisprudence 178 at 178-179 n. b (1981) (S. L. Paulson, trans.) (trans¬
lator’s note on Kelsen’s use of “bestimmen” and “sollen”).
16 See, eg. Kelsen, Pure Theory of Law, pp. 114—130.
of the phenomena about us. That gives us nothing. An explanation is nec¬

essarily a sifting of the important from the unimportant, the essential
from the accidental.
There is something satisfying about being able to say something like
“law is basically or essentially_” (where the blank might be filled in by
“orders backed by threats” or “authorizations to officials to impose sanc¬
tions”). To understand the essence of something has always been consid¬
ered a component of wisdom, so we tend to welcome the opportunity,
when a theorist tells us that she has “discovered” what the essence is of
law (or government or community or marriage).
On the other hand, simplification is often distortion. The more one
tries to re-characterize the variety of experience as though it was homog¬
enous, the more awkward and inaccurate the description will be. All
social theorists (economists and anthropologists as well as legal and polit¬
ical theorists) must consider the proper balance between descriptive accu¬
racy and explanatory power. (It is a problem that is particularly significant
in understanding the limitations of the law and economics movement,
which will be discussed in Chapter 18.) Kelsen’s theory lies towards an
extreme in reduction: an attempt to reduce all laws to a particular form.17
However, as H.L.A. Hart pointed out when discussing John Austin’s
approach to law,18 while such reductions seem to have the benefit of sim¬
plicity, this benefit is largely a surface matter, as the likely consequences
of trying to force the various legal norms into a single structure are awk¬
wardness, poor fit, and a risk of misleading the reader.
» A
HART V. KELSEN
Perhaps because of the limited dialogue between (or overlap in) H.L.A.
Hart scholars and Hans Kelsen scholars, the differences between Hart
and Kelsen are often poorly understood. Often, Kelsen is seen an imper¬
fect stopping point between Austin’s mistaken views and Hart’s solutions
(a position that does not stand up long under close examination). One text
stated that Hart is merely Kelsen in clearer prose.19 Even if this is meant
to be complimentary to Kelsen, it does a disservice to both sides.20 This
17 Kelsen is neither the first nor the last theorist to make such an attempt. More recently;
J.W. Harris has attempted to analyze all laws in terms of duties. J.W. Harris, Law and Legal
Science (Clarendon Press, Oxford, 1979).
19 Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law (Revised ed., Westview Press,
1990), p. 27.
20 One can find Hart’s comments on Kelsen in Hart, Essays in Jurisprudence and Philosophy,
pp. 286-342. However, one often gets the impression that Hart did not entirely under¬
stand Kelsen’s work, in part because Kelsen’s starting point was so different from the
Anglo-American tradition within which Hart wrote.
dL'-
HARTV. KELSEN 57
section will briefly discuss some of the things which join and separate the
two writers.
There is one question that theorists who focus on the normativity of
law—and Hart as well as Kelsen would fit into this category—could be
said to be trying to answer: how is a legal system to be distinguished from
the orders of gangsters?21 For Hart, this question led to an investigation
of the differences in action and attitude between how we act when we are
following a rule and how we act when we are being compelled to do the
same action. This in turn led to Hart’s discussion of the “internal aspect”
of rules and of law, which is basic to his approach to legal theory.
Kelsen’s response to the gangster/law question would be simple: those
who see the actions of the people in power in a normative way, and thus
presuppose the Basic Norm in dealing with official promulgations, see the
people in power as legitimate authorities; those who do not see the actions
this way will see the people in power as gangsters or their equivalent. In
a sense, Kelsen’s response is comparable to Hart’s: the difference between
the commands of valid law and the orders of gangsters is determined by,
indeed is constituted by, the attitudes of the citizens or subjects.
Here, we also see how legal positivism links HartTand Kelsen: both
analyze the difference between gangsters and legitimate government by
focusing on the more or less “neutral” question of citizens’ reaction. Hart
and Kelsen’s positions avoid making moral judgments. They pass by the
more obvious answer to the gangster/law question, which would be
quickly given byraj natural law theorist: that the difference between legit¬
imate leaders and gangsters is that the former act justly and for the
common good, and the latter do not.
The differences between Hart and Kelsen are equally interesting and
significant. While both Hart and Kelsen emphasized the normative
aspect of law in response to and criticism of more reductive/empirical
approaches, their notion of the “normative” differed.22 Hart’s view of the
normative reduced to certain types oLsocial facts, while Kelsen resisted
any reduction of “normative” to facts.2}While Hart’s theory tried to track
and explain actual social practices (with labeling of the work as “descrip¬
tive sociology”, and the careful distinctions—e.g. feeling obliged v. having
an obligation, acting out of habit v. following a rule, and the different
kinds of rules), Kelsen’s theory tended to be more abstract—appropriate
for what purported to be a “pure theory” and a neo-Kantian analysis.
The most obvious differences may be ones of methodology, which have
been hinted at in passing over the course of this chapter and the previous
one. Hart’s analysis builds on close attention to actual practices (and how
21 See Hart, The Concept of Law, pp. 6-7, 20-24, 79-81.

22 Stanley L. Paulson, “Continental Normativism and Its British Counterpart: How
Different Are They?”, 6 Ratio Juris 227 (1993).
23 ibid, at p. 236.
they are perceived by their participants) and linguistic usage. On the other
side, Kelsen is offering a kind of logical analysis of law and of normative
thinking in general.
ON THE NATURE OF NORMS
Especially in his later works, Kelsen became caught up in questions

regarding the nature of norms. Analysis in (metaphorical) terms of one
norm “justifying” or “generating” another, and inquiries regarding
whether a legal system can contain norms with contradictory contents,
seemed to create a confusion in Kelsen, “between a norm as a kind of sen¬
tence or sentence-meaning and as a contingent entity created and
repealed by certain social events.”24 Arguably, this line of inquiry was
what was behind many of the changes in his theory over time, as well as
some of the stranger (or sillier) notions of the later work (which have not
been discussed in this chapter).25
At times, some members associated with “Scandinavian legal
realism”26 appear to make the converse mistake. The Scandinavian legal
realists were opposed to anything in legal theory that had the flavor of
metaphysics. When they looked for some object to correspond with legal
concepts like “norm” and “right”, they rejected any explanation that
seemed to posit unworldly entities.27 Instead, these theorists offered
psychological and anthropological explanations to fill the vacuum.
Consider the following discussion by Karl Olivecrona about rights:
“(T]he word ‘right’, as used in jurisprudence as well as common discourse, lacks

semantic reference.
We have, however, the illusion that the word ‘right’ signifies a power over [an]
object, though a power that we can never grasp. The illusion stems from the emo¬
tional background. Under certain circumstances, especially in situations of
conflict, the idea of possessing a right gives rise to a feeling of strength. When I
am convinced of having a right, I am in some way more powerful than my oppo¬
nent, even if he be actually stronger.”28
24 Hartney, “Introduction”, pp. xlii-xliii.

25 For an overview of those notions and changes, see, e.g. Hartney, “Introduction”, pp. xlii-
liii.
26 See, e.g. M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (6th ed., Sweet & Maxwell,
London, 1994), pp. 731- 782 (“The Scandinavian Realists”); Howard Davies & David
Holdcroft, Jurisprudence: Texts and Commentary (London: Butterworths, 1991), pp. 422-445
(“Scandinavian Legal Realism”).
27 For a brief and interesting example of this sort of anti-metaphysical analysis applied to
legal concepts, see Alf Ross, “Tu-Tu”, 70 Harvard Law Review 812 (1957).
28 Karl Olivecrona, Law as Fact (Stevens & Sons, London, 1971), p. 184.
ON THE NATURE OF NORMS 59
Both the felt need to posit abstract entities for explanation, and the felt
need to avoid anything that has any outward appearance of being an
abstract entity, are likely to lead theorists astray. One can avoid such prob¬
lems by reacting to apparently abstract terms, like “norm” and “right”,
by asking merely for the rules that govern the use of those terms within
the legal system in question, and treating the meaning of the terms as
being no more than those rules of proper usage.29
This is not to deny that important philosophical work can be done on
an analytical theory of norms.30 For the moment, it is sufficient to note
that most legal theorists are not well equipped to do this sort of work, such
inquiries tend to lead legal theorists far astray, and asking these sorts of
questions is almost always irrelevant to what the legal theorists wish to
know.31
Hans Kelsen, General Theory of Norms (M. Hartney, trans., Clarendon Press,
Oxford, 1991).
—, Introduction to the Problems of Legal Theory (B.L. Paulson and S.L. Paulson, trans.,
Clarendon Press, Oxford, 1992).
—, Pure Theory of Law (M. Knight, trans., University of California Press,
California, 1967).
Stanley L. Paulson, “Continental Normativism and Its British Counterpart: How
Different Are They?”, 6 Ratio Juris 227 (1993).
—, “The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law”, 12 Oxford
Journal of Legal Studies 311 (1992).
Stanley L. Paulson and Bonnie Litschewski Paulson ed., Normativity and Norms:
Critical Perspectives on Kelsenian Themes (Clarendon Press, Oxford, 1998) (includes
contributions by H.L.A. Hart, Alf Ross, Carlos S. Nino, Joseph Raz, Neil
MacCormick, and Georg Henrik von Wright).
Richard Tur and William Twining ed., Essays on Kelsen (Clarendon Press, Oxford,
1986) (includes contributions by Joseph Raz, Ota Weinberger, J.W. Harris, and
Stanley L. Paulson).
29 This type of metaphysics-avoiding analysis has roots in the writings of both H.L.A. Hart
and Ludwig Wittgenstein. I discussed the approach in greater detail in Bix, “Questions
in Legal Interpretation”, pp. 137-141.
30 See, e.g. Georg Henrik von Wright, Norm and Action (Routledge & Kegan Paul, London,
1963).
31 See Bix, “Questions in Legal Interpretation”, pp. 137-141.
. \
Chapter Five
Natural Law Theory and John Finnis
We take it for granted that the laws and legal system under which we
live can be criticized on moral grounds, that there are standards against
which legal norms can be compared and sometimes found wanting.
The standards against which law is judged have sometimes been
described as “a (the) higher law”.1 For some, this is meant literally: that
there are law-like standards that have been stated in or can be derived
from divine revelation, religious texts, a careful study of human nature,
or consideration of nature. For others, the reference to “higher law” is
meant metaphorically, in which case it at least reflects our mixed intui¬
tions about the moral status of law: on one hand, that not everything
properly enacted as law is binding morally; on the other hand, that the
law, as law, does have moral weight—it should not be simply ignored in
determining what is the right thing to do. (To clarify this last point: if
the law had no intrinsic moral weight, we would feel no need to point
to a “higher law” as a justification for ignoring the requirements of our
society’s laws.)
TRADITIONAL NATURAL LAW THEORY
The approach traditionally associated with the title “natural law” usually
focused on arguments for the existence of a “higher law”, elaborations of
its content, and analyses of what should follow from the existence of a
“higher law” (in particular, what response citizens should have to situa¬
tions where the positive law—the law enacted within particular societies
—conflicts with the “higher law”).2
While one can locate a number of passages in the classical Greek
1 See Franz Wieacker, A History of Private Law in Europe (T. Weir, trans., Clarendon Press,
Oxford, 1995), p. 205.
2 Some of the modern writers who are sometimes associated with natural law, like Lon
Fuller and Ronald Dworkin, have approaches far outside the tradition described in this
chapter. Both Fuller (Chap. 6) and Dworkin (Chap. 7) are discussed in greater detail later.
62 NATURAL LAW THEORY AND JOHN FINNIS
writers that express what appear to be natural law positions,3 the best
known ancient formulation of a natural law position was offered by the
Roman orator Cicero (106 B.C.—43 B.C.).
Cicero was strongly influenced (as were many Roman writers on law)
by the works of the Greek Stoic philosophers (some would go so far as to
say that Cicero merely offered an elegant restatement of already estab¬
lished Stoic views). In a brief paragraph from Cicero, one comes across
most of the themes traditionally associated with natural law theory:
“True law is right reason in agreement with nature; it is of universal application,

unchanging and everlasting; it summons to duty by its commands, and averts from
wrongdoing by its prohibitions. And it does not lay its commands or prohibitions
upon good men in vain, though neither have any effect on the wicked. It is a sin
to try to alter this law, nor is it allowable to attempt to repeal any part of it, and
it is impossible to abolish it entirely. We cannot be freed from its obligations by
senate or people, and we need not look outside ourselves for an expounder or
interpreter of it. And there will not be different laws at Rome and at Athens, or
different laws now and in the future, but one eternal and unchangeable law' will
be valid for all nations and all times, and there will be one master and ruler, that
is, God, over us all, for he is the author of this law, its promulgator, and its enforc¬
ing judge. Whoever is disobedient is fleeing from himself and denying his human
nature, and by reason of this very fact he will suffer the worst penalties, even if he
escapes what is commonly considered punishment.”4
As noted, most of the themes of traditional natural law are already

present in Cicero (though, as might be expected in the first major treat¬
ment of a subject, some of the analysis is not always as systematic or as
precise as one might want): natural law is unchanging over time and does
not differ in different societies; every person has access to the standards
of this higher law by use of reason; and (as Cicero stated elsewhere) only
just laws “really deserve [the] name” law, and “in the very definition of
the term ‘law’ there inheres the idea and principle of choosing what is just
and true.”5
Within Cicero’s work, and the related remarks of earlier Greek and
Roman writers, there was often a certain ambiguity regarding the refer¬
ence of “natural” in “natural law”: it was not always clear whether the
3 These include passages in Plato, “Laws” Book IV, 715b, in Plato: The Collected Dialogues (E.
Hamilton and H. Cairns ed., Princeton University Press, Princeton, 1961), p. 1306
(“enactments, so far as they are not for the common interest of the whole community, are
no true laws”); and Aristotle, “Nicomachean Ethics”, Book V, 7:1134b 18-1135a5, in The
Complete Works of Aristotle, Vol. 2, p. 1790-1791; as well as Sophocles, “Antigone”, in The
Oedipus Plays of Sophocles (P. Roche, trans., New York: Mentor, 1958), p. 210: “I never
thought your mortal edicts had such force [that] they nullified the laws of heaven, which
unwritten, not proclaimed, can boast a currency that everlastingly is valid”.
4 Cicero, Republic III.xxii.33, in De Re Publica; De Legibus (C.W. Keyes, trans., Harvard
University Press, Cambridge, Mass., 1928), p. 211.
5 Cicero, Law H.v. 11-12, in De Re Publica; De Legibus, pp. 383, 385.
TRADITIONAL NATURAL LAW THEORY 63
standards were “natural” because they derived from “human nature”

(our “essence” or “purpose”), because they were accessible by our natural
faculties (that is, by human reason or the human conscience), because
they derived from or were expressed in nature, that is, in the physical
world about us, or some combination of all three.
As one moves from the classical writers on natural law to the early
church writers, aspects of the theory necessarily change and therefore
raise different issues within this approach to morality and law. For
example, with classical writers, the source of the higher standards is said
to be (or implied as being) inherent in the nature of things. With the
early church writers, there is a divine being who actively intervenes in
human affairs and lays down express commands for all mankind—
though this contrast overstates matters somewhat, as the classical writers
referred to a (relatively passive) God, and the early church writers would
sometimes refer to the rules of nature as expressing divine will. To the
extent that the natural law theorists of the early church continued to
speak of higher standards inherent in human nature or in the nature of
things, they also had to face the question of the connection between
these standards and divine commands: for example, whether God can
change natural law or order something which is contrary to it, a ques¬
tion considered by Ambrose and Augustine (among others) in the time
of the early church and by Francisco Suarez and Hugo Grotius hun¬
dreds of years later.
The most influential writer within the traditional approach to natural
law is undoubtedly Thomas Aquinas (1224—1274). However, the context
of Aquinas’ approach to law, its occurrence within a larger theological
project that offered a systematic moral system, should be kept in mind
when comparing his work with more recent theorists.
Aquinas identified four different kinds of law: eternal law, natural law,
divine law, and human (positive) law.6 For present purposes, the impor¬
tant categories are natural law and positive law.
According to Aquinas, positive law is derived from natural law. This
derivation has different aspects. Sometimes the natural law dictates what
the positive law should be: for example, natural law requires that there be
a prohibition on murder. At other times, the natural law leaves room for
human choice (based on local customs or policy choices)7: thus while
natural law would probably require regulation of automobile traffic for
the safety of others, the choice of whether driving should be on the left
or the right side of the road, and whether the speed limit should be set at
55 miles per hour or 65, are probably matters for which either choice
would be compatible with the requirements of natural law. The first form
6 Thomas Aquinas, Summa Theologiae, Question 91, in The Treatise on Law, (R.J. Henle, trans.
and ed., University of Notre Dame Press, Notre Dame, 1993) pp. 148-184.
7 Aquinas, Summa Theologiae, Question 95, Art. 2, corpus, in The Treatise on Law, p. 288.
of derivation is like logical deduction; the second Aquinas refers to as the

“determination” of general principles.8
As for citizens, the question is what their obligations are regarding just
laws and regarding unjust laws. According to Aquinas, positive laws which
are just “have the power of binding in conscience”.9 A just law is one which
is consistent with the requirements of natural law—that is, it is “ordered
to the common good”, the lawgiver has not exceeded its authority, and the
law’s burdens are imposed on citizens fairly. Failure with respect to any of
those three criteria, Aquinas asserts, makes a law unjust10; but what is the
citizen’s obligation in regard to an unjust law? The short answer is that
there is no obligation to obey that law. However, a longer answer is war¬
ranted, given the amount of attention this question usually gets in discus¬
sions of natural law theory in general, and Aquinas in particular.
The phrase lex iniusta non est lex (“an unjust law is not law”) is often
ascribed to Aquinas, and is given as a summation of his position and the
natural law position in general.* 11 This view is at least somewhat mislead¬
ing on several counts. Aquinas never used the exact phrase above, though
one can find similar expressions: “every human positive law has the
nature of law to the extent that it is derived from the Natural Law. If,
however, in some point it conflicts with the law of nature it will no longer
be law but rather a perversion of law”12; and “[unjust laws] are acts of
violence rather than laws; as Augustine says, A law that is unjust seems
not to be a law’”.13 (One also finds similar statements by Plato, Aristode,
Cicero, and Augustine—though, with the exception of Cicero’s, these
statements are not part of a systematic discussion of the nature of law.)
Another question goes to the significance of the phrase. What does it
mean to say that an apparendy valid law is “not law”, “a perversion of
law” or “an act of violence rather than a law”? Statements of this form
have been offered and interpreted in one of two ways. First, it might mean
that an immoral law is not valid law at all. The nineteenth century English
jurist John Austin interpreted statements by the English commentator Sir
William Blackstone (e.g. “no human laws are of any validity, if contrary to
[the law of nature]”14) in this manner, and pointed out that such analyses
8 ibid. A similar distinction is drawn in Aristotle, “Nicomachean Ethics”, V,

7:1134b 18-1135a5, in The Complete Works of Aristotle, Vol. 2, p. 1790-1791.
10 ibid, at pp. 325-326.
11 A good discussion on “Lex Iniusta Non Est Lex”, its meaning in general and its
significance in Aquinas’ work, can be found in Norman Kretzmann, “Lex Iniusta Non
Est Lex: Laws on Trial in Aquinas’ Court of Conscience”, 33 American Journal of
Jurisprudence 99 (1988).
13 ibid., Question 96, Art. 4, corpus, in The Treatise on Law, p. 327.
14 William Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford,
1765-1769), 1.41.
TRADITIONAL NATURAL LAW THEORY 65
of validity are of little value. Austin wrote: “Suppose an act innocuous, or

positively beneficial, be prohibited by the sovereign under the penalty of
death; if I commit this act, I shall be tried and condemned, and if I object
to the sentence, that it is contrary to the law of God... the Court of Justice
will demonstrate the inconclusiveness of my reasoning by hanging me up,
in pursuance of the law of which I have impugned the validity.”15 Though
one must add that we should not conflate questions of power with ques¬
tions of validity—for a corrupt legal system might punish someone even
if shown that the putative law was invalid under the system’s own proced¬
ural requirements—we understand the distinction between validity under
the system’s rules and the moral worth of the enactment in question.
A more reasonable interpretation of statements like “an unjust law is
no law at all” is that unjust laws are not laws “in the fullest sense”.16 As
we might say of some professional, who had the necessary degrees and
credentials, but seemed nonetheless to lack the necessary ability or judg¬
ment: “she’s no lawyer” or “he’s no doctor”. This only indicates that we
do not think that the title in this case carries with it all the laudatory impli¬
cations it usually does. It may well be that for our purposes, knowing that
this doctor is not competent is the most important fact; however, the fact
that he does have the required certification is not thereby negated or
made entirely irrelevant. Similarly, to say that unjust laws are “not really
laws” may only be to point out that they do not carry the same moral force
or offer the same reasons for action that come from laws consistent with
“higher law”. This is almost certainly the sense in which Aquinas made
his remarks,17 and the probable interpretation for nearly all proponents
of the position. (However, this interpretation leaves the statement as
clearly right as the prior interpretation had been clearly wrong. One
might wonder what the source of controversy was.)
To say that an unjust law is not law in the fullest sense is usually
intended not as a simple declaration, but as the first step of a further argu¬
ment. For example: “this law is unjust; it is not law in the fullest sense,
and therefore citizens can in good conscience act as if it was never
enacted; that is, they should feel free to disobey it.” This is a common
15 Austin, The Province of Jurisprudence Determined, p. 185, quoted in Hart, “Positivism and the
Separation of Law and Morals”, p. 616.
16 Finnis traces the notion to Aristotle’s notion of “focal meaning” and Max Weber’s
concept of “ideal types”. See Weber, The Methodology of the Social Sciences, pp. 90-106;
Aristotle, “Nicomachean Ethics”, Book VIII 4:1157a (different kinds of friendship);
“Eudemian Ethics”, Book VII 2:1236a (different kinds of friendship); “Politics”, Book III
1:1275a-1276b (different kinds of citizen), in The Complete Works of Aristotle, Vol. 2,
pp. 1829, 1958, 2023-2024.
17 Elsewhere, Aquinas wrote: “But even an unjust law retains some semblance of the nature
of law, since it was made by one in power and in this respect it is derived from the Eternal
Law.” Aquinas, Summa Theologiae, Question 93, Art. 3, reply 2, in The Treatise on Law,
p. 212.
understanding of the idea that an unjust law is no law at all, but it

expresses a conclusion that is controversial.
There are often moral reasons for obeying even an unjust law: for
example, if the law is part of a generally just legal system, and public dis¬
obedience of the law might undermine the system, there is a moral reason
for at least minimal public compliance with the unjust law. There is a hint
of this position in Aquinas (he stated that a citizen is not bound to obey
“a law which imposes an unjust burden on its subjects” if the law “can be
resisted without scandal or greater harm”18), and it has been articulated
at greater length by later natural law theorists, most recendy by John
Finnis,19 as discussed below.
Aquinas’ theory is in some ways more the structure of an ethical system
rather than the full ethical system itself. For most of us, littie practical
guidance for difficult moral questions can be found from the advice,
“good should be done and sought and evil is to be avoided”20; however,
Aquinas offers few prescriptions on specific moral issues more precise
than that. The assumption may have been that the teachings of the
church and the holy books, combined with the reflections of a wise
person,21 would be sufficient to fill in the content of the moral system.
MEDIEVAL AND RENAISSANCE THEORISTS
In later centuries, discussions about natural law were tied in with other
issues: assertions about natural law were often the basis of or part of the
argument for individual rights and limitations on government; and such
discussions were also often the groundwork offered for principles of inter¬
national law.
Francisco Suarez (1548-1617) is regarded as the greatest scholastic
thinker other than Aquinas, though Suarez’s work on natural law theory
breaks with Aquinas on at least two important matters. Suarez empha¬
sizes “will” when analyzing law, while Aquinas had emphasized
“reason”22; and Suarez’s understanding of the “nature” in “natural law”
18 ibid., Question 96, Art. 4, reply 3, in The Treatise on Law, p. 323. At ibid., Question 96, Art.
4, corpus, in The Treatise on Law, p. 327, Aquinas refers to obedience to unjust laws where
this is necessary “to avoid scandal or disturbances.” In John M. Finnis, Aquinas: Moral,
Political, and Legal Theory (Oxford University Press, Oxford, 1998), p. 273 and n. 112,
Finnis suggests that the Latin word Aquinas used, turbationem, which is commonly trans¬
lated as “disorders” (and in the Henle translation I am using, “disturbances”) might also
be translated as “demoralization”.
19 Finnis, Natural Law and Natural Rights, pp. 359-362.
21 Cf. ibid, at pp. 245-246, where Aquinas distinguishes propositions which are self-evident
to all and those that are self-evident only to the wise.
22 I discuss the issues of “will” versus “reason” in Chap. 11.
MEDIEVAL AND RENAISSANCE THEORISTS 67
was that knowledge of the good derived from knowledge of human

nature, in contrast to Aquinas, who had advocated the converse position
(that what is “natural” for human beings is what is reasonable, i.e. what is
consistent with their nature as reasonable creatures).1’'
Suarez’s writings strongly influenced Hugo Grotius (1583-1645),
whose work on natural law theory established the foundations of modern
international law. Grotius wrote of the rules based on Reason that con¬
strain what governments can legitimately do, and how nations can legiti¬
mately act towards one another.24 As based on Reason, this was a natural
law, as Grotius himself wrote, that would exist and bind us even if there
were no God. By speaking of constraints on government based on indi¬
vidual rights, and by offering the possibility of a secular natural law
theory, Grotius opened the path for the later liberal natural rights theo¬
ries of, e.g. John Locke (1632-1704) and Jean-Jacques Rousseau
(1712-1778).25
The eventual repercussions of natural law and natural rights thinking
in political theory were far-reaching. To choose one well-known example,
the American Declaration of Independence (1776) claims authority from
“the Laws of Nature” and refers to the “unalienable rights” of “Life,
Liberty, and the pursuit of Happiness”—itself a pleasantly hedonistic
revision of John Locke’s list of natural rights as life, liberty, and property.26
To return to natural law theory, and to summarize: it is normally a
mistake to try to evaluate the discussions of writers from distant times
with the perspective of modern analytical jurisprudence. Cicero,
Aquinas, and Suarez were not concerned with a social-scientific-style
analysis of law, as the modern advocates of legal positivism could be said
to be. The early natural law theorists were concerned with what legisla¬
tors and citizens and governments ought to do, or could do in good con¬
science. It is not that these writers (and their followers) never asked
questions like “what is law?” However, they were asking the questions as
a starting point for an ethical inquiry, and therefore one should not be too
23 See, e.g. Finnis, Natural Law and Natural Rights, pp. 45-46; Robert P. George, “Natural Law
Ethics”, in A Companion to Philosophy of Religion (P.L. Quinn and C. Taliaferro ed.,
Blackwell, Oxford, 1997), p. 462.
24 See, e.g. Wieacker, A History of Private Law in Europe, pp. 227-238; J.M. Kelly, A Short History
of Western Legal Theory (Clarendon Press, Oxford, 1992), pp. 224—227, 241-243.
25 This is of course a simplification, and a lot of intellectual history to condense into a single
short paragraph. At a minimum, one should also note the early social contract theory of
Thomas Hobbes, and the great systematizer of natural law, Samuel Pufendorf
(1632-1694). See, e.g. Wieacker, A History of Private Law in Europe, pp. 239-248.
26 On Locke, see his “Second Treatise on Government”, s. 6, in John Locke, Two Treatises
on Government (P. Laslett ed., 2nd ed., Cambridge University Press, Cambridge, 1967),
pp. 288-289 (first published in 1690). On the transformation of Locke’s ideas and lan¬
guage into the language of the American Declaration, see Pauline Maier, American
Scripture: Making the Declaration of Independence (Knopf, New York, 1997), pp. 123-143,
160-170.
quick in comparing their answers with those in similar-sounding discus¬

sions by recent writers, who see themselves as participating in a concep¬
tual or sociological task.
JOHN FINNIS
John Finnis’ work is an explication and application of Aquinas’ views27:

an application to ethical questions, but with special attention to the prob¬
lems of social theory in general and analytical jurisprudence in particu¬
lar.
For Finnis, the basic questions are the ethical one, “how should one
live?”, and the meta-ethical one, “how (by what procedure or analysis)
can we discover the answer to ethical questions?” These ethical and meta-
ethical questions are primary; legal theory for Finnis is best understood
as a small if integral part of the larger project.28
Finnis’ response to these basic questions involves, among other things,
the claim that there are a number of separate but equally valuable intrin¬
sic goods (that is, things one values for their own sake), which he called
“basic goods”. In Natural Law and Natural Rights, Finnis lists the following
as basic goods: life (and health), knowledge, play, aesthetic experience,
sociability (friendship), practical reasonableness, and religion. These are
“intrinsic” goods in the following sense: one can value, e.g. health for its
own sake, but medicine only as a means to health. If someone stated that
she was buying medicine, not because she or someone she knew was sick
or might become sick, and not because it was part of some study'or some
business, but simply because she liked having a lot of medicine around,
one might rightly begin to question her sanity.
At this level, we can only distinguish the intelligible from the unintelli¬
gible. We understand the person who is materialistic and greedy, however
much we disapprove of that approach to life. The greedy person is seeking
the same basic goods we are. Much of what is conventionally considered
morality occurs in Finnis’ theory at the second level of discussion: the
27 Finnis largely follows the interpretation of Aquinas and the approach to natural law
theory proposed by Germain Grisez. One of Grisez’s foundational works in this area is
Germain G. Grisez, “The First Principle of Practical Reason: A Commentary on the
Summa theologiae, 1-2, Question 94, Article 2”, 10 Natural Law Forum 168 (1965). There are
other commentators who put forward distinctly different interpretations and approaches.
See, e.g. Russell Hittinger, A Critique of the New Natural Law Theory (University of Notre
Dame Press, Notre Dame, 1987) (offering a critique of the “Grisez-Finnis” view of
Aquinas and natural law theory). A detailed explication of Finnis’s view of Aquinas can
be found in Finnis, Aquinas.
For a clear overview of natural law that could serve as a concise restatement of Finnis’s
theory, see Robert P. George, “Natural Law and Positive Law”, in The Autonomy of Law:
Essays on Legal Positivism (R.P George ed., Clarendon Press, Oxford, 1996), pp. 321-334.
JOHN FINNIS 69
principles for how we should deal with and combine the quest for various
intrinsic goods.
Finnis describes the list of basic goods, and other aspects of his moral
theory, as “self-evident”, but he does not mean this in the sense that the
truth of these propositions would be immediately obvious to all compe¬
tent thinkers. Part of what makes a proposition self-evident is that it
cannot be derived from some more foundational proposition; thus, self-
evident is here the opposite of provable.29 However, while self-evident
propositions cannot be proven, they can be supported by consistent obser¬
vational data and by dialectical arguments. Also, it is not the case that
everyone will be equally adept at reaching these “self-evident” conclu¬
sions. Those of substantial experience, and who are able and willing to
inquire deeply, may be better able to discover the self-evident truths than
would others. (Aquinas, similarly, at one point wrote of propositions
which are only self-evident to the wise.30)
Because there are a variety of basic goods, with no hierarchy or prior¬
ity among them, there must be principles for how to choose when the
available options promote different goods. This is one basis for contrast¬
ing Finnis’ position with utilitarian moral theories, under which all goods
can be compared according to their value in a single unit, e.g. promoting
happiness. On a simple level, we face such choices when we consider
whether to spend the afternoon playing basketball (the value of play) or
studying history (the value of knowledge). The choice is presented in a
sharper form when we must choose whether to lie (choosing against the
value of knowledge), in a situation where we believe that lying would lead
to some significant benefit or avoid a greater evil. Morality offers a basis
for rejecting certain available choices, but there will often remain more
than one equally legitimate choice (again there is a contrast with utilitar¬
ian theories, under which there would always be a “best” choice).
For Finnis, the move from the basic goods to moral choices occurs
through a serious of intermediate principles, which Finnis calls “the basic
requirements of practical reasonableness”. Among the most significant,
and most controversial, is the prescription that one may never act directly
against, a basic good (as lying is an action against knowledge or torture an
action against life (and health)), regardless of the benefit one believes will
come from taking that path.31 In other words, the ends never justify the
29 See Robert P. George, “Recent Criticism of Natural Law Theory”, 55 University of Chicago
Law Review 1371 at 1386-1393 (1988) (explaining and defending this aspect of Finnis’
argument).
30 Aquinas, Summa Theologiae, Question 94, Art. 2, corpus, in The Treatise on Law , p. 246.
31 Predictably, within this approach, much turns on characterization of an action. Harming
another person in self-defense would likely be justified on the ground that the purpose of
the action is to defend one’s own life (the basic good of hfe/health ), the harm to one s
attacker would be characterized as only a side-effect, even if one that is foreseeable or
inevitable.
means where the chosen means entail a harming of a basic good. Other
intermediate principles listed in Natural Law and Natural Rights include that
one should form a rational plan of life; have no arbitrary preferences
among persons; foster the common good of the community; and have no
arbitrary preferences among the basic goods.32
Law enters the picture as a way of effecting some goods—social goods
which require the co-ordination of many people—that could not be
effected, easily or at all, without it, and as a way of making it easier to
obtain other goods.33 Thus, the suggestions Finnis makes about law and
about legal theory are in a sense derivative of his primary concern with
ethics. As to questions regarding the obligation to obey the law, Finnis
follows Aquinas: one has an obligation to obey just laws; laws which are
unjust are not “law” in the fullest sense of the term and one has an obli¬
gation to comply with their requirements only to the extent that this is
necessary to uphold otherwise just institutions.34
Given that Finnis’ starting point is so different from that of the legal
positivists, it is surprising to discover some similarities in their theories.35
These similarities occur because even though Finnis’ theory might be
seen as primarily a prescriptive account—a theory of how we should live
our lives—certain descriptive elements are necessarily assumed.36 First,
if one is going to ask what implications morality has for law, one must first
understand what “law” is. Secondly it is part of Finnis’ project to con¬
sider which proposals within various aspects of legal regulation are fore¬
closed and which allowed by a general ethical theory.3' Further, Finnis
believes that a proper ethical theory is necessary for doing descriptive
theory well, as valuation is a necessary and integral part of theory con¬
struction.38
Like Hart, Finnis emphasized the need to use an “internal point of
view” in analyzing a legal system39, and like Joseph Raz, Finnis believes
that our understanding of legal systems should centre on that fact that
law affects our reasons for action.40 As noted earlier (in Chapter 3) regard-
32 Finnis, Natural Law and Natural Rights, pp. 100-127.

33 ibid, at pp. 260-264.
34 ibid, at pp. 354—362.
35 Finnis elsewhere discussed the ways in which a natural law theorist can affirm, more or
less on the terms offered, nearly every “dogma” associated with modern legal positivism.
See Finnis, “The Truth in Legal Positivism”, pp. 203-205.
36 One could also offer historical reasons for the similarities. Finnis was H.L.A. Hart’s
student at Oxford, and Joseph Raz was first a classmate and has more recently been a
colleague of many years.
37 See, e.g. Finnis, Natural Law and Natural Rights, pp. 169-173 (property law), pp. 188-192
(bankruptcy).
38 ibid, at pp. 6- 18.
39 ibid, at pp. 3-13.
40 ibid, at pp. 12-13. Also like Raz, Finnis believes that values (and value choices) are incom¬
mensurable, and that this has important consequences for legal theory and moral theory.
OTHER DIRECTIONS 71
ing the “internal point of view”, Finnis makes an important amendment

to Hart’s approach. He argues that in doing legal theory, one should not
take the perspective of those who merely accept the law as valid (Hart
appears to include even those who accept the law as valid for prudential
reasons); the theory should assume the perspective of those who accept
the law as binding because they—correcdy—believe that valid legal rules
create (prima facie) moral obligations. The difference may seem minor,
but it means crossing a theoretically significant dividing line: between the
legal positivist’s insistence on doing theory in a morally neutral way and
the natural law theorist’s assertion that moral evaluation is an integral
part of proper description and analysis. Finnis’ approach to descriptive
theory, unlike Hart’s, requires that the theorist judge the moral merits of
the legal system(s) being described, and it is just the propriety or necessity
of such moral evaluations in the process of descriptive theory which has
been the dividing line in recent times between legal positivism and natural
law theory.
A similar difference or change can be seen be in comparing Raz’s prac¬
tical reasoning approach to law and Finnis’ approach. For Raz, what is
central is that law purports to create moral reasons for action41; for Finnis,
what is central is that under certain conditions law does create moral
reasons for action. The difference may seem slight, but it is also
significant.
OTHER DIRECTIONS
There are a wide variety of other modern theories which are self-
described, or described by others, as being “natural law theories”. Robert
George has produced a series of works which have explained, developed,
and applied the Aquinas/Grisez/Finnis approach to natural law.42
Deryck Beyleveld and Roger Brownsword offer a natural law theory
based on Alan Gewirth’s argument that moral principles are presupposed
by practical reason.43 Lloyd Weinreb has constructed a natural law theory
which he connects with the ancient Greek view of such issues: the exis¬
tence of a normative natural order, and the role of legal and moral norms
See Joseph Raz, The Morality of Freedom (Clarendon Press, Oxford, 1986), pp. 321-366;
John M. Finnis, “On Reason and Authority in Law’s Empire”, 6 Law and Philosophy 357 at
370-376 (1987);John M. Finnis, “Natural Law and Legal Reasoning”, 38 Cleveland State
Law Review 1 at 7-9 (1990);John M. Finnis, “Concluding Reflections”, 38 Cleveland State
Law Review 231 at 234—241 (1990).
41 See Raz, Ethics in the Public Domain, p. 199.
42 See, e.g. Robert P. George, In Defense of Natural Law (Clarendon Press, Oxford, 1999).
43 See, e.g. Deryck Beyleveld and Roger Brownsword, Law as a Moral Judgment (Sweet &
Maxwell, London, 1986); Alan Gewirth, Reason and Morality (University of Chicago Press,
Chicago, 1978).
as mediating questions of free will and responsibility.44 Randy Barnett

offers an instrumental and political variation of natural law: given the
goal of promoting happiness while living together in society, and given
certain facts about human nature, society should follow certain principles
of justice (which for Barnett turn out to be those of classical liberal¬
ism/libertarianism).45 And Michael Moore has constructed a natural law
theory based on a metaphysically realist (Platonist) theory of morality and
meaning.46
JOHN FINNIS
John M. Finnis, Fundamentals of Ethics (Georgetown University Press, Washington,

D.C., 1983).
—, Natural Law and Legal Reasoning, in Natural Law Theory: Contemporary Essays (R.P.
George ed., Clarendon Press, Oxford, 1992), pp. 134—157.
—, Natural Law and Natural Rights (Clarendon Press, Oxford, 1980).
Robert P. George, “Recent Criticism of Natural Law Theory” (book review), 55
University of Chicago Law Review 1271 (1988) (contains a summary, explanation
and defense of Finnis’s theory).
NATURAL LAW THEORY
Thomas Aquinas, The Treatise on Law (RJ. Henle ed., University of Notre Dame
Press, Notre Dame, 1993) (Summa Theologiae, Questions 90—97).
Brian Bix, “Natural Law Theory”, in A Companion to Philosophy of Law and Legal
Theory (D. Patterson ed., Blackwell, Oxford, 1996), pp. 223-240.
John Finnis, ed., Natural Law, 2 Volumes (Dartmouth Pub. Co., London; New
York University Press, New York, 1991) (a wide-ranging collection of law
review articles on natural law theory).
Robert P. George, In Defense of Natural Law (Clarendon Press, Oxford, 1999).
Robert P. George, ed., Natural Law Theory (Clarendon Press, Oxford, 1992) (a col¬
lection of recent articles on natural law theory).
Lloyd Weinreb, Natural Law and Justice (Harvard University Press, Cambridge,
Mass., 1987).
44 See, e.g. Lloyd Weinreb, Natural Law and Justice (Harvard University Press, Cambridge
Mass, 1987).
45 See Barnett, The Structure of Liberty.
46 See, e.g. Michael S. Moore, “A Natural Law Theory of Interpretation”, 58 Southern
California Law Review 277 (1985); Michael S. Moore, “Moral Reality Revisited”, 90
Michigan Law Review 2424 (1992).
Chapter Six
Understanding Lon Fuller
A SECOND KIND OF NATURAL LAW THEORY
The beginning of the last chapter offered an overview of natural law

theory. To be more exact, it offered an overview of one type of natural law
theory, which was described as “traditional natural law theory”. One
could divide most of the theorists who have been labeled—or who have
labeled themselves as “natural law theorists” — into two groups. The first
group would include the theorists discussed in Chapter 5: Cicero,
Aquinas, Suarez, and Finnis, among many others. The second group
reflects debates of a different kind and a more recent origin; its approach
focuses more narrowly on the proper understanding of law as a social
institution or a social practice. (The two types of approaches are by no
means contradictory or inconsistent, but they reflect sets of theoretical
concerns sufficiently different that it is rare to find writers contributing to
both.)
The second (or “modern”) set of approaches to natural law arose as
responses to legal positivism, and the way legal positivists portrayed (and
sometimes caricatured) traditional natural law positions. While attacks on
the merits of natural law theory can be found in the works of John Austin,
Oliver Wendell Holmes, and Hans Kelsen, most recent discussions of
“natural law theory” derive from the 1958 “Hart-Fuller Debate” in the
Harvard Law ReviewJ In this exchange, H.L.A. Hart set the groundwork
for a restatement of legal positivism. Part of his defence and restatement
involved demarcating legal positivism from natural law theory, and the
demarcation point offered was the conceptual separation of law and
morality. Lon Luvois Fuller (1902-1978) argued against a sharp separa¬
tion of law and morality, but the position he defended under the rubric
of “natural law theory” was quite different from the traditional natural
593(1958); Lon Fuller, “Positivism and Fidelity to Law—A Response to Professor Hart”,
71 Harvard Law Review 630 (1958).
74 UNDERSTANDING LON FULLER
law theories of Cicero, Suarez, and Aquinas (as will be discussed in detail
below).
In part because of responses to legal positivists like Hart, a category of
“natural law theories” has arisen which is best understood by its contrast
to legal positivism, rather than by its connection with the traditional
natural law theories of Cicero, Suarez, and Aquinas. While the traditional
theories were generally taking a particular position on the status of moral¬
ity (that true moral beliefs are based in or derived from human nature or
the natural world, that they are not relative, that they are accessible to
human reason, and so on), a position which then had some implications
for how legislators, judges, and citizens should act, as well as for all other
aspects of living a good life; this second category of “natural law theories”
includes theories specifically about law, theories which hold that moral
evaluation of some sort is required in describing law in general or partic¬
ular legal systems, or in determining the legal validity of individual laws.
The two most prominent members of this second group are Lon Fuller,
who referred to his approach as a “Natural Law” approach, and who is
the subject of the present chapter; and Ronald Dworkin, who only occa¬
sionally and with some reluctance takes on that title, and who is the
subject of the next chapter.
fuller’s approach
Fuller rejected what he saw as legal positivism’s distorted view of law as

a “one-way projection of authority”: the sovereign gives orders' and the
citizens obey. Fuller believed that this approach missed the need for coop¬
eration and reciprocal obligations2 between officials and citizens for a
legal system to work.
Additionally, Fuller criticized legal positivists for misunderstanding the
centrality of the ideal of law (which he alternatively described as “order”,
“good order” and “justice”) in any understanding of law itself. To exclude
the ideal from a theory of law on the basis of a “separation of descrip¬
tion and evaluation” is to miss the point entirely: the social practice and
social institution of law is by its nature a striving towards such ideals.3
Fuller characterized law as “the enterprise of subjecting human
conduct to the governance of rules”.4 Law is a way of governing people,
2 See, e.g. Lon L. Fuller, The Morality of Law (revised ed., Yale University Press, London,
1969), p. 39 (“There is a kind of reciprocity between government and the citizen with
respect to the observance of rules”).
3 See Winston, “The Ideal Element in a Definition of Law”, pp. 98, 103-104, 109.
1 Fuller, The Morality of Law, p. 96. Kenneth Winston argues that the quoted characteriza¬
tion “is meant to define not law in general but only the process of legislation.” Winston,
“Introduction”, in Lon L. Fuller, The Principles of Social Order, p. 30, n.33 (Duke University
Press, Durham, N.C., 1981).
fuller’s approach 75
to be contrasted with other forms of governance, for example, manage¬

rial direction.I * * * 5 Law is a particular means to an end, a particular kind of
tool, if you will.6 With that in mind, one can better understand the claim
that rules must meet certain criteria relating to that means, to that func¬
tion, if they are to warrant the title “law”. If we defined “knife” as some¬
thing that cuts, something which failed to cut would not warrant the label,
however much it might superficially resemble true knives. Similarly, if we
define law as a particular way of guiding and co-ordinating human beha¬
viour, if a system’s rules are so badly constructed that they cannot succeed
in effectively guiding behaviour, then we are justified in withholding the
label “law” from them.7
Another way to view the same analysis is to point out that those in
authority are not entirely free when they create law. They must respond
to and adapt to the external order, to factors beyond their control: aspects
of human nature (in particular how people interact, and how they react
to various forms of guidance), the nature of society (which institutional
structures work and which do not), and the resources available.8
Fuller offered, in place of legal positivism’s analyses of law based on
power, orders, and obedience, an analysis based on the “internal moral¬
ity” of law. Like traditional natural law theorists, he wrote of there being
a threshold that must be met (or, to change the metaphor, a test that must
be passed) before something could be properly (or in the fullest sense) be
called “law”. Unlike traditional natural law theorists, however, the test
Fuller applies is one of function and procedure rather than one primar¬
ily of moral content.
The internal morality of law consists of a series of requirements which
Fuller asserted that a systems of rules must meet—or at least substantially
meet—if that system was to be called “law”. (At the same time, Fuller
wrote of systems being “legal” to different extents, and he held that a system
which partly but not fully met his requirements would be “partly legal” and
could be said to have “displayed a greater respect for the principles of legal¬
ity” than systems which did not meet the requirements at all.9)
I declined to call Fuller’s characterization a “definition” of law, as there is evidence

that Fuller had little regard for the project of “defining law”. See Winston, “The Ideal
Element in a Definition of Law”, p. 91 (quoting from a letter Fuller wrote in which he
discussed this matter). However, I believe that Fuller’s discussions are, like other
“definitions of law”, at least in part a conceptual claim about law. (On “conceptual
claims”, see Chap. 2.)
5 Fuller, The Morality of Law, pp. 207-214.
6 In many of the writings discussed, Fuller was speaking primarily, if not exclusively, of leg¬
islation. In other writings, Fuller focused on adjudication, mediation, contractual agree¬
ments, and managerial direction. See Fuller, The Principles of Social Order.
1 Weinreb, Natural Law and Justice, pp. 102-103.
8 See Winston, “Introduction”, pp. 13-14.
9 Fuller, The Morality of Law, pp. 122-123.
The eight requirements are: (1) laws should be general; (2) they should
be promulgated, that citizens might know the standards to which they are
being held; (3) retroactive rule-making and application should be mini¬
mized; (4) laws should be understandable; (5) laws should not be contra¬
dictory; (6) laws should not require conduct beyond the abilities of those
affected; (7) they should remain relatively constant through time; and (8)
there should be a congruence between the laws as announced and as
applied.10
Fuller’s approach is often contrasted with that of traditional natural
law positions. Fuller at one point tried to show a connection, writing that
\ “Aquinas in some measure recognized and dealt with all eight of the prin¬
ciples of legality”. On the other hand, Fuller also realized that there were
t significant differences: he once referred to his theory as “a procedural, as
distinguished from a substantive natural law”. However, he chafed at the
dismissal of his set of requirements as “merely procedural”: an argument
frequently made by critics that his “principles of legality” were amoral
solutions to problems of efficiency, such that one could just as easily speak
of “the internal morality of poisoning”.* 11 Such criticisms misunderstand
the extent to which our perceptions of justice incorporate procedural ele¬
ments. This is a matter Fuller himself brought up through an example
from the (then) Soviet Union. In that country, there was once an attempt
to increase the sentence for robbery, an increase also to be applied
retroactively to those convicted of that crime in the past. Even in the
Soviet legal system, not known for its adherence to the “Rule of Law”,
there was a strong reaction by lawyers against this attempt to increase sen¬
tences retroactively. It is a matter of procedure only, but still it seemed to
them—and it would seem to us—a matter of justice.12 Following the
rules laid down (just as one example of procedural justice) is a good thing,
and it is not stretching matters to characterize it as a moral matter and a
matter of justice.
On the other hand, there were times when Fuller overstated the impor¬
tance of his “principles of legality”. When critics argued that a regime
could follow those principles and still enact wicked laws, Fuller stated that
he could not believe that adherence to the internal requirements of law
were as consistent with a bad legal system as they were with a good legal
system.1:5 There are various ways that this “faith” can be understood. One
argument could be that{a-gevernment which is just and good will likely
be good on procedural matters as welft It is also worth noting that when
10 ibid, at pp. 33-91.

11 ibid, at pp. 200-202.
12 ibid, at pp. 202-204. Lloyd Weinreb analyzes our concept of justice as having two aspects,
which are sometimes in tension: people getting what they deserve, and the following of
the rules laid down. Weinreb, Natural Law and Justice, pp. 184—223.
13 See Fuller, “Positivism and Fidelity to Law”, p. 636.
fuller’s approach 77
proper procedures are followed [e.g. the requirement that reasons be pub¬
licly given for judicial decisions) some officials might be less willing to act
in evil or corrupt ways.14 The contrary claim, that governments which are
evil will be likelv to ignore the procedural requirements, also has some
initial plausibility^There have been regimes so evil that they have not even
bothered with any of the legal niceties, with establishing even the pretense
of legality, and to some extent Nazi Germany is an example. 15However,
there have also been regimes, generally condemned as evil, which have at
least at times been quite meticulous about legal procedures (South Africa
before the fall of Apartheid or East Germany before the fall of
Communism may be examples). Since the principles of legality can be
understood as guidelines for making the legal system more effective in
guiding citizen behaviour, wicked regimes would also have reasons to
follow them.
Thus, while following the principles of legality is itself a moral good,
and whilst it may indicate a government committed to morally good
actions, and may hinder base actions, it is probably claiming too much for
those principles to say that following them would guarantee a substantively
just system. However, one should not conclude, as some critics have, that
the evaluation of Fuller’s entire approach to law should turn on the
empirical question of whether there have ever been (or ever could be)
wicked governments which, for whatever reason, followed the rules of
procedural justice. Like the question of whether there can ever be, over
the long term, “honor among thieves”, the ability to maintain procedu¬
ral fairness amidst significant iniquities, is an interesting topic for specu¬
lation, but little more. The main points of Fuller’s position—that a value
judgment about the system described is part of the way we use the word
“law”; and that there is analytic value to seeing law as a particular kind
of social guidance, which is to be contrasted with other forms of social
guidance, and which can be more or less effective according to how well
it meets certain guidelines—are not undermined by pointing out (if true)
that some legal systems which are substantively unjust seem to do well on
questions of procedural justice.16
Those who approach natural law through the Hart-Fuller debate
sometimes over-emphasize the question of when a rule or a system of
social guidance merits the label “law” or “legal”. There is a danger in
such a focus, in that debates about proper labeling (not just whether
14 ibid, at pp. 636, 652; Fuller, The Morality of Law, pp. 157-159.
15 See, e.g. Ingo Muller, Hitler’s Justice: The Courts of the Third Reich (D.L. Schneider, trans.,
Harvard University Press, Cambridge, Mass., 1991).
16 See Sebok, “Finding Wittgenstein at the Core of the Rule of Recognition”, p. 79: “For
Fuller, more traditional natural law theory had put the cart before the horse by asking
what the law should achieve before fully understanding how the law was to achieve any¬
thing.”
something is “law” or not, but also whether an object is “art” or not,

whether a particular form of government is “democratic” or not, and so
forth) often lose real moral, sociological, or conceptual arguments
beneath line-drawing exercises. As mentioned earlier (in Chapter 2), it is
always open to theorists to stipulate the meaning of the terms they use,
even for the limited purpose of one discussion only. To say that it is impor¬
tant that the products of a wicked regime be called “law” or not indicates
that there is something further at stake (for example, whether and when
citizens have a moral obligation to obey the law), but the burden must be
on the advocate to clarify what that further point is. It may often be pref¬
erable to bypass questions of labeling and line-drawing, to face directly
whatever further substantive issues may be present.
FULLER AND LEGAL PROCESS
Lon Fuller was a significant influence on the “legal process” approach to

law, an approach that was important in the American legal thought in the
1950s and 1960s. Lon Fuller’s work can be seen, in an indirect way, as
being a response to American legal realism (the focus of Chapter 17):
Fuller’s internal morality of law as a kind of reaction against the cynicism
and focus on power of the realists. By contrast, legal process was a more
direct response to the challenge of the realists.
The legal process approach focused on the question of how and by whom
decisions should be made: what is the best procedure for finding the
answer to this sort of question?, and which institution would be best
placed to resolve a problem of this sort?1' “By emphasizing reason as well
as fiat in law, by demonstrating the essential irrationality of non-purpo-
sive legal interpretation, by reinforcing the interconnection of reason and
principle and, most importantly of all, by arguing that adjudication is an
institutionally discrete, rationalistic, rights-oriented and hence principle-
based process of decision-making, Fuller contributed significantly to the
construction of a distinctive post-realist ‘process jurisprudence’.”18 The
legal process approach combined Fuller’s emphasis on the functions of
law and added detailed attention to the relative institutional competences
of various institutions within the law, and how these institutions interact.
Especially at times when there is pervasive doubt of achieving certainty
17 See Henry M. Hart, Jr, and Albert M. Sacks, The Legal Process: Basic Problems in the Making
and Application of Law (W. Eskridge and P. Frickey ed, Foundation Press, New York, 1994).
The influential basic text of the legal process school was completed in 1958, and widely
circulated, but never formally published until 1994. For a detailed discussion of the
context, development, and subsequent criticisms of “Legal Process” (both the book and
the movement), see William N. Eskridge, Jr and Philip Frickey’s “An Historical and
Critical Introduction to The Legal Process”, in ibid., pp. li cxxxvi.
18 Neil Duxbury, Patterns of American Jurisprudence (Clarendon Press, Oxford, 1995), p. 232.
FULLER AND LEGAL PROCESS 79
or consensus in resolving basic social questions (as doubt in American

legal thought earlier this century had been fuelled by the criticisms of for¬
malism developed by the legal realists), it is proper to focus on the ques¬
tion of who should decide and how. There is a sense, however, that in the
way the legal process approach developed, questions of process and insti¬
tutional competence were over-emphasized, leading to an indifference to
the justice of results reached and a mistaken and extreme version of judi¬
cial restraint.19
Legal process was an intermediate movement in recent American juris¬
prudential thought. As noted, it can be seen as a kind of mainstream
response to the challenges raised by American legal realism.20 In turn,
critical legal studies, discussed in Chapter 19, developed in large part in
reaction to legal process.21
Suggested Further Reading
Symposium on Lon Fuller, 13 Law and Philosophy 253—4-18 (1994) (with articles by
Kenneth Winston, Jeremy Waldron, Frederick Schauer, Stanley L. Paulson,
and Gerald Postema)
Lon Fuller, “Positivism and Fidelity to Law—A Response to Professor Hart”, 71
Harvard Law Review 630 (1958)
—, The Morality of Law (revised ed., Yale University Press, New Haven, 1969) (the
revised edition contains a helpful reply to critics)
—, The Principles of Social Order (K.I. Winston ed., Duke University Press, Durham,
N.C., 1981) (collected essays with a helpful introduction by Kenneth Winston)
Matthew H. Kramer, “Scrupulousness Without Scruples: A Critique of Lon
Fuller and His Defenders”, 18 Oxford Journal of Legal Studies 235 (1998)
Robert S. Summers, Lon L. Fuller (Stanford University Press, Stanford, California,
1984)
19 ibid, at pp. 233-241.

20 See, e.g. Morton Horwitz, The Transformation of American Law 1870-1960 (Oxford
University Press, Oxford, 1992), pp. 254—255.
21 See, e.g. Mark Kelman, A Guide to Critical Legal Studies (Harvard University Press,
Cambridge, Mass., 1987), pp. 186-212.
Chapter Seven
Ronald Dworkin’s Interpretive Approach
Ronald Dworkin (1931- ) is probably the most influential English-lan¬

guage legal theorist of this generation. Over the course of 30 years, he
has developed a sophisticated alternative to legal positivism. Though his
theory has little resemblance to the traditional natural law theories of
Aquinas and his followers, Dworkin has occasionally referred to his
approach as a natural law theory, and it is on the natural law side of the
theoretical divide set by the Hart-Fuller debate. At the same time, it may
sometimes be helpful to see Dworkin’s work as establishing a third alter¬
native to legal positivism and natural law theory: an interpretive theory
of law.
EARLIER WRITINGS
In Dworkin’s early writings,1 he challenged a particular version of legal

positivism, a view which saw law as being comprised entirely of rules, and
judges as having discretion in their decision-making where the dispute
before them was not covered by any existing rule. Dworkin offered an
alternative vision of law, in which the resources for resolving disputes
“according to law” were more numerous and varied, and the process of
determining what the law required in a particular case more subtle.
Dworkin argued that along with rules, legal systems also contain prin¬
ciples. Legal principles are moral propositions that are stated in or
implied by past official acts (e.g. statutes, judicial decisions, and constitu¬
tional provisions). In contrast with rules, principles do not act in an all-or-
nothing fashion: that is, they can apply to a case without being dispositive.
Principles (e.g. “one should not be able to profit from one’s own wrong”
and “one is held to intend all the foreseeable consequences of one’s
actions”) have “weight” favouring one result; there can be—and often are
—principles favouring contrary results on a single legal question.
1 Collected in Dworkin, Taking Rights Seriously (1977).

82 RONALD DWORKIN’S INTERPRETIVE APPROACH
There is still a legal positivist-like separation of law and morality in this

view of law, in that judges are told to decide cases based not on whatever
principles (critical) morality might require, but rather based on a different
and perhaps inconsistent set of principles: those relied upon, or implicit
in, past official actions.
Dworkin argued for the existence of legal principles (principles which
are part of the legal system, which judges are bound to consider where
appropriate) by reference to legal practice (in the United States and
England). Particularly telling for Dworkin’s argument are those “land¬
mark” judicial decisions where the outcome appears to be contrary to the
relevant precedent, but the court still held that it was following the “real
meaning” or “true spirit” of the law; and also more mundane cases where
judges have cited principles as the justification for modifying, creating
exceptions in, or overturning legal rules.
Because there are (numerous) principles as well as rules, there will be
few if any occasions where the law “runs out” and judges must decide
the case without legal guidance; but at first glance, legal determinacy
might seem to be undermined by the abundance of sometimes-contrary
material. However, Dworkin had a response to that problem. Under his
approach, judges consider a variety of theories regarding what the law
requires in the area in question, rejecting those which do not adequately
“fit” past official actions. Among the theories that adequately “fit”, the
judge chooses the one which best combines “fit” and moral value,
making the law the best it can be. Two tenets of Dworkin’s early writ¬
ings were thus indirecdy related: that law contains principles as well as
rules; and that for nearly all legal questions, there are unique right
answers.
While there are reasons to conclude that Dworkin had overstated the
differences between his view of the law and that of H.L.A. Hart, and also
that he made out the line between rules and principles to be clearer than
it (sometimes) is in practice,2 what remains is the insight that a purely
rule-based approach to the nature of law or the nature of judicial rea¬
soning (whether such a view could ever fairly have been attributed to
Hart or not) would be problematic. There is always the sense of moral
standards qualifying the rules (e.g. that a rule should not apply as written
if it would lead to an absurd result, or if one of the parties had acted
inequitably, and so on) as somehow already having been present in the
law, even before the standards are articulated or decisions based upon
them are announced.3
2 See, e.g. Hart, “Postscript”, pp. 259-263; Raz, “Legal Principles and the Limits of Law”.
3 See N. E. Simmonds, Central Issues in Jurisprudence (Sweet & Maxwell, London, 1986),
pp. 2-4.
CONSTRUCTIVE INTERPRETATION 83
CONSTRUCTIVE INTERPRETATION
In his later works, Dworkin offered what he called “an interpretive

approach” to law.4 (While Dworkin has said little about the relationship
between his earlier writings and his later work, the later work is probably
best seen as a reworking of earlier themes within a philosophically more
sophisticated framework. However, Jules Coleman has offered the inter¬
esting view that there are basic differences between Dworkin’s earlier and
later writings, grounded on the fact that the political philosophy of the
earlier writings was “rights-based liberalism”, while the political philoso¬
phy of the later writings was that of “liberal community”.5)
In Law’s Empire, Dworkin argued that “legal claims are interpretive
judgments and therefore combine backward- and forward-looking ele¬
ments; they interpret contemporary legal practice as an unfolding narra¬
tive”.6 According to Dworkin, every time a judge is confronted with a
legal problem, he or she should construct a theory of what the law is. That
theory must adequately fit the relevant past governmental actions (legis¬
lative enactments and judicial decisions),7 while making the law the best
it can be.8
According to Dworkin, both law (as a practice) and legal theory, are
best understood as processes of “constructive interpretation”, interpreta¬
tion that makes its object the best it can be (in Dworkin’s words, an inter¬
pretation which makes it “the best possible example of the form or genre
to which it is taken to belong”9). Constructive interpretation is both an
imposition of form upon an object being interpreted (in the sense that the
form is not immediately apparent in the object) and a derivation of form
from it (in the sense that the interpreter is constrained by the object of
interpretation, and not free to impose any form the interpreter might
choose). One can think of constructive interpretation as being similar to
the way people have looked at collections of stars and seen there pictures
of mythic figures, or the way modern statistical methods can analyse
points on a graph (representing data), and determine what line (represent¬
ing a mathematical equation, and thus a correlation of some form
between variables) best explains that data.
Dworkin believes that constructive interpretation is also the proper
approach to artistic and literary interpretation, and his writings fre-
quendy compare the role of a judge with that of a literary critic. Both the
applicability of constructive interpretation to artistic interpretation and
4 Dworkin, Law’s Empire, pp. 46-48.

5 Jules L. Coleman, “Truth and Objectivity in Law”, 1 Legal Theory 33 at 48-54 (1995).
6 Dworkin, Law’s Empire, p. 225.
7 ibid, at pp. 227-228, 245-258.
8 ibid, at pp. 52, 143.
9 ibid, at p. 52.
the treatment of legal interpretation and artistic interpretation as analo¬

gous, are controversial claims.10
Constructive interpretation depends upon being able to assign a dis¬
tinctive value or purpose to the object of interpretation, whether that
object is a work of art or a social practice. It is that value or purpose which
serves as the criterion for determining whether one interpretation of the
object is better or worse than an alternative. For the constructive inter¬
pretation of law, Dworkin states that the purpose of law is to constrain or
justify the exercise of government power.* 11
The past actions of officials, whether judges deciding cases and giving
reasons for their decisions or legislators passing statutes, are the data to
be interpreted constructively. In making the law, or an area of the law, the
best it can be, the criteria Dworkin mentions most often are, as before,
“fit” and moral value. For some legal questions, the answer may seem easy
because only one theory shows adequate “fit”. However, where the law is
unsetded or inconsistent, or where the legal question is novel, there will
be alternative theories with adequate “fit”. Among these, some will do
better on “fit”, others better on moral value. In making comparisons
among alternative theories, the relative weighting of “fit” and moral
value will itself be an interpretive question, and will vary from one legal
area to another (e.g. protecting expectations may be more important
regarding estate or property law, while moral value may be more impor¬
tant for civil liberties questions).12
Dworkin also writes of “Integrity”: the belief that judges should decide
cases in a way which makes the law more coherent, preferring interpre¬
tations which make the law more like the product of a single moral vision.
Dworkin wrote, “Judges who accept the interpretive ideal of integrity
decide hard cases by trying to find, in some coherent set of principles
about people’s rights and duties, the best constructive interpretation of
the political structure and legal doctrine of their community.”13 The
interpretation of the law should, to the extent possible (given the relevant
interpretative constraints) “express [ ] a coherent conception of justice
and fairness.”14 In some ways, the development of an interpretative
theory around the concept of “Integrity” can be seen as a somewhat
grander, somewhat more sophisticated version of the spirit underlying
common law reasoning: a form of decision-making based in part on con¬
sistency, though a consistency sensitive to principle, and in part on a belief
10 For contrary views, see, e.g. Andrei Marmor, Interpretation and Legal Theory (Clarendon
Press, Oxford, 1992), pp. 35-60; Richard A. Posner, Law and Literature: A Misunderstood
Relation (Harvard University Press, Cambridge, Mass., 1988), pp. 209—268.
11 Dworkin, Law’s Empire, pp. 93, 109, 127.
12 ibid, at pp. 228-258.
13 ibid, at p. 255.
14 ibid, at p.225.
CONSTRUCTIVE INTERPRETATION 85
that past decisions were rough approximations or intuitions about justice

and fairness.15
Dworkin’s writings (both earlier and later) can be seen as attempts to
come to terms with aspects of legal practice that are not easily explained
within the context of legal positivism. For example: (1) the fact that par¬
ticipants in the legal system argue over even the most basic aspects of the
way the system works (for example, arguments over the correct way to
interpret ambiguous statutes, and over how one should apply constitu¬
tional provisions to new legal questions), not just over peripheral matters
or the application of rules to borderline cases; (2) even in the hardest of
hard cases, the lawyers and judges in the case speak as if there were a
unique correct answer which the judge has a duty to discover; and (3) in
landmark cases, where the law seems on the surface to have changed rad¬
ically, both the judges and commentators often speak of the new rule
having “already been present” or the law “working itself pure”.16
A standard response to Dworkin’s work (both to his early writings and
to the later interpretive approach) is that judges and legal theorists should
not look at law through “rose-colored glasses”, making it “the best it can
be”; rather, they should describe law “as it is”. The key to understanding
Dworkin, in particular his later work, is to understand his response to this
kind of comment: that there is no simple description of law “as it is”; or,
more precisely, that describing what law “as it is” necessarily involves an
interpretive process, which in turn requires determining what is the best
interpretation of past official actions.17 Law “as it is”, law as objective or
non-controversial, is only the collection of past official decisions by judges
and legislators (which Dworkin refers to as the “pre-interpretive data”,
that which is subject to the process of constructive interpretation).
However, even collectively, these individual decisions and actions cannot
offer an answer to a current legal question until some order is imposed
upon them. That order is the choice, the moral-political choice, between
tenable interpretations of those past decisions and actions.
If asked, say, “what is the law regarding economic recovery for nervous
distress”, it is quite possible that the lawyer one asks will not be able to
offer any authoritative source which speaks directly to the specific
problem posed; that is, the question may be unsettled in the laws of that
jurisdiction. It may be that the lawyer can point to certain statutes that
have been passed that are relevant, and to certain decisions that have been
made by courts at various levels on related matters, and perhaps even to
the writings of commentators suggesting that future decisions on this
15 See Simmonds, Central Issues in Jurisprudence, p. 89. On common law reasoning, see Chap.
13.
16 Omychundv. Barker(\74:4!) 26 E.R. 15 at 23.
17 The first three chapters of Law’s Empire contain the arguments underlying this conclu¬
sion. See Dworkin, Law’s Empire, pp. 1-113.
question come out one way rather than another, but it may be that none
of these items directly and conclusively answers the question posed. To
get that answer, the lawyer must go through a certain kind of reasoning
process, deriving an answer from the various materials. For Dworkin, this
is an act of “interpretation”.
What of the situations where there do seem to be authoritative legal
sources directly on point? For example, the lawyer might triumphantly
announce that the appellate court had rendered a decision on the very
issue just a few weeks earlier. Is that the end of the matter? Is there then
no need for “interpretation”? Even putting aside possible questions of
whether the appellate court decision might not be subject to a different
interpretation (its language perhaps having been ambiguous), Dworkin
might point out that a skilled advocate could still argue, looking at all the
relevant past legal decisions, that the appellate court decision was mis¬
taken and should be overturned, or that the decision was too broad and
it will probably later be overturned or limited to a few situations.
The interpretive approach has the advantage of reflecting, and being
able to account for the way that law (or at least certain areas of the law)
is regularly subject to change and re-characterization. This strength may
also be the approach’s weakness: that it emphasizes the possibility of revi¬
sion too much and the likelihood of settledness too little; and that it cele¬
brates the notion of the great individual judge rethinking whole areas of
law and thereby deflecting attention from the important roles of consen¬
sus and shared understandings.18
A related kind of challenge has been offered to Dworkin’s approach to
law: that it is legal theory for (or from the perspective of) judges, rather
than the full theory of law it purports to be.19 Making the best theory of
law one can from the relevant past legal decisions may be the appropri¬
ate prescription if one is a judge within a legal system.20 However, why
would one take the same perspective if one were merely a citizen in the
society?
For many citizens, the perspective wanted on the law is similar to that
of Justice Holmes’ “bad man”21: people want to know what they have to
do to avoid legal sanctions, or, to put the matter differently, what they can
get away with without facing sanctions. From the perspective of the ordi-
18 For a more detailed discussion of some of these themes, see Gerald Postema,
“‘Protestant’ Interpretation and Social Practices”, 6 Law and Philosophy 283 (1987); see
also Bix, Law, Language and Legal Determinacy, pp. 111-116, 125-129.
19 See, e.g. Raz, Ethics in the Public Domain 186-187; Bix, Law, Language and Legal Determinacy
118-120.
20 Though Dworkin recommended that if the legal system is sufficiently wicked, the judge
should not try to make the legal system “the best it can be”; he or she should just lie about
what the law requires. Dworkin, “A Reply by Ronald Dworkin”, p. 258.
21 Holmes, “The Path of the Law”, pp. 460-461; see generally William Twining, “The Bad
Man Revisited”, 58 Cornell Law Review 275 (1973).
RIGHT ANSWERS 87
nary citizen, there are a number of reasons to think of law in terms of a

prediction of how judges (and police officers) will interpret the rules. Not
only is there the desire to avoid legal sanctions, but if law is going to
succeed in co-ordinating behaviour, then it is important that different cit¬
izens view what the law requires in roughly the same way (for example, if
they all have comparable ideas about what traffic laws or anti-pollution
laws require). Arguably, this kind of consensus is unlikely to come about
—or at least less likely to come about—if citizens were to take up
Dworkin’s interpretive approach to the law.
RIGHT ANSWERS
For a long time, the idea most closely associated with Dworkin’s work in
legal theory was the “right answer thesis”, the claim that all (or almost all)
legal decisions have a unique right answer. It is interesting to note some
of the ways that the presentation of this view, and attacks on it, have
changed over time.
There are three themes that persist throughout Dworkin’s many dis¬
cussions of his “right answer thesis”. The first is that this claim reflects
our practice: that even in difficult decisions, judges and lawyers discuss¬
ing, arguing, and deciding cases act as if, and talk as if, there were a right
answer to be found. This reference to practice often elicits responses
along the lines that judicial “right answer” rhetoric is just a matter of
show or a matter of convention, and that judges in more reflective
moments endorse a contrary position.22
A second theme, which has become more prominent in the Dworkin’s
later writings, is that there are right answers to legal questions for the
simple reason that judges must reach a result in the questions placed
before them, and some answers are better than others.23 Every other
argument Dworkin raises, and he raises quite a few, could be considered
just a variation on this point.
While a theorist like Joseph Raz is concerned with distinguishing
among judicial decisions, differentiating those that are based on legal
standards and those that are based on extra-legal standards, and between
those which apply prior decisions (“apply existing law”) and those that
make fresh decisions (“make new law”),24 Ronald Dworkin finds such dis¬
tinctions to be besides the point. He sees no reason not to view every stan¬
dard a judge is required to apply as a “legal” standard.2 ’ Arguments about
22 See, eg. Hart, “Postscript”, pp. 273-275. For a response to this kind of argument, see
Dworkin, “Legal Theory and the Problem of Sense”, pp. 11-13.
23 See, eg. Dworkin, “A Reply by Ronald Dworkin”, pp. 275-278.
24 See, eg. Raz, Ethics in the Public Domain, pp. 187-192.
25 Dworkin, “A Reply by Ronald Dworkin”, pp. 261-262.
which aspects of judicial decisions are based on “legal” factors and which
on “extra-legal” factors seem to him of little interest.
A third theme is that the best way—and perhaps the only way—to
prove or disprove the existence of unique right answers in (all) legal cases
is to consider individual, difficult cases, and construct an argument that a
particular result is the unique, correct one, or to argue that in this case,
no one answer is better than the alternatives.26 There is unlikely to be a
global argument establishing or refuting legal determinacy.
General challenges have been raised to the possibility of right answers
under Dworkin’s approach based on problems of incommensurability
(whether one can meaningfully state that one theory is better than
another when one alternative is better on one value, e.g. “fit”, and the
other alternative is better on a different value, e.g. “moral worth”)2' and
demonstrability (that given Dworkin’s other premises, he cannot conclude
both that there are unique right answers to all legal questions and that
these right answers will not be demonstrable at least in principle under
optimal conditions).28 These are interesting and difficult topics,29 but
there is not time to deal with them adequately in the present text.
Some of Dworkin’s later interpretive discussions treated the issue of
“right answers” only in passing or by implication. The most recent work
seems to go even further, treating the issue as an irritating distraction:
“We should now set aside, as a waste of important energy and resource, grand
debates about. . . whether there are right or best or true or soundest answers or
only useful or powerful or popular ones. We could then take up instead how the
decisions that in any case will be made should be made, and which of the answers
that will in any case be thought right or best or true or soundest really are.”30
On the other hand, while the tone of this quotation is dismissive, it con¬
tinues a theme mentioned earlier: there are at least “best answers” to legal
questions, even if for some reason one hesitates about calling them “right
answers”.
Why might the discussion of the “right answer thesis” be worth the
effort? One point is a psychological/sociological one directed at judges
26 See, e.g. Ronald Dworkin, “Pragmatism, Right Answers, and True Banality”, in
Pragmatism in Law and Society (M. Brint and W. Weaver ed., Westview Press, Boulder, Colo.,
1991), p. 365.
27 The debate between Dworkin and various critics on the issue of incommensurability is
summarized in Bix, Law, Language and Legal Determinacy, pp. 96-106.
28 See Michael S. Moore, “Metaphysics, Epistemology and Legal Theory” (book review),
60 Southern California Law Review 453 at 480 483 (1987).
29 On incommensurability generally, see Ruth Chang ed., Incommensurability, Incomparability,
. and Practical Reason (Harvard University Press, Cambridge, Mass., 1997); on the implica¬
tions of incommensurability for law, see “Symposium: Law and Incommensurability”,
146 University of Pennsylvania Law Review 1169-1731 (1998).
30 Dworkin, “Pragmatism, Right Answers, and True Banality”, p. 360.
DWORKIN V. HART 89
and advocates. If they believed that in difficult cases there was likely to be
a unique correct answer, however difficult it might be to discover, and
however much competent lawyers might disagree about which answer
was the correct answer, the efforts and arguments would be directed at
the legal materials: trying to construct an argument for one answer or
another being the right one. On the other hand, if it were thought that
because of the law running out, or incommensurability problems, or the
indeterminacy of language, or whatever, that there were usually no
unique right answer for the more difficult legal questions, then the atten¬
tion of advocates and judges in such cases might turn too quickly (what¬
ever “too quickly” might mean here) to legislative questions of which
proposed legal rule would be best. Dworkin would argue that it is better
(that it is the better interpretation of our own practices) that courts
remain, to the extent possible, “forums of principle”, attempting to dis¬
cover the answer to legal disputes within the existing legal materials.
DWORKIN V. HART
Dworkin’s early work gained prominence for its attacks on legal positi¬
vism, in particular H.L.A. Hart’s version of legal positivism. What little
direct response there was from Hart tended to come late in his life, and a
good portion of it was only published posthumously.31
The “debate” between Dworkin and Hart, like the “debate” between
Hart and Fuller, may be best understood as not having been a debate at
all, as the term is normally used. The differences between the two theo¬
rists are not so much contrary views on particular issues, but both more
and less than that: Hart and Dworkin had differing ideas about which
questions and which concerns in legal theory were the most pressing.3-
This is not to say that there are not some overlapping issues about which
one could accurately state that the theorists have contrary positions, only
that to focus on these direct disagreements would tend to underestimate
the extent to which the theorists were actually talking past one another.
In one of his responses to Dworkin, Hart began by contrasting theo¬
ries about law in general versus theories about a particular legal system
(or, as he read Dworkin’s theory, theories about how judges in a particu¬
lar legal system should decide cases).33 This claim brings up, among other
things, the question about the possibility of general jurisprudence (an
31 I am thinking in particular of Hart, “Comment”, published in 1987; and Hart,

“Postscript”, published posdiumously in 1994. For completeness one should also note
Hart, Essays in Jurisprudence and Philosophy, pp. 137-141 (reproducing material first pub¬
lished in 1977), which discussed aspects of Dworkin’s work, but more by way of report¬
ing than debate.
32 This is a point Hart himself noted. See Hart, “Comment”, pp. 36-40.
33 ibid, at pp. 36-38.
issue considered in Chapter 2) and the proper characterization of

Dworkin’s theory.
Elsewhere in the same article, Hart offered a contrast among possible
types of legal theory, a contrast based on images. One type of theory is
to be used “within” the legal system: for example, in telling a judge how
to decide disputes. Another type of theory involves looking at the system
“from the outside”. Basing the argument on the images, one would say
that a theory cannot be simultaneously part of the legal system and a
description of the system from the outside.34 In some ways, this last argu¬
ment is a strange one for Hart to have put forward, for one of the most
significant aspects of Hart’s approach to law (as discussed in Chapter 3)
was that it demanded that we look at the perspectives of citizens within a
legal system, the “internal point of view”, in constructing a theory of law.
The main question for this exchange between Dworkin and Hart is
how much we can rely on the images, on the metaphors, alone, in evalu¬
ating or creating arguments. It does sound strange to say that a theory is
simultaneously part of the system and the best explanation of the system.
However, arguments of this kind, with all their hints of circularity, are
actually relatively common in modern philosophy; examples include the
hermeneutic circle in literary theory, and John Rawls’ use of reflective
equilibrium in moral and political theory.
To the extent that there is a true conflict between Dworkin and Hart,
it is at those times when Dworkin states or implies that there is no room
for a substantive, detailed and interesting descriptive theory of law (that
is not interpretive). This struggle can be seen not only in Hart’s insistence
of the space for and need for a (non-interpretive) descriptive theory of law
in general, but also in his disagreement with any attempt to recast legal
positivism as being about justifying present/future coercion,35 and his
claim that even if the “sense” of legal propositions in most or all legal
systems is interpretive/evaluative, it does not follow that descriptive
theory of such matters need similarly be interpretive/evaluative.36
DEBUNKING QUESTIONS
Commentators will sometimes query “the real reason” for or “the real
motivation” behind some line of analysis. This type of challenge has its
roots in American legal realism37 and its most enthusiastic recent propo¬
nents are in the critical legal studies movement (topics to be discussed
34 ibid, at p. 40.
35 Hart, “Postscript”, pp. 241-242.
36 ibid, at p. 244.
37 See, e.g. Felix Cohen, “Transcendental Nonsense and the Functional Response”, 35
Columbia Law Review 809 (1935).
DEBUNKING QUESTIONS 91
in Chapters 17 and 19); the topic is raised here, because while the claim
is rarely considered from the perspective of the theorist being
“debunked”, this is a perspective from which such claims may lose some
of their force.
Critics sometimes claim that the terms used by practitioners or theo¬
rists are labels without content, which only serve to mislead. If we look at
the actual practice, the argument goes, we would find only an attempt to
rationalize particular results. Additionally (as conclusion if not as
premise), these arguments usually hold that it is all but nonsensical to say
that one theory is better than another at explaining law. All that is going
on in descriptive legal theory, this approach states, is an attempt to legit¬
imate particular judicial decisions or methods.
Such analyses can be provocative, though there are times when one is
concerned with how easily they seem to be produced. There are many
such arguments about: for example, the early American theorists, like
Christopher Columbus Langdell, who tried to portray legal reasoning
and the judicial process as scientific, were trying to defend unpopular con¬
servative judicial decisions as “objective”, as required by deductive rea¬
soning that the judges could not legitimately side-step. The American
legal realists who debunked this formalistic approach could themselves be
debunked: their positive program legitimized legal reform and justified
the use of policy arguments in the courts.38 Similarly, H.L.A. Hart, with
his arguments based on the “open texture” of language, could be seen as
justifying limited judicial legislation in difficult cases. In the same line of
analysis, Ronald Dworkin’s approach, in terms first of the “right answer
thesis” and later with the “interpretive approach”, could be seen as
offering a way of legitimizing the apparently political nature of the
Warren Court’s jurisprudence in the United States, at a time when the
decisions of that court were attacked as “anti-democratic”.39
The critics seem to be arguing that theories of interpretation merely
decorate and legitimate the choices made by judges, while hiding the real
reasons (motivations) for the decisions, and that few decisions are actually
determined (or precluded) by the theoretical prescriptions (for example,
“neutral principles”,40 “the Grand Style of Judging”,41 or “the judicial
virtues”42) judges are told to follow.
Dworkin has responded to attempted “debunkings” of this type by
claiming that they are irrelevant to his project. Why does it matter, he asks,
38 See Horwitz, The Transformation of American Law 1870-1960, pp. 185-212.

39 See Peter Gabel, Book Review, 91 Harvard Law Review 302 (1977).
40 Herbert Wechsler, “Toward Neutral Principles in Constitutional Law”, 73 Harvard Law
Review 15 (1959).
41 Karl Llewellyn, The Common Law Tradition: Deciding Appeals (Litde, Brown & Co., Boston,
1960).
42 Hart, The Concept of Law, p. 200.
92 RONALD DWORKIN’s INTERPRETIVE APPROACH
that there might be historical, psychological or sociological explanations

for why a particular theory was put forward or was well-received?43 Even
if it can be proven that a theory serves the interests of a certain class or
group at the expense of others, or that the theory expresses the Zeitgeist of
its era of origin, why should this matter? In the end, the question is
whether the theory is right, or whether it is at least better than alternative
theories. Historical, psychological and sociological explanations are mar¬
ginal to investigations into a theory’s correctness.
Debunking explanations may not be completely irrelevant, in that we
can rightly be suspicious of philosophical positions—whether these be
ethical theories, social theories, or legal theories—that match the theo¬
rist’s self-interest or that theorist’s particular prejudices regarding how the
world should be. However, suspicion is not proof, and as long as argument
about the merits of a theory can be conducted on neutral grounds
(according to criteria accepted by the participants in the field regarding
what makes for stronger and weaker arguments and for better and worse
theories44), then the “debunking” arguments can work only to justify
beginning a debate about the theory in question; the eventual judgment
about its merits will be based on other grounds.
Marshall Cohen ed., Ronald Dworkin and Contemporary Jurisprudence (Duckworth,

London, 1984) (contains critical essays and a long reply by Dworkin).
Ronald Dworkin, Law’s Empire (Harvard University Press, Cambridge, Mass.,
1986).
—, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985).
—, “My Reply to Stanley Fish (and Walter Benn Michaels): Please don’t Talk
about Objectivity Any More”, in The Politics of Interpretation (WJ.T. Mitchell ed.,
University of Chicago Press, London, 1983), pp. 287-313.
— “On Gaps in the Law”, in Controversies about Law’s Ontology (P. Amselek and N.
MacCormick ed., Edinburgh University Press, Edinburgh, 1991), pp. 84—90.
—,Taking Rights Seriously (revised ed., Duckworth, London, 1977) (the revised
edition contains a “Reply to Critics”).
Jurisprudence Symposium, 11 Georgia Law Review 969-1424 (1977) (includes dis¬
cussions of Dworkin’s early work by H.L.A. Hart, Kent Greenawalt, Stephen
Munzer, and David Richards, and a reply by Dworkin).
Andrei Marmor, Interpretation and Legal Theory (Clarendon Press, Oxford, 1992).
Nicos Stavropoulos, Objectivity in Law (Clarendon Press, Oxford, 1996).
Symposium on Law’s Empire, 6 Law and Philosophy 281-438 (1987).
43 See, e.g., Dworkin, Law’s Empire, pp. 271-274 (discussing critical legal studies).
44 Of course, the skeptic might argue that there are no “neutral grounds”: all criteria
already express the interests or the pre-conceptions of certain groups.
PART C
Themes and principles

There are issues in legal philosophy that are not comfortably constrained
within the discussion of particular legal theorists or jurisprudential move¬
ments, and which seem to have repercussions simultaneously at different
levels of concern. That is, issues like justice, punishment, and the obliga¬
tion to obey the law can be understood and considered both at a level of
practical concern about what should be done in certain circumstances,
and as inextricably part of the larger puzzle about how to think about law.
There are also themes, like “will v. reason” and the problem of “finality
v. authority” that seem to recur, in various guises, in a variety of different
jurisprudential debates. The following chapters explore such issues and
themes.
'
s
Chapter Eight
Justice
“Justice” refers to the family of moral concepts connected particularly

with law and politics—“politics” here being understood broadly in the
sense of public decision-making regarding the distribution of goods.
Justice is a subset of morality. Thus, one can sensibly speak of something
being “right” or “wrong” on occasions where it seems inapt to speak of
“justice”.1 Additionally, justice seems to refer to the relatively rigid appli¬
cation of rules and standards, where right action might sometimes
require more nuanced treatment. Aristotle wrote: “when men are friends
they have no need of justice”.2
There are various ways of dividing up the domain of justice. The most
famous distinction is probably Aristotle’s, between “corrective justice”
and “distributive justice”.3 Corrective justice involves rectification
between two parties where one has taken from the other or harmed the
other. Modern discussions of corrective justice often occur within the
context of arguing about appropriate standards within tort law and con¬
tract law. Distributive justice involves the appropriate distribution of
goods among a group (“giving each person his or her due”). Most of the
better known modern discussions of justice, which usually treat justice
primarily as about the proper structuring of government and society, are
basically discussions of distributive justice.
The relationship between corrective and distributive justice is a matter of
controversy. One question is whether there is a conceptual connection
between the two. Aristotle argued that both forms of justice were matters
of “proportion”4: that both when one person has harmed another, and
1 For example, while one might sensibly say that it is wrong for someone to make no use of
substantial natural talents, it would sound strange (to most people) to say that it is “unjust”
of that person to waste those talents.
2 Aristotle, Mchomachean Ethics, Book VIII, 1:1155a, in The Complete Works of Aristotle, Vol.
2, p. 1825. Some would also contrast justice—treatment according to what is due—with
right (or at least expected and acceptable) action within a family, where we accept and
prefer “our own” regardless of their merit.
3 ibid., Book V 3:1131 a-4:1132b, in The Complete Works of Aristotle, Vol. 2, pp. 1785-1787.
4 ibid., Book V, 3:1131 a—b, in The Complete Works of Aristotle, Vol. 2, pp. 1785-1786.
96 JUSTICE
when there has been a mal-distribution of goods, matters are out of proper
proportion. A quite different question is the connection between the two as
a matter of moral evaluation. That is, how do the two interact? For example,
if one lives in a society which is distributively unjust (some people have much
more than others, without basis or warrant), does this in any way mitigate
the demand for corrective justice (e.g. when the deserving take from the
undeserving)?5 Many people seem to feel this way, often at an unreflective
level, as when someone will claim that there is nothing wrong in deceiving
a larger insurance company or some other large corporation, the implicit
premise being that these companies have themselves benefited from some
wrongdoing, and therefore it would not be unjust to take from them.
Along with corrective justice and distributive justice, the term “justice”
is also frequently used to refer to following the rules laid down.6 This has
obvious applications to law (“no retroactive punishments”), but is relevant
also to other aspects of daily life (“not changing the rules in the middle of
the game” and the like).7 “Justice” is also often used to describe the appro¬
priateness of punishments for crimes; the topic of punishment will be
considered in the next chapter.
The remainder of this chapter will focus on some of the more
influential recent theories of justice.
JOHN RAWLS AND SOCIAL CONTRACT THEORY
John Rawls’ book, A Theory of Justice,8 is probably the most influential

book of political theory written in this century.9 For Rawls and many of
5 See, e.g. Stephen R. Perry, “The Distributive Turn: Mischief, Misfortune and Tort Law”,
in Analyzing Law: New Essays in Legal Theory (B. Bix ed., Clarendon Press, Oxford, 1998),
pp. 142-143; Coleman, “Second Thoughts and Other First Impressions”, pp. 308-310.
6 See, e.g. Aristode, Nicomachean Ethics, Book V, 7:1134b in The Complete Works of Aristotle, Vol.
2, pp. 1790-1791: “Of political justice part is natural, part legal,—natural, that which
everywhere has the same force and does not exist by people’s thinking this or that; legal,
that which is originally indifferent, but when it has been laid down is not indifferent...”
7 Lloyd Weinreb gives the example of the chariot race in the Iliad, which was part of the
funeral commemoradon for Patroclus. Achilles announced prizes for the race, including
a mare for second place. Antilochus finishes second, but Achilles wanted to give the mare
to Eumelos, the best charioteer of the group, who finished last only because of the med¬
dling of the gods. Antilochus protests that Achilles may give Eumelos whatever Achilles
wishes, but the mare, the prize for second place, is righdy his. See Homer, The Iliad, Book
23 (W.H.D. Rouse trans., Thomas Nelson and Sons, Edinburgh, 1938); Weinreb, Natural
Law and Justice, p. 186.
8 John Rawls, A Theory of Justice (Harvard University Press, Cambridge, Mass., 1972). For
detailed discussions of Rawls’s work, see e.g. Norman Daniels ed., Reading Rawls: Critical
Studies of A Theory of Justice (Basic Books, New York, 1990); Robert Paul Wolff,
Understanding Rawls: A Reconstruction and Critique of A Theory of Justice (Princeton University
Press, Princeton, 1977).
9 One commentator recendy stated: “two decades after the publication of John Rawls’s A
Theory of Justice (1971)[,] [o]ne cannot, at least in the English-speaking world, think about
JOHN RAWLS AND SOCIAL CONTRACT THEORY 97
the competing approaches, theories of justice are about the appropriate

way to structure government and society—that is, political theory, writ
large.10
To the question of why is a theory of justice needed, Rawls would
probably respond: because publicly agreed terms of social co-operation
are both necessary and possible.* 11 For Rawls, justice is the structural rules
of society, within which people who (inevitably) have different sets of
values and goals in life, can co-exist, co-operate, and, to some extent,
compete. Rules are necessary for people to co-operate to create social and
individual goods within society. The question then becomes: On what terms
are people to co-operate, and how are the social goods to be distributed?
Theories of justice are answers to that question, or at least constraints on
the answer.
How do we determine which principles to follow? If I write out some
principles, and declare that they are fair, many will disagree with me. If I
claim to prove that these principles derive from basic foundational
axioms, some will contest my derivation, while others will argue that the
axioms I have chosen are the wrong ones. However, if we were all to agree
on principles, however they might be derived, then we would seemingly
have no basis for arguing against the fairness of their application to us.
Consider an analogy: there might be substantial room for disagreement
if the question is whether two hundred dollars is a fair price for painting
the fence around your house; the issue would be substantially changed if
it was noted that I had agreed ahead of time, after negotiation, to paint the
house for that amount. In that case, most people would likely presume
that my being paid that (agreed) price was fair, even if they might have
thought prior to the agreement that a different price was more appropri¬
ate.12
The notion of agreement as the foundation of “just” or “legitimate”
principles for governing society is the basis of the “social contract” tradi¬
tion in political theory which goes back at least to Thomas Hobbes’ work
justice without taking one’s position relative to that work.” Ruth Anna Putnam, “Why
Not a Feminist Theory of Justice?”, in Women, Culture, and Development: A Study of Human
Capabilities (M.C. Nussbaum andj. Glover ed., Clarendon Press, Oxford, 1995), p. 303.
10 In this sense, there is a distant family relation between Rawls’ theory of justice and
Plato’s. Plato viewed justice both for individuals and for societies as involving the ele¬
ments of the whole being arranged appropriately to create overall harmony. Plato,
Republic, Book II, pp. 357-367; Book IV, 441-445; Book IX, 588-592, in Plato: The
Collected Dialogues, pp. 605-614, 683-688, 816-819.
11 See Rawls, A Theory of Justice, pp. 3-6.
12 The presumption that an agreed price can be fairly/jusdy imposed on the person who
agreed to it is subject to inquiries regarding that person’s mental capacity, whether that
person had been subject to duress, whether there had been any fraudulent representa¬
tions by the other party, and so on. There are also arguments that some agreements are
so one-sided in their terms that the consent of the parties is insufficient to justify the
agreement’s enforcement.
98 JUSTICE
in the seventeenth century, and continues in the recent, influential work

of John Rawls and David Gauthier.13 These political theorists were
working from the starting point that a government can legitimately govern
its citizens if those citizens expressly granted the government those
powers.
Some of the early social contract theorists wrote of a historical express
agreement among citizens to create a government and empower it to
maintain order and protect citizens’ rights. Of course, even if there had
been such a historical agreement, the question remains why later gener¬
ations, who had not been party to this social contract, should be bound
by its terms.
John Locke offered the notion of “tacit consent”: that while many of
us have not offered any express agreement to be subject to the govern¬
ment and to be bound by its rules, we have done actions which have tacitly
expressed our consent (or, at least, have put us in a position where consent
could fairly be ascribed to us). Examples of actions which might be said
to give tacit consent to the government would include voting in an elec¬
tion, accepting government benefits, or simply remaining in the country
(and thereby benefiting from it) after one was of age, and had the legal
right to leave.14
As will be discussed in greater detail later (in Chapter 11), modern
social contract theorists, Rawls included, have transformed the inquiry
from an investigation of what historical figures actually agreed, and how
those agreements might still bind people today, to a discussion of what
reasonable people might agree to, were they to try to reach agreement. As I note
in that chapter, this is a more substantial change than it might at first
appear, just as the inquiry about how much I should be paid for painting
the fence changes if it turns out that I expressly agreed ahead of time to
a particular price.15 The question is whether actual choice is carrying the
heavy moral weight, or whether the weight is being carried by an abstract
notion of “reasonableness.”
For Rawls, the focus is a “thought experiment”: a hypothetical discus¬
sion among citizens within a community. Even though the discussion is
entirely fictional, it does not mean that we would necessarily become any
more optimistic about how quickly we could come to consensus. (A
thought experiment will not lead to useful conclusions, it will not give a
13 For a selection of social contract theory texts, including works by Thomas Hobbes,
Samuel Pufendorf, John Locke, Jean-Jacques Rousseau, Immanuel Kant, John Rawls,
and David Gauthier, see Michael Lessnoffed., Social Contract Theory (New York University
Press, New York, 1990).
14 Many variations on the consent theory appear in the related context of whether there is
an obligation to obey the law (see Chap. 16), and can be traced at least to Plato’s The Crito,
where Socrates argues for his own obligation to comply with the unjust death penalty
verdict imposed upon him.
15 See also Dworkin, Taking Rights Seriously, pp. 150-153.
JOHN RAWLS AND SOCIAL CONTRACT THEORY 99
basis for persuading other people about some point of ethics, if one does
not use realistic assumptions.) The starting point for Rawls, and for other
social contract theorists, is that there is no point in making arguments/
from foundational moral beliefs (or religious beliefs or political dogmas)
for many people would not accept those starting points.
If one cannot derive the principles of government from foundational
axioms on which all agree (because there are no foundational axioms on
which all agree, or at least none of sufficient substance or specificity to be
of use), perhaps we can at least reach agreement after open and free dis¬
cussion. If we do come to principles in this way, there would seem to be
no basis then for objecting to the principles thus agreed upon. However,
we would likely never come to consensus after free discussion because,
Rawls argues, our different positions in life create differing self-interest
(and bias). And nothing short of consensus would do, for the dissenters
from a majority vote would have a sound ground for objecting to having
principles imposed upon them without their consent. Self-interest will
often bias people’s thinking, to favour principles that make them better
off, or at least create resistance to principles of justice, however fair, which
would result in a decrease of their well-being. Therefore, Rawls suggests,
imagine instead a discussion among people similarly situated or simi¬
larly unsituated, similarly ignorant of their position in society.
Thus, as part of Rawls’ thought experiment, we are to imagine nego¬
tiators who are magically shorn of all knowledge which might be the
basis for self-interested bias: knowledge of their gender, wealth, race,
ethnicity, abilities, and general social circumstances. They would also be
ignorant of their own views on the good life (e.g. born-again Christian,
hedonist, art-centred, or materialist), which would likely also bias their
views on how to organize society.16 Rawls calls this starting point, ot
imagined negotiators behind the “veil of ignorance”,17 the “original
position”.18
This is the first part of Rawls’ argument: that the result of this thought
experiment, this hypothetical negotiation, would be legitimate principles
of justice. The second part of Rawls’ work is an argument about what
principles would in fact result. One can accept the first part and not the
second (arguing that Rawls has improperly calculated what principles
would result from the original position); one can also accept the second
part and not the first (arguing that the original position is not the right
16 This also reflects Rawls’ notion thaf“the right is prior to the good”^6ee Rawls, A Theory
of Justice, p. 31: principles of justice should be the structure mpIaFe within which citizens
can follow their diverging views of the good.
17 ibid.
atpp. 12, 136-142. . ,
18 Rawls calls his approach “justice as fairness”, which was also the name of the articles m
which he first introduced his ideas about justice. See John Rawls, “Justice as Fairness ,
54 Journal of Philosophy 653 (1957), in expanded form, 67 Philosophical Review 164 (1958).
100 JUSTICE
way to derive principles of justice, but that the principles Rawls comes up
with nonetheless are the right ones).19
RAWLS’ TWO PRINCIPLES
Rawls first considers whether negotiators in the original position would

adopt utilitarianism.20 He argues that this is not likely: for utilitarianism
allows some to suffer if the suffering is outweighed by the benefits to
others; and as negotiators would not know if they would be in the advan¬
taged or the disadvantaged group, they would not want to take the risk
that they might be in the suffering group. This exemplifies the cautious
(“risk-averse”) attitude that Rawls attributes to the negotiators,21 which
seems to produce many of the argument’s conclusions.
The two principles of justice Rawls concludes that the negotiators
would agree to are the following:
• First Principle: “Each person is to have an equal right to the most

extensive system of equal basic liberties compatible with a similar
system of liberty for all.”
• Second Principle (“The Difference Principle”): “Social and economic

inequalities are to be arranged so that they are both: (a) to the greatest
benefit of the least advantaged,... and (b) attached to offices and posi¬
tions open to all under conditions of fair equality and opportunity.”22
19 Rawls, A Theory of Justice, p. 15.

20 ibid, at p. 14. Rawls defines as follows the utilitarianism with which he contrasts his own
approach: “society is rightly ordered, and therefore just, when its major institutions are
arranged so as to achieve the greatest net balance of satisfaction summed over all indi¬
viduals belonging to it.” Ibid, at p. 22 (footnote omitted). Rawls sees utilitarianism as the
predominant moral philosophy (at least as applied to political issues) in the English-speak¬
ing world, and therefore the primary alternative and competitor to consider when putting
forward a theory of justice. See John Rawls, Political Liberalism (Columbia University
Press, New York, 1993), pp. xvi xvii.
21 Rawls refers to the “maximin” principle: that people would want to maximize the worst-
case scenario they could possibly face. Rawls, A Theory of Justice, pp. 152-155. Rawls
argued that negotiators would be particularly inclined to be risk-averse because: (a) the
likelihood of various options are far from clear and would be hard to ascertain; (b) there
is a great deal to lose in the worst-case scenario; and (c) there is not that much to gain
(advantages above the worst case are of relatively modest value; having a lot of money is
better than having a modest amount; but the difference is not as great as that between
having a modest amount and being in the underclass). Ibid, at pp. 155-156.
22 ibid, at p. 302. In later works, the first principle is slighdy altered: instead of speaking of
each person having the “most extensive system of equal basic liberties compatible with
a similar system of liberty for all”, the principle refers each person having an equal claim
to “a fully adequate scheme of equal basic rights and liberties, which scheme is compat¬
ible with the same scheme for all.” Rawls, Political liberalism, p. 5. The change was made
in response to a criticism by H.L.A. Hart. See ibid, at p. 5, n. 3.
RAWLS’ TWO PRINCIPALS 101
For the first principle, “basic liberties” includes, among other things,
political liberty, freedom of speech and assembly, freedom of conscience,
the right to hold personal property, and the right to fair treatment under
the law.23
The first principle is to have “lexical priority” over the second: that is,
the equality of liberty is not to be sacrificed (traded off) for compensat¬
ing benefits in wealth or equality of resources.24 Rawls argues that
it would be irrational for the negotiators to take chances with their
liberty.25
As for the distribution of resources, the topic of Rawls’ second princi¬
ple, the beginning position the negotiators might consider is the equal
sharing of social wealth. Again, the cautious negotiators would not want
to create substantial inequalities on the chance that they might be at the
bad end of the scale. The only reason someone might accept anything
other than an equal share is if the inequalities that would be allowed
would result in each and every person doing even better than they would
have done in an equal-sharing system. This may occur because inequal¬
ities create competitive incentives that increase productivity, that in turn
increase both individual and social wealth.26
Why not just let the free market system work as it will? Because, Rawls
states, even putting aside concerns about social class perpetuating itself,
natural liberty “permits the distribution of wealth and income to be
determined by the natural distribution of abilities and talents. Within the
limits allowed by the background arrangements, distributive shares are
decided by the outcome of the natural lottery; and this outcome is arbi¬
trary from a moral perspective.”27 The reference to “natural lottery indi¬
cates the extent to which significant inequalities derive from chance, not
merit. From the perspective of the Rawlsian negotiators, on the chance
that they might be someone born unlucky in the natural lottery with
few natural talents, born to a poor family, in a benighted area, and so on
_they want to make sure that they are not unjustly punished for that bad
fortune.
Rawls includes a “just savings principle”, as a means of insuring justice between gen¬
erations: “Each generation must not only preserve the gains of culture and civilization,
and maintain intact those just institutions that have been established, but it must also put
aside in each period of time a suitable amount of real capital accumulation.” Rawls, A
Theory of Justice, p. 285.
23 ibid, at p. 61.
24 ibid, at pp. 42—44, 61, 151—152.
25 Contrast the argument that has been used at various times to defend government actions
in Singapore, South Korea, Hong Kong, and other countries, that the citizens in those
countries had willingly and reasonably given up rights to liberty in exchange for greater
material well-being.
26 ibid, at p. 151. Rawls states that it is an assumption that no one will make their negotia¬
tion decisions based on envy.
27 ibid, at pp. 73-74.
102 JUSTICE
RAWLS’ LATER MODIFICATIONS
Rawls wrote a number of important articles which expanded or modified

ideas in A Theory of Justice,28 which later appeared, in modified form, as the
book Political Liberalism.29 The extent to which the later work diverged from
either the content or the intention of the earlier work has been a matter
of controversy. Rawls himself allows that there are differences, though he
tends to hold them to be less comprehensive and less radical than other
commentators have claimed. The (apparent or perceived) differences may
be summed up in the tide of one of the intermediate articles: ‘ Justice as
Fairness: Political not Metaphysical”. Many readers read A Theory of Justice
as making broad claims about the nature of justice, which were in turn
based on claims about the basic nature of human beings.
The later work makes its claims clearly on a less ambitious scale:
“justice” is presented as a set of institutions and practices to allow people
with distinctly different ideas about the good life to co-exist and prosper.
The claims of the theory are to be seen as “political, not metaphysical”;
as a modus vivendi for co-existence by people within society who have quite
different “theories of the good” (e.g. based on different religious or ethical
belief systems).30 The principles of justice attempt to reflect an “overlap¬
ping consensus”—values which people with a variety of theories of the
good can nonetheless support because these values appear in the various
theories of the good.31
ROBERT NOZICK AND LIBERTARIANISM
There have been a number of responses to Rawls’ theory of justice. One

of the most important and thought-provoking was from the libertarian
theorist, Robert Nozick, in his book, Anarchy, State and Utopia?2 The main
project of the book was to defend a minimalist state (a “night watchman
state”), defending it, on one side against anarchists who believe that state
power over individuals can never be justified, and on the other side
against theorists (like Rawls) who advocate an interventionist state that
will redistribute wealth, help the poor, and the like.
28 See John Rawls, “Kantian Constructivism in Moral Theory”, 7 7 Journal of Philosophy 515
(1980); “The Basic Liberties and Their Priority”, in The Tanner Lectures on Human Values,
Vol. 3, (University of Utah Press, Salt Lake City, 1982), pp. 1-87; ‘Justice as Fairness:
Political not Metaphysical”, 14 Philosophy & Public Affairs 223 (1985); “The Idea of an
Overlapping Consensus”, 7 Oxford Journal of Legal Studies 1 (1987); and “The Priority of
Right and Ideas of the Good”, 17 Philosophy & Public Affairs 251 (1988).
29 John Rawls, Political Liberalism (Columbia University Press, New York, 1993).
30 See Rawls, Political Liberalism, pp. 4—22.
31 ibid, at pp. 9-11, 58-66.
32 Robert Nozick, Anarchy, State, and Utopia (Basic Books, New York, 1974).
ROBERT NOZICK AND LIBERTARIANISM 103
In response to Rawls, Nozick’s first question is: why are we talking

about a just distribution? Rawls had written: “As a first step, suppose that
the basic structure of society distributes certain primary goods, that is,
things that every rational man is presumed to want.”33 Nozick points out
that most of the goods which we own or want to own are not “distributed”
in the sense of being divided among people at one given time by the
government or “the basic structure of society” or any other centralized
power. “What each person gets, he gets from others who give to him in
exchange for something, or as a gift.”34 The issue for government will not
be one of “distribution”, but of “redistribution”.
Secondly, Nozick points out that any sort of “patterned” distribution (e.g.
justice requires that everyone to have an equal amount, or that the distri¬
bution of goods be according to need, merit, intelligence, ability, effort,
etc.) will be vulnerable: it will likely be regularly and continually disrupted
by the voluntary independent choices of individuals. Nozick uses the
example of the star athlete, working after hours, who many people will
pay to see from whatever wealth they have.35 This type of transaction,
along with gifts, bequests, and private contractual agreements, will all
serve to undermine whatever “just” pattern has been set. (And how can
anyone complain about the resulting distribution, which was caused by
the voluntary actions of people dealing with their own resources as they
see fit?) Someone who believes that justice requires a patterned distribu¬
tion will then be left with two equally unpleasant options: forbid all vol¬
untary independent actions that affect people’s holdings, or impose
regular, intrusive redistributive taxes.36
Nozick’s alternative approach is not so much “just (re)distribution but
“justice in holdings”. According to Nozick, there are two ways in which
one can justly own some thing: (1) one could have acquired the object
consistently with the principles of just acquisition (the appropriation of
unheld things: e.g. claiming and working unclaimed land); or (2) one
could have obtained the thing, in accordance to the principles of just
transfer, from someone else who was herself entitled to own the thing (i.e.
a voluntary transaction, whether by exchange or gift, with no fraud,
duress, or the like). No one is entitled to own a thing where the ownership
cannot be traced by the (perhaps repeated) application of one or both
principles.37 This Nozick refers to as an “historical” principle of justice,
to be contrasted with “end result” or “end state” principles.38 What
follows from Nozick’s analysis is that society/government has no right to
33 Rawls, A Theory of Justice, p. 62.

34 Nozick, Anarchy, State, and Utopia, p. 149.
35 ibid, at pp. 160-164.
36 ibid, at pp. 163-164.
37 ibid, at pp. 150-153.
38 ibid, at pp. 153-155.
104 JUSTICE
redistribute goods, violating people’s just claim to the objects they own,
for some general benefit. However, society does have the right—and
probably the duty—to redistribute goods to correct some prior injustice
in holdings.39
Two significant objections can be raised to Nozick’s approach. First,
even accepting the basic approach, how can or should society respond if
it is not some small percentage of property holdings which are unjust, but
the injustice rather reaches the vast majority of such holdings? For
example, one might argue that almost all American holdings can be
traced back to an unjust displacement of Native Americans; and, addi¬
tionally, a significant portion of the holdings can be traced to unjust
enslavement of African-Americans. It is far from clear whether Nozick’s
approach can be of significant use with a starting point like that.40
A second line of criticism inquires why property rights should have
such a high, indeed almost absolute, standing in our moral or political
thinking. Many would argue that others within our community, and the
community itself, have claims upon us and our resources which justify
infringements on our holdings, however otherwise beyond reproach those
holdings may be.
MICHAEL SANDEL, COMMUNITARIANISM, AND CIVIC

REPUBLICANISM
A distinctively different critique of Rawls came from Michael Sandel,

whose arguments have been associated with an approach to political and
moral theory called communitarianism.41 Some communitarians have
argued that the liberal view of justice42 is valid only to the extent that the
39 ibid. atp. 152-155.

40 Nozick at a couple of points, ibid, at pp. 152-153, 230-231, seems to realize some of the
problems with rectifying significant historical injustice, and even suggests, at p. 231, that
it may be best “to view some patterned principles of distributive justice as rough rules of
thumb meant to approximate the general results of applying the principle of rectification
of injustice.”
41 Sandel’s critique appears in Michael J. Sandel, Liberalism and the Limits of Justice
(Cambridge University Press, Cambridge, 1982; 2nd ed., 1998). In a Preface to the
Second Edition, Sandel notes that the label “communitarian” does fit to some extent the
critique of Rawls and contemporary liberal political theory given in the book. However,
he adds: “[t]he ‘liberal-communitarian’ debate that has raged among political philoso¬
phers in recent years describes a range of issues, and I do not always find myself on the
communitarian side.” Sandel, Liberalism and the Limits of Justice, 2nd ed., at p. ix.
42 In the context of the communitarianism-liberalism debate, and in a number of other set¬
tings in political theory, “liberalism” is to be understood broadly, as any approach which
emphasizes individualism and individual rights against the state. In this sense, most ideo¬
logical conservatives can be called “liberal”, as can the vast majority of major politicians
in the U.K. (whether Conservative, Liberal-Democrat, or Labour) and in the U.S.
(whether Republican or Democrat).
MICHAEL SANDEL, COMMUNITARIANISM, AND CIVIC REPUBLICANISM 105
liberal view of individuals is correct: cut-off people who have no connec¬

tions with one another, and who co-operate only to the extent that it is
useful in achieving each individual’s short-term or long-term goals.
Communitarians contest this view of persons.
Liberals and libertarians ground their theories of justice on an analy¬
sis which treats people as essentially atomistic: in this view, an individual
is, essentially, just a metaphysical will, an ability to choose any form of
good, any set of values, etc., and an ability to step back from prior such
choices, evaluate them, and perhaps decide to modify them.
Sandel argues that this does not reflect real life, at any level. We come
into the world as part of a family, a community, an ethnic and religious
group, etc., and this is an essential part of our identity at all stages of our
lives. What follows from this? Sandel suggests that justice/ethics should
centre on, or at least take into account our connections: our responsibil¬
ities as members of our communities, citizens of a country, etc.
More specific to the current topic: Sandel is suspicious of the view of
individuals that underlies Rawls’ analysis, and is particularly clear in the
“original position”. For Rawls, we can speak of the choosing individual
separate from his or her view of the good, and indeed separate from all
of his or her attributes, beliefs, attachments and affiliations. This is a
minimal self or simple will that makes choices, a view of human essen¬
tials that can be traced from Rawls at least back to Immanuel Kant.43 For
Sandel and other communitarians, it is unwise and likely distorting to
view individuals separate from the families, communities and other
attachments which shape individuals long before those individuals can
make mature, informed and autonomous choices.
Communitarians do not all believe in the same things, and to the extent
that their positions do converge, it tends to be on criticisms of the basic
points of liberal individualism. The conventional view of society is that
government is there to protect individual rights (for some, the focus would
be on rights of liberty and conscience, for others, on rights of property
and free contract) and to resolve disputes between individual claims. The
public good is defined as either the protection of the basic rights and the
framework within which they can be fully realized (e.g. the free market),
or simply the summation of (conflicting) individual preferences.
Communitarians tend to emphasize the importance of community, and
the importance of (responsible) membership in a political community.
The argument is that “membership of a political community is a good
that liberalism neglects, ignores, or whose sense it cannot successfully
capture by its own terms.”44 It is important to recognize, respect and
43 See Sandel, Liberalism and the Limits of'justice (2nd ed.), pp. 6 -9.
44 David Archard “Political and Social Philosophy”, in The Blackwell Companion to Philosophy
(N. Bunnin and E.P. Tsui-James ed., Blackwell, Oxford, 1996), p. 270 (discussing com-
munitarianism).
106 JUSTICE
protect the intermediate institutions that play such a large role in our
identities and our lives. In considering principles and legal rules, the focus
should be on communities, and on society: how adopting one principle or
rule rather than another might help or hurt society, not just how it might
affect the autonomy of atomistic individuals. For example, the advantage
of free public education should be seen not primarily in how it equips
individuals to succeed in the marketplace, but in how educated people
will make better citizens.45
It is not just a different justification for the same rules. A focus on com¬
munities might lead to different policies: communitarians are less likely
than liberals to defend pornography and less likely than conservatives to
defend corporate rights, e.g. regarding the rights of corporations to move
or shut down when this means the massive loss of employment and vital¬
ity to the local community.
Michael Walzer offers another communitarian critique of justice: that
notions of justice arise within a community, a tradition, and a particular
set of circumstances.46 This is a challenge to a basic notion underlying
conventional theories of justice (and, indeed, conventional theories of
morality): that what is right is universally right—for all people, and for all
times.47 One should not overstate the disagreement here: Walzer is willing
to speak of “a core morality differently elaborated in different cultures”48;
however, for Walzer, critical debate occurs within the “thicker” culturally-
based moralities. “The hope that minimalism, grounded and expanded,
might serve the cause of a universal critique is a false hope.”49 For Walzer,
questions of justice, and responses to those questions, will, and should, be
debated within the context of a particular community and a particular
tradition.
Communitarianism is a near relation to an approach to political theory
known as “republicanism” or “civic republicanism” (not to be confused
with the American “Republican” political party).50 The connection may
45 See Michael J. Sandel, “Morality and the Liberal Ideal”, The New Republic, May 7, 1984,
atpp. 15-17.
46 See Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (University of
Notre Dame Press, Notre Dame, 1994), pp. 2-11; Michael Walzer, Spheres of Justice (Basic
Books, New York, 1983), pp. 4-6; Michael Walzer, Interpretation and Social Criticism
(Harvard University Press, Cambridge, Mass., 1987), pp. 3-32.
47 See, e.g, Aristode, Mcomachean Ethics, Book V, 7:1134b, in The Complete Works of Aristotle,
Vol. 2, pp. 1790-1791, where Aristotle distinguishes between that part of justice “which
everywhere has the same force and does not exist by people’s thinking this or that”, and
that part of justice which derives from compliance with conventional laws.
48 See Walzer, Thick and Thin, p. 4 (footnote omitted).
49 ibid, at p. 11. Walzer adds: “The morality in which the moral minimum is embedded, and
from which it can only temporarily be abstracted, is the only full-blooded morality we
can ever have.”
’° On civic republicanism, see J.G.A. Pocock, The Machiavellian Moment: Florentine Political
Thought and the Atlantic Republican Tradition (Princeton University Press, Princeton, 1975).
FEMINIST CRITIQUES 107
be only indirect, in the sense that one approach does not logically follow
from the other, but both are responses to and reactions against the same
views and attitudes; that is, both oppose or question the emphasis on indi¬
viduals and individual interests at the heart of conventional theories of
law and justice. Civic republicanism is the idea that civic virtue, the partic¬
ipation in public, political life, is an important value that should be
emphasized. According to this approach, one of the tasks of government
is to make the citizenry more virtuous and encourage participation in the
public good.
Civic republicanism has a robust theory of the public good, and our
duties, as citizens or officials, to serve that public good, which places it as
the diametrical opposite of public choice theory (which will be discussed
in Chapter 18). Public choice theory argues, claims, or assumes that there
is no such thing as the public good (or at least that the “public good” is
rarely sought and even more rarely realized); rather, there is only, or
mostly, the conflicting claims of different individuals and interest groups.
FEMINIST CRITIQUES
A number of interesting criticisms of conventional discussions of justice

have been put forward by feminist theorists.51 For example, Susan Moller
Okin and Ruth Anna Putnam (among others) have argued that works
about justice written by men tend to focus too narrowly on justice in polit¬
ical life and the distribution of goods, not giving enough emphasis to the
implications of how the workplace is structured for family life, or family
life for the workplace.52 Additionally, the argument is that most theories
of justice have tended to assume a traditional household, with its gen¬
dered division of labour, and these theories assume that division to be
just, an assumption feminists contest.53 The claim is not that it is unjust
for women to work in the home rather than seek wage work (if that is their
choice)but that it is unjust to have legal or social norms that state that
women can or should only work in the homed4
For the application of civic republicanism to law, see e.g. Frank I. Michelman, “The
Supreme Court 1985 Term—Foreword: Traces of Self-Government”, 100 Harvard Law
Review 4 (1986); Cass R. Sunstein, “Beyond the Republican Revival”, 97 Tale Law Journal
1539(1988).
51 Feminist approaches to law and legal theory will be discussed in greater detail in Chap.
i9.
52 See Susan Moller Okin, Justice, Gender, and the Family (Basic Books, New York, 1989), pp.
89-97; Ruth Anna Putnam, “Why Not a Feminist Theory of Justice?” in Women, Culture,
and Development: A Study of Human Capabilities (Martha C. Nussbaum and Jonathan Glover
ed., Clarendon Press, Oxford, 1995), pp. 298-331.
53 See Okin, Justice, Gender, and the Family, pp. 8-10, 90-97.
54 See e.g. ibid, at pp. 103-104.
108 JUSTICE
Martha Fineman has argued that liberal individualism is built around

a presumption of self-sufficiency, when the reality is that all of us are inev¬
itably dependent for significant parts of our life (when we are very young)
and many others at other times due to age, sickness or disability.
Additionally, there are also “derivative dependencies”, as those who care
for the inevitably dependent (in many societies, the child-care tends to fall
predominandy on mothers) are often unable or less able to support them¬
selves. Legal, political, or moral theories built around assumptions of self-
sufficiency, which have no place for inevitable and derivative
dependencies, will present a false picture of society, and will usually fail
to deal with the challenges that come from these dependencies.50
A related line of feminist criticism comes from those who believe that
certain values often associated with women, involving caring and nurtur¬
ing, are often excluded from (male) theories of justice, morality, and moral
development.561 will return to this line of argument in Chapter 19, where
I discuss the role it plays within feminist legal theory.
Aristotle, Nicomachean Ethics, Book V

Shlomo Avineri and Avner de-Shalit ed., Communitarianism and Individualism
(Oxford University Press, Oxford, 1992) (includes discussions by well-known
figures associated with communitarianism, including Charles Taylor, Alasdair
MacIntyre, Michael Walzer, Will Kymlicka and Michael Sandel).
Robert Nozick, Anarchy, State, and Utopia (Basic Books, New York, 1974).
Susan Moller Okin, Justice, Gender, and the Family (Basic Books, New York, 1989).
Plato, The Republic.
John Rawls, Political Liberalism (Columbia University Press, New York, 1993).
—, A Theory of Justice (Harvard University Press, Cambridge, Mass., 1971).
Alan Ryan ed., Justice (Oxford University Press, Oxford, 1993) (a collection of
readings, including Plato, Aristode, Cicero, David Hume, John Stuart Mill,
Karl Marx, John Rawls and Robert Nozick).
Michael Sandel, Liberalism and the Limits of Justice (2nd ed., Cambridge University
Press, Cambridge, 1998) (second edition adds a preface, which comments on
communitarianism, and a chapter responding to Rawls’ Political Liberalism).
Robert C. Solomon & Mark C. Murphy, What Is Justice? Classic and Contemporary
Readings (Oxford University Press, New York, 1990).
35 See Martha A. Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century
Tragedies (Roudedge, New York, 1995); Martha A. Fineman, “Contract, Marriage and
Background Rules,” in Analyzing Law: New Essays in Legal Theory (B. Bix ed., Clarendon
Press, Oxford, 1998), pp. 183-195.
56 See, e.g. Carol Gilligan, In a Different Voice (Harvard University Press, Cambridge, Mass.,
1982); Robin West, Caring for Justice (New York University Press, New York, 1997).
Chapter Nine
Punishment
Was the punishment too harsh, or not harsh enough? It is difficult to

answer the question of what would be a “fair” or “appropriate” punish¬
ment for a particular crime or a particular criminal until one has a clear
sense of what one thinks the purpose(s) of punishment are.
Like other questions which fall under moral philosophy (broadly
understood), the suggested purposes of punishment can be divided gen¬
erally between ones which see punishment as something of value in itself,
versus those that see punishment as a means to some other end.1 The rest
of this chapter will be devoted to summarizing the alternative
approaches.2
RETRIBUTION
Those who see punishment as something of value in itself speak of the

justice in punishing wrongdoers, and the need for retribution for the wrong¬
ful action. The idea of retribution seems to have ancient roots. Famously,
the Bible states: “Wherever hurt is done, you shall give life for life, eye
for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, bruise
for bruise, wound for wound.”3 This narrow and extreme conception of
1 Ethical theories based on doing something because it is the right thing to do, or is one’s
duty, are known as “deontological”, to be contrasted with “consequentialist” theories,
which justify actions based on achieving some good state of affairs.
2 It is useful to point out the extent to which the following discussion of punishment,
like most such discussions, is artificially narrow. Philosophical discussions about the
justice of punishment usually start with an assumption that the person convicted in
fact did the crime: that there is no problem of enforcement error or problem of
corruption and bias among those in power, faking those issues into account
would obviously complicate the moral analysis significantly. One writer who has
focused on those issues is Randy Barnett. See Barnett, The Structure of Liberty,
pp. 231-256.
3 Exodus 21: 23-25, from The New English Bible (Oxford University Press, New York, 1971),
p. 84.
110 PUNISHMENT
retribution, encouraging retaliation in kind (also known as “lex talionis”),

has few supporters* * * 4, as matching “eye for eye” or “death for death”
either has come to seem barbaric, or at least seems a concept difficult to
apply universally (what is the “eye for eye” punishment for securities
fraud?). However, the general notion of retribution, that the severity of
the punishment should reflect the severity of the evil done, has many
supporters.
A philosophical grounding for retribution was offered by Immanuel
Kant (1724—1806), who argued that any approach to punishment other
than retribution would be a deviation from the strict requirements of
justice, and would also be immoral because it treated the subject of pun¬
ishment disrespectfully, as a means to an end, rather than as an end in
himself or herself.5 Never one for half measures, Kant added: “Even if a
civil society were to be dissolved by the consent of all its members ..., the
last murderer remaining in prison would first have to be executed, so that
each has done to him what his deeds deserve and blood guilt does not
cling to the people for not having insisted upon this punishment; for oth¬
erwise the people can be regarded as collaborators in this public violation
of justice.”6
Retribution theorists often speak in terms of “proportionality”7:
that more serious crimes should receive more severe penalties.
Obviously, determining the scale of relative culpability, or a formula
for determining blameworthiness, is going to be a complicated
process, which will leave ample room for controversy.8 For example,
how should one compare violent and non-violent crime? Should one
focus on the action from the criminal’s perspective or on the harm
done?9 Also, what role should there be for various sorts of exculpatory
+ Once the concept is understood at a more general level e.g. that the punishment should
somehow “fit” the crime, and perhaps reflect some of the same sorts of evil, it is easier
to find supporters. See, e.g. Jeremy Waldron, “Lex Talionis”, 34 Arizona Law Review 25
(1992); Stephen P Garvey, “Can Shaming Punishments Educate?”, 65 University of
Chicago Law Review 733 at 775-783 (1998).
5 Immanuel Kant, The Metaphysics of Morals [AK 6:331 338) (M. Gregor, trans., Cambridge
University Press, Cambridge, 1996), pp. 104-110 (first published, 1797) (“On the Right to
Punish and Grant Clemency”). For a modern philosophical defense of retribudon, see
Michael S. Moore, “The Moral Worth of Retribution”, in Responsibility, Character and the
Emotions (F. Schoeman ed., Cambridge University Press, Cambridge, 1987), pp. 179-219.
6 Kant, The Metaphysics of Morals [6:333], p. 106.
7 See, e.g. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford
University Press, Oxford, 1968), pp. 233-234.
8 For an excellent example of a theorist working through these (and other) issues, see
Andrew Ashworth, Sentencing and Criminal Justice (Weidenfeld & Nicolson, London: 1992)
pp. 55-170.
9 For example, for three people driving with equal recklessness, the consequences might be
quite different: one might return home safely, a second cause injury, and a third cause
death. It is merely circumstances (what some call “moral luck”) that equivalently wrong¬
ful behavior led to quite different levels of harm.
“making society better”: consequentialism Ill
factors (everything from provocation to drunkenness to a deprived

childhood)?10
“making society better”: consequentialism/

UTILITARIANISM
“Consequentialism” is the belief that options should be evaluated by their

consequences. “Utilitarianism” is a type (actually, a cluster of types) of
consequentialism, whereby the consequences to be considered in the eval¬
uation are the pleasure and pain of individuals, which are to be summed
up; the option should be chosen which maximizes the sum of pleasure
and pain for everyone (thus, the utilitarian maxim: “the greatest good for
the greatest number”). Any evaluation of punishment which focuses on
its future effects will be based on an express or implied foundation of con¬
sequentialism.
Many people think of punishment and limitations on punishment
largely in terms of what the punishment can accomplish. Whether they
support the death penalty may turn on whether they are convinced that
this punishment deters other people, whether it reduces the total amount
of future crime. This is to focus on a future state of affairs. The most
common future-oriented, consequence-oriented, justification for punish¬
ment is “deterrence”: the notion that the purpose of punishment is to
prevent crime. The roots of deterrence theory are at least as old as those
of retribution theory. This is from Plato:
“The purpose of the penalty is not to cancel the crime—what is once done can
never be made undone—but to bring the criminal and all who witness his pun¬
ishment in the future to complete renunciation of such criminality, or at least to
recover in great part from that dreadful state.”11
“Deterrence” can be separated into individual or “particular” deterrence

{theperson punished will not violate the law again) and general deterrence
(the punishment of some will deter others from violating the law).
Other writers focus on “rehabilitation”: that the exclusive or primary
objective and justification of punishment is the effort to change the crim¬
inal into a responsible member of society, through whatever means work,
10 Another factor most people would include is whether the criminal has done this, or
similar, crimes before (this factor becomes an overwhelming factor in jurisdictions where
multiple convictions authorize or mandate a large increase in the sentence imposed—
the so-called “two strike” and “three strikes” laws). See, e.g Ashworth, Sentencing and
Criminal Justice, pp. 141-170. However, this factor seems to have less to do with “retribu¬
tion”, with giving punishment according to the “badness of the act oi the person, and
more’to do with “deterrence”, which will be discussed in the next section.
11 Plato, “Laws”, Book XI, 934a-b, in Plato: The Collected Dialogues, p. 1486.
112 PUNISHMENT
whether imprisonment or some alternative to imprisonment. This is also

a consequentialist approach, as it focuses on the future and on the good
of society, rather than on the evil or culpability of the criminal or the
criminal act.
Most of those who favour a utilitarian (or other consequentialist)
approach to punishment are quick to note that they do so only as regards
the extent of punishment for offenders, not for determining who should be
punished.12 They would not authorize the punishment of an innocent
person, even if it could be shown that by doing so society as a whole would
be better off in the long run. Similarly, they would not want someone pun¬
ished who was not responsible for his or her actions, whatever the long-
run benefits to society.
OTHER OBJECTIVES
There are a variety of other objectives commentators sometimes offer for

punishment which might not fit comfortably in the categories discussed
above.
One is the expressive purpose of punishment: punishment as a way of
expressing society’s distaste for certain sorts of activities.13 The notion is
that prohibiting an action and punishing violators of the prohibition is
worth doing, even if the punishment otherwise has no effect in deterring
crime, if this serves to express society’s moral beliefs. Sometimes com¬
mentators will distinguish “expressive” purposes of prohibition and pun¬
ishment from “educative” purposes. In expression, the state Or the
majority is using the criminal law to state their opposition to certain prac¬
tices (e.g. adultery), even if the law is unlikely to be widely enforced. In
education, the state (or some interest group within the state) is trying to
change people’s attitude towards an activity: e.g. trying to persuade people
that an activity once thought acceptable (e.g. sexual harassment) is not, or
that an activity once thought a minor sin (e.g. driving while drunk) is in
fact a major misdeed.
A purpose sometimes raised for the punishment of incarceration is the
obvious one of incapacitation: whatever other effects imprisonment
might have, it at least removes a criminal from the streets, therefore pro¬
tecting the general public, at least for a while, from injury.
Finally, some commentators have argued that shaming the wrongdoer
has been, and should be, both a type of punishment and a purpose of
punishment. On the other side, those who believe that shame is an inap-
12 See, e.g. Hart, Punishment and Responsibility, pp. 1-27, 193-209.

13 See, e.g. Joel Feinberg, “The Expressive Function of Punishment”, in Doing and Deserving:
Essays in the Theory of Responsibility (Princeton University Press, Princeton, 1970),
pp. 95-118.
OTHER OBJECTIVES 113
propriate means or objective argue that this approach does not ade¬
quately respect the human dignity of the person being punished.14
Anthony Duff and David Garland ed., A Reader on Punishment (Oxford University
Press, Oxford, 1994).
George P. Fletcher, “Punishment and Responsibility”, in A Companion to Philosophy
of Law and Legal Theory (D. Patterson ed., Blackwell, Oxford, 1996), pp.
514-523.
Martin P. Golding, Philosophy of Law (Prentice-Hall, Englewood Cliffs, N.J.: 1975),
chapters 4 and 5.
H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon
Sanford H. Kadish and Stephen J. Schulhofer ed., Criminal Law and its Processes (6th
ed., Aspen Publishing, New York, 1995), pp. 97-169 (“The Justification of
Punishment”).
Michael S. Moore, “The Moral Worth of Retribution”, in Responsibility, Character
and the Emotions (F. Schoeman ed., Cambridge University Press, Cambridge,
1987), pp. 179-219.
14 For an overview of “shaming” in punishment, see, e.g. Toni M. Massaro, “Shame,

Culture, and American Criminal Law”, 89 Michigan Law Review 1880 (1991); Toni M.
Massaro, “The Meanings of Shame: Implications for Legal Reform”, 3 Psychology, Public
Policy and Law (1997), p. 645. For an argument against the use of shaming, see e.g. James
Q. Whitman, “What is Wrong with Inflicting Shame Sanctions?”, 107 Tale Law Journal
1055(1998).
•*
.< . • u •• •
Chapter Ten
Rights and Rights Talk
According to some commentators, ancient Roman Law and medieval

legal systems had no concept that compared to the modern notion of
“rights”. The closest analogue, “ius”, referred instead to “the right thing
to do” or “what is due according to law”.1 Even those commentators who
think that ancient and medieval law did have a concept of “rights” com¬
parable to our own agree that it played a far lesser role in legal thought
then, compared to modern times.2
Rights and rights-talk are pervasive within modern discussions of law
and government, a pervasiveness which sometimes leads to certain forms
of confusion. The discussions of rights often exemplify a basic problem
in conceptual analysis: the way abstract arguments can become entangled
in particular policy views.
One regular source of confusion in discussions about rights is the
way that two different types of questions often go under the same label.
First, conceptual questions about the nature of rights: like other con¬
ceptual questions, discussions about the (conceptual) nature of rights
generally attempt either to offer a definition/delimitation for the
purpose of clarity or to discover some element distinctive to the social
phenomenon expressed in the way we use the term.3 For example,
one conceptual claim sometimes made is that one can only have
rights to something beneficial.4 This derives from, or at least is sup¬
ported by our linguistic intuitions: that it makes sense to say “I have a
right that you pay me five dollars”, but not to say “I have a right that
1 See, e.g. Finnis, Natural Law and Natural Rights, pp. 205-220; David M. Walker, ed., The
Oxford Companion to Law (Clarendon Press, Oxford, 1980), p. 1070 (entry on “Right”).
“p js an exaggeration to say, as [Sir Henry] Maine did, that [the Romans] constructed
their system without the conception of a right, but they certainly did not attach anything
like the same importance to it as do modern lawyers.” H. F. Jolowicz, Roman Foundations
of Modern Law (Oxford University Press, Oxford, 1957), pp. 66-67 (footnote omitted).
3 See Chap. 2.
4 See generally Hart, Essays on Bentham, pp. 174-188 (discussing Bentham’s “Benefit
Theory of Rights”); MacCormick, “Rights in Legislation”, pp. 202-205. For more recent
writings on this debate, see the texts cited in n. 12, below.
116 RIGHTS AND RIGHTS TALK
the state imprison me for five years as punishment for what I have
done”.5
In contrast to conceptual questions are policy questions: to what extent
should this legal system—or all legal systems—protect a certain category
of people, activities, places or things? It is easy when reading articles
about rights to confuse the conceptual issues and arguments with the
issues and arguments about policy matters.
A common confusion of this type occurs in discussions about abor¬
tion, as when someone responds to an argument in favour of legalizing
abortion by saying “fetuses have rights”. This mixes two levels of discus¬
sion, two different types of questions. It is compatible to say both: (1) (as
a conceptual matter) I do not think it makes sense to speak of fetuses as
having rights; and (2) (as a matter of policy or morality) I believe that
abortion is wrong and immoral because it involves severely harming
fetuses, which should not be allowed except in the most extreme circum¬
stances. Similarly, it is compatible to believe both: (1) fetuses are capable
of having rights; and (2) abortion should be allowed in most circum¬
stances (because fetuses in fact do not have rights relevant to this situa¬
tion, or whatever rights they have are overridden by the conflicting rights
of the mother).
To put the matter another way, from the statement “Y is capable of
having rights”, it does not follow that Y has any rights, and it does not
follow that whatever rights Y has will trump the conflicting legal interests
in the matter under consideration.
The confusion in this area is encouraged by the use of rights rhet¬
oric in political discourse (more prevalent in the United States than in
most other countries). When people want to say that making sure that
no one goes homeless is a worthy and important government objec¬
tive, they often use the shorthand “human beings have a right to
shelter”, and when people want to express their belief that abortion
should be prohibited, they sometimes choose the shorthand, “unborn
babies have rights too!” Because talk of rights—legal rights, natural
rights, human rights—is so entwined in political struggles, it is not
surprising that many discussions of rights are muddled. The next
section will discuss an important effort to try to clear up the confu¬
sions in talk about rights, proposed by Wesley Hohfeld earlier in this
century.
5 Even this probably goes too far. Theorists who believe that being punished for one’s
crimes is a sign of being treated by society with dignity could (and sometimes do) speak
of one’s having a “right to punishment”. See, eg Herbert Morris, “Persons and
Punishment”, 52 Monist 475 (1968). However, note that this does not undermine the
general point, that it only makes sense to speak of one’s right to X, when X is perceived
as being, directly or indirectly, a positive thing. Here, these commentators see punishment
as a kind of benefit (being treated with respect).
hohfeld’s analysis 117
hohfeld’s analysis
Wesley Hohfeld (1879-1918) wrote a pair of famous articles in which he

tried to make “rights-talk” clearer.6 First, he argued that the use of the
word “right” in legal discourse was often loose, covering four different
kinds of legal concepts:
(1) “rights”, narrowly understood as claims correlative to other persons’

duties;
(2) “liberties”7, meaning at the least that I have no legal duty to refrain
from the activity in question (the law may or may not expressly protect
my ability to partake in the activity in question);
(3) “powers”, the ability to change legal relationships (e.g. through con¬
tracts and wills); and
(4) “immunities”, which correlate with disabilities of another (as consti¬

tutional rights correlate with disabilities of the government to act in
certain ways).8
Hohfeld also offered two sets of connections among legal concepts

through the visual image of squares:
(1) (Claim-) Right Duty (2) Power Liability
Liberty No-Right Immunity Disability
Within each box, concepts which are across from each other are “corre¬
lates”, and those which are at a diagonal are opposites. If I have a claim-
right regarding some matter, then someone else has a duty. If I have a
liberty regarding some matter, then I do not have a duty; and so on.
It is important to note that Hohfeld is not making an empirical claim
when he states, for example, that claim-rights are correlated with duties.
Hohfeld’s definitions—along with the correlates included as part of the
definitions—were stipulations. Thus, it makes no sense to criticize
Hohfeld on the basis that his definitions are false. As stipulations,
6 Wesley Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial

Reasoning”, 23 Yale Law Journal 16 (1913); Wesley Hohfeld, “Fundamental Legal
Conceptions as Applied injudicial Reasoning”, 26 Yale Law Journal 710 (1917).
7 In his articles, Hohfeld uses the word “privilege” for this concept, but in the current legal
literature, the concept is usually labeled as “liberty”; “privilege has a different set of con¬
notations.
8 Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”,
pp. 28-58; see also Hohfeld, “Fundamental Legal Conceptions as Applied injudicial
Reasoning”, p. 717; J.W. Harris, Legal Philosophies (2nd ed., Butterworths, London, 1997),
pp. 83-93.
118 RIGHTS AND RIGHTS TALK
Hohfeld’s definitions can be evaluated as helpful or confusing, but not as

empirically true or false.9 It would make no more sense to say that one
had discovered a Hohfeldian claim-right without a corresponding duty,
than it would to say that one had discovered a married bachelor. The
question is only whether Hohfeld’s proposed analytical clarifications are
more helpful than confusing or misleading, and most commentators seem
to think that they are.
Secondly, Hohfeld argued that all rights-statements (“rights” here
understood either narrowly, in their first sense, as claims correlative to
another party’s duty, or broadly, as involving any of the four legal con¬
cepts named) should be reducible to a three-variable proposition: A has a
right against B for X (where A and B are people or institutions, and X is
an object or activity). For example, “Sarah has a right against John for five
dollars” or “I have a right that Congress not interfere with my publishing
this book”.10
Among the problems that this kind of analysis avoids is when someone
says “we have a right to education” or “we have a right to a job”, but the
speaker is unwilling to say (or thinks it unnecessary to say) whom this right
is against. If someone claims that she has a right to a job, does she think
that it is the government’s obligation to give her a job, or perhaps the obli¬
gation of the largest employer in town, or perhaps the obligation of
anyone with the means to offer employment? If the claimant is not willing
to specify in such cases whom the right is against, one can suspect that the
reference to rights is merely a form of rhetorical emphasis: “we have a
right to a job” then becomes nothing more than a way of saying “we want
a job very much” or “it would be a very good thing were someone to offer
usjobs”.
OTHER TOPICS
There are a number of topics within the area of rights that I do not have
time to consider here. A sample will give a sense of how wide (and deep)
the discussion of rights can go. First, to what extent can or should an anal¬
ysis of legal rights be the basis of a general theory of rights (which would
include moral as well as legal rights)?* 11 Secondly, are rights basically or
essentially about the (legal) protection of a person’s welfare through the
imposition of duties on other people (“the interest theory” of rights); or
9 See Matthew H. Kramer, “Rights Without Trimmings”, in Matthew Kramer, N.E.

Simmonds and Hillel Steiner, A Debate Over Rights (Clarendon Press, Oxford, 1998),
pp. 22-24. For a discussion of stipulations in theory, see Chap. 2.
10 Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning”,
pp. 742-766.
11 See Joseph Raz, “Legal Rights”, 4 Oxford Journal of Legal Studies 1 (1984), reprinted in
Ethics in the Public Domain, pp. 238-260.
OTHER TOPICS 119
are rights basically or essentially about having the power to waive another
person’s duties (“the will theory” of rights)?12 Thirdly, Hohfeld’s three-
variable approach to legal rights to the contrary, does there remain a
place and a need for a two-variable rights claim (“A has a right to X”),
because there are exceptional cases of rights without correlative duties,
because rights may be generative of duties in a case-by-case manner (a
judge deciding in a particular case that because the plaintiff has a certain
right, additional duties should be newly imposed on the defendants)13; or
because rights in rem are not properly analyzable in terms of rights in per-
sonam.?H Fourthly, to what extent does the recognition of rights or an
emphasis on rights help or hinder the search for progress and social
justice?15 Fifthly, why are some interests and demands perceived as rights
and others are not?16 Sixthly, do (moral) rights sometimes entail a (moral)
right to do wrong?17
H.L.A. Hart, “Legal Rights”, in Essays on Bentham (Clarendon Press, Oxford,

1982), pp. 162-193.
Wesley Hohfeld, “Some Fundamental Legal Conceptions as Applied injudicial
Reasoning”, 23 Yale Law Journal 16 (1913).
—/‘Fundamental Legal Conceptions as Applied injudicial Reasoning”, 26 Yale
Law Journal 710 (1917).
Matthew Kramer, Nigel Simmonds and Hillel Steiner, A Debate Over Rights:
Philosophical Enquiries (Clarendon Press, Oxford, 1998).
Neil MacCormick, “Rights in Legislation”, in Law, Morality and Society (P.M.S.
Hacker andj. Raz ed., Oxford: Clarendon Press, 1977), pp. 189-209.
Joseph Raz, “Legal Rights”, 4 Oxford Journal of Legal Studies 1 (1984), reprinted in
Ethics in the Public Domain (Clarendon Press, Oxford, 1994), pp. 238-60.
12 See, e.g. Kramer, “Rights Without Trimmings”, pp. 60-101; N.E. Simmonds, “Rights at
the Cutting Edge”, in Kramer, Simmonds and Steiner, A Debate Over Rights, pp. 134—152,
195-232; Hillel Steiner, “Working Rights”, in A Debate Over Rights, pp. 233-301.
13 See, e.g. MacCormick, “Rights in Legislation”, pp. 199-202; Harris, Legal Philosophies,
pp. 88-91; cf. Kramer, “Rights Without Trimmings”, pp. 22-60, 101-111 (defending
Hohfeld’s analysis from a variety of attacks, and criticizing various misunderstandings of
Hohfeld).
14 SeeJ.E. Penner, The Idea of Property in Law (Clarendon Press, Oxford, 1997), pp. 23-31.
15 This topic will be discussed briefly in the section on critical legal studies in Chap. 19; see
also Morton J. Horwitz, “Rights”, 23 Harvard Civil Rights-Civil Liberties Law Review 393
(1988); Patricia J. Williams, “Alchemical Notes: Reconstructing Ideals From
Deconstructed Rights”, 22 Harvard Civil Rights-Civil Liberties Law Review 401 (1987).
16 See, e.g. Alon Harel, “What Demands are Rights? An Investigation into the Relation
between Rights and Reasons”, 17 Oxford Journal of Legal Studies 101 (1997).
17 See, «.g. Jeremy Waldron, Liberal Rights: Collected Papers 1981 1991 (Cambridge University
Press, Cambridge, 1993), pp. 63-87 (“A Right to Do Wrong”).
■
Chapter Eleven
Will and Reason
A theme that runs through discussions within law and about law is the
contrast of will as against reason. “Will” represents answers which are the
product of choice and decision, whether made by individuals, groups, or
institutions. “Reason” represents answers which are the product of anal¬
ysis: answers given because they are “right” rather than because they have
been chosen by someone empowered to decide.
The English and American legal systems in practice show many ele¬
ments of both will and reason. Statutory law and administrative law are
primarily “will”, the application of choices made by officials in authority.
Contract law and estate law are also largely a matter of “will”, enforcing
the choices made by private parties. On the other side, common law rea¬
soning (the subject of Chapter 13) is to a significant extent a matter of
“reason”, the elaboration and application of basic principles on a case by
case basis. Some older cases even offer justifications of their conclusions in
a natural law sort of way, referring to what (capital “R”) “Reason” requires.
These general statements are hedged, and for good reason. For
example, statutory interpretation in the courts often involves analysis that
looks far more like analysis from general principles than it does like a
search for the legislators’ choices and intentions. Similarly, modern con¬
tract law often involves the legal (judicial) imposition of terms regardless
of the parties’ intentions, and the application of rules of interpretation
that do not always defer to what the parties meant. On the other side,
common law decisions sometimes have elements of “will”: in that later
decisions sometimes are said to turn on what an earlier court intended by
a particular rule or declaration. Also, it was once argued for common law
reasoning, as against the codification of legal rules in statutory form, that
common law decisions reflect “the popular will”, through custom.1
American constitutional law seems to be a continual battleground
between “will” and “reason”, in the ongoing debate regarding whether the
general terms and broad prescriptions of the United States Constitution
1 See Horwitz, The Transformation of American Law 1870-1960, pp. 117 121.
122 WILL AND REASON
are to be interpreted according to the intentions and understandings of

those who wrote and ratified the provisions or according to our present-
day best understanding of the values and principles mentioned.2
Finally, one can see “reason” and “will” as representing the opposite
aspects of law that any good legal theory must incorporate, although most
theories tend to emphasize one while ignoring or minimizing the other.
Lon Fuller referred to the poles as “reason” and “fiat”; Morris Cohen
referred to them as (on the one side) the ideal to which all law aspires, and
(on the other side) the hard facts that may only partly embody (or seem
to defy) the ideal.3
LEGAL POSITIVISM AND NATURAL LAW THEORY
As one can divide aspects of law (or even individual legal decisions)
according to whether they are matters (primarily) of “will” or of
“reason”, so can one divide legal theories.4 Legal positivist theories work
best with the “will” aspects of law. The phrase “positive law” is itself a
reference to the setting down—by human rule-makers—of legal stan¬
dards, as contrasted with the discovery of “natural” or “divine” legal stan¬
dards through the operation of reason.
By way of example, FLL.A. Hart’s “rule of recognition” analysis
becomes far more complicated (and less persuasive) when one tries to
apply it to law that arises from custom and common law reasoning, the
aspects of modern legal systems that most clearly enter the “reason” cat¬
egory.5 Legal positivism’s analysis (whether one chooses the version of
Austin, Hart, or Kelsen) works best when one can point to an official who
creates the legal standard.
There are occasions, especially with customary law and (less often) with
common law decisions, when an official purports only to “declare” law
which already existed, whose existence was not due exclusively to a prior
official’s act of law-creation. Some theorists treat these kinds of declara¬
tions as “legal fictions” or rhetorical devices, stating that the officials in
2 See, eg Paul Brest, “The Misconceived Quest for the Original Understanding”, 60 Boston
University Law Review 204 (1980); Richard Kay, “Adherence to the Original Intentions in
Constitutional Adjudication: Three Objections and Responses”, 82 Northwestern University
3 Winston, “The Ideal Element in a Definition of Law”, p. 103, citing Morris Cohen, Law
and the Social Order (Archon Books, New York, 1967), p. 248 et seq (originally published in
1933).
4 Roger Shiner’s book, Norm and Nature (Clarendon Press, Oxford, 1992), is constructed
along a similar axis: instead of will and reason, Shiner uses system (“norm”) and value
(“nature”).
5 See Hart, The Concept of Law, pp. 44-47, 97; Finnis, Natural Law and Natural Rights,
pp. 238-245.
LEGAL POSITIVISM AND NATURAL LAW THEORY 123
these situations are in fact only making new law. However, to the extent
that one wants to take the officials’ statements at face value, legal positi¬
vist analyses will be awkward (at best) in explaining what occurred, and
an analysis based on “reason” will work better than one based on “will”.
Natural law theory, by contrast, is best justified by and is most easily
applied to, the “reason” aspects of law.6 As discussed in Chapter 5, tradi¬
tional natural law theory (Aquinas’ theory and similar) is about the (direct
and indirect) derivation of standards from first principles, and using those
standards to guide officials and criticize official actions and promulgations
that fall short.
However, even within this tradition, there were significant debates
(though the significance may be less clear to us than it was to the partici¬
pants) about whether law was best understood in terms of “reason” or
“will”: in particular, whether the natural law was a product of divine will
or divine reason. The debate, which may seem quite dry and “theologi¬
cal”, had implications for how one viewed the universe and faith: the view
on one side being that the universe was orderly, and thus accessible to
human reason, and reason was compatible with faith (as Aquinas
attempted to demonstrate); the opposing view tended towards contrary
views about the accessibility of the universe to reason and the compat¬
ibility of faith and reason.7 Echoes of these debates can be seen in the
slighdy less abstract debates in later centuries about the nature and legit¬
imacy of the modern nation-state. Are the actions and enactments of
officials to be followed because they represent the (express or delegated)
will of the sovereign, or are these actions and enactments legitimate only
to the extent that they are consistent with the natural rights of the people
and the natural powers (and limits to power) of government?8
“Modern” natural law theory (e.g. the theories of Lon Fuller and
Ronald Dworkin), involve the “reason” side of the “reason”/“will”
dichotomy in a different way: for these theories hold that the law is not
simply what legal officials have ordered/posited/enacted; rather, the
application of (moral) reasoning is also required to determine what the
law requires.
6 Though there are will/reason tensions even within natural law theory. In particular, reli¬
gion-grounded natural law theories, which see natural law and justice as emanations of
God’s goodness, but discoverable by the exercise of human reasoning or conscience,
sometimes face the quandary of whether divine revelation is thus made superfluous (and
whether God could change Natural Law or order something that was contrary to it). See,
e.g. Kelly, A Short History of Western Legal Theory, pp. 102-104; Weinreb, Natural Law and
Justice, pp. 64—66.
7 See Weinreb, Natural Law and Justice, pp. 64—66; Francis Oakley, Medieval Theories of
Natural Law: William of Ockham and the Significance of the Voluntarist Tradition”, 6
Natural Law Forum 65 (1961).
8 See, e.g. Weinreb, Natural Law and Justice, pp. 67-90; Kelly, A Short History of Western Legal
Theory, pp. 222-229, 258-271.
124 WILL AND REASON
SOCIAL CONTRACTS AND ECONOMIC ANALYSIS
John Rawls’ well-known method for deriving or justifying theories of

justice, “the original position”,9 can be helpfully analyzed through the
“will”/“reason” rubric.
For Rawls, principles of justice are whatever principles would be
agreed upon in a thought experiment, by hypothetical persons who are
ignorant of their strengths and weaknesses and their circumstances
within society.10 First, one can note that the plurality of decision-makers
is superfluous: there is no reason to believe that any of the decision
makers ignorant of their nature and circumstances would decide
differently from the others since they are but clones of one another.* 11
More importantly, what Rawls has constructed is an analysis from
reason, dressed up as an analysis from will. There are no actual persons
choosing, only a thought experiment about what a strange variant on a
real person might choose. However, the grounds for respecting answers
given by choice are quite different from the grounds for respecting
answers given by reason.12
To some extent, the same claim can be made about many of the social
contract approaches in political theory (as can be found, in quite different
variations, in Hobbes, Locke, and Rousseau).13 Such approaches portray
a government’s legitimacy as deriving from an agreement between citi¬
zens to establish that authority. The description of that agreement tends
to be somewhat vague, and to the extent that it is claimed that there was
some such agreement in the distant past, such claims are almost, certainly
false (in any event, it would be difficult to demonstrate why those now
living should be bound by the terms of the ancient agreement14). The
social contracts referred to in these theories are best understood as ways
of discussing what powers reasonable persons would agree to delegate to
a governing authority, and under what conditions. However, for our pur¬
poses, there is a great difference between the terms to which “reasonable”
9 See Chap. 8.
10 Rawls, A Theory of Justice, pp. 11-22, 136-142; Rawls, Political Liberalism, pp. 22-28,
304-310.
11 A similar point is made in Walzer, Interpretation and Social Criticism, p. 11.
12 See, e.g. Dworkin, Taking Rights Seriously, pp. 150-154 (discussing Rawls’ “original posi¬
tion”).
13 This is not true for all writers on the social contract. Immanuel Kant, for example,
expressly stated that talk of an original contract is not historical, but is merely “an idea
of reason”. See Weinrib, The Idea of Private Law, pp. 85-86 (summarizing and quoting
from Kant).
14 Such arguments when made are usually in terms of our actions showing our “tacit
consent” to the terms of the old agreement. There are many problems with arguments
from “tacit consent” as are outlined below, in Chap. 16 (“The Obligation to Obey the
Law”).
SOCIAL CONTRACTS AND ECONOMIC ANALYSIS 125
persons “would” agree and terms to which actual persons have agreed.
The first is an argument of reason, the second an argument from will, and
each brings a moral force or legitimacy of a different kind.
A similar disguising of “reason” arguments as “will” arguments can be
found in the law and economics movement.15 In early articles, Richard
Posner sought to create a moral justification for his economic (“wealth
maximization”) approach to law. He argued that choosing more efficient
(or more wealth-maximizing) institutions, standards and procedures over
those that were less efficient is consistent with traditional notions of
autonomy and consent. He conceded that people often did not consent
expressly to the more efficient institutions, but that often there was no
practical method of eliciting such express consent. In such situations,
Posner asserted, it was sufficient, and consistent with “the principle of
consent” that we ask the hypothetical question of whether the parties
would have agreed to those institutions.16
The simple reply is that hypothetical consent is different in kind from
actual consent. There are times when the two nearly converge, when an
individual considers how she might have responded to a hypothetical sit¬
uation in the recent past, or when someone tries to consider how a close
friend would have decided some question.17 However, once we are speak¬
ing about judges or commentators discussing how a group of unknown
people would choose, any semblance of an exercise of personal, individ¬
ual will is absent.
Posner offered an interesting response. He wrote: “If there is no reli¬
able mechanism for eliciting express consent, it follows, not that we must
abandon the principle of consent, but rather that we should be satisfied
with implied (or more precisely, perhaps, hypothetical) consent where it
exists.”18 There are two subtle problems with the response. First, while
there may be a place to speak of implied or hypothetical consent, there is
always the danger that there is a kind of misleading or misrepresentation
going on: masking an argument that is largely one of reason to make it
15 See Chap. 18.

16 Richard Posner, “The Ethical and Political Basis of the Efficiency Norm in Common
Law Adjudication”, 8 Hofstra Law Review 487 at 494 (1980). For criticisms of Posner’s
consent analysis, see e.g. Jules L. Coleman, “The Normative Basis of Economic Analysis:
A Critical Review of Richard Posner’s The Economics of Justice”, 34 Stanford Law Review
1105 at 1117-1131 (1982); Ronald Dworkin, A Matter of Principle (Harvard University
Press, Cambridge, Mass., 1985), pp. 275-280.
17 The latter situation is raised in American law in medical decision-making, where the
patient is temporarily or permanendy incompetent to decide for herself. A close friend
or relative may be asked to consider, taking into account everything known about the
patient’s values and attitudes, how that patient would have decided had she been com¬
petent. See, e.g. Cruz.au v. Director, Missouri Health Dept., 497 U.S. 261 at 289-292 (1990)
(O’Connor, J., concurring).
18 Richard Posner, The Economics of Justice (Harvard University Press, Cambridge, Mass.,
1983), p. 96.
126 WILL AND REASON
appear to be one of will, for readers who find will-based arguments more
persuasive. Secondly, it is not clear why, when consent in its fullest form
is not available, we must offer analysis or seek argument in terms of some
hybrid or diluted variation of “consent”. Sometimes consent-based (will-
based) arguments will simply be out of place, and recourse must be had
to arguments of an entirely different kind (most likely reason-based).
Francis Oakley, “Medieval Theories of Natural Law: William of Ockham and the
Significance of the Voluntarist Tradition”, 6 Natural Law Forum 65 (1961).
Lloyd Weinreb, Natural Law and Justice (Harvard University Press, Cambridge,
Mass., 1987), pp. 63-96.
Chapter Twelve
Authority, Finality and Mistake
The American judge and legal commentator Oliver Wendell Holmes

(1841-1935) once wrote, “The prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by law.”1 This
comment trades on an ongoing tension in law (and, indeed, in all rule-
based decision-making): should one focus on the rules which are purport¬
edly the basis of decisions, or on the decisions themselves?
In the English case, Davis v. Johnson,2 the primary issue had been the
proper interpretation of a statute protecting women from domestic
violence, but there was a secondary issue regarding under what
circumstances the English Court of Appeal had the authority to refuse
to follow its previous decisions. In the Court of Appeal, Sir George
Baker suggested that a new category be added to the limited list of
exceptional circumstances in which the Court of Appeal was allowed
to overrule its previous decisions3: where there is “a conflict between a
statutory provision and a decision which has completely misinter¬
preted the recent statute and failed to understand its purpose”.4 He
summarized his argument by saying: “The statute is the law—the final
authority.”5
On appeal, the House of Lords upheld the Court of Appeal’s interpre¬
tation of the statute, but rejected that court’s attempts to expand its
authority to overrule its previous decisions. For present purposes, though,
the most interesting comment in the Lords was given as an aside to the
main debate. Lord Diplock was stating that his reading of the statute was
contrary to that of his four colleagues, but, he added:
1 Holmes, “The Path of the Law”, p. 461. This quotation is also discussed in Chapter 17,
on American legal realism.
2 [1979] A.C. 264.
3 Among the accepted circumstances for the Court of Appeal to overrule its own prior
decisions are when it must choose between prior conflicting decisions, its earlier decisions
was expressly or implicitly overruled by the House of Lords, or the prior decision was
made per incuriam. Young v. Bristol Aeroplane Co. Ltd [1944] K.B. 718.
4 Davis v. Johnson, at 290.
5 ibid.
128 AUTHORITY, FINALITY AND MISTAKE
“This cannot affect the disposition of the instant appeal nor will it affect the appli¬
cation of the Act in subsequent cases; for the section means what a majority of
this House declares it means.”6
The comments of Sir George Baker and Lord Diplock represent two con¬
trary views about the nature of law, legal validity, and mistake, two views
which are always in tension in the way we talk about law.
The first view emphasizes fidelity to the authoritative sources of law,
treating the decisions of judges (and the actions of other officials who
implement the law, including the police) as attempts to interpret those
sources, attempts that can go wrong. This view also assumes a hierarchy
of sources, where texts, primarily statutes and written constitutions
always have priority over statements and actions which purport to be
interpretations or applications of those texts.7
In a like spirit, Ronald Dworkin wrote (in the context of a discussion
of civil disobedience): “A citizen’s allegiance is to the law, not to any par¬
ticular person’s view of what the law is”,8 where it is clear from the context
that “any particular person’s view of the law” included decisions handed
down by judges, even sometimes decisions by the highest court in the
land.
The second view notes that the decisions of judges (and other officials)
are often themselves sources of law, and, in effect if not in theory can
override the actions and choices of other officials (including the legisla¬
tors who enacted the law being enforced). An American legal theorist,
John Chipman Gray writing early in this century stated:
* \
“The Law of the State or of any organized body of men is composed of the rules
which the courts, that is, the judicial organs of that body, lay down for the deter¬
mination of rights and duties.”
He continued: “The difference in this matter between contending schools

of Jurisprudence arises largely from not distinguishing between the Law
and the Sources of the Law.”9 The above quotation, along with Justice
Holmes’ earlier quotation, “The prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by law”, have the
6 ibid, at 323.
7 The debate about the relative priority of texts and their interpretations also occurs in the
context of the interpretation of the United States Constitution. Compare Cooper v. Aaron,
358U.S.at 1, 18(1958) (“It follows that the interpretation of the Fourteenth Amendment
enunciated by this Court... is the supreme law of the land”) and Edwin Meese III, “The
Law of the Constitution”, 61 Tulane Law Review 979 at 989 (1987) (“Once again, we must
understand that the Constitution is and must be understood to be superior to ordinary
constitutional law”).
8 Dworkin, Taking Rights Seriously, p. 214.
9 John Chipman Gray, The Nature and Sources of the Law (Columbia University Press, New
York, 1909), p. 82.
AUTHORITY, FINALITY AND MISTAKE 129
attractions of both iconoclasm and worldliness, but they have well-known

weaknesses as well.
The worldly and cynical approach will never suffice on its own, if one
believes that judges sometimes act in good faith: that is, if one believes
that not all judges merely disguise their own political biases in legal lan¬
guage; and that at least some judges perceive their actions as trying to
decide “according to law”, at least occasionally deciding a case one way
even though they personally would rather it come out another, on the
basis that they are bound by precedent or statutory wording.10 This is not
to say that Holmes or Gray thought that judges were always deciding
cases according to their personal preferences. However, to explain the
actions of judges acting in good faith, we must be able to understand talk
of what the law requires which is at least partly independent of how the
law is interpreted by judges.
We also need this (partial) conceptual independence to make sense of
the idea of legal mistake. If an enactment means whatever a majority of
the House of Lords (or the Supreme Court) says it means, how could we
make sense of a later court decision overruling the earlier interpretation
as mistaken?* 11
In The Concept of Law, in the course of a discussion about “formalism
and rule-scepticism”, Hart mentioned an imagined game called “Scorer’s
Discretion”, under which “there was no rule for scoring save what the
scorer in his discretion chose to apply.”12 The purpose of the reference
was to make a point to those whose discussions about the law over¬
emphasized the fact that the decisions of officials in the system often were
final, even when the decisions were mistaken. The decisions may be final,
but the officials are acting under an obligation to make their decisions
through the application of certain rules. Thus, it is both right and wrong
to say “the law is what the officials say it is”, just as it is both right and
wrong in the context of many games to say “a score occurs whenever the
scorer says it does”.13 It is right, in the sense that the decision is final
(or, in Hart’s phrase, “unchallengeable”). It is wrong, in the sense that it
10 That judges, though attempting to decide “according to law”, may be strongly affected
by unconscious biases, raises a quite different, if still significant, set of problems.
11 Examples of a country’s highest court overruling its own prior decisions include Board of
Education v. Barnette, 319 U.S. 624 (1943); Garcia v. San Antonio Metropolitan Transit Authority,
469 U.S. 528 (1985); R. v. Shivpuri [1987] A.C. 1; and Murphy v. Brentwood District Council
[1990] 3 W.L.R. 414. The first two cases listed are American cases involving the proper
interpretation of constitutional texts; of the two English cases, Murphy involved the appli¬
cation of common law principles. Overruling on common law matters raises different
conceptual questions than does overruling on an interpretation of an authoritative text,
but these differences are beyond the scope of the present discussion.
12 Hart, The Concept of Law,p. 139.
13 ibid, at pp. 138-139. As pointed out to me by Neal Feigenson, the issues raised in this dis¬
cussion can also be seen as trading on the tension between “will” and “reason”, a theme
discussed in the previous chapter.
130 AUTHORITY, FINALITY AND MISTAKE
disregards the fact that the most officials are, most of the time, attempt¬
ing to apply and be bound by rules (and all officials at the least purport to
be constrained in that manner).
The difference between real games and “Scorer’s Discretion”, and
the difference between (most, and probably all) legal systems and
systems where the law can be usefully equated with “what the judges say
it is”, is the tension between authority and correctness—a tension that
one can see as well in games as one can in law. The cynical response that
“whatever is done is right” or “whatever is authorized by the officials is
right” is counterbalanced by the way that citizens and officials (even
some biased officials) refer to the rules to justify their decisions, and will
use the rules to warrant a modification of past (allegedly erroneous)
decisions.
The tension between authority and correctness has a slighdy
different spin in language. It may be that according to the appointed
and self-appointed experts (including the “authoritative” reference dic¬
tionaries) the way most people use certain words (e.g. “hopefully”) is in
error. However, over time, if enough people use those words in those
ways, that meaning (the one now thought of as “mistaken”) will be the
meaning of those words. The attachment of meanings to words is arbi¬
trary: one cannot sensibly talk, in the long run, of everyone being wrong
about the meaning of a word. There is a corresponding situation in the
law.
While it makes sense to say that some legal officials were mistaken in
their interpretation or application of particular legal standards, if that
“mistake” is reaffirmed often enough by enough important members of
the legal hierarchy, that “mistake” now is the (“setded”) law of that legal
system. As with language, there is something at best quite strange about
stating that all legal officials have been wrong for a long time about what
the law is on a particular issue (and very close to absurdity to speak of a
whole legal community being wrong about its own legal system14). The
reason this claim is only strange, and not nonsensical (as it arguably
would be in the case of language), is that in law there are authoritative
texts, which can always in theory justify a change in even the most setded
law.15
14 See Marmor, Interpretation and Legal Theory, pp. 96-97.

15 One famous example being the use of the guarantee of equal protection in the United
States Constitution to justify overturning the “settled” legal conclusion that racial segre¬
gation was constitutionally permitted. Compare Plessy v. Ferguson, 163 U.S. 537 (1896)
(affirming the constitutionality of racial segregation) with Brown v. Board of Education, 349
U.S. 294 (1955) (holding racial segregation to be in violation of constitutional protec¬
tions).
AUTHORITY, FINALITY AND MISTAKE 131
Larry Alexander and Frederick Schauer, “On Extrajudicial Constitutional

Interpretation”, 110 Harvard Law Review 1359 (1997).
Brian Bix, “A.D. Woozley and the Concept of Right Answers in Law”, 5 Ratio Juris
58 (1992), reprinted in modified form in Law, Language and Legal Determinacy
(Clarendon Press, Oxford, 1993), pp. 79-88.
Jules L. Coleman, “Truth and Objectivity in Law”, 1 Legal Theory 33 (1995).
H.L.A. Hart, The Concept of Law (Clarendon Press, Oxford, 1961), pp. 132-144
(“Varieties of Rule-Scepticism” and “Finality and Infallibility in Judicial
Decision”).
■
Chapter Thirteen
Common Law Reasoning and Precedent
At most English and American law schools, the first year is taken up primar¬
ily with teaching the concepts, rules, and modes of analysis from the tradi¬
tional common law subjects (Contracts, Torts, Criminal Law, and Property),
no matter how much the subjects in practice have become dominated by
codified rules. The extent to which common law reasoning continues to be
central or dominant in the practices of “common law legal systems” is a
matter of debate,1 but it still appears to be central to the way legal actors in
common law countries view their own systems (as both exemplified by and
reinforced by the place of common law reasoning in legal education).
Common law reasoning involves the (1) incremental development of
the law, (2) by judges, (3) through deciding particular cases, with (4) each
decision being shown to be consistent with earlier decisions by a higher
or co-equal2 court. To put the matter a different way, common law rea¬
soning is the uneasy but productive mixture of moral intuition, hierarchi¬
cal discipline, and principled consistency.
The common law, in this sense of the term, contrasts with laws devel¬
oped from statutes, administrative regulations, or constitutional provisions.
Common law systems (such as Great Britain, the United States,3 Canada,
Australia and New Zealand), systems based historically on the English
common law, can also be contrasted with civil law systems, which predom¬
inate on continental Europe and can be traced to ancient Roman Law.4
1 Qne can argue that even where most cases turn on the interpretation of a statute, an
administrative regulation, or a constitutional provision, the law is often developed (rightly
or wrongly) by the judges in an incremental case-by-case method that is very similar to
traditional common law reasoning.
2 Whether prior decisions by the same court are binding varies jurisdiction to jurisdiction,
and even court by court within a jurisdiction. Within England and Wales, the Court of
Appeal is generally bound by its earlier decisions, Young v. Bristol Aeroplane Co. Ltd [1944]
K.B. 718, while the House of Lords is not, Practice Statement Qudicial Precedent) [1966] 1
W.L.R. 1234.
3 There is one state in the United States, Louisiana, which has a civil law system.
4 “The characteristics of civil law systems are, normally, die existence of codes covering
large areas of the law and setting down the rights and dudes of persons in fairly general
134 COMMON LAW REASONING AND PRECEDENT
The fourth point given for common law reasoning above, the effort to
show that current decisions are consistent with prior decisions (at least
those made by a higher or comparable court) is the idea of precedent, of
“stare decisis”—to abide by, or adhere to, decided cases. The central idea
of precedent derives from a basic notion of justice: that like cases should
be treated alike. However, this principle merely begins the analysis. One
might say of legal cases what is said of snowflakes: that no two are exacdy
alike. In what sense, then, can any case determine how a later case should
be resolved? The answer is, that though the second case (inevitably) is
different from the first, the differences are not morally or legally
significant. Perhaps the first case happened on a Wednesday, and the
second on a Friday; or the first defendant had blond hair, and the second
defendant has red hair: these are not the kind of differences which seem
likely to justify treating the second defendant differendy than the first. At
least some differences seem clearly to be morally irrelevant. For a large per¬
centage of differences, the moral significance, or lack thereof, will be a
matter on which reasonable minds can disagree—and it is those sorts of
disagreements which have generated hundreds of volumes of reported
cases (and millions of hypotheticals in law school classroom discussions).
The notion of adherence to precedent, deciding in the same way as
earlier cases, leads to one of the paradoxes of common law reasoning: that
precedent is only of crucial importance when the prior case was wrongly
decided (or at least could have been decided a different way with equal legit¬
imacy). Here is why: if the one morally correct way to resolve a particu¬
lar legal dispute is to hold the defendant liable, then that is how the court
should decide, just as a matter of doing the right thing, regardless of how
past cases came out. If a prior court deciding the same question came out
the same way (holding the defendant liable), this gives another reason for
holding the defendant liable the second time the case comes up, but it is
a superfluous reason; morality or public policy already require that result. It
is only if morality or public policy would have prescribed a verdict infavour
of the defendant, or if morality and public policy would have been
indifferent on the question, that a prior decision against the defendant
would affect our “all things considered” judgment about who should win.* * * * 5
It is like the parent of many children who has to figure out whether her
young daughter is old enough to be given a bicycle of her own. The
terms, the use of terminology and concepts and frequendy of principles that can be
traced back to the Roman law, a less strict regard for judicial precedents, and a greater
reliance on the influence of academic lawyers to systematize, criticize, and develop the
law in their books and writings.” Walker, The Oxford Companion to Law, p. 223 (entry on
“civil law systems”).
5 As Justice Scalia states: “The whole function of the doctrine [of stare decisis] is to make us
say that what is false under proper analysis must nonetheless be held to be true, all in the
interest of stability.” Antonin Scalia, “Response”, in A Matter of Interpretation (A. Gutmann
ed., Princeton University Press, Princeton, 1997), p. 139.
COMMON LAW REASONING AND PRECEDENT 135
daughter may well be quick to point out that an older sibling had been
given a bicycle at the same age. Precedent! It may be that the “all things
considered” best decision is for the child to have the bike, even without
taking into account past practices. However, past practices will only affect
what we should otherwise do when the past practice was not clearly the
right answer.
The above analysis might be modified or clarified in the following way.
If we take the perspective not of a particular decision-maker figuring out
a particular decision, but rather the perspective of someone trying to set
up an institutional process which will increase the chance of correct deci¬
sions being made, precedent is important even when the prior decision
was correct, because precedent constrains fallible later decision-makers
who might otherwise be tempted to incorrect decisions.6
Common law reasoning is far more than respect for precedent. It is also
a belief that there is value to the incremental development of rules and
principles, evolving, mostly cautiously, through the consideration of
highly detailed factual situations. Part of the magic of common law rea¬
soning, and part of the complexity of the role of precedent within such a
system, is that cases are subject to re-characterization. The judge or panel
of judges deciding the first case may believe that the basis for a result is
one legal-moral principle, and that the crucial facts are A, B, and C. A
later court, considering a similar case, may well revisit the first case in light
of subsequent cases, and conclude that the principle displayed in the first
case was different than the decision-maker(s) thought—either broader or
narrower than claimed by the first court—and that the first court may
also have been wrong about which facts were significant (e.g. stating that
one of the facts mentioned by the first court was in fact irrelevant or
superfluous, or that an additional fact not emphasized by the first court was
also central to the case coming out the way it did). A later court is said to
be bound only to the “holding” (or “ratio decidendi”) of the prior case—the
principles necessary for the disposition; however, the later court has some
freedom in interpreting what the holding was of the prior case.
It is common to hear it argued that what constitutes the “ratio” of a prior
case, and what the “obiter dictum”7 (in principle, the latter can be legitimately
ignored), is indeterminate or entirely subject to manipulation; I will not
consider the charge (or its possible responses) in detail here.8 A comparable
point for cynical comment is the ability of a later court to characterize a
6 cf. Schauer, Playing by the Rules, pp. 158-162 (discussing the way that rules serve to allo¬
cate power).
7 Latin for “a remark in passing”.
8 For two attempts to respond to this challenge, see Rupert Cross and J.W. Harris, Precedent
in English Law (4lh ed., Clarendon Press, Oxford, 1991), pp. 39-96, particularly pp. 49-52;
and Neil MacCormick, “Why Cases Have Rationes and What These Are”, in Precedent in
Law (L. Goldstein ed., Clarendon Press, Oxford, 1987), pp. 155-182, particularly
pp. 180-182.
136 COMMON LAW REASONING AND PRECEDENT
prior case in a way which means that it is no longer on point: “distinguish¬

ing” (rather than “following” or, where the court has the power, “overrul¬
ing”) the case. The cynical comment often made is that the ability to
distinguish a case is unlimited, and thus a judge may give the appearance
of respecting all the prior cases without having her decisions be in any way
constrained by those cases.9 As noted above, there would appear to be at
least some limits, however minimal, on the ways in which one can distin¬
guish a prior case (assuming a judge who cares at least a little about not
being overruled, and about maintaining the respect of his or her peers).
Given all the strange twists and turns of common law reasoning, one
might be tempted to conclude that this seems an utterly bizarre way to
run a legal system, were it not for the fact that common law reasoning
seems to reflect at a more public level the way people develop their own
moral principles and views on life. This sort of gradual development of
principles and concepts, and the testing of intuitions against real and
hypothetical fact situations, also is related to the way of thinking through
moral questions John Rawls described in A Theory of Justice. Rawls’ idea
of “reflective equilibrium” involves the testing of particular judgments
against broader theories, and vice versa, with adjustments being made
when they are found to be inconsistent.10
In common law reasoning, as in individuals’ moral reasoning, the state¬
ment of principles is likely to be tentative and subject to significant revi¬
sion when first facing a novel set of questions.* 11 After enough decisions
have been made at a specific level, a more confident statement of princi¬
ple at a higher level of generality might be assayed. In common law rea¬
soning, such a broad restatement will usually be consistent with the a long
run of cases; occasionally, though, a judge will recharacterize the prior
cases in a surprising way, but a way which persuades by the force of the
judge’s rhetorical power or the force of the moral vision underlying the
re-characterization. Examples of such landmark decisions include Lord
Atkin’s speech in Donoghue v. Stevenson12 and Judge (later Justice) Cardozo’s
decision in MacPherson v. Buick Motor Co.,13 both of which established a
general principle that allowed recovery in tort even in the absence of
privity of contract between plaintiff and defendant.14
9 See the discussion in Frederick Schauer, Playing by the Rules (Clarendon Press, Oxford,
1991), pp. 181-187.
10 See Rawls, A Theory of Justice, pp. 48-51.
11 Consider some recent examples: the legality—and morality—of new reproductive tech¬
nologies, surrogacy, and cloning; or the appropriate way to apply traditional rules of
intellectual property to computer programmes or scientifically transformed bacteria.
12 [1932] A.C. 562.
13 217N.Y. 382, 111 N.E. 1050(1916).
14 I discuss some of these themes, and their application to R. v. Brown [1994] 1 A.C. 212, in
Brian Bix, “Consent, Sado-Masochism and the English Common Law”, 17 Quimipiac
COMMON LAW REASONING AND PRECEDENT 137
Larry Alexander, “Precedent”, in A Companion to Philosophy of Law and Legal Theory

(D. Patterson ed., Blackwell, Oxford, 1996), pp. 503-513.
Benjamin N. Cardozo, The Nature of the Judicial Process (Yale University Press, New
Haven, 1921).
Rupert Cross and J.W. Harris, Precedent in English Law (4th ed., Clarendon Press,
Oxford, 1991).
Melvin Aron Eisenberg, The Nature of the Common Law (Harvard University Press,
Cambridge, Mass., 1988).
Laurence Goldstein ed., Precedent in Law (Clarendon Press, Oxford, 1987) (includes
contributions by Gerald Postema, Neil MacCormick, and Michael Moore).
Edward H. Levi, An Introduction to Legal Reasoning (University of Chicago Press,
Chicago, 1949).
Stephen R. Perry, “Judicial Obligation, Precedent, and the Common Law”, 7
Oxford Journal of Legal Studies 215 (1987).
Frederick Schauer, “Is the Common Law Law?” (book review), 77 California Law
Review 455 (1989).
A.W.B. Simpson, “English Common Law”, in The New Palgrave Dictionary of
Economics and the Law, Vol. 2, (P. Newman ed., Macmillan, London, 1998), pp.
57-70.
—,“The Ratio Decidendi of a Case and the Doctrine of Binding Precedent”, in
Oxford Essays in Jurisprudence (A.G. Guest ed., Oxford University Press, Oxford,
1961), pp. 148-175.
'
* \
Chapter Fourteen
Statutory Interpretation and Legislative

Intentions
Questions of statutory interpretation turn on the relationship between

courts and legislatures (keeping in mind that there is no necessary reason
that rules be made and applied by separate institutions, though there are
many practical advantages to this separation), and between government
and citizens. For example: Should judges fill in gaps in legislation? In
applying rules, what importance should be given to the intentions of the
rule-makers and what importance to the expectations of the public?
These and similar controversies are basically political questions, which
may be informed by different theories about institutional competence
and institutional behaviour, but it is unlikely that many such questions will
be resolved by reference to statements about the nature of law or about
the nature of language. This observation may seem obvious, but it is sur¬
prising how often it is ignored in the writings of legal theorists.1
Given that issues of statutory interpretation are primarily matters of
convention to be decided within each legal system, there is not much that
can or should be said at the level of general jurisprudential theory.
However, there are a few claims that have been made by legal theorists
that are worth noting, as well as some clarifications of terms and concepts
that may facilitate discussion in this area.
LEGISLATIVE INTENTION
As many commentators have pointed out, there are many subdeties, com¬
plications and paradoxes involved when discussing legislative intentions.2
Some derive from the fact that “intentions” in the context of a group
promulgating a rule simply cannot refer to the same things as the same
1 In Bix, Law, Language and Legal Determinacy, pp. 154-156, 176-177,1 make a similar point
in response to metaphysically-realist approaches to law and legal interpretation.
2 See, e.g. Dworkin, Law’s Empire, pp. 313-354.1 discussed some of these issues in another
context in Bix, “Questions in Legal Interpretation”, pp. 142-146.
140 STATUTORY INTERPRETATION AND LEGISLATIVE INTENTIONS
concept (“intention”) means when referring to one individual conversing

with another. To the extent that individual, conversational intention is
partly a factor of what the speaker was actually thinking when she spoke,
there is no readily available analogue in context of a group. (Does a group
have thoughts and intentions separate from those of its individual
members? And if we are to focus on the individual members, how are we
to “sum up” those thoughts and intentions when they are conflicting?)
Additionally, legislation usually involves an expectation that the rule
promulgated will be used as guidance for the indefinite future by persons
not known to the legislators—a purpose or set of expectations far
different from what one finds most of the time in individual conversa¬
tions. Legislation is also more likely to involve a variety of different types
of intentions: for example, intentions about what a text means, intentions
regarding how the text should be interpreted, and intentions regarding
how it should be applied.3 The authors of a standard requiring “reason¬
able” behaviour could believe that a particular type of action would be
“unreasonable” under the standard, but might at the same time believe
that judgments of reasonableness should be made by judges according to
contemporary standards at the time of judging.
The question then is, what follows from the fact that there are these
differences between legislation and individual communication? A variety of
responses have been offered: for example, that legislative intentions should
only be legally relevant under certain conditions (generally conditions that
make those intentions seem more similar to intentions in a conversational
context, e.g. when all the legislators shared the same intention and when that
intention was relatively recent4); that legislative intention and legislative
history should play no role in the interpretation of statutes5; and that legis¬
lative intention is best understood as having nothing to do with intention,
but is just a shorthand for saying that certain types of facts should be taken
into account when constructing the best interpretation of a statute.6
“plain meaning”
The English courts say that they are trying to discover Parliament’s inten¬
tion regarding a statute, but until quite recently7 neither the judges nor
3 See Marmor, Interpretation and Legal Theory, pp. 165-172; Larry Alexander, “All or Nothing
at All? The Intentions of Authorities and the Authority of Intentions”, in Law and
Interpretation (A. Marmor ed., Clarendon Press, Oxford, 1995), pp. 357—404.
4 See Marmor, Interpretation and Legal Theory, pp. 155-184.
5 See, e.g. Antonin Scalia, A Matter of Interpretation (A. Gutmann ed., Princeton University Press,
Princeton, 1997), pp. 16-37 Jeremy Waldron, “Legislators’ Intentions and Unintentional Legis¬
lation”, in Law and Interpretation (A. Marmor ed., Clarendon Press, Oxford, 1995), pp. 329-356.
6 See Dworkin, Law’s Empire, pp. 313-354.
7 See Pepper v. Hart [1993] A.C. 593 (allowing reference to Parliamentary debates (Hansard)
to aid the interpretation of statutes in certain limited circumstances).
“plain meaning” 141
the lawyers appearing before them were allowed even to refer to the
record of Parliamentary debates. The focus instead was (and largely still
is) on the “literal” or “plain” meaning of the statute. Lord Reid explained:
“We are seeking the meaning of the words which Parliament used. We
are seeking not what Parliament meant but the true meaning of what they
said.”8 Though perhaps not optimally phrased, Lord Reid’s point seems
clear enough. Yet the eminent commentator Sir Rupert Cross wrote
about this quotation: “This is not one of Lord Reid’s most helpful
remarks because if the true meaning of what someone says is not what
he intended to say, it is difficult to know what it is.”9
Sir Rupert seemed to have overlooked the obvious and familiar distinc¬
tion between the meaning we wish to get across and the meaning our
words in fact convey to the reader or listener,10 a distinction justified by
the frequency of mis-statements, misunderstandings, cultural differences
between speaker and listener, differing assumptions and expectations, and
so on. At the least, Sir Rupert was asking a great deal of the phrase “the
true meaning”.
In Davis v. Johnson (discussed in the previous chapter), Lord Justice
Cumming-Bruce in the Court of Appeal supported emphatically the tra¬
ditional approach to interpreting statutes by stating: “An Act means what
the words and phrases selected by the parliamentary draftsmen actually
mean, and not what individual members of the two Houses of Parliament
may think they mean.”11
Lord Justice Cumming-Bruce wanted to distinguish what individual
legislators thought about a text from what the text actually means; but actual
meanings do not announce themselves for all to hear. To be slighdy
cynical about matters: in actual practice, the choice becomes one between
what the legislators thought the text means (as best this can be cobbled
together from the legislative history) and what the judges think the text
means. This is not to say that there are not good reasons for preferring
the latter to the former; only that the judges are fooling themselves if they
think that their access to meaning is different from and better than that
of other people—as though one group had direct access to meanings,
while other groups could only offer interpretations of meanings, interpreta¬
tions which were particularly vulnerable to mistake.
8 Black-Clauson International Ltd v. Papierwerke Waldhof-AschaffenburgA.G. [1975] 1 All E.R. 810

at 814. For comparable language from the United States Supreme Court, see Schwegmann
Bros. v. Calvert Distillers Corp., 341 U.S. 384 at 397 (1951) (Jackson J., concurring) (quoting
O.W. Holmes: “We do not inquire what the legislature meant; we ask only what the
statute means.”).
9 Rupert Cross, Statutory Interpretation (Butterworths, London, 1976), pp. 39-40.
10 A distinction which sometimes goes under the label of “speaker meaning versus lin¬
guistic meaning”. See, e.g. Robert Audi ed., The Cambridge Dictionary of Philosophy
(Cambridge University Press, Cambridge, 1995), p. 758 (entry on speech act theory ).
11 Davis v. Johnson [1979] A.C. 316.
It seems relatively clear what Justice Cumming-Bruce was getting at: a

statute should be interpreted according to the plain or conventional
meaning of its text; when there is a conflict, the conventional meaning of
the text should take precedence over any more idiosyncratic meaning that
the legislators might have attached to the text. There are, however, two
unspoken assumptions in the argument. The first is that there is a conven¬
tional meaning to be found. One could argue regarding particular texts
in particular circumstances (and some might offer a similar argument
regarding all of language all of the time) that no consensus or near-con-
sensus in meaning exists; all there is are the different readings of different
groups.12 The second assumption is that the judge will be able to inter¬
pret the text in line with its conventional meaning; one could argue (espe¬
cially in England, where the judiciary has been, at least until recently,
relatively homogenous in its background and personal characteristics and
far from representative of the general population13), that judges are at
least as likely to succumb to idiosyncratic interpretations as are legislators.
The American approach to statutory interpretation has, at least in this
century,14 been far more receptive than the English courts (before Pepper
v. Hart) to arguments based on legislative history. In recent years, however,
there has been a push, led by Supreme Court Justice Antonin Scalia,15 to
interpret statutes stricdy in line with the literal meaning of their texts:
with no reference to legislative history and, here apparendy going even
further than the traditional English approach,16 no exceptions for when
a literal interpretation leads to an absurd result.17 The opposition to leg¬
islative history, and indeed to most other common law methods of deter¬
mining legislative intentions, is presented with a strong “rule of law”
justification:
12 Claims along those lines, if perhaps not quite as radical, have been made by theorists
identified with critical legal studies (Chap. 19) and postmodernism (Chap. 21).
13 See John Griffith, The Politics of the Judiciary (Fontana, London, 1985).
14 In the United States, judicial use of legislative history in interpreting statutes only became
common in the early decades of this century, growing with frequency throughout the
century. See, e.g. Scalia A Matter of Interpretation, pp. 30-31. There is evidence that the crit¬
icism of the use of legislative history, by Justice Scalia and by a variety of commentators,
has led to a steady decline in the past decade in that practice among American judges.
15 See Scalia, A Matter of Interpretation. For a thoughtful critique of Scalia’s position, see
William N. Eskridge Jr., “Textualism, The Unknown Ideal?” (book review), 96 Michigan
Law Review 1509 (1998).
16 For the “Golden Rule”, allowing that where the ordinary meaning of statutory language
would “produce an inconsistency, or an absurdity or inconvenience so great as to con¬
vince the Court that the intention could not have been to use them in their ordinary
signification”, a different reading of the language can and should be made. See, eg. River
Wear Commissioners v. Adamson (1877) 2 App. Cas. 743 at 764-765 (per Lord Blackburn).
17 Eskridge certainly assumes that there is no “absurdity” exception in Scalia’s textualism:
see Eskridge, “Textualism, the Unknown Ideal?”, p. 1549, and there is support in the
strong language Scalia uses in A Matter of Interpretation, though I have been unable to find
a place where the “absurdity” exception is expressly rejected.
“plain meaning” 143
“[T]t is simply incompatible with democratic government, or indeed, even with

fair government, to have the meaning of a law determined by what the lawgiver
meant, rather than by what the lawgiver promulgated. ... It is the law that
governs, not the intent of the lawgiver.”18
The basic claim is that people should only be bound by publicly promul¬
gated rules, and legislative history is often not easily accessible (even
putting aside the argument that such history is often written by people
other than the lawmakers themselves, and it usually not expressly
assented to by anything like a majority of the legislators).19
The opposing position is that the basic institutional structure of the
United States and Great Britain has a legislative body which has the
authority to make decisions for the country, decisions which are to be
carried out by other officials, including the courts. Thus, it is important
for the courts to figure out what the lawmakers intended—to be a
“faithful agent.”20 In this sort of debate, the “rule of law” values will fre¬
quently conflict with the “authority” values—a troubling conflict, as
both values are likely central to evaluating the legitimacy of governmen¬
tal action.
Whatever the approach to statutory interpretation adopted by a judi¬
ciary (and other officials with the duty to implement legislation) within a
legal system, it is important that the rules of interpretation be relatively
predictable, stable and determinate. This allows for more effective legis¬
lative drafting. For example, if the legislature knows that committee
reports will be taken into account in interpreting a statute, then impor¬
tant clarifying information will likely be placed in such reports. On the
other hand, if interpretation will be based only on “plain meaning”, then
little attention will be paid to committee reports, and more attention will
likely be given to a clearer and/or more detailed statutory text. Certainly,
it would be inviting mis-communication and mis-interpretation for stat¬
utes enacted under one set of interpretive conventions to be subject to a
different set of conventions.21
18 Scalia, A Matter of Interpretation, p. 17.

19 See, ibid, at pp. 16-18, 23-25. Other arguments offered for a “plain meaning” approach
to statutory interpretation that excluded recourse to legislative history include: that it
saves time and expense (of attorneys and judges); it arguably constrains “willful” judges,
who use, or would be tempted to use (ambiguous) legislative history to achieve the results
they prefer; and that it would force legislatures to be more careful in their drafting. See
ibid, at pp. 9-14, 16-37; Eskridge, “Textualism, The Unknown Ideal?”, pp. 1511-1515,
1540-1542.
20 See, e.g. Eskridge, “Texturalism, The Unknown Ideal?”, pp. 1548-1551; Posner, Law and
Literature, pp. 237-258.
21 See Eskridge, “Textualism, the Unknown Ideal?”, p. 1541 and n. 115.
Rupert Cross; John Bell and George Engle, Statutory Interpretation (3rd ed.,
Butterworths, London, 1995).
Ronald Dworkin, Law’s Empire, Chapter 9 (Harvard University Press, Cambridge,
Mass., 1986). (“Statutes”).
William Eskridge, “Textualism, The Unknown Ideal?” (book review), 96 Michigan
Law Review 1509 (1998).
Andrei Marmor, Interpretation and Legal Theory, Chapter 8 (Clarendon Press,
Oxford, 1992) (“Legislative Intent and the Authority of Law”).
Andrei Marmor ed., Law and Interpretation (Clarendon Press, Oxford, 1995)
(includes articles on statutory interpretation by Michael Moore, Joseph Raz,
Jeremy Waldron, Larry Alexander, Heidi Hurd and Meir Dan-Cohen).
Joseph Raz, “Intention in Interpretation”, in The Autonomy of Law (R. George ed.,
Clarendon Press, Oxford, 1996), pp. 249—286.
Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann
ed., Princeton University Press, Princeton, 1997) (an essay by Justice Scalia,
with commentary by five academics, including Laurence Tribe and Ronald
Dworkin, and a response by Justice Scalia).
Chapter Fifteen
Legal Enforcement of Morality
As many writers have pointed out, the phrase “legal enforcement of

morality” is a misleading title for the issues that are usually raised under
that label. No one seriously contends that the government should not
establish any legal rules that are consistent with, and could be seen as
enforcing, moral norms. There is, and has always been, a large overlap
between legal and moral standards. If one were to disallow the legal
enforcement of moral standards, most of what passes for criminal law
(prohibiting murder, robbery, rape, etc.), tort law (requiring compensation
for negligendy or intentionally inflicted harms), contract law (enforcing
promises), and much of the rest of the legal system, would thereby be con¬
sidered improper. Those who are concerned about whether and how the
law enforces morality are not considering such a wholesale overhaul of
the legal system.
In the reference to “the legal enforcement of morality”, a certain
subset of moral standards is usually indicated, though there is no consen¬
sus for the dividing line advocates would draw between moral standards
the law should enforce and those that the law should not enforce.
DIVIDING LINES
The dividing line most often mentioned in discussions of what moral stan¬
dards the law should and should not enforce is that proposed by John Stuart
Mill (1806-1873) in the pamphlet, “On Liberty”: “The only purpose for
which power can rightfully be exercised over any member of a civilised
community against his will is to prevent harm to others.”1 The supporting
arguments for this assertion are partly based on assertions about govern¬
ment (what it is well-placed to do and what it is poorly placed to do; or argu¬
ments about the limits that should be placed on its powers), and partly
based on assertions about individuals within society (the central place of
1 John Stuart Mill, “On Liberty”, Chap. 1, in On Liberty and Utilitarianism (Bantam, New
York, 1993), p. 12 (“On Liberty” was originally published in 1859).
146 LEGAL ENFORCEMENT OF MORALITY
liberty and autonomy in our lives; and the likelihood that society will be
better off if a great variety of values and approaches to life are tolerated).2
The last point may be the one for which Mill is best known. Mill sup¬
ported “ethical confrontation”,3 the idea that moral progress is more
likely to occur when alternative views about morality, politics and how
one should live are subject to open discussion, both in the literal sense and
in the sense that ways of living based on these alternative values are tol¬
erated and thereby remain open to public view.
The line drawn between actions that harm others and those that do not
has strong intuitive appeal to many: “if my actions do not harm anyone
else, then they are no one else’s business, especially not the State’s.”
However, in societies where insurance is pervasive (and in some circum¬
stances required by law), where governments may either run the health
service or provide health care of last resort, and where the government
may provide social services to those left destitute, there may no longer be
many actions which are purely self-regarding. For example, if my reckless
behaviour leaves me severely injured, the state may end up paying for my
medical bills or supporting my children. My action which on the surface
seemed only self-regarding, had effects on those around me, and repercus¬
sions to a wider group through increased taxes and insurance premiums.
Such facts, which of course vary from country to country, undermine
some of the persuasive power of Mill’s dividing line, but the line retains
much of its substantial intuitive appeal.4
TOPICS
Discussions under the tide “the legal enforcement of morality” often

focus on matters relating to sexuality—e.g. homosexuality,5 pornography,6
surrogate motherhood,7 and sado-masochism8—reflecting the high level
2 The arguments are well elaborated in Mill, “On Liberty”, and in H.LA. Hart, Law,
Liberty and Morality (Oxford University Press, Oxford, 1963).
3 Here I am borrowing a term, and some analysis, from Waldron, Liberal Rights,
pp. 120-121.
+ For an interesting overview of the application of Mill’s “Harm Principle” to tort law and
government regulation, and some suggestions for how the principle should be limited,
see Richard A. Epstein, “The Harm Principle—and How it Grew”, 45 University of
Toronto Law Journal 369 (1995).
5 See, e.g. Bowers v. Hardwick, 47 8 U. S. 186 (1986) (upholding the constitutionality of a crim¬
inal law on sodomy as applied to private homosexual conduct).
6 See, e.g. American Booksellers Assoc. Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affirmed
mem., 475 U.S. 1001 (1986) (invalidating as unconstitutional a feminist anti-pornogra¬
phy ordinance).
7 See, e.g Re Baby M., 537 A.2d 1227 (N.J. 1988) (finding a surrogacy contract invalid).
11 See, e.g R. v. Brown [1994] 1 A.C. 212 (upholding the application of criminal assault stat¬
utes to private, consensual sado-masochistic activity).
HART V. DEVLIN 147
of interest and attention that such issues naturally attract. However, one
should note that there are a number of issues in this area that are not con¬
nected with sexuality: e.g. requiring the wearing of helmets while riding a
motorcycle or bicycle and the wearing of seat belts while driving or riding
in a car; laws prohibiting suicide and assisted suicide; banning the use and
sale of certain kinds of drugs (distinguishing the dangers the substances
cause only to the user as against the dangers the user might cause others
while “under the influence”); and other activities that are dangerous but
attractive to some (for example, cliff diving). One should also consider the
regulation of food, drugs, machinery, etc. Under a Millian approach, con¬
sumers should be given the facts they need to make an informed choice
about use or consumption, but there would be no restraint on the produc¬
tion or consumption of dangerous items. Finally, there are also questions
which seem to fall under the question, “the legal enforcement of moral¬
ity”, but which seem unconnected to Mill’s proposed demarcation of self-
regarding action. For example, should the state create and enforce a legal
duty of one citizen to rescue another from danger, when that rescue
cannot be accomplished without endangering the rescuer?9
As a number of the above examples might indicate, there is much room
for argument, even if one accepts Mill’s dividing line of “harm to others”.
For example, does this harm include “offence to others” (as religious
believers would be deeply offended by blasphemous actions or state¬
ments, were such actions or statements to be publicized)—and should we
distinguish between the offence one feels when confronted by the activity
or comment and offence one might feel by the mere knowledge of what
other people are doing in private. H.L.A. Hart, for example, while
arguing for a position close to that of Mill, allowed for legal regulation to
protect “public decency”.10 However, he refused to go further, to add pro¬
tections against offence based on what others do in private. He wrote: “a
right to be protected from the distress which is inseparable from the bare
knowledge that others are acting in ways you think wrong, cannot be
acknowledged by anyone who recognises individual liberty as a value.”* 11
HART V. DEVLIN
In many places, the discussion of the legal enforcement of morality is too

strongly influenced by the exchange between H.L.A. Hart and Lord
Patrick Devlin in the 1960s.12 The exchange was unhelpful in some ways
9 See, e.g. Ernest J. Weinrib, “The Case for a Duty to Rescue”, 90 Yale Law Journal 247 (1980).
10 Hart, Law, Liberty, and Morality, pp. 38-48.
11 ibid, at p. 46.
12 Patrick Devlin, The Enforcement of Morals (Oxford University Press, Oxford, 1965); Hart,
Law, Liberty, and Morality.
in that it centred on Lord Devlin’s somewhat idiosyncratic position (and

his less than optimal arguments in its defence).
Before one can understand Lord Devlin’s position, and why it is par¬
ticularly weak, one must first understand the distinction between “criti¬
cal” and “conventional” morality (the same distinction is sometimes
offered using different terminology13; the terminology is obviously not
important as long as the distinction is clearly understood and applied). A
statement of critical morality is an attempt to state what is morally true,
while a statement of conventional morality is an attempt to capture what
most people believe to be morally true.
This is a type of distinction that one finds in areas other than moral¬
ity: one could say, for example, that while the conventional belief is that
Charles Dickens is the greatest English novelist of all time, the better view
is that Jane Austen deserves that honour. On one side are statements
about reality, about the way things really are; on the other side are state¬
ments about people’s beliefs.14 To determine the truth in critical moral¬
ity, one might think long and hard about the arguments on either side of
the debate; to determine the truth in conventional morality, one would be
better advised to conduct an opinion poll.
This is not to say that there can be no connection between conventional
and critical morality. For example, someone might believe that there is no
such thing as (objective) moral truth; all there is are people’s biases and
preferences. This person might (but need not) add: the proper way to act
is however most people think it is proper to act. For someone with this
(extreme) view, it could be said that conventional morality and critical
morality merge.
Most of Lord Devlin’s writings on the legal enforcement of morality
support the reading that he believes that law should enforce conventional
morality (I hedge here, because Lord Devlin was not always as careful as
he might have been to make sure that his arguments were always consis¬
tent). The argument seems to be as follows: society is held together by its
shared morality; actions which undermine the shared morality under¬
mine society; so society is justified in protecting itself through using the
law to enforce society’s conventional morality.15
13 Hart refers to the same distinction under die terms “positive” and “critical” morality. See
Hart, Law, Liberty, and Morality, pp. 17-24.
14 Another way to consider the contrast is as follows: it makes perfect sense to say “most people
in this society believe X (‘that Dickens is the greatest novelist’, ‘that capital punishment is
morally acceptable’, or the like), but I do not believe it”, while it is nonsensical to say “it is
true (as a matter of critical morality) that adultery is wrong, but I do not believe it”.
15 Devlin, The Enforcement of Morality, pp. 9-10. Devlin’s views on these matters are related
to ideas first put forward by the social theorist Emile Durkheim. For a discussion of
Durkheim’s views and their relation to the Hart-Devlin debate, see W. John Thomas,
“Social Solidarity and the Enforcement of Morality Revisited: Some Thoughts on
H.L.A. Hart’s Critique of Durkheim”, 32 American Criminal Law Review 49 (1994).
HART V. DEVLIN 149
The problem is that beliefs about moral matters change. At any given
time in a community, there may be a consensus on some moral questions,
while on other questions there will be sharp divisions. Over time, an issue
may go from being a matter of consensus to being a matter of controversy,
and given enough time, an issue for which there was a consensus one way
may eventually be a matter of consensus the other way (examples of this
last phenomenon may include the issues of slavery and religious toleration).
How can we know that our laws are enforcing society’s moral consen¬
sus rather than just protecting the last generation’s prejudices against a
consensus forming around another position? Devlin recognized change
in conventional moral beliefs only in terms of greater or lesser “toler¬
ance” on certain issues.16 However, when we are respectful of religious
minorities, we do not see ourselves as being “tolerant” regarding devia¬
tions from the old rules of persecuting such minorities; we see ourselves
as following a new rule that such respect is correct. A similar analysis
could be offered about Devlin’s own example of homosexuality. Many of
those who believe that homosexual acts should not be criminalized do not
see themselves as being “lax” about the immorality of homosexuality;
they simply do not think it is immoral at all.17
The assumption that changes in conventional moral thinking are only
changes in our “laxness” about moral matters or in our “tolerance” of
deviation, indicates the extent to which Lord Devlin confused or
conflated conventional and critical morality. He assumed that there was
some true moral thinking to which we would always return. At the least,
this is just bad moral history and moral sociology. One would not have
spoken of the American and English societies of the nineteenth century
as having become more lax or tolerant regarding not returning slaves to
their masters. The fact is that conventional moral opinion changes, and
it can, over time, change radically (and sometimes for the better).
There would be many questions one would have to face if one were
serious about wanting to enforce conventional, as opposed to critical,
morality. The first would be: why was one doing so? Lord Devlin stated
that a society is held together by its morality, and argued from this that
16 Devlin, The Enforcement of Morality, p. 18.

17 This type of question arises in the philosophy of language under the rubric of “rule-fol¬
lowing”: how do we know that someone is deviating from a particular rule, rather than
conforming to a different rule? See Saul Kripke, Wittgenstein: On Rules and Private Language
(Harvard University Press, Cambridge, Mass., 1982). Similar questions arise in moral
philosophy and in law. For example, a standard type of legal question is, when an insu¬
rance policy covers a variety of medical procedures but does not cover pregnancy, is that
policy failing to follow (perhaps in a discriminatory way) a general rule (“all medical pro¬
cedures are covered”), or is it (legitimately) following a different rule which excludes preg¬
nancy from the class of procedures covered? See Geduldig a Aiello, 417 U.S. 484 (1974)
(the exclusion of pregnancy from an otherwise comprehensive list of disabilities covered
by state disability insurance did not violate constitutional guarantees of equal protection).
society had an interest in preventing anything that would “undermine”

the shared morality, for that would undermine society. Lord Devlin is here
creating an argument from a metaphor. One could just as easily (and I
would argue more accurately) say that anything which changed the shared
morality would thereby change society. More to the point, matters tend
also to work in the other direction: it is the society which shapes the (con¬
ventional) morality, and when society changes the (conventional) moral¬
ity changes with it.
As indicated earlier, if conventional morality of the moment is what
matters, there is no reason to enforce the last generation’s conventional
morality at the cost of this generation’s. What complicates matters further
is that on many (if not most) moral matters, there is no consensus at all.
A NEW START
For all the reasons given above, Lord Devlin’s position is probably not the
most formidable opponent for someone advocating a Mill-like libertarian
approach to the question of the legal enforcement of morality. More
significant arguments have been presented for a position that some have
labeled “perfectionism”, which entails the view that the government has
legitimate interest in promoting certain views as to what the good life is.
(Most of the modern theorists who support legislative enforcement of
public morality have at the same time rejected the arguments and posi¬
tions Devlin offered.18)
Writing in response to Mill, James Fitzjames Stephen argued in favour
of legislation whose purpose was “to establish, to maintain, and to give
power to that which the legislator regards as a good moral system or stan¬
dard.” After further argument, he offered the conclusion that “the object
of promoting virtue and preventing vice must be admitted to be both a
good one and one sufficiendy intelligible for legislative purposes.”19 As
against the argument that government was not well placed to reach final
conclusions about what is morally worthy and what is not, Stephen writes:
“How can the State or the public be competent to determine any question
whatever if it is not competent to decide that gross vice is a bad thing?”20
As to liberty, Stephen had little patience with discussion in the
abstract.21 The proper question, he argued, is liberty towards what
18 eg Robert P. George, Making Men Moral (Clarendon Press, Oxford, 1993), pp. x, 71-82.
19 James Fitzjames Stephen, Liberty, Equality, Fraternity (S. Warner ed., Liberty Fund,
Indianapolis, 1993), Chap. 4, pp. 96-97 (the book was originally published in 1873).
20 ibid, at p. 84.
21 cf. Scalia, A Matter of Interpretation, p. 42: “All governments represent a balance between
individual freedom and social order, and it is not always true that every alteration of that
balance in the direction of greater individual freedom is necessarily good.”
Stephen also points out that while Mill argues in general terms that society has no
A NEW START 151
end, allowing freedom from which restraints?22 Liberty to live a worth¬

less or evil life he could not see as a matter worthy of great defence or
deference: “It is one thing however to tolerate vice so long as it is
inoffensive, and quite another to give it a legal right not only to exist,
but to assert itself in the face of the world as an ‘experiment in living’
as good as another, and entitled to the same protection from law.”23
For Stephen, the primary question was one of balance: could
significant good be accomplished (by criminalizing vice, and thereby,
one hopes, reducing its frequency) without being outweighed by the
costs—of compulsion, error, infringements on liberty and privacy, and
so on?24
A similar, “perfectionist” defence of legal enforcement of morality
has been more recently offered by Robert George. George’s position was
that no “norm of justice or political morality” was violated by legisla¬
tion protecting public morality, though toleration of moral wrongdoing
may sometimes be justified on prudential grounds.25 Some communi¬
tarian theorists urge greater community (individual, institutional, and
official) involvement in creating and maintaining a moral order, with
legal coercion (and the role of law in expressing values, even when the
rules in question are not enforced) a small but integral part of the
process.26
One can be a perfectionist and still support a view similar to that of
Mill. Joseph Raz has put forward27 a connected set of views grounded on
four principles:
(1) “People’s lives are successful and fulfilling to the extent that they are
spent in whole-hearted and successful engagement in valuable activ¬
ities and relationships”;
business using coercion or pressure against behaviour that does not directly harm others,
he seems to accept social pressure against immoral behaviour; it is only the restraint and
coercion of the criminal law that Mill seems to oppose. Stephen himself sees reasons for
constraint in the use of the criminal law against immoral behaviour, but, he points out,
this is ,quite different from Mill’s earlier and broader claim that society has no legitimate
interest in exerting pressure against immoral behaviour (that does not directly harm
others). See Stephen, Liberty, Equality, Fraternity, pp. 87-92.
22 Stephen, Liberty, Equality, Fraternity, pp. 115-116.
23 ibid, at p. 101. See also Joseph Raz, “Liberty and Trust”, in Natural Law, Liberalism and
Morality: Contemporary Essays (R. George ed., Clarendon Press, Oxford, 1996), p. 120 (“An
autonomous life is valuable only to the extent that it is engaged in valuable activities and
relationships.”).
24 Stephen, Liberty, Equality, Fraternity, pp. 91-92, 105-108.
25 George, Making Aden Moral, p. viii.
26 See, e.g. Amitai Etzioni, The Spirit of Community: Rights, Responsibilities, and the Communitarian
Agenda (Crown Publishers, New York, 1993), pp. 23-53.
27 See Raz, “Liberty and Trust”; see also Joseph Raz, “Autonomy, Toleration, and the
Harm Principle”, in Issues in Contemporary Legal Philosophy (R. Gavison ed., Clarendon
Press, Oxford, 1987), pp. 313-333; Joseph Raz, Ethics in the Public. Domain, pp. 3-109.
(2) for most people today,28 autonomy is an important component of

living a good life; that is, it is important that a person’s activities and
relationships be chosen by the person himself or herself;
(3) moral pluralism: that there are a variety of moral goods, and a variety
of ways of living a morally good life, but these goods and ways of life
are, either in theory or in practice, inconsistent (e.g. one cannot be both
a monk and a great general; and it is difficult to excel at ballet, chess,
and poetry all at the same time); and
(4) governments have a duty to promote the well-being of people,29

which entails, among other things, “mak[ing] sure that attractive
options are available and that meaningless and worthless options are
eliminated”.30
The conclusion of these principles, for Raz, is that government has a

place in shaping the options available to its citizens, but the importance
of autonomy, and, a different, if related value,31 the importance of liberty,
combine to limit severely the circumstances in which coercive moral
paternalism will be justified.
All of the above is to be distinguished from purely prudential argu¬
ments that the law should refrain from acting for certain kind of moral
objectives because the law is not well suited to achieve such objectives
(though these prudential arguments are taken into account, in one way or
the other, by most of the theories mentioned). For example, one could
argue that the American experiment of Prohibition, when the sale of
alcohol was prohibited, was doomed to failure because people’s'desire for
alcohol is too strong.
One can also put forward a different kind of argument about the
incompatibility of law and moral objectives. The argument is
that by the nature of things one cannot force someone to act
morally through the threat of legal sanctions. Under this view, it is
in the nature of moral action that one voluntarily make the
proper choices. Choices coerced through the fear of legal sanctions
may lead to people conforming outwardly with the choices required
by an ethical code, but will lack the crucial inner purpose or inten-
28 Raz notes that there are (traditional) communities in which a flourishing life can be had
(and perhaps can only be had) in a life in which there is little autonomy. Raz, “Liberty and
Trust”, pp. 120-121.
29 A government’s duties to its citizens may well be greater than its duties to non-citizens;
but most would argue that governments also have substantial moral duties to non-citizens
(certainly those living within the country’s borders, and probably also to inhabitants of
other countries whose well-being is affected by the actions of the government in ques¬
tion).
30 ibid, at p. 114.
31 See ibid, at pp. 115-120.
A NEW START 153
tion.32 If someone avoids illegal drugs or pornography only because

she fears being caught by the authorities, then, this view states, the
person should no more get the credit for acting morally than if she
was acting the way she was because of the orders of a gunman.
Ronald Dworkin makes a somewhat different point: even if the threat
of criminal sanctions coerced someone into giving up an immoral
lifestyle, and he or she even came to endorse and appreciate the
change, this person’s life might still not be the better: “We would not
improve someone’s life, even though he endorsed the change we
brought about, if the mechanism we used to secure the change less¬
ened his ability to consider the critical merits of the change in a
reflective way.”33 Of course, both of the above arguments relate to
the value of state coercion from the perspective of the person coerced, that is
along the lines of a paternalistic justification (the people coerced are
better off). The arguments do not touch on a justification based on
social good: that the coercion is justified, assuming it is effective,
because the society is better in some way because it has fewer people
who act in immoral ways.
Finally, there are many theorists who would support the government
acting to declare certain activities or lifestyles as immoral, doing nothing
to support those activities and lifestyles, and trying to protect children
from such paths, but who believe that it would not be appropriate for the
state to coerce adults regarding those options.34
Larry Alexander, “Harm, Offense, and Morality”, 7 Canadian Journal of Law and
Jurisprudence 199 (1994).
Patrick Devlin, The Enforcement of Morals (Oxford University Press, Oxford, 1965).
Gerald Dworkin ed., Morality, Harm and the Law (Westview Press, Boulder, Colo.,
1994).
Joel Feinberg, The Moral Limits of the Criminal Law, (Oxford University Press,
Oxford, 1984—1988), Volumes I-TV
Robert P. George, Making Men Moral (Clarendon Press, Oxford, 1993).
32 cf. John Finnis, “Liberalism and Natural Law Theory”, 45 Mercer Law Review 687 at
697-698 (1994). As Finnis points out, ibid., this position is consistent with the view that
the State, through its statements and its funding decisions, should favour virtuous choices
over immoral choices.
33 Ronald Dworkin, “Liberal Community”, 77 California Law Review 479 at 486 (1989).
34 See, e.g. John M. Finnis, “Is Natural Law Theory Compatible with Limited
Government”, in Natural Law, Liberalism and Morality: Contemporary Essays (R. George ed.,
Clarendon Press, Oxford, 1996), pp. 7-9; cf. Aquinas, Summa Theologiae, Question 96, Art.
2, corpus, in The Treatise on Law, p. 316 (human law should not attempt to prohibit all
vices, “but only the more serious ones from which it is possible for the majority to abstain
and especially those which are harmful to others and which, if not prohibited, would
make the preservation of human society impossible”).
Robert P. George ed., Natural Law, Liberalism, and Morality: Contemporary Essays
(Clarendon Press, Oxford, 1996) (including essays by John Finnis, Stephen
Macedo, Michael Sandel, and Joseph Raz).
Kent Greenawalt, “Legal Enforcement of Morality”, in A Companion to the
pp. 475-487.
H.L.A. Hart, Law, Liberty, and Morality (Oxford University Press, Oxford, 1963).
John Stuart Mill, “On Liberty”, in On Liberty and Utilitarianism (Bantam Books,
New York, 1993), pp. 1-133.
James Fitzjames Stephen, Liberty, Equality, Fraternity (Liberty Fund, Indianapolis,
1993).
Jeremy Waldron, Liberal Rights (Cambridge University Press, Cambridge, 1993),
Chapters 1-8.
Chapter Sixteen
The Obligation to Obey the Law
The topic of the moral content of law has come up in a number of ways
in earlier discussions in this book. Among the individual theorists: the
natural law theorists, like John Finnis, whose analyses of law are tied
direcdy to when and whether the law “binds in conscience” (Chapter 5);
H.L.A. Hart defining and defending legal positivism on the basis that the
description of law must be separated from its evaluation (Chapter 3);
Lon Fuller writing of the “internal morality” of law (Chapter 6); and
Ronald Dworkin’s assertion that moral evaluation is integral to any
proper description (“interpretation”) of the law (Chapter 7). One can
also find it in other topics: e.g. the question discussed in the previous
chapter, of what relationship law should have to morality, in terms of
which parts of morality should or should not be enforced through the
legal system.
The current topic is the other side of the question. Instead of, “from
the perspective of law, what is the place of morality?”, this chapter will
consider, “from the perspective of morality, what is the place of law?” In
simpler terms, the question is whether there is a moral obligation to obey
the law—a moral obligation that attaches to a rule simply because of its
legal validity, its membership within a legal system. With exceptions, most
of the writers who discuss a moral obligation to obey the law are consid¬
ering a quite modest claim:
(1) not that one must obey laws however unjust the legal system—the
question usually assumes a generally just legal system; and
(2) not that one must obey the law whatever the circumstances—the obli¬
gation is at most a presumptive or “prima facie” obligation, which can
be overridden if a stronger moral obligation requires a contrary
action.1
1 Just as one is justified in violating the moral obligation to keep a promise to meet a friend
for lunch in order to keep a stronger moral obligation to tend to a sick parent, so one
would be morally justified in violating a law if some more important matter is involved
(e.g. violating the speed limit to get a seriously ill friend to the hospital).
156 THE OBLIGATION TO OBEY THE LAW
One way to approach the problem of the obligation to obey the law is
to consider what you would do, if you were driving at 3 a.m., and came
upon a stop light at an intersection, and you could see that there were no
pedestrians and no cars (in particular, no police cars) in sight. Would you
stop?
Many people obey the law for prudential reasons: they fear imprison¬
ment or a fine, or they worry that being caught doing something illegal
would harm their reputations or their careers. Some people would stop
at the stop light at 3 a.m. just out of habit: it is easier for them simply to
obey the law unreflectively, rather than to take the trouble on each occa¬
sion to calculate all the moral or prudential factors. Such concerns are not
what the debate on the obligation to obey the law is all about. The ques¬
tion is whether the legal status of a command, authorization or prohibi¬
tion, by itself, without more, adds any moral reasons for doing or not doing
the action indicated.
Various types of arguments have been offered to try to justify the con¬
clusion that there is an obligation to obey the law: arguments based on
consent, gratitude, reciprocity, and consequences. These different con¬
cepts will be explained in greater detail presendy. For the moment, it is
worth noting that for all of these arguments, the type of situation like the
one described above, coming to an intersection at 3 a.m., will always be
the one that gives the most trouble. In this type of situation, disobedience
does not seem to risk harming anyone or anything, and the disobedience
looks like it would go undetected. This last point is important not only
because sanctions for the violator will be avoided, but also because there
would not be an argument that our disobedience sets a bad example, and
would undermine other people’s respect for the legal system.2 3 *
OBLIGATION AND CONSENT
One of the standard arguments for the obligation to obey the law is based
on consent. The argument goes that by some action (or inaction), we have
implicitly consented to obeying society’s law. This action may be voting,
accepting government benefits, or simply not leaving the country.5 The
first response is usually that it is not proper to understand these activities
as constituting consent to the laws or to the state, either because the citi¬
zens do not perceive the action in that way, or because the citizens often
do not have effective alternatives.
2 As discussed in Chap. 5, some natural law theorists have argued that there is sometimes
a moral obligation to act in compliance even with an unjust law if disobedience would
undermine a generally just legal system.
3 This last figures both in Plato’s “Crito” and in Locke’s discussion of implied consent to
the government’s authority.
OTHER APPROACHES 157
Another interesting response is that even if the action in question could

be held to constitute consent, that does not end the question over whether
the citizen acting in this way then has an obligation to obey the society’s
laws. One must remember that the argument here has two steps, and that
both steps must be proven for the argument to succeed. The two steps are:
(1) a certain action (say, voting) constitutes “consent” to obeying the
society’s laws; and (2) anyone who consents in this way is morally obli¬
gated to obey the law. The second need not follow from the first.
The reason the second conclusion may fail to follow from the first is
that, as a moral matter, acts of consent may have limited force. If I agree
to paint your fence for $100, most people would conclude that my
promise is a consent to undertake the obligation to paint the fence (for the
payment named), an obligation I would not have except for my promise.
However, the moral evaluation of the situation might change if what I
agreed to was to paint your entire house for one dollar, or to kill your
father, or to do anything you told me to do over the next month. The mere
promise, even taking into consideration the (nominal) exchange payment,
is not sufficient to maintain the large moral claim.
For this particular context, the claim is that the putative act of consent,
voting or not leaving or whatever, is not sufficient to justify creating the
broad obligation to obey whatever the government might enact from that day
onward. As a moral matter, we might conclude that this is too much to
place on a single promise, especially here where the “promise” is an action
which has other purposes and meanings.
Arguing over what should be called “consent” too often masks the real
moral questions: how do we create moral obligations for ourselves, and
what are the limits of those obligations?
OTHER APPROACHES
A second approach for grounding a general moral obligation to obey the

law is con.secjuentiajjst: there is a general moral obligation to obey,
because oTthe bad consequences to society if people did not have such
an obligation. Thomas Hobbes presents the extreme version of this per¬
spective: that the law is to be obeyed, even when it is unjust, because the
alternative is the chaos of the state of nature, the war of all against all.4
A more subde consequentialist argument comes from A.M. Honore.5
4 See, e.g. Thomas Hobbes, Leviathan (R. Tuck ed., Cambridge University Press,
Cambridge, 1996), Chap. 20, pp. 144-145 (first published in 1651): “And though of so
unlimited a [Sovereign] Power, men may fancy many evill consequences, yet the conse¬
quences of the want of it, which is the perpetuall warre of every man against his neigh¬
bour, are much worse.”
5 A.M. Honore, Making Law Bind (Clarendon Press, Oxford, 1987), pp. 115-138.
He begins his discussion of the obligation to obey the law by trying to

refute those who claim that not only is there no such obligation, but that
we should not be much worried by this fact. Honore states that the most
difficult moral questions, like the most difficult legal questions, are so
closely contested that they are likely to turn on where the burden of proof
lies. Regarding the obligation to obey the law, if the initial presumption
is that the law should be obeyed, then more often than not, the final
moral judgment will be for obedience. However, if, following those theo¬
rists who claim that there is no obligation, the initial presumption is
that the law need not be obeyed, then, Honore argues, people will tend
more often to disregard the law, leading to an “attitude of disobedience’
and the breakdown of the order and cooperation needed for society to
function.
A third argument sometimes offered is one of benefit or gratitude: it is
immoral for those who have received substantial benefits from the state
(police protection, free education, social benefits of some kind, and so on)
not to respond with the small obligation that governments ask in return:
obedience to the law. The analogy is often made with the duty of grati¬
tude children owe their parents.6 *
A fourth type of argument grounds the obligation on a straightforward
assertion of “a duty ... to support and to further just institutions.”' In a
way, this is simply the modern echo of the traditional natural law posi¬
tion: “Positive human laws are either just or unjust. If they are unjust,
they have the power of binding in conscience, a power which comes from
the Eternal Law from which they are derived”.8
A fifth approach, a fairness or reciprocity argument for an obli¬
gation to obey the law, differs in a basic way from other approaches
in that it speaks less of a duty owed to the state (based on consent or
gratitude) or owed abstracdy (as one might conceive the duty to
avoid bad consequences), and more of a duty to one’s fellow citizens.
H.L.A. Hart wrote: “when a number of persons conduct any joint
enterprise according to rules and thus restrict their liberty, those who
have submitted to these restrictions when required have a right to a
similar submission from those who have benefitted by their submis¬
sion.”9
6 An argument from gratitude, and an analogy to children’s gratitude to parents, is offered

in Plato, “Crito”, 50d-51 d, in Plato: The Collected Dialogues, pp. 35-36.
' Rawls, A Theory of Justice, p. 334.
9 See H.L.A. Hart, “Are There Any Natural Rights?”, 64 Philosophical Review 175 at 185
(1955). For a similar argument elaborated at greater length, see John Rawls, “Legal
Obligation and the Duty of Fair Play”, in Law and Philosophy (S. Hook ed., New York
University Press, New York, 1964), pp. 3-18.
THE ARGUMENT AGAINST A GENERAL MORAL OBLIGATION TO OBEY 159
THE ARGUMENT AGAINST A GENERAL MORAL OBLIGATION TO OBEY
In the course of the Hart-Fuller debate (discussed in Chapters 3 and 6),

Fuller challenged the legal positivists on the following terms: if the valid¬
ity of a law is one thing, and its moral value something entirely separate,
then how can the legal positivists speak of there being a “moral dilemma”
about whether to obey a morally dubious law?10 If law is just a label for
something which may or may not be morally worthy, then there is no
reason to believe that just because something is required or prohibited by
law, that by itself is a moral reason for doing or not doing that action.
Fuller may have thought of his challenge as a knockdown argument,
but a number of recent commentators, including some prominent legal
positivists, have accepted, without shame or apology, that the legal status
of a norm may give it no intrinsic moral weight.* 11 These theorists do not
argue that we should never obey the law, or even that there are never moral
reasons for doing what the law tells us to, only that the moral reasons must
go beyond the simple declaration, “because the law says so”.
For Joseph Raz, we have a moral reason to do as the law states, if and
when we believe that we are more likely to make the morally best choice
by following the law than by making our own judgment of the situation.
For example, if the question is whether to use a particular detergent or
not, with the issue being that it might damage the environment, we might
defer to the legislature’s judgment, on the basis that they have acted to
allow or prohibit the detergent only after hearing scientific testimony to
which we do not have access.
For another kind of example, consider pure problems of co-ordination.
These are problems where it does not matter much what is chosen, as long
as everyone chooses the same way. A standard example is which side of
the road cars drive on. For such choices, there are reasons for acting as
the law states, for the government is sufficiently prominent to make such
choices and expect them to be followed by other citizens.
There are also co-ordination situations where some choices might be
better than others, but there is great value to everyone choosing the same
way, even if it is not the optimal choice. An example might be fighting
water pollution. As a pollution expert, you might know that the clean-up
program the government has chosen is not the best plan, but you also
know that the government’s plan, enacted in legislation with sanctions for
deviation, is the one most likely to be followed by most people, and that
everyone cooperating in that scheme is more likely to achieve results than
10 Fuller, “Positivism and Fidelity to Law”, p. 656: “It is like saying I have to choose between
giving food to a starving man and being mimsy with the borogoves.”
11 See, c.g Joseph Raz, “The Obligation to Obey: Revision and Tradition”, 1 Journal of Law,
Ethics & Public Policy 139 (1984); Raz, The Morality of Freedom, pp. 70-105; M.B.E. Smith,
“Is There a Prima Facie Obligation to Obey the Law?”, 82 Tale Law Journal 950 (1973).
if different persons went off trying to effect different schemes. Under such
a situation, you might have good reason to follow the government’s plan,
even when you know it is not the best.
Of course, the most common situation when one has a moral obliga¬
tion to act as the law requires is when the action is the moral thing to do
whatever the law might say. For most of us, we do not rob or murder
because it would be wrong, not because the law tells us not to. However,
in such situations, the fact that the law prohibits the action appears to add
nothing to the moral calculation that the action ought not be done.
The skeptics respond to the arguments offered to support an obligation
to obey (summarized above), by saying that such arguments are
insufficient to ground an obligation, or at least insufficient to ground a
general obligation. If ignoring the stop light at 3 a.m. causes no harm and
does not create a bad example, it is hard to see how the action would
undermine a just institution or a joint enterprise. It is far from clear why
any consent we have given, or any duty of fair play or gratitude we might
have should extend to all the government’s laws, however trivial, or
however harmless the disobedience.12
The types of arguments one comes across (in the literature as well as
in classroom discussions) on the topic of the obligation to obey the law
often reflect a constant changing of perspectives and questions. To argu¬
ments like Raz’s, the objection goes: “how can you know that you have a
better idea of what is morally right than the legislature has?”, or “if every¬
one made their own choices about how to act, rather than deferring to
the legislature, there would be anarchy.”13 There often is a certain
“we”/’’them” attitude when discussing the obligation to obey the law,
with the unstated assumption being that “we” are looking for the correct
attitude for “them” to have. It is probably better if the discussion remains
on the level of “our” deciding how “we” ought to act (or how “we” ought
to go about deciding how “we” ought to act). This is not to say that we
should ignore the way self-interest will likely bias people’s evaluation of
their moral obligations, including our own biases; however, this is only
one factor among many in our evaluations, and we should not always err
on the side of submission to authority.14
In any event, one should not confuse:
(1) the ethical question, what should I do in this situation?
(2) the meta-ethical question, how do I determine what is the morally

correct thing for me to do? and
12 See Smith, “Is There a Prima Facie Obligation to Obey the Law”, at 953-964.
13 This view is present, to some extent, in Honore’s approach, discussed above. For a sophis¬
ticated argument that seems to verge on that sort of argument without ever quite suc¬
cumbing to it, see John M. Finnis, “Law as Co-ordination”, 2 Ratio Juris 97 (1989).
14 See Raz, “The Obligation to Obey”, p. 151.
CONNECTIONS 161
(3) the political consideration: from a particular perspective, what is the

set of beliefs and attitudes we want or need the public to hold?
This chapter deals only with the first two questions.
CONNECTIONS
While the obligation to obey the law is often treated as a separate topic
(as it is in this text), in many ways the issue is ill-suited for such treatment.
From any discussion of the questions raised by the issue, it becomes clear
that one’s answer to whether there is an obligation to obey the law will
depend on one’s conclusions regarding a series of more basic questions:
both basic questions of moral theory (e.g. what can/does ground our
moral duties: benefit? consent? co-operation? consequences? necessity
and interdependence?); and basic questions of legal theory (how do we
determine the existence or validity of a law or legal system?).
For example, if one’s starting point is a traditional form of natural law
theory, one’s conclusion about whether something is “law” (or “law in its
fullest sense”) will already incorporate much of the answer about whether
or to what extent one has an obligation to obey the law (one has such an
obligation for just laws, “laws in their fullest sense”; for unjust laws, there
may still be a minimal obligation of public compliance so as not to under¬
mine a generally just legal system).15 Legal positivism offers no compar¬
able guidance. Its motto that the validity of law is one thing, its merit
another, indicates that legal positivists will have to find answers elsewhere,
in whatever moral theory they bring to their deliberations.
John Finnis, “The Authority of Law in the Predicament of Contemporary Social

Theory”, 1 Notre Dame Journal of Law and Public Policy 115 (1984).
—,“Law as Co-ordination”, 2 Ratio Juris 97 (1989).
A.M. Honore, Making Law Bind (Clarendon Press, Oxford, 1987), pp. 115-138.
Joseph Raz, The Authority of the Law (1979), pp. 233-289.
M.B.E. Smith, “Is There a Prima Facie Obligation to Obey the Law?”, 82 Tale
—,‘The Duty to Obey the Law”, in A Companion to the Philosophy of Law and Legal
Theory (D. Patterson, Blackwell, Oxford, 1996), pp. 465-474.
15 This is a position of the natural law theorists Thomas Aquinas and John Finnis, as dis¬
cussed in Chap. 5.
PART D
Modern Perspectives on
Legal Theory
The last set of chapters discusses general approaches to law and legal edu¬
cation that have come to prominence in this century, with all but the first
(American legal realism) grounded primarily in the last few decades.
If one thinks of theory as being divided between the “pure philosophy”
tendency to ask questions simply to learn (“philosophy” is a Greek word
meaning “love of knowledge” or “love of wisdom ), and the belief that
inquiry should always be focused on the ethical question of how we
should live our lives, the approaches outlined in most of these chapters
can be seen as pulling jurisprudence toward the latter attitude. These
approaches are concerned primarily with doing justice rather than being
concerned primarily with true understanding. The pull is not entirely in
one direction only, as those who point to economics or literature, or to
racism or sexism, as being the key to understanding the legal system, are
also trying to make a point about the nature of things, as well as about
how things could be made better.
Chapter Seventeen
American Legal Realism
“Legal realism” is the label that was given to a group of American legal
theorists in the 1920s, 1930s, and 1940s, who challenged the ideas about
legal reasoning and adjudication dominant injudicial and legal academic
writing at the time. Their influence on legal thinking, particularly in the
United States, but elsewhere as well, can be summarized by the fact that
the phrase, “we are all realists now” has become a kind of legal-academic
cliche.1
Among those writers who described themselves (or who were described
by others) as “realists”, there was little by way of agreed views, values,
subject-matter, or methodology. It has become commonplace to note that
the differences among those writers were sufficiently significant that it
approaches distortion even to refer to “the legal realists”, as though it
were a coherent movement (one commentator writing recently went so
far as to refer to legal realism as a “feel” or “mood”2 3). With those disclaim¬
ers noted, the chapter will try to note the general outline of American
legal realism.
Many of the themes (and much of the tone) of the legal realists can be
found in the work of Oliver Wendell Holmes (1841-1935) who (by most
ways of delimiting the realist movement) wrote most of his influential
work at an earlier period.1 In The Common Law, published in 1881, Holmes
wrote:
1 See, e.g. Twining, Karl Llewellyn and the Realist Movement, p. 382.
2 Duxbury, Patterns of American Jurisprudence , pp. 68-69.
3 Roscoe Pound was another important precursor for American legal realism. See, eg.
Roscoe Pound, “The Scope and Purpose of Sociological Jurisprudence” (Part I), 24
Harvard Law Review 591 (1911); (Part II) 25 Harvard Law Review 140 (1912). The compli¬
cation with Pound is that his later work was sometimes critical of legal realism, and was
itself the subject of legal realist critiques. See Roscoe Pound, “The Call for a Realist
Jurisprudence”, 44 Harvard Law Review 697 (1931); Karl N. Llewellyn, Some Realism
about Realism—Responding to Dean Pound”, 44 Harvard Law Review 1222 (1931).
American legal realism may also be traceable, at least in part, to Rudolf von Jhering,
and other German theorists of the late 19th century. See James E. Herget and Stephen
Wallace, “The German Free Law Movement as the Source of American Legal Realism”,
73 Virginia Law Review 399 (1987).
166 AMERICAN LEGAL REALISM
“The life of the law has not been logic: it has been experience. The felt necessities
of the time, the prevalent moral and political theories, intuitions of public policy,
avowed or unconscious, even the prejudices which judges share with their fellow-
men, have had a good deal more to do than the syllogism in determining the rules
by which men should be governed.”4
In these few sentences one can find (or at least read in) most of the themes
for which the American legal realist movement would be remembered.
The “realism” in “legal realism” is the use of that term in its colloquial
meaning: “being realistic” as being worldly, perhaps somewhat cynical,
looking beyond ideals and appearances for what is “really going on”. This
realism was made vivid in another image of Holmes’: that we should cut
through all the false moralistic language of the lawyers, judges, and legal
commentators, by taking on the perspective of “the bad man”, who wants
to know only what the courts are “likely to do in fact”.5 The “bad man”
is the client who wants to know which actions will land him in jail or cost
him a fine, and which will not; everything else is superfluous and besides
the point.6
In overview: first, the main focus of this “realism” was on judicial deci¬
sion-making: that a proper understanding of judicial decision-making
would show that it was fact-centred; that judges’ decisions were often
based (consciously or unconsciously) on personal or political biases and
constructed from hunches; and that public policy and social sciences
should play a larger role.7 Secondly, feeding into this central focus on
adjudication was a critique of legal reasoning: that beneath a veneer of
scientific and deductive reasoning, legal rules and concepts were in fact
often indeterminate and rarely as neutral as they were presented as being.
It was the indeterminacy of legal concepts and legal reasoning that led to
the need to explain judicial decisions in other terms (hunches and biases)
and the opportunity to encourage a different focus for advocacy and judi¬
cial reasoning: social sciences and “public policy”. (These two themes are
clearly interconnected, so there is a certain arbitrariness in where one
starts in the discussion, and even in where one places various sub-issues
for example, the emphasis on the social sciences could be as easily dis-
4 Holmes, The Common Law, p. 5.

5 See Holmes, “The Path of the Law”, at 460-461.
6 ibid, at 459-462.
7 Again here Holmes is an important early influence. See, e.g. Oliver Wendell Holmes,
“Privilege, Malice, and Intent”, 8 Harvard Law Review 1 (1894), where Holmes argued that
decisions regarding privilege, which are often presented as having been the result of
logical deductions from general premises, are in fact based on conscious or unconscious
decisions of policy, which should be discussed more openly. Holmes stated:
“Perhaps one of the reasons why judges do not like to discuss questions of policy
is that the moment you leave the path of merely logical deduction you lose die illusion
of certainty which makes legal reasoning seem like mathematics. But the certainty is
only an illusion, nevertheless.” ibid, at 7.
THE target: formalism 167
cussed under either of the two themes.) This chapter will discuss those
two themes at greater length, after first summarizing legal formalism—
for arguing against a formalism approach to law may be the only thing
that all the legal realists had in common.
THE target: formalism
The form of legal analysis dominant at the time the realists were writing
was criticized as “formalistic”, by which it was meant that the argument
was presented as if the conclusion followed simply and inexorably from
undeniable premises. Once the proper label was found for an object or
action (“contract”, “property”, “trespass”, and so on), the legal conclu¬
sion soon followed.3 * * * * 8 The notion that most judicial decisions should or
could be deduced from general concepts or general rules, with no atten¬
tion to real-world conditions or consequences, critics labeled “mechani¬
cal jurisprudence”.9 A famous example was the United States Supreme
Court’s decision in the “Sugar Trust Case”, United States v. E.C. Knight Co.10
The United States Government had challenged a monopoly in the man¬
ufacture of sugar, but the challenge was rejected on the basis that regu¬
lating manufacturing was outside the Congress’s power to regulate interstate
commerce, however obvious it might seem that a company’s controlling 98
per cent of the nation’s sugar refining capacity might have implications
for interstate commerce in that good. The case was decided on labels;
real-world consequences were treated as irrelevant to (or subversive of)
the proper legal analysis.11
An equally distinctive version of formalism was influential in American
legal education. Christopher Columbus Langdell, Dean of the Harvard
Law School and originator of the “Case Method” of teaching law,12
3 In large part because of the American legal realists’ critique, “formalism” has become
primarily a pejorative term in legal commentary. There are, however, still some who treat
the formal elements of law respectfully, or even enthusiastically. See, e.g. ErnestJ. Weinrib,
“Legal Formalism: On the Immanent Rationality of Law , 97 Yak Law Journal 949
(1988); Frederick Schauer, “Formalism”, 97 Yale Law Journal 509 (1988); Robert S.
Summers, “How Law is Formal and Why it Matters”, 82 Cornell Law Review 1165 (1997).
See also Scalia, A Matter of Interpretation, p. 25 (“Of all the criticisms leveled against tex-
tualism, the most mindless is that it is ‘formalistic. The answer to that is, of course it sfor
malisM The rule of law is about form”).
9 See Roscoe Pound, “Mechanical Jurisprudence”, 8 Columbia Law Review 605 (1908).
10 United States v. E.C. Knight Co., 156 U.S. 1 (1895).
11 ibid, at 10—18; see also Holmes, The Common Law, p. 164 ( Bruns . . . expresses a charac¬
teristic yearning of the German mind, when he demands an internal juristic necessity
drawn from the nature of possession itself, and therefore rejects empirical reasons. )
(footnote omitted).
12 In the Case Method, the subject is learned by reading a series of (appellate court) deci¬
sions in the area, analyzing closely and critically the argument offered by the courts in
their decisions.
famously advocated that law was a science, whose principles and doc¬
trines could be “discovered” in cases, much as biologists discover the prin¬
ciples of their science in their laboratories.13 Langdell’s approach could
be summarized as follows:
“To Langdell ‘science’ conjured up the ideas of order, system, simplicity, taxonomy
and original sources. The science of law involved the search for a system of general,
logically consistent principles, built up from the study of particular instances.”14
Once the general principles have been found,
“... it is then the task of scholars to work out, in an analytically rigorous manner,
the subordinate principles entailed by them. When these subordinate principles
have all been stated in propositional form and the relations of entailment among
them clarified, they will, Langdell believed, together constitute a well-ordered
system of rules that offers the best possible description of that particular branch
of law—the best answer to the question of what the law in that area h.15
Langdell tried to derive the law from basic axioms and logical deduction.
Real-world consequences and moral evaluations just did not figure. In
one discussion of whether a proper understanding of contract law
entailed the “mailbox rule”,16 Langdell’s response to the argument that
one rule “would produce not only unjust and absurd results” was: “The
true answer to this argument is, that it is irrelevant”.17
As stated earlier, if one theme runs through the work of the various
American legal realists, it is opposition to legal formalism in all its mani¬
festations.
REALISM AND LEGAL ANALYSIS
The attack on formalism could be divided into two separate criticisms:
(1) arguing against the idea that common law concepts and standards
were “neutral” or “objective”; and
13 Christopher Columbus Langdell, “Preface”, in A Selection of Cases on the Law of Contracts

(1871), p. viii, and a speech to commemorate the 250th Anniversary of the Founding of
Harvard College (1887), both quoted in Twining, Karl Llewellyn and the Realist Movement,
pp. 11-12.
14 Twining, Karl Llewellyn and the Realist Movement, p. 12 (footnote omitted). See also Dennis
Patterson, “Langdell’s Legacy”, 90 Northwestern University Law Review 901 (1995).
15 Kronman, The Lost Lawyer, p. 171.
lfa The mailbox rule states that where a postal response to an offer is invited, the acceptance
is valid upon posting. See, e.g. Adams v. Lindsell (1818) 106 Eng. Rep. 250 (K.B.V Henthorn
v. Fraser [1892] 2 Ch. 27.
17 Christopher Columbus Langdell, A Summary of the Law of Contract (2nd ed., Litde, Brown,
and Co., Boston, 1880), pp. 20-21.
REALISM AND LEGAL ANALYSIS 169
(2) arguing against the idea that general legal concepts or general legal
rules could determine the results in particular cases.
As to the first, the realists argued that the premises lawyers used were
open to question, and that labels and categories hid moral and policy
assumptions that should be discussed openly. An example of realist
analysis can be seen on the losing side of one of the most famous
American tort law cases, Palsgraf v. Long Island Railroad.18 In that case, a
railroad employee was negligent in his attempt to assist a passenger; as
a result of the negligence, the passenger dropped a package, which hap¬
pened to contain explosives. An explosion occurred, which led to the
injury of the plaintiff, a third party who was standing some distance
away. The question in the case was whether someone should be liable
for all injuries “proximately caused” by that person’s negligence. The
majority, in an opinion written by Judge (later Justice) Benjamin
Cardozo, famously decided that the plaintiff could not recover, on the
basis that the railroad employee had no duty to the plaintiff, and his
negligence created liability only to the passenger he was trying to help.
However, for the purpose of considering American legal realism, the
more interesting opinion is the dissent, written by Judge William
Andrews, which included a realist attack on the solidity of the concept
of “proximate cause”:
“What we do mean by the word ‘proximate’ is, that because of convenience,

of public policy, of a rough sense of justice, the law arbitrarily declines to trace
a series of events beyond a certain point. This is not logic. It is practical
politics.”19
As to the second idea, which Holmes famously summarized by

the comment, “General propositions do not decide concrete cases”,20
the idea is that adjudication can rarely be accurately seen as a mechan¬
ical, logical deduction from general premises. At least in difficult cases,
there remains a logical gap between the general legal proposition,
or the statute couched in general terms, and the result of particular
cases.' Holmes meant to refer to quite general legal concepts or prin¬
ciples. Holmes believed that specific legal rules would determine results
in most legal cases, leaving an open question for judicial legislation
18 248 N.Y. 339, 162 N.E. 99 (1928).

19 ibid, at 352, 162 N.E. at 103 (Andrews J., dissenting).
20 Lochner v. New York, 198 U.S. 45 at 76 (1905) (Holmes J., dissenting). Apparendy, Holmes
was willing to back up that claim, at least in informal contest: “Holmes liked to tell his
colleagues on the Supreme Court, when they were conferring about a case, that he would
admit any general principle of law they proposed, and then use it to decide the case under
discussion either way.” Louis Menand, “Bet-tabilitarianism”, The New Republic,
November 11,1996, pp. 47-56, at p. 48.
only at a penumbra where the application of the rule becomes

unclear.21
Some of the later legal realists, like Jerome Frank,22 took a more radical
position: the legal phrases and concepts alone do not get us to a decision,
and we are fooling ourselves and the public if we claim that they do. The
final conclusion regarding, for example, whether “proximate cause” exists
or not will be based on unstated premises regarding public policy (or
perhaps based on unstated biases or prejudices).
One can add a third point to the attack as well. Even when one can
determine what the law is and it is sufficient to decide the case, it may be
that the law should be changed. The American legal realists were cer¬
tainly not the first to subject the law to moral criticism. However, the real¬
ists’ attack on the scientific pretensions of “legal science”, and on the
notion that law was a self-contained moral-logical system, created an
opening for the moral criticism, for the possibility that legislative or judi¬
cial reform of the law might be morally (and legally) legitimate. We can
see Holmes in two sentences taking much of the power out of the argu¬
ment from precedent:
“It is revolting to have no better reason for a rule of law than that so it was laid
down in the time of Henry IV It is still more revolting if the grounds upon which
it was laid down have vanished long since, and the rule simply persists from blind
imitation of the past.”23
For Holmes, a strong believer in judicial restraint (in judges deferring to

legislative decisions and following precedent strictly24) this was an argu¬
ment for legislative change of old common law rules. In the hand of other
legal realists, however, the same argument was a justification lor judicial
reform of outdated rules.25
The realist view of legal reasoning also had implications for legal edu¬
cation. Given the realist analyses and criticisms given above, it is not sur¬
prising that the realists tended to be scornful of Langdell’s “science of
law”, and all aspects of legal education that seemed to follow from it. To
the extent that one can speak of “a realist view” on education, it would
primarily be one of following through on the implications of other realist
views: that legal concepts should be taught in a way which demystified
21 See Holmes, The Common Law, p. 101; Southern Pacific v. Jensen, 244 U.S. 205 at 221 (1917)
(Holmes, J., dissenting) (“I recognize without hesitation that judges do and must legislate,
but they can do so only interstitially”); Grey, “Molecular Motions: The Holmesian Judge
in Theory and Practice”, pp. 32-36.
22 See, «.£. Jerome Frank, “Are Judges Human?”, 80 University of Pennsylvania Law Review 17
(1931).
23 Holmes, “The Path of the Law”, at 469.
24 See Grey, “Molecular Motions: The Holmesian Judge in Theory and Practice”, at 26-34.
See, eg Gardozo, The Nature of the Judicial Process, pp. 98—141 (“Thejudge as a Legislator”).
REALISM AND THE COURTS 171
them; and that legal issues should be shown to be often underdetermined

by legal rules alone, with policy arguments appropriate and necessary for
resolution.26
REALISM AND THE COURTS
Judicial decision-making at the time of the realist critique was often por¬
trayed (by judges in their opinions as well as by commentators) as being a
nearly mechanical, nearly syllogistic move from basic premises to unde¬
niable conclusion. The legal realist response was to argue that judges
often have discretion, that judicial decisions were often in practice deter¬
mined by factors other than the legal rules, and to move the focus from
conceptual analysis to policy-based arguments and fact-finding. One can
get a sense of legal realism just from the tides of some of its articles e.g.
“Are Judges Human?”; “What Courts Do In Fact”; “Transcendental
Nonsense and the Functional Approach”; and “The Judgment Intuitive:
The Function of the ‘Hunch’ injudicial Decision”.27
The classical perspective of judicial decision-making was that judges
decided cases by merely discovering the appropriate legal rule, a process
that required the mere application of simple logical deduction from basic
principles. Legal realism offered a variety of counter-images of what they
thought really went on in decision-making, a number of which are
summed up in this slight-caricature of realism: “judges in fact follow their
instincts in deciding cases, making sham references to rules of law; gen¬
erally they are themselves unaware of what they are doing, and persist
foolishly in believing that they are being obedient to precedent.”28
There were (at least) two strands to realist discussion of judicial deci¬
sion-making: that decisions were strongly underdetermined by legal rules,
concepts and precedent (that is, that judges in many or most cases could
have, with equal warrant, come out more than one way); and that judges
were (and, by some accounts, should be) highly responsive to the facts,
and the way the facts were presented, in reaching their decisions.29 One
commentator has gone so far as to describe the assertion, “in deciding
26 See Duxbury, Patterns of American Jurisprudence, pp. 135-149; William Fisher; Morton
Horwitz and Thomas Reed ed., American Legal Realism (Oxford University Press, New
York, 1993), pp. 270-294.
27 Jerome Frank, “Are Judges Human?”; Jerome Frank, “What Courts Do In Fact”, Parts I
and II, 26 Illinois Law Review 645, 761 (1932); Cohen, “Transcendental Nonsense and the
Functional Approach”;Joseph Hutchesonjr., “The Judgment Intuitive: The Function of
the ‘Hunch’ injudicial Decision”, 14 Cornell Law Quarterly 274 (1929).
28 Benjamin Kaplan, “Do Intermediate Appellate Courts Have a Lawmaking Function?”,
70 Massachusetts Law Review 10 at 10 (1985).
29 On the last point, see, in particular, Jerome Frank, Courts on Trial (Princeton University
Press, Princeton, 1949).
cases, judges respond primarily to the stimulus of the facts of the case”,
as the “core claim” of American legal realism.30
It is important to note that the claim that general principles in fact do
not determine the results of particular cases and the claim that they cannot
are quite distinct.31 The first is a statement about causation in the world:
why judges decide cases the way they do. The second is a statement about
logical possibility, the nature of language, or the nature of rules: the point
being that one cannot derive in a deductive fashion the result in (some,
most, all) legal cases from general principles.
The two claims are independent; one can affirm the first without
affirming the second (and probably vice versa). Both themes were present
in the writings of the legal realists. Both themes have become embedded
in the way modern lawyers and legal academics think about law, and in
the way law is taught. If it was once subversive to think that extralegal
factors influence judicial decisions, but it now seems naive to doubt it.
And it is commonplace to assume, at least for relatively important and
difficult cases, that strong legal arguments can be found for both sides.
There are obvious ties with the first theme discussed: the indetermi¬
nacy and lack of neutrality of legal concepts, and the inability to derive
unique results in particular cases from general legal rules. If that was the
state of law in the abstract, then it comes as no surprise that judicial deci¬
sions cannot be based solely on these rules and concepts, and judges who
claim otherwise were either fooling themselves or lying.
What was to fill the conceptual gap left when one’s faith in the neutral¬
ity and determinacy of legal concepts was undermined? For many of the
realists, the answer was social science, the understanding of how people
actually behave, and the way in which legal rules reflect or affect behavi¬
our. This turn to the social sciences can be seen in a number of places,
including “The Brandeis Brief”, a brief on legal issues that bases its legal
conclusions on extensive sociological research.
The “Brandeis Brief” was named after Louis Brandeis, a legal
reformer who later sat as a Justice on the United States Supreme Court.
The term refers in particular to a brief Brandeis co-wrote defending the
constitutionality of a state statute limiting the maximum working hours
for women.32 “Containing two pages of legal argument and ninety-five
pages of sociological and economic data about the conditions of working
women’s lives in factories, the Brandeis brief, by highlighting social and
economic reality, suggested that the trouble with existing law was that it
was out of touch with that reality.”33
30 Leiter, “Legal Realism”, at 269.

31 This paragraph and the next one follow part of the argument presented in Leiter, “Legal
Realism”, at 265-269.
32 Muller v. Oregon, 208 U.S 412 (1908).
33 Horwitz, The Transformation of American Law 1870-1960, p. 209.
AN OVERVIEW AND POSTSCRIPT 173
This faith in the social sciences can also be seen indirectly through the
work many realists did in the American “New Deal”, creating adminis¬
trative agencies and regulations meant to solve various social pro¬
grammes through the law.34 The weak point of realist thinking in this area
was theVtendency towards technocracy, the belief that social scientific
expertiseby itself would be sufficient to lead to right results, missing the
point that there is always a need for a moral or political structure within
which to present (or to do) the empirical work: there could not be “neutral
experts” on how society should be organized.35
AN OVERVIEW AND POSTSCRIPT
The basic misunderstanding of American legal realism by some later

writers turned on a confusion regarding the purpose and point of the
realists’ work. For example, when the realists stated that we should see law
from the perspective of a prediction of what judges will do (“the bad
man’s” perspective36), later writers misunderstand the argument when
they saw that as a conceptual claim.37
As a conceptual claim, it would have obvious weaknesses. For example,
how can a judge on the highest court see the law as a prediction of what
the judges will do?; the highest court is the final word on what the law will
mean and there is no other court whose decisions the judges could try to
predict.38 The predictive theory is better understood as an attempt to
shake up the overly abstract and formalistic approach many judges and
legal scholars used for discussing law. To put the matter another way, the
realists wanted people in the legal profession to spend more time think¬
ing about how law appears “on the ground” or (to change the metaphor)
“at the sharp edge”: to citizens for whom the law means only a prediction
of what the trial judge will do in their case (or a prediction of how the
police will treat them on the street corner).
In various ways, American legal realism can be seen as the forerunner
of the perspectives on law to be discussed in the following chapters: law
and economics39 (Chapter 18), critical legal studies, critical race theory
34 See generally ibid, at pp. 213-246 (“Legal Realism, Bureaucratic State, and Law”). Neil
Duxbury cautions against overstating the connection between the “New Deal” and
realism in Duxbury, Patterns of American Jurisprudence, pp. 153-158.
35 See Horwitz, The Transformation of American Law 1870-1960, pp. 217-246.
36 See Holmes, “The Path of the Law”, at 460-461.
37 Compare Hart, The Concept of Law, pp. 132-137 (a conceptual reading of the view) with
Leiter, “Legal Realism”, at 262-264.
38 Richard A. Posner, The Problems of Jurisprudence (Harvard University Press, Cambridge,
Mass., 1990), p. 224.
39 One central figure in law and economics disclaims direct influence from legal realism.
Richard A. Posner, Overcoming Law (Harvard University Press, Cambridge, Mass., 1995),
and feminist legal theory (all in Chapter 19). The connection is often indi¬
rect: by undermining the confidence in the “science” of law and the
ability to deduce unique correct answers from legal principles (as well as
questioning the “neutrality” of those legal principles), the realists created
a need for a new justification of legal rules and judicial actions. Also, the
realists offered a set of arguments that could be used to support claims of
pervasive bias (against the poor, against women, or against minorities) in
the legal system, tools that would be used by later critical movements.
There were more short-term reactions to American legal realism
within American legal thought. Some people, both within and outside
academia, became uncomfortable with the skeptical, cynical and occa¬
sionally nihilistic tone of the realists. The discomfort was especially
strong during the Second World War, when commentators were trying
to emphasize the superiority of democratic governance over Fascism;
and after the war, when the same argument was being made relative to
Communism.40 If it was good versus evil, some were not always sure that
the realists were “on the right side”.41 Some writers turned to natural
law theory (discussed in Chapter 5), others sought a way to concede part
of the realists’ criticisms, while still affirming central “rule of law”
values. This path led to the legal process school, discussed briefly in
Chapter 6.42
Neil Duxbury, Patterns of American Jurisprudence (Clarendon Press, Oxford, 1995),

pp. 65-159.
William Fisher, Morton Horwitz and Thomas Reed ed., American Legal Realism
(Oxford University Press, New York, 1993) (this book contains a collection of
p. 3. However, Posner does not consider the argument (first cogendy presented by Arthur
Leff, and summarized at the beginning of the next chapter) that legal realism led indirectly
to law and economics, by undermining the more traditional approaches to law, with law
and economics then filling the resulting moral (and academic) vacuum.
40 See generally Edward A. Purcell, The Crisis of Democratic Theory: Scientific Naturalism & the
Problem of Value (University Press of Kentucky, Lexington, 1973). Purcell writes:
“[The realists’] position raised two basic questions about traditional democratic
theory. First, how could the idea of subjectivity of judicial decision be squared with
the doctrine that free men should be subject only to known and established law, one of
the hallmarks of republican as opposed to despotic government? Second, if the acts
of government officials were the only real law, on what basis could anyone evaluate or
criticize those acts? What, in other words, was the moral basis of the legal system in
particular and of democratic government in general?” ibid, at p. 94.
41 One thus comes across great article names like Ben W. Palmer, “Hobbes, Holmes, and
Hitler”, 31 American Bar Association Journal 569 (1945).
42 For a discussion of this (traditional) view of the connection between American legal
realism and legal process, see, e.g. Horwitz, The Transformation of American Law 1870-1960,
pp. 247-268. For an argument that this traditional view is, at the least, too simplistic, see
Duxbury, Patterns of American Jurisprudence, pp. 205—299.
AN OVERVIEW AND POSTSCRIPT 175
(excerpts from) many American legal realist articles, plus a thorough bibliogra¬
phy).
Jerome Frank, Law and the Modern Mind (Brentano’s, New York, 1930).
Brian Leiter, “Legal Realism” in A Companion to the Philosophy of Law and Legal
Karl Llewellyn, “Some Realism and Realism—Responding to Dean Pound”, 44
Harvard Law Review 1222 (1931).
Roscoe Pound, “The Call for a Realist Jurisprudence, 44 Harvard Law Review 697
(1931).
William Twining, Karl Llewellyn and the Realist Movement (University of Oklahoma
Press, Norman, Oklahoma, 1985).
■/
Chapter Eighteen
Economic Analysis of Law
In 1897, Justice Oliver Wendell Holmes wrote, “For the rational study of
the law the black-letter man may be the man of the present, but the man
of the future is the man of statistics and the master of economics.”1
Holmes was prescient, though it took over 70 years for this prediction to
be fully realized in legal academia.
In the United States, no approach to law in recent decades has been
more influential than the economic analysis of law (also known by the
shorthand “law and economics”). It dominates thinking about antitrust
law, tort law, and most commercial law areas. Even areas of law which
would seem uncongenial to economic analysis, like domestic relations
(family law), criminal law, and constitutional law (civil liberties), have had
significant contributions by law and economics analyses. There seem to
be no domains free from attempts to apply this approach. Its influence is
growing every year in legal academic circles in Britain and in other coun¬
tries; in the United States, the influence has already been felt in judicial
decisions (this last development being speeded by the appointment of
prominent advocates of economic analysis, including Richard Posner
and Frank Easterbrook, to positions as federal appellate court judges).
The influence of law and economics can be seen in the way that even
those highly critical of that approach use its terminology and respond to
the issues it raises. There is a sense in which law and economics now sets
the agenda, or at least offers the initial framework, for most discussions of
policy and reform in American academic, legal, and political debate. Part
of the power of economic analysis is that it presents a largely instrumen¬
tal approach, which fits well with the analysis and evaluation of law: it
forces the question, do these legal rules achieve the objectives at which
they aim, and would alternative rules do any better? However critical one
might be of the values and biases perhaps hidden within economics, one
might still benefit from focusing, at least part of the time, on questions of
1 Holmes, “The Path of the Law”, at 469. (“Black-letter law” refers to doctrinal law:
the basic rules and principles of law, which were often placed in bold black letters in law
treatises.)
178 ECONOMIC ANALYSIS OF LAW
consequences. For example, a reformer trying to fight racism might ask:

will a proposed change in the law in fact reduce discrimination, or might
there be perverse long-term effects that may work to harm the group we
are trying to protect? This is the type of question that the economic
approach to law has always been good at raising.
The first part of this chapter will attempt to understand law and eco¬
nomics by tracing its roots—both in economic analysis and in American
jurisprudence.
IN SEARCH OF CONSENSUS
One can start with a general question: on what basis can one argue for a
court to adopt one standard rather than another, if there are no statutes
or prior cases requiring a particular outcome? The novel legal issue could
be whether a certain type of activity should be governed by a fault stan¬
dard or by some form of strict liability; or whether an independent
contractor should be treated the same way as an agent or an employee;
or under what circumstances a bystander to an accident should be
allowed to recover damages for nervous shock; and so on.
The traditional approach had been that a proper understanding of
legal reasoning would allow one always to come to the correct answer
through analogical reasoning and the subsumption of specific fact situa¬
tions under general rules. However, in large part because of the criticisms
of (among others) the American legal realists, the confidence that such
neutral means could resolve every legal question, even the most novel or
most difficult ones, dissolved.2 When the judges said that they were
“deducing” the correct answer through the simple application of logic
and legal reasoning, the suspicion grew that the decision in fact turned on
political assumptions that the judges were not revealing (and may not
even have recognized).
Another basis for choosing one legal result over another is based on a
moral judgment. One could argue, for example, that a correct under¬
standing of justice requires that no one be required to pay compensation
except on the basis of fault.3 The problem is that there is no consensus in
most societies about moral matters. One would hope to find a basis for
legal argument and legal advocacy on which everyone, or nearly every¬
one, could agree.
2 See Joseph Singer, “Legal Realism Now”, 76 California Law Review 465 at 468 (1988):
“Current debates about legal reasoning are best understood as attempts to answer the
central question that the realists left unresolved: How can we engage in normative legal
argument without either reverting to the formalism of the past or reducing all claims
to the raw demands of political interest groups?”
3 Just such an argument is offered in Weinrib, The Idea of Private Law.
IN SEARCH OF CONSENSUS 179
It is in this context that the movement known as law and economics is

best understood.4 Law and economics tries to offer a basis for decision
grounded on consensus. The starting point is as follows: different people
have different desires, goals and values, but everyone would agree that
they would rather have their desires met than not met, and they would
prefer that this happen more often instead of less often.
In this way (and in a number of other ways, some of which will be dis¬
cussed later), law and economics tracks the arguments of and the
justification for the theory of moral philosophy known as utilitarianism.
Briefly, utilitarianism holds that morality requires the doing of whatever
would maximize the sum total of pleasure (while minimizing the sum
total of pain).5 The idea had been that the seeking of pleasure and the
avoiding of pain are the common and universal aspects of all human life,
and that since there was no basis to prefer your desires and pleasures to
mine or to anyone else’s, the proper basis for social choice is to choose the
action which maximizes the sum total of pleasures (minus the sum total
of pain) in society.6
Compared to other moral theories, utilitarianism has the advantage of
not requiring difficult value judgments between persons or between
value-systems. However, there are a number of problems with trying to
use utilitarianism as a workable system for social decision-making. The
most important of these problems for our purposes is the difficulty (if not
impossibility) of measuring and “summing” people’s pleasures and pain.
(There are a number of other problems with utilitarianism, problems that
have been discussed at length in moral philosophy.7)
Law and economics tries to keep the advantages of utilitarianism—
avoiding making controversial value judgments—while losing its disad¬
vantage of being unworkable for social decision-making. The transforma¬
tion occurs by taking utilitarianism’s discussion of “fulfilling desires”, and
putting it into the context of economic action. How do we determine
what people want? We look at how they act: given different ways of
4 Much of the first part of this section derives from (or at least agrees with) Arthur LefPs
discussion in “Economic Analysis of Law: Some Realism About Nominalism”, 60
Virginia Law Review 451 (1974), which remains one of the best discussions of the strengths
and weaknesses of law and economics.
5 “Utilitarianism” has been defined as “[t]he ethical theory . . . that answers all questions
of what to do, what to admire, or how to live, in terms of maximizing utility or happi¬
ness.” Simon Blackburn, The Oxford Dictionary of Philosophy (Oxford University Press,
Oxford, 1994), p. 388. (The same text defines “utility” as “[t] he basic unit of desirabil¬
ity”-)
6 I am not going to go into detail about the different variations of utilitarianism that have
developed (for example, act utilitarianism as contrasted with rule utilitarianism), or to
consider types of consequentialism which have distanced themselves from classical utili¬
tarianism.
7 See, e.g. Samuel Scheffler ed., Consequentialism and its Critics (Oxford University Press,
Oxford, 1988).
spending their time and their money, look at the choices the people ulti¬
mately make. For example, if someone chooses to work additional
(optional) hours every week, we can conclude that this person prefers the
additional pay earned to the additional leisure time she could have had if
she had not worked the additional hours. Economics (in general, not just
in its application to law) is built on the “basic assumption” that “people
are [always] rational maximizers of their satisfaction”.8
How do we determine the relative intensity of preferences? Economics
suggests: look at how much people are willing to “pay” for something—
in the broadest sense of the term “pay”, as we “pay” for objects in time
and effort and opportunities foregone, as well as more direcdy with
money. In the simple marketplace example, my purchasing a book indi¬
cates that I want it. If there is only one copy of a particular book on sale,
and I am willing to pay four times as much as you are for the book, it is
reasonable to conclude that I want the book more than you do.9
Thus, in two simple transformations, utilitarianism has been made into
a (more or less) workable approach for analysing daily behaviour. By
defining desires by actions, and by defining levels of desire by how much
someone is willing to pay, the marketplace supplies both the evidence we
need for determining how to maximize desires and the practical method
for doing so.
If I sell you a book for $20, one would assume that I prefer the $20 to
having the book, and you prefer the book to having the $20. If that were
not the case, why would both of us go through with the transaction?10
Since it is the case, the transaction has made us both better off (and society
as a whole better off, if one defines “better ofF’ as maximizing the sum of
happiness).11
The market transaction is thus the paradigm of a transaction that
increases the sum of happiness; in a different way of phrasing, one could
also say that it is the paradigm of a just transaction—in the sense that
8 Posner, The Problems of Jurisprudence, p. 353.

9 At least this conclusion is warranted if the two of us have comparable wealth; how much
the general approach is undermined by the fact that this assumption is often not true—
that wealth inequalities are pervasive, non-trivial, and not always attributable to the sub¬
jects’ prior actions—is a matter of ongoing controversy. See, e.g. Posner, The Problems of
Jurisprudence, pp. 380-381; Leff, “Economic Analysis of Law: Some Realism About
Nominalism”, at 478 479.
10 On the imperfect fit between choices, interests and consent in our fives, and the way such
facts may undermine the standard law and economics analysis, see Robin West,
“Authority, Autonomy and Choice: The Role of Consent in the Moral and Political
Visions of Franz Kafka and Richard Posner”, 99 Harvard Law Review 384 (1985); Richard
Posner, “The Ethical Significance of Free Choice: A Reply to Professor West”, 99 Harvard
Law Review 1431 (1986); Robin West, “Submission, Choice and Ethics: A Rejoinder to
Judge Posner”, 99 Harvard Law Review 1449 (1986).
11 This assumes that our transaction does not create negative effects for third parties, an
assumption which is not always warranted with market transactions.
IN SEARCH OF CONSENSUS 181
neither party to the transaction would have any right to claim that it was
unjust, given that both parties consented to it. Consent and autonomy are
thus the other side of, or the other justifications for, economic analysis.
When a transfer or other form of transaction leaves at least one person
better off and no one worse off, the situation after the transfer or transac¬
tion is referred to in economic analysis as being “Pareto superior”12 to the
situation before. Economists also speak of situations as being “Pareto
optimal” when no transfer or transaction could lead to a situation “Pareto
superior” to the one in question. (Within the possible distributions of a
certain set of goods, there may be—and usually is—more than one
“Pareto optimal” situation. Thus “Pareto optimal” differs from the
normal usage of “optimal” in that there is no implication that the situa¬
tion described is “the (uniquely) best” among all possible (comparable) sit¬
uations.)
It is in this sense that Pareto analysis is sometimes compared with anal¬
yses derived from Kantian moral philosophy. Kantian moral philosophy,
speaking in broad terms, emphasizes autonomy and consent.13 All partic¬
ipants would, by definition, consent to a transaction which left them
either better off, or as well off as before. Therefore, a moral analysis based
on autonomy and consent would approve of transactions that were
Pareto superior. All voluntary market transactions lead to Pareto-superior
states of affairs, almost by definition (at least if there are no negative con¬
sequences for third parties).14 The question is how the analysis would look
for other (e.g. non-consensual, government-ordered) types of transactions.
It should be noted that if a transaction involved one person getting
more of something, and everyone else having the same amount, those
whose possessions had not increased might object to the transaction on
the basis of equality (or its negative correlate, envy).15 Thus, in real world
terms, it is difficult to find situations where at least one person is better off
12 “Pareto superior” and “Pareto optimal” are named after the economist Vilfredo Pareto
(1848-1923).
13 In their haste to compare economic analysis with Kantian analysis, most law and eco¬
nomics theorists do not stop to note how much narrower Kant’s notion of autonomy was
than die one they usually employ. For example, Kant would not describe a choice or
action caused by one’s emotions as an autonomous action. For Kant, autonomous actions
are those based on reason. See, e.g. Kant, The Metaphysics of Morals 6:408, at p. 166:
“Since virtue is based on inner freedom it contains a positive command to a human
being, namely to bring all his capacities and inclinations under his (reason’s) control,
and so to rule over himself, which goes beyond forbidding him to let himself be gov¬
erned by his feelings and inclinadons . . for unless reason holds the reins of govern¬
ment in its own hands, his feelings and inclinations play the master over him.”
See generally John Kemp, The Philosophy of Kant (Thoemme Press, Bristol, 1993),
pp. 56-69.
14 See Richard Posner, “Utilitarianism, Economics, and Legal Theory”, 8 Journal of Legal
Studies 103 at 114(1979).
15 Lawrence Solum, “Constructing an Ideal of Public Reason”, 30 San Diego Law Review 729
at 744 (1993).
and everyone else is (in every sense of the word) no worse off than they
were before.
Even in a looser construction of Pareto superiority, most governmen¬
tal (legislative and judicial) actions would not qualify. In most government
actions—awarding contracts, assessing legal liability, setting taxes and
benefits, and so on—there are winners and losers. There are groups who,
by any measure, are worse off than they were before the government
action or decision. If governments could only act when no one was made
worse off, there would be little that could be done.
A form of analysis called “Kaldor-Hicks”16 or “potential Pareto-supe¬
rior” is sometimes offered by economists that purports to justify govern¬
ment actions even when some parties are left worse off.17 This analysis is
a kind of wealth-maximization claim, but with a Pareto twist. Pareto anal¬
ysis, one recalls, does not speak to dollar amounts or the relative value of
people’s benefits: it looks only to the hard fact (a fact not requiring any
further normative evaluation) of preference, that a given party prefers
one state of affairs to another. For Kaldor-Hicks, the question is whether
the parties made better off could, if they chose, compensate the parties
who were made worse off, and still be better off. For example, if a certain
government decision increases the number of television sets I own, while
reducing the number of books you own, I am made better off, and you
worse off. Without making any value judgments about the relative worth
of books and televisions (or the relative worth of desiring books and desir¬
ing televisions), one can still ask whether I would be able to compensate
you (pay you money, or give you books) so that you would not feel worse
off, and afterwards I would still be better off (that is, I am still happier with
my situation: taking into account the extra televisions I have and the books
I gave you in compensation, I would still prefer my new situation to my
former situation).
The point here is not that the winning parties actually compensate the
losing parties; if they did, then the combination of the government deci¬
sion and the compensation would be a fully Pareto-superior move. The
point is that this compensation could be paid; and thus, there is a basis for
concluding, without any apparent need for controversial comparisons of
value, that the post-transaction situation would be superior to the pre¬
transaction situation, and, therefore, that the government’s action was
justified.
Much of law and economics analysis involves deciding which judicial
16 Named after the theorists who developed the analysis, Nicholas Kaldor (1907-1986) and
J. R. Hicks (1904—1989); see Nicholas Kaldor, “Welfare Propositions of Economics and
Interpersonal Comparisons of Utility”, 49 Economics Journal 549 (1939);J.R. Hicks, “The
Foundations of Welfare Economics”, 49 Economics Journal 696 (1939). Hicks shared the
1972 Nobel Prize in Economics with Kenneth Arrow.
17 See, e.g. George Fletcher, The Basic Concepts of Legal Thought (Oxford University Press, New
York, 1996), pp. 158-162.
RONALD COASE 183
or legislative decisions are justified under a Kaldor-Hicks analysis. It does

not take long analysis, however, to see that Kaldor-Hicks superiority may
not be enough to persuade everyone: the losing parties in a decision may
be little consoled by the fact that those better off could have— but have not
—compensated them for their losses. How a Kaldor-Hicks approach
might be justified, even with such problems, will be discussed later in the
chapter. First, though, it is important to add into the mix the other central
element of law and economics: the Coase theorem.
RONALD COASE
If a modified, “practical” version of utilitarianism is one part of the foun¬

dation of law and economics, the other part is the discussion by Ronald
Coase (1910- ) (who would later win the Nobel Prize in Economics, in
part for his work in this area) on the interaction of the market and the dis¬
tribution of legal rights.18
Coase’s work was an attempt to correct what he saw as two flaws in
other economists’ work. The first problem was specific to the discussion
of law and regulation. Arthur Pigou (1877-1959) had put forward an
influential view, that to keep the economy efficient businesses should be
forced, by taxation, regulation or the operation of the tort system, to
“internalize” the costs they impose on other activities (“externalities”).19
Efficiency in the free market is an interaction of supply, demand, and
costs, leading to an equilibrium (even if a temporary one) at a particular
level of supply and price. However, if the cost of making a product is
somehow subsidized (most often, by the government), then this equilib¬
rium will be distorted and the eventual result will be that more of the
product will be produced than would have been the case in a true and fair
market.20 Pigou’s argument was based on the idea that the pollution an
industry creates is a cost of that industry, and for that cost to be paid for
by other people (whether through the extra expense of cleaning clothes
dirtied by polluted air or taxes paid so that the government can clean up
polluted water) is to create a subsidy for that industry. Therefore, for the
market to return to being true and fair, these externalities should be inter¬
nalized—the industry should have to pay the equivalent of the costs their
activity has imposed on other actors.
Coase, working within the same general framework of ideas—that the
18 Ronald Coase, “The Problem of Social Cost”, 3 Journal of Law and Economics 1 (1960),
reprinted in Coase, The Firm, the Market, and the Law (University of Chicago Press,
Chicago, 1988), pp. 95-156.
19 See A.C. Pigou, The Economics of Welfare (4th ed., Macmillan, London, 1932).
20 For a more detailed discussion (including the type of graphs for which such analysis is
known), see, e.g. Murphy and Coleman, Philosophy of Law (revised ed.), pp. 182-194.
efficient distribution of goods depends on a free market where activities

respond to prices and costs without the distortion of subsidies—argued
that Pigou’s approach was badly flawed. As Coase saw it, the source of
the problem was Pigou’s assumption, an assumption derived from or at
least shared with the common law, that where two activities are in conflict
(for example, a railway causing sparks which ignite the crops on farmland
near the railroad lines), one of the parties is “imposing” costs on the other.
To put the same point slightly differently: the assumption is that we can
tell in advance which activity is “at fault”.
Coase’s contrary position was that where two activities are in conflict,
the “costs” or “externalities” are the product of the combination of the two
activities. It is not merely the case that without the railway, there would
be no fires in the farmer’s crops; it is also the case, that if the farmer did
not plant crops so close to the railroad tracks, there would similarly be no
fires. This is “the reciprocity of causation”. Coase writes:
“In the case of cattle and the crops, it is true that there would be no crop damage
without the cattle. It is equally true that there would be no crop damage without
the crops.... If we are to discuss the problem in terms of causation, both parties
cause the damage. If we are to attain an optimum allocation of resources, it is
therefore desirable that both parties should take the harmful effect (the nuisance)
into account in deciding on their course of action.”21
The extent to which Coase proved his case22 (or persuaded his audience)
regarding the reciprocity of causation remains in contention.23 However,
what Coase has shown, which cannot be easily controverted or ignored,
is the extent to which the market will “solve” many problems of
conflicting activities (whether or not we like the way the market “solves”
these conflicts).
21 Coase, “The Problem of Social Cost”, in The Firm, The Market, and the Law, p. 112.
22 In Richard A. Epstein, “A Theory of Tort Liability”, 2 Journal of Legal Studies 151 at
164—165 (1973), Epstein offers the following argument against the “reciprocity of causa¬
tion”. Coase’s position assumes the existence of a (legal or moral) system under which
remedies can be imposed on infringing parties. However, if we remove the available rem¬
edies, the harm caused is in one direction only, and it does make sense to make an initial
assessment of blame (on one side) and right or priority (on the other). Epstein modifies his
position somewhat in a later article: Richard A. Epstein, “Causation—In Context: An
Afterword”, 63 Chicago-Kent Law Review 653 at 664-666 (1987). In that article, Epstein con¬
tinues to oppose the idea of the reciprocity of causation, but his emphasis is more on the
fact that there are “well established and well understood” initial boundary lines between
the interacting parties, and that these categorical property rules reduce transaction costs
for resolving disputes and reaching agreements regarding future entidements. ibid, at 666.
23 After criticizing Coase’s argument about the reciprocity of causation, George Fletcher
wrote: “The Pigovian theorem will continue to reign so long as the bench is staffed by
lawyers rather than economists. . . . Coase will never succeed in the courts, because his
view of efficiency is incompatible with elementary principles of fairness.” Fletcher, The
Basic Concepts of Legal Thought, p. 167.
RONALD COASE 185
The second problem Coase addressed was a more general one among
economists. Economic theories are built up from simplified models of the
way the world works. One simplification commonly used was that there
are no “transaction costs”.24 There is nothing wrong with simplifying
assumptions as such. Without such assumptions, little progress might be
made: the real world is so complex, with so many factors to take into
account, that without simplifying assumptions it would be difficult to
come to any conclusions at all. Simplified models of the world are stan¬
dard, and not only in the social sciences (e.g. physics thought experiments
often assume a world without friction). The trick is to figure out how one’s
conclusions may differ in the real world, where the simplified assumptions
no longer hold. This was the nature of Coase’s second criticism. Many
economists had assumed a world without transaction costs, but had not
given enough thought to how the real world might work differently, given
that transaction costs are present and are pervasive.
As an initial point, Coase showed an interesting property of the world
of the economists’ model. In a world without transaction costs, contrary to
what one might think, the initial distribution of legal rights would not
affect the final distribution of those rights, and thus would not affect which
activities occur. Consider a simple situation, where a train going through
a rural area gives off sparks which set fires on nearby crops. The initial
entitlement may lie either with the railway or with the farmers: if with the
farmers, then the railway will be liable to pay damages for any crops
burned; if with the railway, then there will be no right of recovery.
Start with the assumption that the right lies with the farmers. If the
benefit to the railway of running trains is greater than the damage done
to the crops, the railway will negotiate with the farmers and pay them
(presumably the cost of the damage, or slightly more) for the right to give
off the sparks, and the trains will run. On the other hand, if the benefit to
the railway is lower than the cost of the damage, no such arrangement
will come about, for the railway will not be willing to pay what the farmers
ask to give up their right, and the trains will not run. Similarly, if the right
is initially with the railway, the farmers will pay the railway to prevent the
giving'off of sparks, if (but only if) protecting their crops is worth more to
them than running the trains is to the railway.
Even though this is an intermediate step in Coase’s analysis, it is prob¬
ably his best-known insight. The initial distribution of entitlements (legal
rights) does not matter, because they will end up with whichever party
24 Transaction costs are all the costs that stand in the way of a transaction that should occur
(“should” occur in the sense that there is a willing buyer and a willing seller and a range
of prices in which both would be willing to transact). These costs include “information
costs” (how one finds out about the other party—newspaper advertisements, the costs of
making inquiries among friends, and so on), negotiation costs, the costs of drawing up
the contract, relevant sales taxes, and so on.
values them the most. If the right not to have train sparks is initially with
the farmers, but the right to give off such sparks is worth more to the
railway, the railway, after paying off the farmers, will end up with the
right. Thus, if the concern is “efficiency”, government regulation, at least
as a question of the initial distribution of entitlements, will be irrelevant;
the total value of the conflicting activities will remain the same regardless
of which party initially has the entitlement to constrain the other.25
However, recall that this is only the case in the magical world of no trans¬
action costs.
Less well known is the second part of Coase’s analysis. While the initial
distribution of entitlements is in many ways irrelevant in a world without
transaction costs, the initial distribution is significant in a world with sub¬
stantial transaction costs, and that is just the sort of world in which we
live. Because of transaction costs, an entitlement (legal right) may not end
up with the party who values it most, because the extra expense of the
transaction costs may make it no longer worth purchasing from its origi¬
nal holder. For example, you hold a right to stop me from polluting a river.
The right is worth $80 to you; having the right is worth $ 100 to me, but
effecting an exchange of the right may cost $40. It would be more
efficient for the entitlement to be with me (whether initially or by volun¬
tary bargain), because I value it more than you do, but if the right is ini¬
tially given to you, it will stay with you because it is not worth it to me to
pay both your asking price and the transaction costs (a total of $ 120, as
against my valuation of the right at $ 100).
Coase suggests alternative responses to the problem of transaction
costs: two ways to try to “raise the value of production” by reducing trans¬
action costs—organization of the competing activities as components
within a single firm, and government regulation—and a third option,
leaving things as they are (on the possibility that the administrative costs
of a firm or government regulation would be as great or greater than the
transaction costs in the market).26 Coase’s summing up on the matter is a
cautious refusal to choose dogmatically: “All solutions have costs”, and
“problems of welfare economics must ultimately dissolve into a study of
aesthetics and morals.”27 (He goes on to suggest further empirical inves¬
tigation, to determine the relative advantages of handling the problem in
different ways.28)
This final step is where Coase and the law and economics movement
diverge.29 The law and economics response to the existence of significant
25 See, e.g. Murphy and Coleman, Philosophy of Law (revised ed.), pp. 191-194.
26 Coase, “The Problem of Social Cost”, in The Firm, The Market, and The Law, pp. 114—119.
27 ibid, at pp. 118, 154.
28 ibid, at pp. 118-119.
29 See generally Pierre Schlag, ‘An Appreciative Comment on Coase’s The Problem of Social
Cost A View from the Left”, 1986 Wisconsin Law Review 919 at 931-945.
DESCRIPTION AND ANALYSIS 187
transaction costs (which prevent market forces from redistributing rights

to those that value them the most), is to state that the government (mostly,
the judiciary) should act in ways which mimic what the market would
have done had there been no transaction costs. Needless to say, there are
many steps in the argument between:
(1) in certain (ideal) circumstances, the market would redistribute rights in

a certain way; and
(2) in other (non-ideal) circumstances, the government should mimic the

effects of the market.
Unfortunately, the intermediate steps are rarely articulated by proponents

of law and economics, at least usually not in a convincing way.30
DESCRIPTION AND ANALYSIS
The most influential figure in the law and economics movement is

Richard Posner (1939- ). In many of his earlier writings,31 Posner
argued that a theory of wealth maximization served well both as an expla¬
nation of the past actions of the common law courts and as a theory of
justice, justifying how judges and other officials should act. This section
will include a brief discussion of the first (descriptive or “positive”) claim.
The second (prescriptive or “normative”) claim will be considered in
greater detail in the next section.
The descriptive claim is that “the common law is best explained as if
the judges were trying to maximize economic welfare.”32 The idea is that
though, until recently, common law judges rarely used economic formu¬
lations,33 and few had economic training, the doctrines they created
approximate what an economist who was trying to maximize social
wealth would have created.34 A more recent formulation and defence of
30 This is also to put aside the (epistemological) problem of whether it makes sense to speak
of people, acting within a context with various transaction costs, knowing what redistri¬
butions would have occurred in a hypothetical world where none of those transaction
costs existed.
For one account of how the argument from (1) to (2) in the text necessarily misfires,
see Fletcher, The Concepts of Legal Thought, pp. 167-168.
31 Posner has since pulled back from some of his more ambitious claims. See, e.g. Posner,
The Problems of Jurisprudence, pp. 353-392; Posner, Economic Analysis of Law (5th ed., Aspen
Publishers, New York, 1998), pp. 29-31.
32 Posner, The Economics of Justice, p. 4.
33 One well-known exception is Judge Learned Hand’s “BPL” formula for determining
whether an action or omission had been negligent. United States v. Carroll Towing Co., 159
F.2d 169 at 173 (2nd Cir. 1947); see Stephen G. Gilles, “The Invisible Hand Formula”,
80 Virginia Law Review 1015 (1994).
34 See Posner, The Economics of Justice, p. 5.
the view states: “It would not be surprising to find that many legal doc¬
trines rest on inarticulate gropings toward efficiency, especially since so
many legal doctrines date back to the nineteenth century when a laissez-
faire ideology based on classical economics was the dominant ideology
of the educated classes.”35 This is a provocative position, which has,
unsurprisingly, been much contested, and has not gained general
assent.36
A development from early law and economics of more lasting
significance was the innovative way of analyzing entidements introduced
by Guido Calabresi and A. Douglas Melamed.37 Calabresi and Melamed
noted that one’s interests can be protected in either of two ways:
(1) a “property” rule, under which the interest cannot be taken or

invaded without the permission of the holder; or
(2) a “liability” rule, under which the interest can be taken or invaded,
but only if payment is made after the fact (the level of payment usually
to be set by the courts).38
In American tort law, the difference is exemplified in nuisance law where

a court will sometimes hold a polluter liable, but allow only monetary
damages and refuse an injunction.39 The right to obtain an injunction is
a “property” remedy, as one’s entitlement can be infringed only with per¬
mission; any infringement without consent would be enjoined. A
damages remedy, by contrast, is merely a “liability” protection—take
now, pay later.
In their article, Calabresi and Melamed consider, largely in economic
terms, the relative advantages of protecting entidements with property or
35 Posner, Economic Analysis of Law, p. 27.

36 In favour of the positive claim, see, e.g. Posner, The Problems of Jurisprudence, pp. 353-374;
William Landes and Richard Posner, The Economic Structure of Tort Law (Harvard
University Press, Cambridge, Mass., 1987), pp. 1-24; for criticism, see, e.g. Dworkin, A
Matter of Principle, pp. 263-266; Lewis A. Kornhauser, “A Guide to the Perplexed Claims
of Efficiency in the Law”, 8 Hofstra Law Review 591 at 610-634 (1980); Kelman, A Guide
to Critical Legal Studies, pp. 115-116.
37 Guido Calabresi and A. Douglas Melamed, “Property Rules, Liability Rules, and
Inalienability: One View of the Cathedral”, 85 Harvard Law Review 1089 (1972); see also
Symposium: “Property Rules, Liability Rules, and Inalienability: A Twenty-Five Year
Retrospective”, 106 Tale Law Journal 2081-2215 (1997).
38 The third possibility, which Calabresi and Melamed also discuss, is protecting an entitle¬
ment with an “inalienability” rule: where the state severely limits or entirely forbids the
transfer of the entitlement. See Calabresi and Melamed, “Property Rules, Liability
Rules, and Inalienability” at 1111-1115.
39 The best known case is Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309
N.Y.S.2d 312 (1970), where the court refused an injunction, on the basis that the cost of
enjoining the nuisance (by shutting down the factory creating the pollution) was dispro¬
portionate to the amount of harm being done to the plaintiff.
ECONOMICS AND JUSTICE 189
liability rules40: for example, a liability rule might sometimes be better

because it avoids obstacles to cooperation (including the costs of negoti¬
ation41); and a property rule would be preferred where there are fewer
obstacles to cooperation, because it avoids the problem of judicial error
in setting the level of compensation.
ECONOMICS AND JUSTICE
As mentioned earlier, in Posner’s earlier work, he argued that wealth max¬

imization was a prescriptive as well as a descriptive concept: that it is a
standard which should guide judges (and perhaps others) in their deci¬
sions.
Under wealth maximization, judges are to decide cases according to
the principles which will maximize society’s total wealth.42 Somewhat
counter-intuitively, transferring an object from one owner to another,
without more, even if the transfer was involuntary, can be said to increase
social wealth, because wealth is measured by what someone has paid or
would be willing to pay, and the second owner may be willing to pay more
for the item than the first owner was. However, Posner would say that a
forced transfer would not usually be justified under “wealth maximiza¬
tion” principles in such circumstances, because such transfers are only
appropriate where high transaction costs make a consensual (market)
bargain between the parties impossible, thereby justify circumventing the
market.43
Posner argues that wealth maximization is the best compromise between
utility and autonomy, or that it successfully exemplifies both utility and
autonomy.44 As discussed earlier in this chapter, one can see law and eco¬
nomics’ advocacy of “wealth maximization” as an attempt to construct a
40 Calabresi and Melamed, “Property Rules, Liability Rules, and Inalienability” at

1105-1110.
41 e.g. for a polluting company to negotiate with all the property-holders affected by the pol¬
lution, there will be substantial costs in just getting all the parties together, there will be
costs in paying the lawyers who facilitate the settlement, and there may be additional
costs created by the parties’ “strategic behaviour”. See Robert Cooter and Thomas Ulen,
Law and Economics (HarperCollins, New York, 1988), pp. 99-102.
42 “The ‘wealth’ in ‘wealth maximization’ refers to the sum of all tangible and intangible
goods and services, weighted by prices of two sorts: offer prices (what people are willing
to pay for goods they do not already own); and asking prices (what people demand to sell
what they do own).” Posner, The Problems of Jurisprudence, p. 356.
43 Posner, “Utilitarianism, Economics, and Legal Theory” at 130-131; see also Posner, The
Economics of Justice, pp. 108-109. The reason government-imposed (court-imposed) trans¬
fers should be limited to such cases is because government officials can only imperfectiy
mimic the market in guessing how different parties value goods; by contrast, where the
market is able to operate without significant transaction costs, voluntary exchanges will
naturally bring goods to the parties that value them most.
44 See, e.g. Posner, The Economics of Justice, pp. 98, 115.
more practical version of utilitarianism. Welfare or happiness (two

approximations of what is meant by “utility”) are hard to discover or
measure, so judicial and legislative decisions will not be clearly guided by
an instruction to “maximize utility”.45 By contrast, maximizing wealth is
something judges can do effectively within their limited role in the
government, a role sufficiendy constrained that the more egregious pos¬
sible mis-uses of wealth maximization are also ruled out.4*’ Posner also
argued that many conventional virtues (like the work ethic, telling the
truth, and keeping promises) can be more easily derived from wealth
maximization than from utilitarianism.4'
As to autonomy, a moral theory that strongly emphasizes that value
(Posner mentions Immanuel Kant’s theory) might well require that citi¬
zens be coerced, or have their property redistributed, only where those
citizens have authorized such actions by their choices, by actual consent.
However, the problem with such an autonomy-based approach is that it
would be unworkable if applied stricdy to government decisions, for the
same reason that its cognate, a Pareto-superior requirement, would be
unworkable. Many government decisions affect a large number of people
(not all of whom could even be identified in advance), and therefore
requiring actual consent from every person affected would be clearly
impossible.48 Similarly, if one put the focus of actual consent not on indi¬
vidual government decisions, but on the form and institutions of govern¬
ment or the mode of decision-making, obtaining actual consent from
every person affected- that is, from every citizen—would clearly be
impractical, if not impossible.
Wealth maximization is better than utilitarianism, according to
Posner, because money is easier to measure than utility. It is better than
an autonomy-based approach because it allows government action even
where actual consent by all those affected would not be forthcoming or
would be impractical to obtain. However, because the only actions
allowed would be those that maximized social wealth, everyone (or
almost everyone) would have consented to this principle if asked, because
it is a principle that leaves everyone (or almost everyone) better off in the
long run.
This consent is not express consent, but a hypothetical or implied
consent: what the people would have said had they been asked ahead of
time. While someone who had been in an accident would not choose a
liability system under which she would not recover, if she were choosing
45 ibid, at pp. 112-113; Posner, “Utilitarianism, Economics, and Legal Theory” at 122,
129-130.
46 See Posner, The Economics of Justice, pp. 103-106; Posner, The Problems of Jurisprudence,
pp. 372-273, 387-392.
47 See, e.g. Posner, “Utilitarianism, Economics, and Legal Theory”, pp. 123-126.
48 Posner, “The Ethical and Political Basis of the Efficiency Norm in Common Law
Adjudication”, p. 494.
ECONOMICS AND JUSTICE 191
at an earlier time, before the accident, before she knew whether she
would be a tort plaintiff, tort defendant, or neither, she would reason¬
ably choose a system that would increase total wealth (because
she would have no reason for choosing a system with lower total
wealth).49
There are a number of basic problems with Posner’s attempts to
equate justice with wealth maximization50; there is only room in the
present text to hint at some of them. Problems with Posner’s discussion
of consent were discussed in Chapter 11. In the paragraphs that follow,
I will briefly discuss problems with Posner’s comparison of wealth max¬
imization with utility and autonomy. In a later section on the limits of
law and economics, some more detailed substantive criticisms will be
oudined.
In the attempt to create a synthesis of the best of utilitarianism and
an autonomy-based approach, wealth maximization arguably loses the
benefits of both. The strong point of utilitarian theories is that it is
difficult to argue with the position that pleasure and happiness are
good, pain and unhappiness are bad, and in nearly every circumstance
it is better if the good things can be maximized and the bad things
minimized. The problem for utilitarian (and related) theories is to
determine when the increased pleasure or happiness or welfare of a few
(or even of the vast majority) can justify suffering and sacrifice by the
remainder.
By contrast, it is more contestable to say that increasing wealth is
always a moral good, and it will be harder to justify the sacrifice and
suffering of some on the basis of the increased wealth of others. In the
terms of moral philosophy, increased wealth is usually thought of as an
instrumental good: it is valuable because it can help one obtain other
things which are of intrinsic moral value, like health, physical comfort,
and recreation. The response may be that wealth is not offered as some¬
thing good in itself, but only as a proxy for utility or other values.51
However, while wealth maximization may be the closest workable approx¬
imation of utilitarianism or an autonomy-based theorem, the approxima¬
tion may break down in just the kind of hard cases where we would hope
that our theories could give guidance.52
49 See Posner, The Economics of Justice, pp. 94-99. (I have excluded some of the details and
nuances of Posner’s analysis here due to limitations of space.)
50 Posner recently has made a partial retreat on the normative claim of wealth maximiza¬
tion: “as a universal social norm wealth maximization is indeed unsatisfactory, but... it
is attractive or at least defensible when confined to the common law arena.” Posner, The
Problems of Jurisprudence, p. 373.
51 See, e.g. Posner, “Utilitarianism, Economics, and Legal Theory” at 121-127; Posner, The
Economics of Justice, pp. 112—113.
52 A similar argument is given in greater detail in Dworkin, A Matter of Principle,
pp. 237-266; for Posner’s reply, see Posner, The Economics of Justice, pp. 107-115.
GAME THEORY
In recent years, there have been a variety of books and articles which are
descended from or related to the tradition of “law and economics” (at
least in the sense that they share economics’ basic assumption, mentioned
at the beginning of the chapter, that “people are rational maximizers of
their satisfactions”), but which take a somewhat different perspective.
Among these approaches are game theory and public choice theory.53
Game theory will be the topic of this section; public choice theory the
topic of the next.
Game theory is, roughly speaking, the creation of models of “situations
in which two or more players have a choice of decisions (strategies); where
the outcome depends on all the strategies; and where each player has a set
of preferences defined over the outcomes.”54 Writers have used game
theory to consider how legal rules affect people’s strategic behaviour, and
to try to construct arguments that current legal rules are or are not suc¬
cessful in meeting their proclaimed or assumed purposes (e.g. preventing
fraud or encouraging an efficient level of accident prevention measures).55
Game theory is the partly mathematical, partly economic study of sit¬
uations where each person’s behaviour depends on other people’s actions
and choices and on expectations of what those actions and choices will
be.56 Commentators’ analyses of such situations look like a discussion of
games, for they consider various possible “strategies” the “players” might
use to maximize their results.
Law can be seen as being, sometimes by design and sometimes by acci¬
dent, a key part of “the game”, for it affects strongly the reasons people
have for acting one way rather than another. Whether one complies with
the legal standards or not can itself become an integral part of a game.
For example, putting aside questions of avoiding the imposition of legal
sanctions, one might want to have the reputation of being someone who
always follows publicly imposed norms.
Another way of making the same point is to say that there are two par¬
allel insights. First is the notion that bargaining between parties always
53 Sometimes the phrase “rational choice” theory is used to refer to the combination of
game theory and public choice theory. See Daniel A. Farber and Philip P. Frickey, “Public
Choice Revisited” (book review), 96 Michigan Law Review 1715 at 1715 n.4 (1998).
>4 Blackburn, The Oxford Dictionary of Philosophy, p. 153.
55 See generally Douglas Baird, Robert Gertner and Randal Picker, Game Theory and the Law
(Harvard University Press, Cambridge, Mass., 1994).
56 The seminal works in game theory include John von Neumann, “Zur Theorie der
Gesellschaftsspiele”, 100 Mathematische Annalen 295 (1928); John von Neumann and Oskar
Morgenstern, Theory of Games and Economic Behavior (Princeton University Press,
Princeton, 1944); John Nash, “The Bargaining Problem”, 18 Econometrica 155 (1950); and
John Nash, “Equilibrium Points in N-Person Games”, 36 Proceedings of the National Academy
of Sciences 48 (1950).
GAME THEORY 193
happens “in the shadow of the law”—that is, that parties will take the
legal rules and the likely results of potential litigation into account when
negotiating.57 The second, inverse point reflects the perspective of game
theoretical approaches to the law: legal rules, in turn, should be formu¬
lated with some understanding of how people bargain, if those rules are
to be effective.58
One insight of game theorists (and other law and economics writers) is
that legal rules meant to have one effect will often, unintentionally, have
the opposite effect or no effect at all. For example, rules meant to reduce
pollution by mandating expensive anti-pollution devices on new cars may
have the effect of increasing pollution, as people tend to keep their older,
higher-polluting cars longer, rather than pay for new cars, now much
higher priced because of the required anti-pollution devices.
Among the foundational problems game theory tries to solve are:
(1) how to establish or maintain cooperation in situations where individ¬

uals seem to have incentives not to co-operate;
(2) how to co-ordinate the actions of unorganized people; and
(3) how to establish rules which deal with the inevitable asymmetries of
information among parties.
The problem of co-operation is symbolized by the well-known “pris¬

oner’s dilemma”. Two people who commit a crime together are arrested,
but are interrogated separately. Both prisoners face the same terms of
punishment:
(1) if both stay silent, they will be convicted only on a lesser charge, and
will each serve a light sentence;
(2) if one party confesses and agrees to testify against the other prisoner,
while the other prisoner stays silent, the testifying prisoner will get
immunity from punishment, while the silent prisoner will get the
maximum possible sentence; and
(3) if both parties agree to confess and testify, both will receive large sen¬
tence, but significandy less than the maximum mentioned in the
second scenario.
From the prisoners’ perspective, the best outcome would be the first one,
with both staying silent—the same outcome that would have occurred
57 See Robert H. Mnookin and Lewis Kornhauser, “Bargaining in the Shadow of the Law:
The Case of Divorce”, 88 Yale Law Journal 950 (1979).
58 Douglas G. Baird, “Game Theory and the Law”, in The New Palgrave Dictionary of
Economics and the Law, Vol. 2 (P. Newman ed., Macmillan, London:, 1998), p. 197.
had they been able to co-ordinate their behaviour. However, self-interest

paradoxically will drive each prisoner away from that outcome, towards
the outcome which minimizes their joint welfare.
Each prisoner thinks:
(1) if the other prisoner stays quiet, my best response would be to confess,
for then I will get off without punishment; and
(2) if the other prisoner confesses, my best response would be to confess

as well, for then I would avoid the maximum penalty.
Either way, confessing seems the best response; and thus both parties will
confess. Though both players would benefit were they able to co-operate,
self-interest takes the parties in a different direction. It is the opposite of
Adam Smith’s “Invisible Hand”: self-interested action often takes us away
from promoting the common good, not towards it.
Other variations on the prisoner’s dilemma emphasize the way parties
may be tempted away from a potential co-operation by the possible
benefits of “defection” or by fears that the other party may “defect”.
Imagine an agreement in which I am to perform first, and you only later.
There is the temptation for you to take the benefit of my performance, and
then renege on your promise. Some of this temptation may be removed if
we are players in a “repeat game”: that is, when you might want to deal
again with me in the future, or, at least, where you will want to maintain
a reputation among our colleagues as a “reliable co-operator”.
The problems of asymmetries of information are exemplified in the
writings on contract default rules: regarding an issue on which contract¬
ing parties would be free to set any of a variety of possible terms,39 what
rules should be imposed by the legislature or the courts where the parties
have been silent? Some commentators have argued for the use of
“penalty” default rules in situations where contracts might have been left
incomplete because one of the parties has more information than the
other and engages in strategic behaviour. Penalty default rules are con¬
trary to the interests of the party who has the information, creating incen¬
tives for that party to divulge the information in the course of negotiating
for a different contractual term.60
PUBLIC CHOICE THEORY
A second later development is “public choice theory”: which “applies game

theory and microeconomic analysis to the production of law by legislatures,
59 That is, it is not a matter where public policy allows only one possible standard.
60 See Ian Ayres and Robert Gertner, “Filling Gaps in Incomplete Contracts: An Economic
Theory of Default Rules”, 99 Tale Law Journal 87 (1989).
PUBLIC CHOICE THEORY 195
regulatory agencies, and courts.”61 (In 1986, the Nobel Prize in Economics
went to James Buchanan for his work on public choice theory.) In rough
terms, public choice theorists try to see how much of official action can be
explained, and predicted, on the basis that the officials (legislators, judges,
administrators, and so on) are acting to further their individual interests.
Theorists within the tradition vary in how they define self-interest: some in
a narrow or cynical way, as purely a matter of money or power; other theo¬
rists try to build a more subtle view of self-interest into their model, which,
for example, may incorporate the officials’ ideological beliefs.
If legislators and other officials are more accurately seen as acting in
their narrow self-interests when they legislate, rather than acting “for the
public good”, then there may be reasons to change various aspects of the
legal system. For example, the courts might be less deferential in consider¬
ing legislation, or they might vary the way they approach interpreting
ambiguous statutes62; also, public choice theory may offer an argument for
restructuring the way legislatures or administrative agencies work, in an
attempt to curb or channel the influence of interest groups on officials.63
Following the Coasean analysis discussed earlier in this chapter,
officials and other political actors can be seen as trying to maximize their
benefits while trying to get around the problem of transaction costs.64 For
example, individuals trying to influence the government reduce their
transaction costs (e.g the costs of getting information about issues before
the legislature) by acting through organized lobbying ventures. The legis¬
lature itself can be seen as “a firm”—an organization that avoids the
costs of negotiating “across markets”, as well as some of the problems of
ensuring compliance with agreements, by incorporating the various
actors needed within a single unit.65
Public choice theorists are sometimes caricatured as overly cynical
types who do not believe in the possibility of altruistic behaviour or action
done “for the common good.” To whatever extent this description of the
theorists is accurate, one need not claim that action genuinely for the
good of others never occurs for public choice theory to be valuable. It is
sufficient that public choice theory often provides better predictions of
61 Jonathan R. Macey, “Public Choice and the Law”, in The New Palgrave Dictionary of
Economics and the Law, Vol. 3 (P. Newman ed., Macmillan, London, 1998), p. 171; see also
Daniel Farber and Philip Frickey, Law and Public Choice (University of Chicago Press,
Chicago, 1991), pp. 1-11.
62 See, e.g. Farber and Frickey, Law and Public Choice, pp. 61 -115; William N. Eskridge Jr. and
John Ferejohn, “Statutory Interpretation and Rational Choice Theories”, in The New
Palgrave Dictionary of Economics and the Law, Vol. 3 (P. Newman ed., Macmillan, London,
1998), pp. 535-40.
63 See, e.g. Farber and Frickey, Law and Public Choice, pp. 12-37.
64 See Macey, “Public Choice and the Law”, pp. 171-1 77.
65 ibid, at 174-177. On firms as means of avoiding transaction cost problems, the classic
article is R. H. Coase, “The Nature of the Firm”, reprinted in The Firm, the Market and the
Law, pp. 33-55.
how officials will act in certain circumstances than would other theories
of official action (a standard proponents claim has been easily met).
OTHER VARIATIONS
There is a growing literature about the proper way of understanding and

explaining “social norms” and “social meanings” within the relatively
individual-focused analysis of neo-classical economics.66 The founda¬
tional work in this area was probably Robert Ellickson’s Order Without
Law,67 which discussed the way cattle ranchers in Shasta County,
California, resolved conflicts among themselves using informal rules
(“social norms”) that diverged significandy from the applicable legal
norms. Among the other prominent figures in this field are Lawrence
Lessig,68 Cass Sunstein,69 and Eric Posner. Posner ties his analysis of social
norms to game theory, by arguing that many social norms can be under¬
stood as the direct and indirect result of people’s attempts to “signal” that
they would be good partners for co-operative ventures—ventures as
diverse as business deals and raising a family.70
Some commentators have argued for a form of law and economics
which incorporates a richer (and more accurate) account of human beha¬
viour, in particular, taking into account a number of insights regarding
the “bounded rationality” under which most decisions are made.71
THE LIMITS OF LAW AND ECONOMICS
Law and economics can be criticized in an internal way or in an external

way. By an internal criticism, I mean one that accepts most of the
approach’s aims and assumptions; by contrast, external criticisms chal¬
lenge economic analysis at those basic levels.
66 See Conference: “Social Norms, Social Meaning, and the Economic Analysis of Law”,
27 Journal of Legal Studies 537-823 (1998) (includes contributions by Robert Ellickson,
Richard Posner, Lawrence Lessig, Martha Nussbaum, Eric Posner and Cass Sunstein);
see also Symposium: “Law, Economics, and Norms”, 144 University of Pennsylvania Law
Review 1643-2339 (1996).
67 Robert C. Ellickson, Order Without Law; How Neighbors Settle Disputes (Harv ard University
68 See, e.g. Lawrence Lessig, “The Regulation of Social Meaning”, 62 University of Chicago
69 See, e.g. Cass R. Sunstein, “Social Norms and Social Roles”, 96 Columbia Law Review 903
(1996).
70 See Eric A. Posner, Law, Cooperation and Rational Choice (forthcoming, Harvard University
71 See, e.g. Christine Jolls; Cass R. Sunstein and Richard Thaler, “A Behavioral Approach to
Law and Economics”, 50 Stanford Law Review 1471 (1998); Cass R. Sunstein, “Behavioral
Analysis of Law”, 64 University of Chicago Law Review 1175 (1997). On bounded rational¬
ity, see, e.g Daniel Kahneman, Paul Slovic and Amos Tversky ed., Judgment Under
Uncertainty: Heuristics and Biases (Cambridge University Press, Cambridge, 1982).
THE LIMITS OF LAW AND ECONOMICS 197
An example of a recent sharp internal criticism was offered by Jon

Hanson and Melissa Hart.72 Hanson and Hart state that the argument that
certain rules will increase efficiency (in other terms, maximize social wealth)
usually depends on a series of assumptions. These include assumptions
regarding transactions costs, activity levels, administrative costs, risk neutral¬
ity of the parties, and the parties’ legal knowledge, as well as the ability of a
judge to make accurate assessments of the costs and benefits (to the parties)
of alternative actions. Hanson and Hart argue that the model on which law
and economics operates tends to make unrealistic assumptions or to assume
fixed values on variables that will in fact vary gready (in unpredictable and
hard-to-measure ways) across parties. For example, Hanson and Hart wrote
the following about “activity levels” (pointing out that accident costs are a
function not only of level of care, but also of level of activity):
“To deter all accidents that could be cost-justified prevented, judges and juries
would need to compare the benefits a party obtains from greater participation in
the activity to the resulting increase in expected accident costs. Unfortunately,
courts tend to ignore activity level considerations, and most scholars believe that,
as a practical matter, courts are unable to conduct the necessary activity-level cal¬
culus, because of the amount of information they would need.”73
As noted when talking about the Coase theorem, the fact that an analy¬
sis incorporates simplifying assumptions is not fatal. However, Hanson
and Hart argue that when one tries to adjust the outcomes of the one’s
calculations and predictions by taking into account how things actually
are, the prediction of efficiency is either directly undermined or left in
such doubt that one has serious questions about using the model as a
justification for changing (or not changing) the law.74
One “external” criticism of law and economics is that it is a reductive
system, an approach to law and life that attempts to analyse everything in
terms of a single parameter (money, wealth, willingness to pay). This crit¬
icism is an analysis in terms of “commensurability”. As explicated by
Martha Nussbaum, commensurability regards “all the valuable things
under consideration as measurable on a single scale”.75 The inevitable
72 Jon D. Hanson and Melissa R. Hart, “Law and Economics” in A Companion to the Philosophy
of Law and Legal Theory (D. Patterson ed., Blackwell, Oxford, 1996), pp. 318 325.
73 ibid, at p. 321 (citation omitted).
74 Arthur Leff made a similar point in more colorful language: “If a state of affairs is the
product of n variables, and you have knowledge of or control over less than n variables,
if you think you know what’s going to happen when you vary ‘your’ variables, you’re a
booby.”'Leff, “Economic Analysis of Law: Some Realism About Nominalism” at 476.
75 Martha C. Nussbaum, Poetic Justice (Beacon Press, Boston, 1995), p. 14. She adds that
those who believe that values are commensurable must believe either that “all the valu¬
able things are valuable because they contain some one thing that itself varies only in
quantity ... or [that] despite the plurality of values, there is an argument that shows that
a single metric adequately captures what is valuable in them all.
results of such reductions are distortions in both one’s descriptions and

one’s prescriptions.76
Beyond some fairly straightforward difficulties with translating all
matters into willingness to pay (first, the things we value the most we often
speak of as things on which “one cannot put a price”77; and secondly,
sometimes willingness to pay is a function merely of ability to pay, and may
have little to do with how highly one values something), there remains the
even more basic objection that any attempt to reduce human decisions
and actions to a single variable is going to distort them beyond recogni¬
tion. John Finnis78 gave examples of the way law and economics did not
(because, in Finnis’ view, it cannot) draw distinctions between accidental
(negligent) behaviour and intentional misdeeds (both foreseeable but un¬
intended accidents and intentional injuries appear in one of Posner’s
analyses simply as costs ascribable to the party or activity),79 distinctions
which seem both basic and crucial to our moral view of the world.80
There are a variety of other “external” criticisms in the literature. For
example:
(1) that economic analysis has inherent biases towards the rich over the
poor, producers over consumers, and the status quo over reform81;
(2) that the legal way of looking at language and the world is different
from the economic way of looking, and the law (and this society)
would be worse off to the extent that the economic outlook is allowed
to take over law82; and
76 Nussbaum offers a longer list of external criticisms in Martha C. Nussbaum, “Flawed

Foundations: The Philosophical Critique of (a Particular Type of) Economics”, 64
University of Chicago Law Review 1197 (1997).
77 Margaret Jane Radin, “Market-Inalienability”, 100 Harvard Law Review 1849 (1987).
78 John M. Finnis, “Allocating Risks and Suffering: Some Hidden Traps”, 38 Cleveland State
Law Review 193 at 200-205 (1990).
79 A contrary view, defending the ability of law and economics to draw appropriate distinctions
between accidental and intentional action, might be derived from the discussion of inten¬
tional wrongdoing in Landes and Posner, The Economic Structure of Tort Law, pp. 149-160.
Arthur Leff discussed the way that the reductive analysis in law and economics eradicates
psychological and sociological factors (as to the latter, race and class are obvious exam¬
ples) which are crucial to a proper understanding of modern behaviour. Leff, “Economic
Analysis of Law: Some Realism About Nominalism”, at 469-477.
81 See, e.g. Kelnian, A Guide to Critical Legal Studies, pp. 151-185; Morton Horwitz, “Law and
Economics: Science or Politics?”, 8 Hofstra Law Review 905 (1981).
82 See James Boyd White, “Economics and Law: Two Cultures in Tension”, 54 Tennessee Law
Review 161 (1987). For similar arguments that the economic perspective impoverishes our
view of what people are like, and the possibility of individual (self-)improvement, see, e.g.
Robin West, “The Other Utilitarians”, in Analyzing Law (B. Bix ed., Clarendon Press,
Oxford, 1998), pp. 197-222 (comparing the economists’ view of individuals with that of
the early utilitarians); Jonathan Lear, Open Minded (Harvard University Press, Cambridge,
Mass., 1998), pp. 28-32 (comparing the economists’ view with that of Freudian
psychology).
(3) that the objectives of efficiency or wealth-maximization are irrelevant

to and often incompatible with corrective justice, which is the essence
of, and the only proper objective for, private law.83
Even if one accepts the above criticisms as valid and important (and,
of course, not everyone does), there still remains much that is of value to
economic analysis in the law. First, there are legal questions that turn (or
should turn) on purely economic matters. For example, for the purposes
of competition (antitrust) law, whether a particular kind of vertical or hor¬
izontal integration of companies in the long term, supports, hinders or
has no effect upon competition. Secondly, economic analysis has often
served to sharpen the existing somewhat fuzzy legal thinking in various
areas. For some, economic analysis captures in quantitative terms what
had only been vaguely described by long-standing common law concepts
like “reasonable care”, “negligence” and “proximate cause”. Also, eco¬
nomic analysis occasionally highlights concerns that had gotten lost when
the questions were posed in traditional ways, eg. in terms of “fairness”
and “justice”. For example, in considering the rules of bankruptcy/insol-
vency law, the way legal rules are developed will affect not only the cred¬
itors’ rights as against the debtor (the traditional focus for analysis), but
also the extent to which individual creditors have incentives to act in ways
which will shrink the total amount of assets available, thus working
against the interests of the creditors as a group, and perhaps against the
social interest as well.84
Thirdly, even if one believes that efficiency/wealth maximization is at
best one value among many (or an imperfect approximation of one such
value), one would still want to know what effects a current legal rule or
practice, or a proposed change to that rule or practice, has on
efficiency/wealth maximization.85 At the least, there are occasions when
an accurate (and subtle) delineation of the costs of the alternative rules
or actions will influence the eventual (moral) choice between them.86
Fourthly, the method of analysis that law and economics promotes
reminds us of long-term effects we might not otherwise have consid¬
ered.87' A standard example is the landlord who wants to evict the poor,
starving tenant for non-payment of rent. While our sympathies may go
immediately to the tenant, we should consider the long-term conse¬
quences of a rule where the landlord could not evict in such circum¬
stances. What would likely ensue is that landlords would either become
83 See Weinrib, The Idea of Private Law.

84 See Posner, Economic Analysis of Law, pp. 440-442. I am indebted to Stephen Gilles for
this example.
85 See, e.g. Posner, “Utilitarianism, Economics, and Legal Theory” at 109-110.
86 See, e.g. ibid, at 109. _ n
87 See, e.g Leff, “Economic Analysis of Law: Some Realism About Nominalism” at
459-462.
reluctant to lease apartments to those who are less well off, or that higher
rents would be charged to everyone, to compensate for losses to non¬
paying tenants who cannot be evicted.88 Therefore, while the short-term
result of ruling for the tenant may be that one impoverished tenant keeps
her apartment, the long-term effect may be that many other impover¬
ished tenants cannot find (affordable) apartments to rent. Fifthly, the
other analytical move that economic thinking reinforces, sometimes to a
fault, is that a person’s preferences can be derived from her actions, and
the (relative) intensity of those preferences can often be derived by asking
how much she is willing to pay (in money, or in giving up other things of
value) for the matters in question. It is hardly a new discovery that a
person’s statements, and even her conscious beliefs, can be belied by her
actions; however, it is a matter that is too often and easily forgotten. On
the other hand, when one looks only to actions and willingness to pay to
determine a person’s preferences, the analysis can be equally erroneous,
especially when the analysis ignores that there are some things we have
not because we have chosen them (or want them), but because they are
the unavoidable side-effects of things we do desire (the international trav¬
eler does not desire jet lag, but accepts it as a consequence of getting to
the places she wants to see),89 and that the unwillingness to pay a large
sum may simply be a function of the inability to pay that amount.
LAW AND ECONOMICS GENERALLY
Ronald Coase, “The Problem of Social Cost”, 3 Journal of Law and Economics 1
(1960), reprinted in The Firm, the Market, and the Law (University of Chicago
Press, Chicago, 1988), pp. 95-156.
Jon D. Hanson and Melissa R. Hart, “Law and Economics”, in A Companion to the
pp. 311-331.
Avery Wiener Katz ed., Foundations of the Economic Approach to Law (Oxford
University Press, New York, 1998).
Duncan Kennedy, “Law-and-Economics from die Perspective of Critical Legal
Studies”, in The New Palgrave Dictionary of Economics and the Law, Vol. 2 (P.
Newman ed., Macmillan, London, 1998), pp. 465M-74.
88 See, e.g. Posner, “The Ethical and Political Basis of the Efficiency Norm in Common Law
Adjudication’ at 500; Leff, “Economic Analysis of Law: Some Realism About
Nominalism” at 459-461. A third possibility is that landlords will put clauses into the
leases requiring the tenants to waive their rights under the new ruling. If such clauses are
later held to be unenforceable (as sometimes occurs with waiver clauses of this type), then
the landlords will likely return to one of the other two strategies oudined in the text.
89 See Finnis, “Allocating Risks and Suffering: Some Hidden Traps” at 201.
William Landes and Richard Posner, The Economic Structure of Tort Law (Harvard
University Press, Cambridge, Mass., 1987).
Arthur LefF, “Economic Analysis of Law: Some Realism About Nominalism”, 60
Virginia Law Review 451 (1974)..
Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law (revised ed., Westview
Press, Boulder, Colo., 1990), pp. 181-234 (“Law and Economics”).
Peter Newman ed., The New Palgrave Dictionary of Economics and the Law, three
volumes (Macmillan, London, 1998).
A. Mitchell Polinsky, An Introduction to Law and Economics (2nd ed., Little, Brown and
Co., Boston, 1989).
Richard Posner, Economic Analysis of Law (5th ed., Aspen Publishing, New York,
1998).
—,The Economics of Justice (Harvard University Press, Cambridge, Mass., 1983).
Scott Shapiro and Edward F. McClennan, “Law-and-Economics from a
Philosophical Perspective”, in The New Palgrave Dictionary of Economics and the
Law, Vol. 2 (P. Newman ed., Macmillan, London, 1998), pp. 460-465.
Symposium: “Efficiency as a Legal Concern”, 8 Hofstra Law Review 485-770
(1980) (contributors include Richard Posner, Jules Coleman, Guido Calabresi,
Ronald Dworkin, Duncan Kennedy and Frank Michelman).
Symposium: “Post-Chicago Law and Economics”, 65 Chicago-Kent Law Review
3-191 (1989) (contributors include Randy Barnett, Robert Ellickson, Richard
Posner, Jonathan Macey, Daniel Farber, and Jules Coleman).
Symposium: “The Future of Law and Economics: Looking Forward”, 64
University of Chicago Law Review 1129-1224 (1997) (includes contributions by
Ronald Coase, Richard Posner, Richard Epstein, Gary Becker, Cass Sunstein
and Martha Nussbaum).
GAME THEORY
Ian Ayres, “Playing Games with the Law”, 42 Stanford Law Review 1291 (1990).
Douglas G. Baird, “Game Theory and the Law”, in The New Palgrave Dictionary of
Economics and the Law, Vol. 1 (P. Newman ed., Macmillan, London, 1998), pp.
192-198.
Douglas G. Baird, Robert H. Gertner and Randal C. Picker, Game Theory and the
Law (Harvard University Press, Cambridge, Mass., 1994).
PUBLIC CHOICE THEORY
James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical

Foundations of Constitutional Democracy (University of Michigan Press, Ann Arbor,
1962).
Daniel Farber and Philip Frickey, Law and Public Choice (University of Chicago
Press, Chicago, 1991).
Jonathan R. Macey, “Public Choice and the Law”, in The New Palgrave Dictionary
of Economics and the Law, Vol. 3 (P. Newman ed., Macmillan, London, 1998), pp.
171-178.
Richard A. Posner, “Economics, Politics, and the Reading of Statutes and the
Constitution”, 49 University of Chicago Law Review 263 (1982).
Maxwell L. Stearns ed., Public Choice and Public Law: Readings and Commentary
(Anderson Publishing Co., Cincinnati, 1997).
“Symposium on the Theory of Public Choice”, 74 Virginia Law Review 167—518
(1988) (including contributions by Geoffrey Brennan and James Buchanan,
Jonathan Macey, Daniel Farber and Philip Frickey, Mark Kelman, and William
Eskridge).
Chapter Nineteen
Modern Critical Perspectives
In the last 25 years or so, a series of loosely related critical approaches to

law have developed, which have their roots in (among other places) the
Civil Rights Movement, American legal realism, and European social
theory.
In many cases, the advocates placed under a single label—“critical
legal studies”, “feminist legal theory”, or “critical race theory”—share
only that (the label), and a certain distance on some matters from main¬
stream legal theory. The point is that on almost any substantive issue or
question of methodology, there will be as much variation or disagreement
within those groups as there will be between those groups and other theo¬
rists. Nonetheless, these are the categories by which these theories are
known and characterized by others—and, to a great extent, this is how
they characterize themselves as well. This chapter will offer an overview
of some of the themes identified with each of the three critical
approaches to the law.
CRITICAL LEGAL STUDIES
The critical legal studies movement is the name given to a group of schol¬
ars who wrote about legal theory using ideas associated with Left politics
or trying to use law, or legal education, or writings about the law to try to
effect Left results.
Critical legal studies (“CLS”), as a self-defined group, became active
in the late 1970s.1 The vast majority of work being done under that label
has been done by American scholars, but there are also followers in
other countries.2 CLS as a movement received (and often courted) a
1 For a good summary of the rise and fall of CLS, see Duxbury, Patterns of American
Jurisprudence, pp. 428-509.
2 See, e.g. Peter Fitzpatrick and Alan Hunt, Critical Legal Studies (Blackwell, Oxford, 1987)
(British CLS writers). The U.K.-based journal “Law and Critique” often contains CLS
articles by U.K. writers.
204 MODERN CRITICAL PERSPECTIVES
great deal of controversy and opposition, culminating in the mid-1980s

with strongly negative articles in the major media3 and high-profile
denials of tenure to CLS adherents at the Harvard Law School and else¬
where.4 While today there are still a number of people who identify
themselves with the CLS label, much of the movement’s energy has
appeared to have been passed on to the affiliated, but quite distinct,
schools of thought, feminist legal theory and critical race theory, about
which more later.
Critical legal studies theorists saw themselves as extending and elab¬
orating the more radical aspects of the American legal realists’ pro¬
gramme. Among the more common themes in CLS writing were the
following: the political nature of law (the ideological biases inherent in
apparendy neutral concepts and analyses)—“law as ideology”,5 the
radical indeterminacy of the law,6 the claim that law promotes the inter¬
ests of the powerful and legitimates injustice,7 and the argument that
rights rhetoric works against the common good and against the interests
of the groups the rights purport to protect.8 Among other topics visited
by adherents of CLS were the ideological implications of modern
legal education,9 criticisms of the law and economics movement,10 and
the uses of radical theory in rethinking radical legal practice.11 CLS
3 See, e.g. Terry Eastland, “Radicals in the Law Schools”, Wall Street Journal, January 10,
1986, p. 10; Louis Menand, “Radicalism for Yuppies”, The New Republic, March 17, 1986,
pp. 20—23; cf. Calvin Trillin, “A Reporter at Large: Harvard Law”, New Yorker, March 26,
1984, pp. 53-83 (a somewhat more balanced report).
4 Academics were effectively scared away from CLS, not only by the threat of denial of
tenure, but by the more effective and ominous threat that schools would not hire them in
the first place, if they were suspected of affiliation with CLS. The trend towards “boy¬
cotting” CLS-connected academics was strengthened by an article by Paul Carrington,
then dean of the Duke Law School, who argued that people who advocated “nihilistic”
views had no place teaching in a law school. Paul D. Carrington, “Of Law and the
River”, 34 Journal of Legal Education 222 (1984). For a view from within CLS, see Jerry
Frug, “McCarthyism and Critical Legal Studies” (book review), 22 Harvard Civil Rights-
Civil Liberties Law Review 665 at 676-701 (1987).
5 See, e.g. Lewis Kornhauser, “The Great Image of Authority”, 36 Stanford Law Review 349
at 371-387 (1984).
6 See, e.g. Duncan Kennedy, “Freedom and Constraint in Adjudication: A Critical
Phenomenology”, 36 Journal of Legal Education 518 (1986).
7 See, e.g. Douglas Hay, Peter Linebaugh, John Rule, E.P Thompson and Cal Winslow,
Albion’s Fatal Tree (Penguin, Middlesex, England, 1975); Alan David Freeman,
“Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical
Review of Supreme Court Doctrine”, 62 Minnesota Law Review 1049 (1978).
8 See, e.g. Mark Tushnet, “An Essay on Rights”, 62 Texas Law Reidew 1363 (1984).
9 See, e.g. Duncan Kennedy, “Legal Education as Training for Hierarchy”, in The Politics of
Law (revised ed., D. Kairys ed., Pantheon, New York, 1990), pp. 38-58.
10 See, e.g. Kelman, A Guide to Critical Legal Studies, pp. 114-185.
11 See, e.g. Peter Gabel and Paul Harris, “Building Power and Breaking Images: Critical
Legal Theory and the Practice of Law”, 11 New York University Review of Law and Social
Change 369 (1982-1983).
CRITICAL LEGAL STUDIES 205
was also known for, and to some extent known by, its attempt to apply
to law the ideas of European literary theorists, social theorists and
philosophers.12 Obviously, these topics cannot be covered in detail in
the short space available; I can only touch on some aspects of a few of
them.
On the indeterminacy of law, CLS theorists offered a variety of views
as to what they mean by “indeterminacy”, what its causes allegedly are,
and what consequences follow. James Boyle offered the following as a par¬
aphrase of “the strongest version of the indeterminacy thesis ever put
forward by anyone associated with CLS”:
“Nothing internal to language compels a particular result. In every case the judge
could produce a wide range of decisions which were formally correct under the
canons of legal reasoning. Of course, shared meanings, community expectations,
professional customs and so on may make a particular decision seem inevitable
(though that happens less than many people think). But even in those cases, it is
not the words of the rule that produce the decision, but, a bevy of factors whose
most marked feature is that they are anything but universal, rational or objective.
Legal rules are supposed not only to be determinate (after all, decisions based on
race prejudice are perfectly determinate), but to produce determinacy through a
particular method of interpretation. That method of interpretation alone,
however, produces indeterminate results and it cannot be supplemented
sufficiendy to produce definite results without subverting its supposed qualities of
objectivity and political and moral neutrality.”13
On legal history, CLS theorists sometimes pointed out the way that
apparently neutral rules actually work to the benefit of the powerful.
However, the more common theme was the contingency of legal rules
and concepts: the way that the rules could have developed other than the
way they actually did. Similarly, the argument goes, the legal rules and
concepts as they are now should not be treated as natural or inevitable,
but as contingent and subject to change.14
An example of CLS’s critique of the apparent neutrality of legal
12 Among the thinkers most often discussed or cited are Jacques Derrida, Michel Foucault,
Antonio Gramsci, Jurgen Habermas, Ludwig Wittgenstein, Karl Marx, and Jacques
Lacan.
13 James Boyle, “Introduction”, in Critical Legal Studies (J. Boyle ed., New York University
Press, New York, 1994), p. xx. This noted, there are many who attribute a more radical
theory of indeterminacy to at least some of the critical legal studies theorists. For some
possible variadons on an indeterminacy position, and a critique of such positions, see
Lawrence B. Solum, “On the Indeterminacy Crisis: Critiquing Critical Dogma”, 54
University of Chicago Law Review 462 (1987); Kenneth J. Kress, “Legal Indeterminacy”, 77
California Law Review 283 (1989).
14 Among the best known CLS works on legal history are Morton Horwitz, The
Transformation of American Law 1780—1860 (Harvard University Press, Cambridge, Mass.,
1977); Hay, Linebaugh, Rule, Thompson and Winslow, Albion’s Fatal Tree\ and Robert
Gordon, “Critical Legal Histories”, 36 Stanford Law Review 57 (1984).
concepts was the attack on the public/private distinction.13 The argu¬

ment runs roughly as follows: both within and outside the legal system, a
great deal is made of the difference between matters which fall within the
“public” realm (and thus are properly subject to significant government
control) and matters with the “private” realm (a haven from government
intrusion). However, coercion and oppression also occur in the “private”
realm: in the family, in domestic violence and abuse, and in private eco¬
nomic ordering, where the economically powerful can set oppressive
terms for the economically powerless. The distinction between public and
private is thus undermined: the private realm is not a haven from the
coercion of the public realm. It is the government’s refusal to act to
protect the weak in “private matters” (domestic relations and contract)
that allows and legitimates the oppression that occurs. Also, critical legal
studies, like some of the legal realists, wanted to emphasize the extent to
which the rules of private law were no more “natural” or “inevitable”
than the rules of public law, and no less a product of official policy.16
Another view influential within CLS was the idea of the “fundamen¬
tal contradiction”. The idea, introduced by Duncan Kennedy,1' is that
“relations with others are both necessary to and incompatible with our
freedom”,18 and that this contradiction—separation and connection,
individual and collective—pervades both our experiences of life and the
legal rules and doctrine we create. Kennedy argued that liberal (under¬
stood broadly) legal theory denies the contradiction or purports to
“mediate” it, but inevitably fails in the mediation. The argument also con¬
nects the contradiction and the legitimating function of law.19 Kennedy,
and some other CLS theorists, also offered related claims about the simul¬
taneous and contradictory commitments law makes to altruism and indi¬
vidualism, and to rules and standards.20
13 See, e.g. Frances Olsen, “The Family and the Market: A Study of Ideology and Legal
Reform”, 96 Harvard Law Review 1497 (1983); Morton Horwitz, “The History of the
Public/Private Distinction”, 130 University of Pennsylvania Law Review 1423 (1982). A good
rebuttal to the realist/CLS attack on the public/private distinction can be found in Leiter,
“Legal Realism” at 278-279.
16 The legal realist articles on the subject include Robert Hale, “Coercion and Distribution
in a Supposedly Non-Coercive State”, 38 Political Science Quarterly 470 (1923); and Morris
Cohen, “Property and Sovereignty”, 13 Cornell Law Quarterly 8 (1927).
17 Duncan Kennedy, “The Structure of Blackstone’s Commentaries”, 28 Buffalo Law Review
205 at 211-221 (1979). For a brief but effective response, see Andrew Altman, Critical
Legal Studies: A Liberal Critique (Princeton University Press, Princeton, 1990), pp. 186-189.
18 Kennedy, “The Structure of Blackstone’s Commentaries”, p. 213.
19 ibid, at 213-221.
20 See Duncan Kennedy, “Form and Substance in Private Law Adjudication”, 89 Harvard Law
Review 1685 (1976); Kelman, A Guide to Critical Legal Studies, pp. 15-63 (“Rules and Standards”).
Another comparable argument is Roberto Unger’s that legal docd ine is indeterminate because
it simultaneously contains antagonistic principles and counterprinciples (like “freedom of con¬
tract” and fairness/community in contract law). See Roberto Mangabeira Unger, The Critical
Legal Studies Movement (Harvard University Press, Cambridge, Mass., 1986), pp. 57-75.
OUTSIDER JURISPRUDENCE 207
It is hard to be more definitive about what CLS stood for, as the

theorists who considered themselves part of the movement (or were
considered part of the movement by others) did not all take the same
position on issues. It is not merely that different theorists emphasized
different issues, but that on any given issue—e.g. the value of the “rule
of law”,21 the value of rights rhetoric,22 and whether law serves the
interests of the powerful—different CLS theorists would be on
different sides.
As there has been a large number of writers within CLS presenting a
variety of views on a wide range of topics, there has been a comparably
wide array of critics and topics for criticism. A brief sample of citations
is offered in a footnote.23
OUTSIDER JURISPRUDENCE
Two approaches to law, feminist legal theory and critical race theory, are
combined here under the label “outsider jurisprudence”24 because
though each could be discussed in detail (and in far greater length than
I will be able to do here) separately, they can both be seen as emanating
from the same core problem: the extent to which the law reflects the per¬
spective of and the values of white males, and the resulting effects on
citizens and on members of the legal profession who are not white
males.25
The problem about bias can be summarized by the following, from an
article in a symposium on critical race theory:
“Long ago, empowered actors and speakers enshrined their meanings, prefer¬
ences, and views of the world into the common culture and language. Now their
21 See, e.g. Morton Horwitz, “The Rule of Law: An Unqualified Human Good?” (book
review), 86 Yale Law Journal 561 (1977) (arguing against E.P. Thompson’s view that the
rule of law is always an unqualified good).
22 See, e.g. Tushnet, “An Essay on Rights”; Horwitz, “Rights”.
23 See, e.g Altman, Critical Legal Studies: A Liberal Critique; John Finnis, “On ‘The Critical
Legal Studies Movement”’, 30 American Journal of Jurisprudence 21 (1985), reprinted in
Oxford Essays in Jurisprudence, Third Series (J. Eekelaar and J. Bell ed., Clarendon Press,
Oxford, 1987), pp. 145-165; Neil MacCormick, “Reconstruction after Deconstruction:
A Response to CLS”, 10 Oxford Journal of Legal Studies 539 (1990).
24 I take the tide from Mari Matsuda, “Public Response to Racist Speech: Considering the
Victim’s Story”, 87 Michigan Law Review 2320 at 2323 and n. 15 (1989); and Mary
Coombs, “Outsider Scholarship: The Law Review Stories”, 63 University of Colorado Law
Review 683, at 683—684 (1992).
25 See Scott Brewer, “Introduction: Choosing Sides in the Racial Critiques Debate”, F03
Harvard Law Review 1844 at 1850-1851 (1990) (“Moral Visions of Racial
Distinctiveness”); Scott Brewer, “Pragmatism, Oppression, and the Flight to Substance”,
63 Southern California Law Review 1753 (1990). See generally Martha Minow, Making All the
Difference (Cornell University Press, Ithaca, N.Y, 1990).
deliberation within that language, purporting always to be neutral and fair, inex¬
orably produces results that reflect their interests.”26
The question of difference can be taken in steps:
(1) is the difference between the majority or powerful group and the
minority or powerless group(s) simply a reflection of the years of
oppression, or are the differences inherent?
(2) if there are inherent differences, how (if at all) should the law reflect
or respond to these differences?
It is more common in feminist legal theory than in critical race theory to

find writers who suggest that there are inherent differences between the
powerful and the powerless: here, that women are different from men,
and should be treated differently.
Among the problems that are common in outsider jurisprudence are
those that develop from the fact that one is trying to create equality,
justice, and reform in or through the legal system, against a societal back¬
ground in which inequality, discrimination, and oppression are still
common, if not pervasive. This leads to standard types of dilemmas in
proposing reform: is it better to enforce a regime of strict facial neutral¬
ity, which might have the effect of merely reinforcing existing social
inequalities; or is it better to advocate forms of special treatment, which
might help in the short-term, but could have the long-term effect of rein¬
forcing the view that the group receiving the special treatment is weak or
inferior?
Finally, one might note that outsider jurisprudence, along with critical
legal studies, is directly concerned about justice in a way that most of the
other approaches to law discussed in this book are not.27 The argument
in all three approaches is basically that the law is unjust because it is
systematically distorted or biased (towards men, whites, and/or the rich
and powerful). However, while the arguments in these areas are often
couched in terms of fairness and justice, a full theory of justice or of “the
Good” is rarely articulated.
A way in which outsider jurisprudence differs from most other
approaches to law (including critical legal studies) is the regular focus on
proposals for reforms, ways of changing the law through legislation or
judicial action, which would remove what were perceived to be injustices
in the legal system or in society. One example that will be discussed in
some detail later in the chapter is a feminist proposal to change the legal
26 Richard Delgado and Jean Stefancic, “Hateful Speech, Loving Communities: Why Our
Notion of ‘A Just Balance’ Changes So Slowly”, 82 California Law Review 851 at 861
(1994).
27 I am grateful to Jack Balkin for pointing this out.
FEMINIST LEGAL THEORY 209
treatment of sexually explicit material. This greater focus on reforming

the law also indicates further connections with the American legal real¬
ists, some of whom had worked hard to reform the law in line with their
ideas about how the law should operate.28
FEMINIST LEGAL THEORY
Feminist analyses have offered important critiques in a variety of con¬

texts, from broad political analyses to cultural theories to analyses specific
to particular academic disciplines. Though certain themes are common
to most of what carries the label “feminist”—in particular, a belief that
either theory or practice has been distorted towards the perspective or the
interests of men—there is a great deal of variety, even within a single dis¬
cipline, among those writers who call themselves “feminists”, and here,
feminist legal theory is no exception. However, to the extent that one can
speak of these writers (and these texts) as a group, their impact has been
significant in the United States, and is growing in other countries.29
As discussed in the above overview of “outsider jurisprudence”, part of
feminist legal theory is the analysis of the extent to which the legal system
reflects and reinforces a male perspective, and part is (the related) analy¬
sis of how women’s differences from men should or should not be
reflected in legal rules, legal institutions, and legal education.
Regarding the first aspect, Patricia Smith has argued that what femi¬
nist legal theories have in common is an opposition to the patriarchal
ideas that dominate society in general, and (relevant to feminist legal
theory) the legal system in particular.30 The differences among feminist
legal theorists are then seen as reflecting differences in emphasis or per¬
spective in describing the many aspects and effects of patriarchy,
differences in which problems to focus upon, and differences in strategy
for overcoming the problem of patriarchy (for example, those who believe
in moderate reforms as against those who believe that only radical
restructuring of society will suffice).31
As t6 the second aspect, one could argue that what is common to fem¬
inist legal theories is that they are divergent responses to the inherent or
28 See, eg. Zipporah Wiseman, “The Limits of Vision: Karl Llewellyn and the Merchant
Rules”, 100 Harvard Law Review 465 (1987) (on the connection between realist thought
and the Uniform Commercial Code).
29 One sympathetic critic recently wrote: “To a growing extent, a jurisprudence with very
little to add about the concerns and innovations of feminism will not have very much
interesting to add, period.” Matthew H. Kramer, Critical Legal Theory and the Challenge of
Feminism (Rowman & Litdefield, London, 1995), p. 265.
30 Patricia Smith, “Feminist Jurisprudence”, in A Companion to the Philosophy of Law and Legal
31 ibid, at 307—308.
socially constructed differences between men and women, responses

regarding what these differences should mean about the way we think
about law. One feminist response to difference is:
(1) there are intrinsic differences between men and women;
(2) society and law are organized around a male standard and a male
norm, a situation which works in the short-term and the long-term
against the interests of women; and (therefore)
(3) society and law should be reformed to remove that bias, and to reflect
women’s experiences as well as men’s.
The differences between men and women which are emphasized include
differences in values, ways of seeing the world, responding to other
people,32 responding to problems, ways of speaking,33 and so on.
A second feminist response to difference is that there are no (significant)
inherent differences between men and women, and that any aspect of the
law which assumes the contrary should be changed. This position often
includes the view that what differences appear among men and women
are peripheral, or are the effects of contingent social or cultural forces.
A third approach, closely identified with the work of Catharine
MacKinnon, argues that most of the differences there may appear to be
between men and women are the result of the domination and exploita¬
tion of women by men.34 Women were not allowed to work in high-status
or high-paying areas, but, over time, women adapted to these restrictions
by, among other things, arguing for the value of what they were allowed
to do (e.g. the value of the care-giving professions, the artistic value of
quilts, etc.). Women may be more likely to negotiate, to try to work things
out, rather than battle in “winner take all” contests, but that is because
they have learned that they would be likely to lose such contests, where
society has given all the power to men, and has encouraged the oppres¬
sion of women. Similarly, women may value caring and nurturing, but
that is because these are the values that society (that is, men) have valued
in them. Women are encouraged to be good mothers and nurses; they are
not encouraged to be good litigators and politicians.35
32 Carol Gilligan’s work in some ways exemplifies all three. See Gilligan, In a Different
Voice.
33 See, e.g. Deborah Tannen, You Just Don’t Understand {William Morrow, New York, 1990).
34 See, e.g. Catharine A. MacKinnon, Feminism Unmodified (Harvard University Press,
Cambridge, Mass., 1987) pp. 32^15 (“Difference and Dominance: On Sex
Discrimination”).
35 MacKinnon’s “dominance theory” echoes the ideas of Friedrich Nietzsche (1844-1900)
regarding master morality” and “slave morality”. If one is a strong person or part of a
strong group, one is more likely to value strength, activity, and victory. If one is a
weak person or part of a weak group, one will more likely develop a moral view that
Feminist approaches and perspectives have been applied to a wide

variety of topics and issues. Among these are abortion rights,36 rape law,37
sexual harassment,38 surrogate motherhood,39 pregnancy and maternity
leave,40 and (perhaps most controversially) pornography.41 Though the
arguments necessarily vary from article to article and from author to
author, the most common theme is that the current law or current
approach in these areas exemplifies a male bias and/or works to the det¬
riment of women as a group.
I will briefly discuss one of the better known topics within feminist legal
theory, the MacKinnon-Dworkin proposed legislation on sexually explicit
material, to give some sense of the complexity and difficulty of the issues
raised. (I make no claim that this topic is “representative” of the
issues raised by feminist theorists; I do not think any issue would be.
The issues raised within feminist legal theory are so broad in range and
have such different contours that any search for a “representative” issue
would be doomed to failure.)
Catharine MacKinnon (1946-) and Andrea Dworkin drafted a model
civil rights ordinance to combat certain kinds of sexually explicit
speech.42 Under the ordinance, anyone who had suffered directly or indi¬
rectly because of pornography43 could sue for damages. This model ordi¬
nance was proposed (in slightly different forms) in a number of American
victory, strength, and wealth are all suspect, that the meek will inherit the earth, and that
humility and subservience are the greatest virtues. See, e.g. Friedrich Nietzsche, On the
Genealogy of Morality, First Essay (K. Ansell-Pearson ed., Cambridge University Press,
Cambridge, 1994) (first published in 1887).
36 See, e.g. MacKinnon Feminism Unmodified, pp. 93-102; Anita Allen, “The Proposed Equal
Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the
Constitution”, 18 Harvard Journal of Law and Public Policy 419 (1995).
37 See, e.g. Panel Discussion, “Men, Women and Rape”, 63 Fordham Law Review 125 (1994);
Susan Estrich, Real Rape (Harvard University Press, Cambridge, Mass., 1987).
38 See, eg. Catharine MacKinnon, Sexual Harassment of Working Women (Yale University Press,
New Haven, 1979).
39 See, e.g. Martha Field, “Surrogacy Contracts: Gestational and Traditional: The
Argument for Nonenforcement”, 31 Washburn Law Review 3 (1991).
40 See, e.g. Minow, Making All the Difference, pp. 56-60; Herma Hill Kay, “Equality and
Difference: The Case of Pregnancy”, 1 Berkeley Women’s Law Journal 1 (1985).
41 See, e.g. MacKinnon, Feminism Unmodified, pp. 127-213; see also Nicola Lacey, “Theory
into Practice? Pornography and the Public/Private Dichotomy”, 20 Journal of Law and
Society 93 (1993).
42 MacKinnon and Dworkin (no relation to the Ronald Dworkin of Chap. 7) are also
well-known for their views on heterosexual sex in general, though these views are
often misunderstood or mis-characterized. For a sympathetic and subtle summary
and analysis of MacKinnon’s views on the matter, see Frances Olsen, “Feminist
Theory in Grand Style” (book review), 89 Columbia Law Review 1147 at 1154—1160
(1989).
43 Among the categories of injuries listed were “coercion into pornography”, “forcing por¬
nography on a person”, “assault or physical attack due to pornography”, and “defama¬
tion through pornography”.
cities, passed in two, but declared void because unconstitutional in both

cases.44
In the words of one of the authors: “Pornography, in the feminist view,
is a form of forced sex, a practice of sexual politics, an institution of
gender inequality.”45 The argument is that what is at the core of (the vast
majority of) pornographic material is a portrayal of women as subordi¬
nate to men, and women as enjoying their subordinate position.46
Pornography thus has effects beyond questions about whether it should
be restricted because it is “immoral” (immoral because sexually explicit).
Under the MacKinnon/Dworkin view, pornography works to silence
women by reinforcing the subordination of women and the perception by
men that women enjoy that subordination.47
In the MacKinnon-Dworkin proposal, “pornography” was defined as
the “graphic sexually explicit subordination of women” through pictures
or words which portray women as enjoying humiliation, pain, or being
the victims of rape or other violence. (The constitutional ground for
invalidating the ordinance was that under the right of free expression,
the government could not distinguish between material on the basis of
viewpoint; thus, a statute that subjects to civil liability sexually explicit
material that implies that women enjoy their subordinate position but
not similar material that portrays women as not enjoying such treatment,
was considered an improper government intrusion on freedom of
expression.48)
One sympathetic commentator summarized this analysis as follows,
placing the anti-pornography proposal into a context of a more general
feminist analysis:
“MacKinnon argues that men expropriate women’s sexuality, that pornogra¬

phy increases the sexual appeal of the subordination of women, and that the
subordination of women creates what we perceive and experience as gender
differences. She argues that pornography is central to women’s subordi¬
nation, that it makes the subordination of women sexy and constandy rein¬
forces and eroticizes the domination-subordination dynamic. The point of
regulating pornography is not to make life a little less pleasant, but it is a step
44 See Mary Becker; Cynthia Grant Bowman and Morrison Torrey ed., Feminist
Jurisprudence: Taking Women Seriously (West Publishing, St. Paul, Minn., 1994), pp. 321-322.
Portions of MacKinnon and Dworkin’s “Model Ordinance” are reprinted on pp.
321-324 of that text. For a sympathetic overview of the testimony and the political
maneuvering when the ordinance was being considered, see Paul Brest and Ann
Vandenberg, “Politics, Feminism, and the Constitution: The Anti-Pornography
Movement in Minneapolis”, 39 Stanford Law Review 607 (1987).
45 MacKinnon, Feminism Unmodified, p. 148.
46 See, e.g. ibid, at pp. 148, 160, 172.
47 See, e.g. ibid, at pp. 146-213.
48 American Booksellers Assoc. Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affirmed mem., 475
U.S. 1001 (1986).
toward a fundamental transformation of the relations between men and

554-9
women.
It is important to note that on this issue, as on many of the more con¬

troversial topics, there have been feminist theorists on both sides of the
issue: in the present case, opposing the MacKinnon-Dworkin proposal,
and related restrictions on sexually-explicit speech, as well as supporting
such restrictions.50 Those opposing the restrictions on pornography offer
a variety of arguments, including the claims that pornography helps to
undermine conventional sexual morality which oppresses or confines
women; that any government regulation would inevitably affect “good”
or “liberating” pornography as much if not more than “bad” or “oppres¬
sive” pornography; and that some women enjoy creating or “consuming”
pornography, even types of pornography that quite expressly show
women enjoying pain or subordination (such as sado-masochistic pornog¬
raphy).51
Some of the debate for and against proposals like MacKinnon/
Dworkin’s turned on questions about autonomy and “false conscious¬
ness”.52 To the argument by some women that they actually enjoy making
or reading the type of sexually explicit material that the MacKinnon/
Dworkin ordinance would restrict, a common response is that these
women’s perceptions of enjoyment are themselves the product of the per¬
vasively oppressive society in which they were brought up (the argument
being that women, like slaves generations earlier, find what pleasure they
can, and what meaning they can, within their situations, and may even
convince themselves that they have chosen their path voluntarily).53
About here is where one enters troubled and troubling areas.
As to the possibility of “false consciousness”, on one hand, we recog¬
nize the experience from ourselves and others we have known well, where
a person seems convinced (for some reason) that something was what she
49 Olsen, “Feminist Theory in Grand Style” at 1160 (footnote and page references omitted).
The feminism criticism of pornography, that it is not “mere speech”, but helps to create
or constitute a social reality which subordinates women, parallels the analysis critical race
theorists offer regarding “hate speech”. See Mari J. Matsuda, Charles R. Lawrence III,
Richard Delgado, and Kimberle Williams Crenshaw, Words That Wound: Critical Race
Theory, Assaultive Speech, and the First Amendment (Westview Press, Boulder, Colo., 1993).
50 For views opposing restrictions on sexually explicit speech, see, e.g. Varda Burstyn, ed.,
Women Against Censorship (Douglas & McIntyre, Ltd., Vancouver, 1985); Wendy McElroy,
XXX: A Woman’s Right to Pornography (St. Martin’s Press, New York, 1995).
51 These arguments are elaborated in the texts cited in the previous footnote.
52 “False consciousness” is “[a]n inability to see things, especially social relations and rela¬
tions of exploitation, as they really are.” Blackburn, The Oxford Dictionary of Philosophy,
p. 135.
53 See, e.g. MacKinnon, Feminism Unmodified, pp. 218-219; Catherine MacKinnon, Towards
a Feminist Theory of the State (Harvard University Press, Cambridge, Mass., 1989),
pp. 148-154.
wanted or was in her best interests, when it really was not. We see the
effects of advertisers, politicians, religious leaders, and others trying (and
sometimes succeeding) to convince us what we “should” want. (If the
process of trying to create new perceptions of need and desire never suc¬
ceeded, then people would have long ago stopped spending the vast
amount of time and money devoted to just such projects.)
On the other hand, the picture of there being a “real me” somewhere
beneath all the selves that have been imposed by societal pressures
(whether commercial, religious, political or otherwise), is not entirely con¬
vincing.54 And even if in principle one could distinguish between the
“real” self and its “real” interests and desires, and the brainwashed
person of day-to-day life, how is this determination to be made and
(perhaps more important) who is to make it?
CRITICAL RACE THEORY
By most accounts, critical race theory developed as an offshoot of critical

legal studies in the late 1980s.55 Though here, as elsewhere, there is more
than one plausible characterization of a movement’s history. One could
just as easily state56 that critical race theory had its roots in the 1970s, as
theorists began to consider what had and had not been accomplished by
the American Civil Rights Movement.
As with all the previous topics in this part (American legal realism, law
and economics, critical legal studies, and feminist legal theory), it is hard
to speak about critical race theory in general, as it is a label that has been
accepted by or applied to a wide variety of theorists and analyses. With
that disclaimer in mind, there are some things that can be said that seem
to apply to much of the area.57
Critical race theory can be understood as having two major strands.
The first strand is the theme of racism: the claim that racism is pervasive
in the legal system and in society, and that it can be uncovered in many
54 Questioning the unity or solidity of the “self” is a theme commonly found among “post¬
modernist” writers, an approach discussed in Chap. 21.
55 Angela Harris describes the “first annual Workshop on Critical Race Theory” as having
occurred in July 1989 in Madison, Wisconsin. Angela P. Harris, “Foreword: The
Jurisprudence of Reconstrucdon”, 82 California Law Review 741 at 741 (1994).
56 As a number of commentators have, see, e.g. Richard Delgado and Jean Stefancic,
“Critical Race Theory: An Annotated Bibliography”, 79 Virginia Law Review 461 at 461
(1993); Matsuda, Lawrence, Delgado and Crenshaw, Words That Wound, p. 3.
57 In their annotated bibliography of critical race theory (cited in the previous footnote),
Richard Delgado and Jean Stefancic list 10 “themes” as common to or distinctive of crit¬
ical race theory. A somewhat different listing of six “defining elements” of critical race
theory is given in Matsuda, Lawrence, Delgado and Crenshaw, Words That Wound,
pp. 6-7. The portrait of critical race theory offered in the text will cover some of the
same ground, but necessarily in a somewhat sketchier way.
CRITICAL RACE THEORY 215
allegedly neutral concepts, procedures and analytical approaches.58 The

second strand (related to, but logically separate from, the first) is that
persons from minority ethnic groups (or at least those who have suffered
because of their identity as a member of one of those groups) have dis¬
tinctive views, perceptions, and experiences which are not properly rec¬
ognized or fully discussed in mainstream or conventional discussions of
the law (whether these discussions occur in courtrooms, law school class¬
rooms, law review articles, or newspaper reports).59
As regards the first strand, critical race theorists often try to show how
pervasive racism affects legal scholarship both in areas where race is near
the surface,60 and in areas where race would not, to most observers,
immediately seem relevant.61 Commentators have also considered the
extent to which racial equality is no longer a realistic goal,62 or, at least,
the extent to which minorities should focus on means other than the
courts or the law to attain their objectives.63
One natural focus of critical race scholarship has been affirmative
action (also sometimes known as “positive discrimination” or “reverse dis¬
crimination”), favouring candidates for positions on the basis of their
membership in a minority ethnic group.64 While many writers have
sought to defend and legitimate such programmes within a context in
which merit-based selection is strongly preferred and discrimination
based on race usually (and rightfully) criticized, other writers have offered
a more ambivalent response to such programmes.65 The topic of
affirmative action brings together aspects of the first strand of critical
race theory—the pervasiveness of racism within society (which can serve
both as a justification for such programmes, and an explanation why
58 See, e.g. Harris, “Foreword: The Jurisprudence of Reconstruction” at 770-771.

59 See, e.g. Matsuda, Lawrence, Delgado and Crenshaw, Words That Wound, p. 6.
60 See, e.g. Kimberle Crenshaw, “Race, Reform, and Retrenchment: Transformation and
Legitimation in Antidiscrimination Law”, 101 Harvard Law Review 1331 (1988); Lani
Guinier, “The Triumph of Tokenism: The Voting Rights Act and the Theory of Black
Electoral Success”, 89 Michigan Law Review 1077 (1991).
61 See, f.g Patricia Williams, “Fetal Fictions: An Exploration of Property Archetypes in
Racial and Gendered Contexts”, 42 Florida Law Review 81 (1990); Stephen Carter, “When
Victims Happen to Be Black”, 97 Yale Law Journal 420 (1988).
62 See Derrick Bell, “Racial Realism”, 27 Connecticut Law Review 363 (1992).
63 See Girardeau A. Spann, Race Against the Court (New York University Press, New York,
1993); Richard Delgado, “Rodrigo’s Ninth Chronicle: Race, Legal Instrumentalism, and
the Rule of Law”, 143 University of Pennsylvania Law Review 379 (1994).
64 Affirmative action programs also often favor women over men, and there is some indi¬
cation that women (not members of minority groups) have been the primary beneficiary
of American affirmative action programs.
65 See, e.g. Derrick Bell, “Xerces and the Affirmative Action Mystique”, 57 George Washington
Law Review 1595 (1989); Richard Delgado, “Affirmative Action as a Majoritarian Device:
Or, Do You Really Want to be a Role Model”, 89 Michigan Law Review 1222 (1991); Mari
Matsuda, “Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up
Ground”, 11 Harvard Women’s Law Journal 1 (1988).
many such programmes, in their current form, may do more harm than
good)—with aspects from the second strand—the distinctive and valu¬
able input that minority workers, professionals, and academics can bring
to their work settings (one of the justifications offered for affirmative
action programmes).
As for the second strand, part of the argument is that group identity
and experience are so central a part of who we are and so strongly affect
how we perceive the world that it is important that there be a variety of
perspectives, so that all aspects of a situation are properly seen, and the
view of the majority or dominant group is not mistaken for objectivity or
universality.66 While this is sometimes presented as part of a grand “post¬
modern” theory,67 it need not be. The claim need be no more ambitious
or controversial than that those who have experienced racial discrimina¬
tion all their life may have a perspective or insights on discrimination that
those who are part of the majority would not have. One critical race theo¬
rist, Milner Ball, described the articles of his critical race theory col¬
leagues as, among other things, “teach [ing] us about the felt effects of law
and therefore something about its nature: on being an object of property,
on being hurt by constitutionally protected speech, on being a minority
member of a white law faculty.”68
Relative to mainstream thought, the claims of critical race theorists
vary from what would be perceived as helpful and unsurprising to what
would be perceived as radical, divisive, or improbable. The unsurprising
side of the spectrum would include what has already been mentioned, the
claim that members of oppressed minority groups experience the law
differently compared to privileged members of the majority, ancf on that
basis have distinctive ideas and perspectives to offer. By “experience the
law”, I mean the dealings with aspects of the legal systems people (other
than lawyers and judges) have on a day-to-day basis. For members of
minority groups, this may mean bullying or distrust by police officers, or
daily moments of discrimination or humiliation by members of the
majority (actions which are illegal, but for which, as a practical matter,
there is no remedy within the system).69
Along similar, relatively uncontroversial lines, critical race theorists
66 See, eg. Drucilla Cornell, “Loyalty and the Limits of Kantian Impartiality” (book
review), 107 Harvard Law Review 2081 (1994).
67 On postmodernism, see Chap. 21.
60 Milner Ball, “ The Legal Academy and Minority Scholars”, 103 Harvard Law Review 1855
at 1859 (1990) (footnote omitted).
69 For judicial recognition of the importance of considering the perspective of the victim,
see, eg. Lynch v. Donnelly, 465 U.S. 668 at 688-694 (1984) (O’Connor J., concurring) (on
the importance of considering the perspective of religious minorities in considering
whether a government action constituted an endorsement of (the majority) religion);
Ellison v. Brady, 924 F.2d 872 at 878-879 (9th Cir. 1991) (applying “the perspective of the
victim , a reasonable woman” test, in evaluating a claim of sexual harassment).
have argued that since members of minority groups experience life

differendy from members of a majority, it is valuable to have ethnic diver¬
sity in law school classrooms, law school faculties, the police force, the
judiciary, and so on, for that diversity will tend to bring a healthy diver¬
sity of views and ideas. One commentator summarized the argument as
follows: “Just as the servant knows more than the master, those ‘on the
bottom’ of American society see more than those at the top.”70 As noted
earlier, this is part of a standard argument for affirmative action (positive
discrimination).
The more controversial claims (some of which are just radical rework¬
ings of more accepted positions) would include the view that there are
certain truths that are accessible to members of minority groups which
are simply not accessible to members of the majority.71 One critical race
theorist wrote:
“Minority perspectives make explicit the need for fundamental change in the
ways we think and construct knowledge. . . . Distinguishing the consciousness of
racial minorities requires acknowledgment of the feelings and intangible modes
of perception unique to those who have historically been socially, structurally, and
intellectually marginalized in the United States.”72
An equally controversial conclusion, based on more moderate premises,

is that certain subjects can only be properly or fully discussed by members
of particular groups, e.g. only members of minority ethnic groups should
or can discuss the legal and moral aspects of racism.73
Along with the two substantive strands to critical race theory, one
can also note that the writings in this movement are often stylistically
distinctive. The use of “narrative” or a “storytelling” approach in aca¬
demic writings, though by no means exclusive to critical race theory,74 is
quite common within the movement’s writings.75 There are at least two
70 See Harris, “Foreword: The Jurisprudence of Reconstruction” at 769 (footnote omitted).

71 e.g. Mari Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations”, 22
Harvard Civil Rights-Civil Liberties Law Review 323 at 326, 346 (1987) (“the victims of racial
oppression have distinct normative insights”; “Those who are oppressed in the present
world can speak most eloquently of a better one”).
72 Robin Barnes, “Race Consciousness: The Thematic Content of Racial Distinctiveness in
Critical Race Scholarship”, 103 Harvard Law Review 1864 at 1864 (1990) (footnote omitted).
73 A position criticized in Randall Kennedy, “Racial Critiques of Legal Academia”, 102
Harvard Law Review 1745 at 1778-1787 (1989).
74 See, e.g. William N. Eskridgejr., “Gaylegal Narratives”, 46 Stanford Law Review 607 (1994);
Kathryn Abrams, “Hearing the Call of Stories”, 79 California Law Review 971 (1991).
75 See e.g. Delgado and Stefancic, “Critical Race Theory: An Annotated Bibliography” at
462; Richard Delgado, “Legal Storytelling: Storytelling for Oppositionists and Others:
A Plea for Narrative”, 87 Michigan Law Review 2411 (1989). Narrative has also been
important in feminist legal theory for roughly the same reasons it is central to critical race
theory. See, e.g. Martha Fineman and Nancy Thomadsen ed., At the Boundaries of Law
(Routledge, New York, 1991), pp. 1-58 (“Perspectives from the Personal”).
alternative purposes for using storytelling in the place of more conven¬

tional normative argument.76 First, a rich narrative can help people from
the majority community begin to understand what it is like to experience
the legal system as a member of a minority community77; secondly, stories
and fables can be used to undermine oversimplified views about human
motivation or notions that there are clear moral rights and wrongs.78 One
might wonder about the claims a fictional story or fable might have on our
view of the world. First, even though fictional, stories can help us learn
the perspective and experiences of people whose like we might never get
to know in our secluded daily lives. Secondly, a fictional story or fable will
convince us to the extent that it “rings true”; thus, whether our view of
the world is affected by William Golding’s Lord of the Flies or Derrick Bell’s
And We Are Not Saved depends on whether we believe that the characters
in those “fables” are acting as real people would in the situations
described.79
The argument against narrative as scholarship is that it can encourage
or cover up a lack of rigour about facts, correlation, or causation, and that
narrative, while encouraging empathy, often does so in a one-sided
manner (e.g. if it shows the plight of the tenant, it may fail to show the per¬
spective of the landlord).80
The nature of critical race theory is such that it is unsurprising that a
growing number of narrower community-based or group-based claims
are developing from within critical race theory or in analogy to it: fore¬
most among these would be “critical latino/a theory” (also known as
“LatCrit theory”) and “queer theory” (the latter referring to homosexu¬
als).81 If one’s way of perceiving the world is formed in large part by the
76 Harris, “Foreword: The Jurisprudence of Reconstruction” at 755-757.

77 Some of the best examples of such uses of narrative are in Patricia J. Williams, The
Alchemy of Race and Rights (Harvard University Press, Cambridge, Mass., 1991).
78 Among the other claims made for “narrative” are that it “serves to create and confirm
identity, both individual and collective”, and that it helps to “speak to” our emotions and
spiritual feelings as well as our rationality. Harris, “Foreword: The Jurisprudence of
Reconstruction”, 762 at 780-781 (footnote omitted).
79 See William Golding, Lord of the Flies (Perigee, New York, 1954); Derrick Bell, And We Are
Not Saved: The Elusive Questfor Racial Justice (Basic Books, New York, 1987).
80 See Daniel A. Farber and Suzanna Sherry, “Telling Stories Out of School: An Essay on
Legal Narratives”, 45 Stanford Law Review 807 (1993); Posner, Overcoming Law (reviewing
Williams, The Alchemy of Race and Rights), pp. 368-384.
81 For LatCrit theory, see, e.g. Symposium: “LatCrit Theory: Latinas/os and the Law”, 85
California Law Review 1087-1686 (1997), 10 La Raza Law Journal 1-600 (1997); see also
Richard Delgado and Jean Stefancic ed., The Latino Condition: A Critical Reader (New York
University Press, New York, 1998); for “queer theory”, see, e.g. Francisco Valdes, “Queers,
Sissies, Dykes, and Tomboys: Deconstructing the Conflation of ‘Sex,’ ‘Gender,’ and ‘Sexual
Orientation’ in Euro-American Law and Society”, 83 California Law Review 3 (1995). There
are numerous other efforts towards group-based or community-based claims: see, e.g.
Robert S. Chang, “ loward an Asian American Legal Scholarship: Critical Race Theory,
Post-Structuralism, and Narrative Space”, 81 California Law Review 1244 (1993).
culture and community in which one grew up and the type of discrimi¬
nation one has faced, it seems logical to conclude not only that minor¬
ities perceive the world differendy from the majority group, but also that
(e.g.) Latinos and Asian-Americans perceive the world differendy from
African-Americans, and one can keep pushing the point. Chicanos
(Mexican-Americans) can argue (and have argued) that their experi¬
ences and culture are distinctly different from other Latinos, and simi¬
larly for Americans of West Indian descent in contrast to other
“African-Americans”. The argument can also be made that women
within these groups experience life distinctly different from men82, and
homosexuals and bisexuals different from heterosexuals. The question
remains, and becomes more urgent with each further fragmentation: are
these differences “essential”—does everyone within the stated group
have, and have necessarily, the same perspective and the same charac¬
teristics83; and is it possible, with sufficient dialogue and explanation, for
persons of one group to understand the views and values of those of
another group?
CRITICAL LEGAL STUDIES
James Boyle ed., Critical Legal Studies (New York University Press, New York, 1994).
Critical Legal Studies Symposium, 36 Stanford Law Review 1-674 (1984) (a wide-
ranging collection, which includes articles on the history of CLS, and articles
critical of CLS, as well as pieces explaining or applying CLS ideas).
Douglas Hay, Peter Linebaugh, John G. Rule, E.P. Thompson and Cal Winslow,
Albion’s Fatal Tree (Penguin, Middlesex, 1975).
Alan Hunt, “The Theory of Critical Legal Studies”, 6 Oxford Journal of Legal
Studies 1 (1986).
David Kairys, ed., The Politics of Law (revised ed., Pantheon, New York, 1990)
(24 articles, sharply edited; the contributors include Duncan Kennedy,
Robert Gordon, Morton Horwitz, Mark Kelman, Peter Gabel, and Frances
Olsen).
Mark Kelman, A Guide to Critical Legal Studies (Harvard University Press,
Duncan Kennedy, A Critique of Adjudication (fin de siecle) (Harvard University Press,
Roberto Mangabeira Unger, The Critical Legal Studies Movement (Harvard
University Press, Cambridge, Mass., 1986).
82 See, e.g. Adrien Katherine Wing ed., Critical Race Feminism: A Reader (New York University
Press, New York, 1997).
83 For an important and influential criticism from critical race theory on the apparent essen-
tialism of some feminist writing, see Angela P. Harris, “Race and Essentialism in Feminist
Legal Theory”, 42 Stanford Law Review 581 (1990).
FEMINIST LEGAL THEORY
Katharine T. Bartlett and Rosanne Kennedy ed., Feminist Legal Theory: Readings in
Law and Gender (Westview Press, Boulder, Colorado, 1991).
Martha Fineman and Nancy Thomadsen ed., At the Boundaries of Law: Feminism
and Legal Theory (Roudedge, New York, 1991).
Christine Littleton, “Feminist Jurisprudence: The Difference Method Makes”, 41
Stanford Law Review 751 (1989).
Catharine MacKinnon, Feminism Unmodified (Harvard University Press,
Patricia Smith, “Feminist Jurisprudence and the Nature of Law” in A Companion
to the Philosophy of Law and Legal Theory (D. Patterson ed., Blackwell, Oxford,
1996), pp. 302-310.
Patricia Smith ed., Feminist Jurisprudence (Oxford University Press, Oxford, 1993).
D. Kelly Weisberg ed., Feminist Legal Theory: Foundations (Temple University Press,
Philadelphia, 1993).
CRITICAL RACE THEORY
Derrick Bell, And We Are Not Saved (Basic Books, New York, 1987).
Kimberle Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas ed., Critical
Race Theory: The Key Writings That Formed the Movement (The New Press, New
York, 1995).
Richard Delgado, “The Imperial Scholar: Reflections on a Review of Civil Rights
Literature”, 132 University of Pennsylvania Law Review 561 (1984).
Richard Delgado ed., Critical Race Theory: The Cutting Edge (Temple University
Press, Philadelphia, 1995) (containing 50 articles on a wide range of topics from
many different authors).
Richard Delgado and Jean Stefancic, “Critical Race Theory: An Annotated
Bibliography”, 79 Virginia Law Review 461 (1993).
Daniel A. Farber and Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth
in American Law (Oxford University Press, New York, 1997).
Randall Kennedy, “Racial Critiques of Legal Academia”, 102 Harvard Law Review
1745(1989).
Girardeau A. Spann, Race Against the Court: The Supreme Court and Minorities in
Contemporary America (New York University Press, New York, 1993).
Symposium: Critical Race Theory, 82 California Law Review 741-1125 (1994).
Patricia J. Williams, The Alchemy of Race and Rights (Harvard University Press,
Chapter Twenty
Law and Literature
It was perhaps inevitable, during times when legal academics more and
more frequently sought answers in other disciplines, that many of them
would focus on literature and literary theory. Speaking constructively,
much of literary studies, like much of legal studies, involves the interpre¬
tation of texts and the problems that come with interpretation; thus it
would not be surprising if one field had something to teach the other.
Speaking cynically, reading and writing about Charles Dickens or Franz
Kafka will almost always be more interesting than reading and writing
about the Rule Against Perpetuities or Bills of Exchange.
It is not only recendy that legal commentators and other academics have
noticed the connections between law and literature. Benjamin Cardozo, a
major figure from the “New Deal’’/American legal realist period wrote an
article decades ago on the literary styles of judicial opinions1; and in the
early 1970s, William R. Bishin and Christopher D. Stone mixed literary and
philosophical materials in an influential casebook that ranged from jurispru¬
dence to legal ethics.2 3 At roughly the same time, James Boyd White pub¬
lished what many consider the first book of the law and literature movement,
The Legal Imagination.21 However, it was only from the early 1980s on that the
supply of articles and books in the area went from occasional to plentiful.4
INTERPRETATION AND CONSTRAINT
One thing which seems to connect literature and law is the process
of interpretation: finding meaning in or from texts. The question
then becomes: is the interpretation which readers of novels do, or which
1 Benjamin N. Cardozo, “Law and Literature”, 14 Yale Review 699 (1925).

2 William R. Bishin and Christopher D. Stone, Law, Language and Ethics: An Introduction to
Law and Legal Method (Foundation Press, Mineola, N.Y., 1972).
3 James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression
(Litde, Brown, and Co., Boston, 1973).
+ See, e.g. Symposium: “Law and Literature”, 60 Texas Law Review 373-586 (1982).
222 LAW AND LITERATURE
literary theorists practice, the same interpretation that is done by judges

and others trying to understand the law?0
One of the strongest advocates for the two kinds of interpretation being the
same is Ronald Dworkin. Dworkin has argued that “constructive interpreta¬
tion”—an interpretation that works to make the object being interpreted the
best it can be of the genre it is—is the correct approach both to all forms of
artistic interpretation and to understanding social practices, including law.5 6
Dworkin, prior to fully developing the concept of “constructive inter¬
pretation”, offered another connection between law and literature, and
between legal and literary interpretation. He asserted that a judge acting
within a common law system was like one author in a chain of authors
collectively writing a novel, with each person adding a “chapter” to what
came before.7 The subsequent authors are constrained by what has been
written before, but still retain a significant level of freedom. However,
within that freedom the authors have an obligation to make the text the
best it can be. Similarly forjudges who are constrained—to a point—by
precedent, and who are to make the law the best it can be.
Arguing the contrary position, Richard Posner claims that while there
might be surface similarities between law and literature, as both centre on
the interpretation of texts, there are institutional differences and
differences of purpose that mean that law has little to learn from literary
theory.8 A text can be good literature in part because it is subject to many
possible interpretations; by contrast, a statute or judicial decision which
was subject to many equally tenable interpretations would be “bad law”.
Posner also offers a second contrast: one need not know anything about
the author’s intentions to appreciate good literature, and some schools of
literary interpretation (e.g: “New Criticism”) argue strongly against refer¬
ence to authorial intentions. By contrast, it is an important aspect of the
governmental structure that judges applying laws try to determine the
intentions of the lawmakers. The lawmakers in such circumstances are
trying to send a message, and judges are acting merely as an agent of the
legislature, and it would be illegitimate for them to interpret those laws
contrary to its intentions (even if doing so would make the laws morally
better).9 Posner summarizes the differences, as he sees them:
5 For an early discussion on the subject, see Kenneth S. Abraham, “Statutory

Interpretation and Literary Theory: Some Common Concerns of an Unlikely Pair”, 32
Rutgers Law Review 676 (1979).
6 See Dworkin, Law’s Empire, pp. 45-68. Dworkin’s general approach to law and legal
theory is discussed in Chap. 7.
7 See Dworkin, A Matter of Principle, pp. 158-162.
8 See Posner, Law and Literature, pp. 209-268.
9 Posner stops short of endorsing an “original intent” approach to interpreting legal texts:
“I admit the relevance of intention about intention and hence the propriety of treat¬
ing broadly worded statutory and constitutional phrases ... as delegations to the judi¬
ciary to create and not merely determine meaning.” ibid, at p. 245.
INTERPRETATION AND CONSTRAINT 223
“The judge is trying to decode a communication from his superiors in the consti¬
tutional hierarchy and must use all available information, including whatever can
be learned of the conscious intentions of those who wrote the provision that is
being interpreted. The test of a literary interpretation, in contrast, can be purely
pragmatic and utilitarian—does it make the work of literature richer, more
instructive, more beautiful?”10
Another debate falling within the broad scope of law, literary theory,
and interpretation involves the extent to which interpreters (be they legal
officials or readers interpreting novels) are constrained in their interpre¬
tations by the texts being interpreted. Against what might seem the con¬
ventional view, that texts strongly constrain interpretation, Owen Fiss
offered a fairly radical view of the matter. His argument was that the text
only constrains (and then only in part, allowing some discretion) when
one takes into account the “disciplining rules” of the institutional setting
in which the interpreter is acting.* 11 Thus, an American or English judge
interpreting the text is constrained by the words of the text combined with
the rules accepted within the relevant legal system regarding the relative
weight to be given various elements of the text (and the context)—for
example, that system’s conventions regarding statutory interpretation.
However, for Stanley Fish, replying to Fiss, this position was still not
radical enough.12 For Fish, “disciplining rules” or other codified guide¬
lines could hardly serve as the means for constraining the interpretation
of primary texts, for they are themselves texts. If texts are not self-inter¬
preting for novels or statutes, why would they be for the codified rules for
reading statutes or novels? Fish’s alternative is that “being situated within
a field of practice”—having been trained within a particular practice and
discipline, one internalizes particular ways of perceiving, conceptualiz¬
ing, and discussing the objects of the practice (whether they be novels,
statutes, or constitutions).13 These internalized standards, values, and
ways of perceiving are, Fish asserts, both necessary and sufficient to
explain interpretive constraints.
Some commentators treat interpretation as largely or entirely uncon¬
strained. Sanford Levinson, heeding the lessons of some philosophers
and literary critics, once somewhat reluctantly concluded that there were
no effective constraints on interpretation and no bases for labeling one
interpretation correct and another incorrect.14 It hardly needs remarking
10 ibid.
11 See Owen Fiss, “Objectivity and Interpretation”, 34 Stanford Law Review 739 (1982).
12 See Stanley Fish, “Fish v. Fiss”, 36 Stanford Law Review 1325 (1984), reprinted in Doing
What Comes Naturally (Clarendon Press, Oxford, 1989), pp. 120-140.
13 See Fish, “Fish v. Fiss” at 1330-1332, 1339-1347; see also Stanley Fish, “Dennis
Martinez and the Uses of Theory”, 96 Tale Law Journal 1773 (1987), reprinted in Doing
What Comes Naturally (Clarendon Press, Oxford, 1989), pp. 372-398.
14 Sanford Levinson, “Law as Literature”, 60 Texas Law Review 373 (1982).
that a view that judges are largely or entirely unconstrained in their inter¬
pretations of constitutions, statutes, and precedents creates significant
problems of legitimacy. The problems would come both from the anti¬
democratic nature of the decisions (a problem which would not arise if
the judges were merely applying the clear meaning or clear intentions of
democratically elected lawmakers), and from “Rule of Law” issues (if
interpretation is unconstrained, it is likely also unpredictable—and deci¬
sions affecting people’s liberty and property would be made without any
sort of due notice).
CRITICS
There have been a number of criticisms of law and literature as a move¬

ment, and of the values implicit in the movement. The following is a
sample of those criticisms.
Robert Cover worried that an excessive emphasis on the subde points of
literary theory and its possible applications to legal interpretation might
cause us to stop seeing the way that legal interpretation in practice is not a
genteel academic discussion of theory, but rather a practice which has
drastic consequences every day. He famously began his article, “Violence
and the Word”: “Legal interpretation takes place in a field of pain and
death.”15 Legal interpretation is, as a practical matter, about the signaling
and the justification of violence; for such purposes, effective institutional
design and an effective use of ritual and symbol are likely at least as impor¬
tant as the persuasiveness of one’s “interpretations”.16 As a connected
point, Cover states that it is likely no accident that the American legal system
(and many others) require a certain level of consensus before significant
punishments are imposed—the trial court’s decision must be affirmed on
appeal, and/or at least two members of a multi-judge appellate panel must
agree. The Dworkinian image of a single judge with his or her grand vision
of the legal system17 does not fit the practice; because the agreement of
multiple judges is required, the decision rendered, and the justifications
offered, are likely to reflect the compromise of a variety of views.18
15 Robert M. Cover, “Violence and the Word”, 95 Yale Law Journal 1601 (1986) (footnote
omitted).
16 See ibid, at 1618-1625. For a response to Cover, see James Boyd White, “What Can a
Lawyer Learn from Literature” (book review), 102 Harvard Law Review 2014 at
2045-2046(1989).
17 See the discussion of Dworkin’s legal theory in Chap. 7.
18 See Cover, “Violence and the Word” at 1624-1628; Bix, Law, Language and Legal
Determinacy, pp. 111-118; see also Cass R. Sunstein, “Incompletely Theorized
Agreements”, 108 Harvard Law Review 1733 (1995) (discussing how the need to secure
agreement on a result and on low-level principles works to discourage judges from putting
forward grand theories).
MISCELLANEOUS CONNECTIONS 225
Robin West, like Cover, emphasizes the fact that adjudication is

not, or not only, interpretation, but is (also) an act of power.19 In a
related point, she argues that interpretations, both literary and legal,
but especially legal, tend to express or incorporate the perspective of
a particular group. Those who do not share that perspective are
excluded and silenced by the interpretation.20 Holding one view of a
constitution, a statute, or a society’s traditions as correct, while reject¬
ing contending views, both reflects and strengthens the power of the
winning side.
MISCELLANEOUS CONNECTIONS
(1) An important connection between law and literature is the move

towards the use of narrative within (or “as”) legal scholarship, a move
discussed in Chapter 19.21 This has taken a number of forms: e.g. biog¬
raphy or autobiography as a means of making a point with implica¬
tions for law or legal theory22; the use of fable to make comparable
points23; and the use of fictional or factual stories to illustrate conun¬
drums within doctrine.24
(2) The inverse point comes from commentators who emphasize the
extent to which narrative, storytelling, and “translation” are already
prevalent and important parts of legal practice: eg. the way effective
advocates mold and colour facts to “tell a story” to persuade a judge
or jury; and the way that we must “translate” law when applying it
to circumstances that were not foreseen when the law was formu¬
lated.25
19 See Robin West, “Adjudication is Not Interpretation: Some Reservations about the
Law-as-Literature Movement”, 54 Tennessee Law Review 203 (1987), reprinted in
Narrative, Authority, and Law (University of Michigan Press, Ann Arbor, 1993), pp.
89-176. For a response from within the law and literature movement, see, e.g. James
Boyd White, “Law and Literature: ‘No Manifesto’”, 39 Mercer Law Review 739 at
746-749(1988).
20 See West, Caring for Justice, pp. 180-188.
21 See also Symposium: “Legal Storytelling”, 87 Michigan Law Review 2073-2494 (1989)
(which includes contributions by Patricia Williams, David Luban, Mari Matsuda, Derrick
Bell, and Richard Delgado).
22 See, e.g. Williams, The Alchemy of Race and Rights.
23 See, e.g. Bell, And We Are Not Saved.
24 See, eg. Norval Morris, The Brothel Boy and Other Parables of the Law (Oxford University
25 See, e.g. Robert Weisberg, “Proclaiming Trials as Narratives: Premises and Pretenses”, in
Law’s Stories: Narrative and Rhetoric in Law (P. Brooks and P. Gewirtz ed., Yale University
Press, New Haven, 1996), pp. 61-83; James Boyd White, Justice as Translation (University
of Chicago Press, Chicago, 1990).
(3) There has been interesting work done on a literary-type analysis of

judicial writing: e.g. on the rhetorical tricks used by judges to make
their opinions more persuasive.26
(4) A somewhat different take on the connection between law and litera¬
ture comes from those who believe that fiction, at least well-written
fiction, is useful to moral education, and is particularly recommended
for those who judge others. The argument is that literature is valuable
for gaining empathy, and empathy valuable for effective judging and
effective moral thought.27
(5) Finally, sometimes included in “law and literature” are analyses of the
way lawyers or the legal system are portrayed in literature or in
popular culture28, or the way that legal questions may serve as impor¬
tant plot elements in works of literature.29
Peter Brooks and Paul Gewirtz ed., Law’s Stones: Narrative and Rhetoric in the Law
(Yale University Press, New Haven, 1996).
Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory
in Literary and Legal Studies (Clarendon Press, Oxford, 1989).
Sanford Levinson and Steven Mailloux ed., Interpreting Law and literature
(Northwestern University Press, Evanston, Ill., 1988).
Richard A. Posner, Law and Literature: A Misunderstood Relation (Harvard University
Symposium: “Law and Literature”, 60 Texas Law Review 373-586 (1982).
James Boyd White, Heracles’ Bow: Essays on the Rhetoric and Poetics of Law especially
chapters 2, 5 and 6 (University of Wisconsin Press, Madison, 1985).
—, Justice as Translation: An Essay in Cultural and Legal Criticism (University of
Chicago Press, Chicago, 1990).
26 See, e.g. Posner, Law and Literature: A Misunderstood Relation, pp. 281-299; Richard H.
Weisberg, “How Judges Speak: Some Lessons on Adjudication in Billy Budd, Sailor with
an Application to Justice Rehnquist”, 57 New York University Law Review 1 (1982); Sanford
Levinson, “The Rhetoric of the Judicial Opinion”, in Law’s Stories: Narrative and Rhetoric
in Law (P. Brooks and P Gewirtz ed., Yale University Press, New Haven, 1996),
pp. 187-205.
27 See Nussbaum, Poetic Justice', see also Robin West, “Law and Fancy” (book review), 95
Michigan Law Review 1851 (1997); and Thomas Morawetz, “Empathy and Judgment”
(book review), 8 Yale Journal of Law & the Humanities 517 (1996). Both West and Morawetz
review Poetic Justice, and argue against some of its central points.
"8 See, e.g. Richard H. Weisberg, “The Quest for Silence: Faulkner’s Lawyer in a
Comparative Setting”, 4 Mississippi College Law Journal 193 (1984); David Ray Papke,
“The Advocate’s Malaise: Contemporary American Lawyer Novels”, 38 Journal of Legal
Education 413 (1988).
29 See, e.g. G. H. Treitel, ‘Jane Austen and the Law”, 100 Law Quarterly Review 549 at
557-584(1984).
Chapter Twenty One
Pragmatism and Postmodernism
Pragmatism and postmodernism are joined in their rejection of tradi¬

tional or conventional ideas about truth and justification. The critical
(and sometimes dismissive) attitude towards traditional forms of analysis
is shared, as are some of the arguments used in the criticism. However,
the two approaches quickly diverge, both in tone and in conclusion.1
Pragmatism focuses on success and achievement, on “what works”,
while postmodernism, in most of its incarnations, celebrates, or at least
emphasizes, the fragmentary, the incoherent, the irrational, and the par¬
adoxical.2
PRAGMATISM
One must distinguish philosophical pragmatism, a movement primarily

of the early decades of the twentieth century, from pragmatism in law,
though there is some overlap. Philosophical pragmatism was primarily
an American movement, whose important figures included Charles
Sanders Peirce (1839—1914), John Dewey (1859—1952), and William
James (1842-1910), brother of author Henry James.3 Philosophical prag¬
matism principally offered an unconventional approach to meaning and
truth. This approach might be summarized by (a) that the meaning of a
1 For one discussion of the overlap and differences between pragmatism and postmodern¬
ism (what the authors in the piece call “poststructuralism”—for some, “post-structural¬
ism” is a distinct movement, one focused particularly on criticizing “structuralism”, but
that is not the way the term is used in this article), see Margaret Jane Radin and Frank
Michelman, “Pragmatist and Poststructuralist Critical Legal Practice”, 139 University of
Pennsylvania Law Review 1019(1991).
2 For an analysis that combines deconstruction and paradox-centered thinking on one side,
and political, legal and moral philosophy on the other, see Kramer, Critical Legal Theory
and the Challenge of Feminism.
3 There are prominent modern philosophers who have labeled themselves as “pragma¬
tists”, in particular, Richard Rorty (1931- ). See, e.g. Richard Rorty, Philosophy and the
Mirror of Nature (Princeton University Press, Princeton, 1979).
228 PRAGMATISM AND POSTMODERNISM
doctrine is equivalent to the practical effects or experimental results of

adhering to it; and (b) that something is true to the extent that it succeeds
(in a broad sense) over the long term.4 Science and the scientific method
were often presented as the best examples of (and best arguments for)
pragmatism: theories which “worked”—which yielded useful predictions
or beneficial innovations were considered “true”, while those which did
not were discarded.
There was a substantial overlap between philosophical pragmatism
and legal pragmatism in the early years of the century:
(a) Oliver Wendell Holmes was friends with many of the prominent
philosophical pragmatists, and his work on law expresses similar
ideas;
(b) the philosophical pragmatist John Dewey “crossed over” to write two -
important law review articles5; and
(c) some of the important writers in American legal realism (see Chapter
17), as well as their immediate predecessors, used language and argu¬
ments borrowed from the philosophical pragmatists (even if the con¬
nection was sometimes not acknowledged).
On the last point, consider the following from Roscoe Pound:
“[Legal] rules are not prescribed and administered for their own sake, but rather
to further social ends. An exposition of how they are prescribed and administered
is inadequate. The problem is not merely how law-making and law-adfninister-
ing functions are exercised, but also how they may be exercised so as best to
achieve their purpose, and what conception of these funcdons by those who
perform them will conduce best thereto. Here, certainly, the pragmatic criterion
is sound. The true juristic theory, the true juristic method, is one that brings forth
good works.6
[Ljegal precepts should be worked out and should be tested by their results, by
their practical application, and not solely by logical deduction from principles
derived by historical study of Roman and Germanic law.”7
Consider also the following from Oliver Wendell Holmes:
4 See, eg. Ted Honderich ed., The Oxford Companion to Philosophy (Oxford University Press,
Oxford, 1995), pp. 710-713 (entry on “pragmatism”)
5 John Dewey, “Logical Method and the Law”, 10 Cornell Law Quarterly 17 (1924); John
Dewey, “The Historical Background of Corporate Legal Personality”, 35 Yale Law Journal
655 (1926).
6 Pound, “ The Scope and Purpose of Sociological Jurisprudence” (Part I) at 598; see also
Gardozo, The Nature of the Judicial Process, p. 98 (“Few rules in our time are so well estab¬
lished that they may not be called upon to justify their existence as means adapted to an
end.”).
7 Pound, “The Scope and Purpose of Sociological Jurisprudence” (Part II) at 142.
PRAGMATISM 229
“You can give any conclusion a logical form. You always can imply a condition in
a contract. But why do you imply it? It is because of some belief as to the prac¬
tice of the community or of a class, or because of some opinion as to policy, or,
in short, because of some attitude of yours upon a matter not capable of exact
quantitative measurement, and therefore not capable of founding exact logical
conclusions. Such matters really are batde grounds where the means do not exist
for determinations that shall be good for all time, and where the decision can do
no more than embody the preference of a given body in a given time and place.
We do not realize how large a part of our law is open to reconsideration upon a
slight change in the habit of the public mind. No concrete proposition is self-
evident, no matter how ready we may be to accept it. . .”8
In both quotations, the echoes of philosophical pragmatism are clear.

Modern legal pragmatism is related to the philosophical pragmatism of
decades ago, though the connection sometimes seems loose, and at times
no more than a family resemblance. Many of the legal scholars who called
themselves “pragmatists” seem to be referring more to the colloquial term
than to the philosophical school—in the sense that most modern business
people like to consider themselves “pragmatic”: worried about “what
works”, worried about “the bottom line”, not caught up in senseless phil¬
osophical hair-splitting, and so on. At the same time, other legal pragma¬
tists take quite seriously the connections between their work and the works
of the philosophical pragmatists (either with the original philosophical
pragmatists —Dewey, Peirce, and James—or with the modern philosoph¬
ical pragmatists, e.g. Richard Rorty and Hilary Putnam9).
One of the theorists at the forefront of the self-proclaimed “pragma¬
tists” in legal theory has been, somewhat surprisingly, Richard Posner.10
A person of consistently high and diverse productivity Posner tries to
maintain a delicate and difficult balance between being “pragmatic” —
and thus, by his own view of pragmatism, “empirical . . . skeptical . . .
[and] antidogmatic”11—and being one of the foremost advocates of the
economic approach to descriptive and normative legal theory.12 He does
8 Holmes, “The Path of the Law” at 466. Earlier in the passage, Holmes wrote:
“The language of judicial decision is mainly the language of logic. And the logical
method and form flatter that longing for certainty and for repose which is in every
human mind. But certainty generally is an illusion, and repose is not the destiny of
man.” ibid, at 465-466.
9 See, e.g. Hilary Putnam, Words & Life (J. Gonant ed., Harvard University Press,
Cambridge, Mass., 1994), pp. 151-241.
10 See Posner, The Problems of Jurisprudence, pp. 454-469 (“A Pragmatist Manifesto”); Posner,
Overcoming Law, pp. 4-21. For considerations of Posner’s credentials as a pragmatist, see
Eric Rakowski, “Posner’s Pragmatism” (book review), 104 Harvard Law Review 1681
(1991); Stanley Fish, “Almost Pragmatism: Richard Posner’s Jurisprudence” (book
review), 57 University of Chicago Law Review 1447 (1990).
11 Posner, Overcoming Law, pp. 5, 6.
12 The fifth edition of Posner’s casebook, Economic Analysis of Law, the leading casebook in
the area, was published in 1998.
this in part by lowering somewhat his claims for economic analysis13, and
in part by trying to equate economics and pragmatism.14 The equation
has some tenability, though one would imagine that a devoted pragmatist
might be more willing to look to sources and resources other than eco¬
nomics more frequendy than Posner seems to do.15
A good example of Posner’s form of pragmatism is his approach to
precedent.16 The argument is that we should not adhere to old rules and
old categories simply for its own sake, or out of reverence for tradition.
Adherence to precedent has a purpose and a value: to reduce the cost of
decision-making, to increase predictability, and thus to encourage plan¬
ning (reliance on past decisions, through the assumption that future deci¬
sions will come out the same way). Thus, when one comes to a situation
where those values are only weakly evoked, other values might justify
ignoring the call of precedent. For example, where one deals with new
technologies, or new forms of property, littie by way of efficiency or pre¬
dictability is likely served by forcing new problems into old categories. It
is better, Posner would argue, to try to find the rules of law which are best
on the merits (i.e., those that will help the development of the industry, or
will ensure fair compensation for investment, and so on).
One line of criticism regularly directed at pragmatists (both philosoph¬
ical and legal) is that if truth and correctness are to be determined accord¬
ing to the usual practices of the community, there is a risk that one’s
theory will be basically conservative—that it will be difficult to argue that
a community’s social practices are systematically unjust, for there is no
foundational standard of truth from which one can criticize the conven¬
tional or the commonplace.17
POSTMODERNISM
If legal pragmatism has its roots in the philosophical pragmatist move¬

ment of earlier decades, legal postmodernism could be seen to develop
out of the cluster of “postmodern” movements in a variety of other areas:
13 See, e.g. Posner, Economic Analysis of Law, p. 31 (“there is more to justice than economics,
a point the reader should keep in mind in evaluating normative statements in this book”).
14 Posner writes: law and economics “epitomizes the operation in law of the ethic of scientific
inquiry, pragmatically understood. Far from being reductionist, as its detractors believe,
economics is the instrumental science par excellence.” Posner, Overcoming Law, p. 15.
15 Posner attempts to respond to criticisms similar to that implied in the text in ibid, at
pp. 15-21.
See Posner, Economic Analysis of Law, pp. 595-596; Posner, Overcoming Law 399.
An example of an article which considers this objection seriously and tries to overcome it
is Margaret Jane Radin, “The Pragmatist and the Feminist”, 63 Southern California Law
Review 1699 (1990). For an example from the side of modern philosophical pragmatism,
see Hilary Putnam, Pragmatism and Moral Objectivity”, in Women, Culture, and Development
(M.C. Nussbaum andj. Glover ed., Clarendon Press, Oxford, 1995), pp. 199-224.
POSTMODERNISM 231
perhaps most distinctly in architecture and literary theory, but also phi¬
losophy, painting, and music.
While I have frequently noted in this part of the book that the theorists
grouped together under a movement label (whether by others or by self-
identification) often diverge in their attitudes, beliefs, themes, and method¬
ology, the divergence may be especially broad with “postmodernism”.18
Perhaps the best one can do is to point to some ideas and positions that seem
to appear in a large number (though far from all) of the writers who iden¬
tify themselves, or are identified by others, as legal postmodernists.
The postmodernists writing in law tend to draw strongly on a variety
of thinkers from philosophy, literary theory and social theory: Jacques
Derrida, Michel Foucault, Paul de Man, Jean-Frangois Lyotard, and
Richard Rorty. They also tend to take ideas from other theorists whose
work, if considered in its entirety, arguably would not fit comfortably with
the postmodernist project: e.g. Friedrich Nietzsche, Ludwig Wittgenstein,
and Martin Heidegger.
Among the themes identified with postmodernism are:
(1) rejecting the idea of a foundational or transcendent source for truth

or justification19;
(2) rejecting the notion of determinate unique meanings for statements,

texts, or events;
(3) the claim that truth and identity are socially constructed or culturally
constructed;
(4) the rejection of all grand narratives (e.g. seeing history as a movement
towards ever greater rationality or ever greater liberty, or seeing law
as a movement “from status to contract”20); and
(5) a strong emphasis on the irrational or unconscious influences on

action and belief.21
Postmodernism thus seems to converge with pragmatism in its treatment of

truth and justification,22 though in other ways, it is a far more radical view.
18 See, e.g. Jennifer Wicke, “Postmodern Identity and the Legal Subject”, 62 University of
Colorado Law Review 455 at 456 (1991): “There are more than thirty-one flavors of post¬
modernism _Postmodernism names a debate in theory, a set of discourses and disci¬
plines, a criterion of style in aesthetics, a historical period, and a way of life.”
19 In philosophical terms, postmodernists tend to reject foundationalism, essentialism,
metaphysical realism, and the correspondence theory of truth.
20 See Sir Henry Sumner Maine, Ancient Law (University of Arizona Press, Tucson, 1986),
p. 165 (first published in 1861).
21 See, e.g. Pierre Schlag, “Normativity and the Politics of Form”, 139 University of
Pennsylvania Law Review 801 (1991).
22 Which is why and how a neo-pragmatist like Richard Rorty is often identified with post¬
modernism.
The postmodernist challenge to there being a single correct (and stable)

meaning or interpretation to a statement, a text, or an event is often dis¬
cussed under the label “deconstruction”, though there are radically
different understandings of what “deconstruction” entails and what its
consequences for literature and life might be.23
A number of theorists within the critical traditions discussed in
Chapter 19 have drawn upon postmodernist ideas. Critical legal scholars
arguing for the indeterminacy of law have drawn upon deconstruction,24
and the postmodernist emphasis on the social or cultural construction of
identity fits well with those attacking conventional ideas about race and
gender.25
There are other ways in which postmodernism does not seem to fit well
with the critical project. While postmodernism may show that the estab¬
lishment views and traditional social rules have no foundation and no
(unique) claim to truth or correctness, the acid of the postmodernist cri¬
tique would seem to work equally well on the views and rules the reform¬
ers would put in their place. Postmodernism is a useful tool of the Left
only when it is used selectively.26 Postmodernism, when taken seriously,
can have a distinctively conservative effect, as the notion that truth,
meaning, and justice may be entirely subjective or context-bound works
to undermine the strength of any argument for radical social change.
PRAGMATISM
Michael Brint and William Weaver ed., Pragmatism in Law & Society (Westview Press,
Boulder, Colo., 1991) (includes pieces by Richard Posner, Stanley Fish, Richard
Rorty, Margaret Jane Radin, Hilary Putnam, and Ronald Dworkin; the book is
based on “Symposium on the Renaissance of Pragmatism in American Legal
Thought”, 63 Southern California Law Review 1569-1853 (1990)).
23 The seminal work in the area is Jacques Derrida, Of Grammatology (G.C. Spivak, trans.,
Johns Hopkins University Press, Baltimore, 1974); For an overview of the uses of decon¬
struction, see Christopher Norris, “Jurisprudence, Deconstruction and Literary Theory:
A Brief Survey and Critical Review”, 1 Res Publica 57 (1995); for two quite different views
of what deconstruction is and what its implications are for theory, see Matthew H.
Kramer, Hobbes and the Paradoxes of Political Origins (St. Martin’s Press, New York, 1997),
pp. 1-53; Jack Balkin, “Deconstructive Practice and Legal Theory”, 96 Tale Law Journal
743 (1987).
24 See, eg. Kennedy, A Critique of Adjudication, pp. 348-350.
25 See, eg. Crenshaw, Gotanda, Peller and Thomas ed.. Critical Race Theory, pp. 440-494
( Race and Postmodernism ), Becker, Bowman and Torrey ed., Feminist Jurisprudence, pp.
110-118 (“Postmodernist Feminism”).
26 See, eg. Jack Balkin, “Tradition, Betrayal, and the Politics of Deconstruction”, 11 Cardogo
Law Review 1613 (1990).
POSTMODERNISM 233
Thomas C. Grey, “Holmes and Legal Pragmatism”, 41 Stanford Law Review 787
(1989).
Louis Menand ed., Pragmatism: A Reader (Vintage Books, New York, 1997)
(includes selections by Charles Sanders Peirce, William James, Oliver Wendell
Holmes, John Dewey, and some selections from contemporary writers).
Richard Warner, “Legal Pragmatism”, in A Companion to Philosophy of Law and Legal
Theory (D. Patterson ed., Blackwell, Oxford, 1996), pp. 385-393
POSTMODERNISM
Jack Balkin, “What is Postmodern Constitutionalism?”, 90 Michigan Law Review

1966(1992).
Costas Douzinas; Ronnie Warrington and Shaun McVeigh, Postmodern
Jurisprudence (Roudedge, London, 1991).
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (6th ed., Sweet & Maxwell,
London, 1994), pp. 1147-1253 (“Postmodern Jurisprudence”).
Christopher Norris, Deconstruction: Theory & Practice (Methuen, London, 1982).
Dennis Patterson, “Postmodernism”, in A Companion to Philosophy of Law and Legal
“Postmodernism and Law: A Symposium”, 62 University of Colorado Law Review
439-636 (1991) (includes contributions by Pierre Schlag, David Kennedy,
Mary Joe Frug, and Dale Jamieson)
Symposium: “Deconstruction and the Possibility of Justice”, 11 Cardozo Law
Review 919-1726 (1990) (includes contributions by Jacques Derrida, J. Hillis
Miller, Jonathan Culler, Drucilla Cornell, and Pierre Schlag)
'
•4
v ,
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Adams v. Lindsell (1818) 106 Eng. Rep. 250, KB 168

American Booksellers Assoc, v. Hudnut, 771 E2d 323 (7th Cir. 1985), affirmed
mem., 475 U.S. 1001 (1986) 146, 212
Re Baby M, 537 A.2d 1227 (N.J. 1988) 146
Black-Clauson International Ltd v. Papierwerke WaldhofAschaffenburgA.G. [1975]
1A11E.R. 810 141
Board of Education v. Barnette, 319 U.S. 624 (1943) 129
Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d
312 (1970) 188
Bowers v. Hardwick, 478 U.S. 186 (1986) 146
Brown v. Board of Education, 349 U.S. 294 (1955) 130
Cooper v. Aaron, 358 U.S. 1 (1958) 128
Cruzan v. Director, Missouri Health Dept., 497 U.S. 261 (1990) 125
Davis v. Johnson [1979] A.C. 264 127, 141
Donoghue v. Stevenson [1932] A.C. 562 136
Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) 216
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) 129
Geduldig v. Aiello, 417 U.S. 484 (1974) 149
Henthorn v. Fraser [1892] 2 Ch. 27 168
Lochner v. New York, 198 U.S. 45 (1905) 169
Lynch v. Donnelly, 465 U.S. 668 (1984) 216
MacPherson v. Buick Motor Co., 217 N.Y 382, 111 N.E. 1050 (1916) 136
Madzimbamuto v. Lardner-BurkeN.O. (1968) (2) S.A. 284 26
Muller v. Oregon, 208 U.S. 412 (1908) 172
Murphy v. Brentwood District Council [1990] 3 W.L.R 414 129
Omychund v. Barker (1744) 26 Eng. Rep. 15 85
Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928) 169
Pepper v. Hart [ 1993] A.C. 591 140, 142
Plessy v. Ferguson, 163 U.S. 537 (1896) 130
Practice Statement Judicial Precedent) [1966] 1 W.L.R. 1234 133
R. v. Brown [1994] 1 A.C. 212 136, 146
R. v. Shivpuri [1987] A.C. 1 129
River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743 142
Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397 (1951) 141
Southern Pacific v. Jensen, 244 U.S. 205 (1917) 170
Uganda v. Commissioner of Prisons, exp. Matovu [1966] E.A. 514 26
United States v. Carroll Towing Co., 159 F.2d 169 (2nd Cir. 1947) 187
United States v. E.C. Knight Co., 156 U.S. 1 (1895) 167
Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 127, 133
Index
abortion, 116, 211 47, 48, 52, 56, 64-65, 73,

Abraham, Kenneth S., 222n 122
Abrams, Kathryn, 217n command theory of law,
affirmative action, 215-216 33-34, 35, 39
Alexander, Larry, 131, 137, authority, 46, 127-131, 143
140n,144, 153 autonomy, 105, 125, 145-146,
Allen, Anita, 21 In 151-152, 181, 189-191,
Altman, Andrew, 206n, 207n 213
Ambrose, 63 Avineri, Shlomo, 108
American legal realism, 5n, Ayres, Ian, 194n, 201
23-24, 37-38, 42, 78, 79,
90,91, 127, 163, 165-175, “bad man’s view” of law, 48, 86,
178, 203,204, 206, 209, 166, 173
214, 221,228 Baird, Douglas G., 192n, 193n,
attack on formalism, 91 201
realists as tacit legal positivists, Baker, Sir George, 128
24n Balkin, Jack, 208n, 232n, 233
analytical jurisprudence, 67, 68 Ball, Milner, 216
anarchism, 102 Barnes, Robin, 217n
Andrews, William, 169 Barnett, Randy E., 35n, 72,
Aquinas, Thomas, 3In, 63-67, 109n, 201
68, 69, 70, 71, 72, 73, 74, Bartlett, Katharine, 220
75,81, 123, 153n, 158n, Basic Norm (Grundnorm), 5,
161n 52-55
Archard, David, 105n Bayles, Michael, 36n, 48
Aristotle, 40, 62n, 65n, 95, 96n, Becker, Gary, 201
106n, 108 Becker, Mary, 212n, 232n
Aron, Raymond, 7, 13n Bell, Derrick, 215n, 218, 220,
Arrow, Kenneth, 182n 225n
Ashworth, Andrew, 1 lOn, 11 In Bell, John, 144
asking prices, vs. offer prices, Bentham, Jeremy, 20, 31, 115n
189n Berlin, Isaiah, 27
Atkin, Lord, 136 Beyleveld, Deryck, 71
Audi, Robert, 141 n Bishin, William R., 221
Augustine of Hippo, 63, 64 Blackburn, Simon, 179n,192n,
Austin, John, vii, 31, 33n, 35, 39, 213n
261
262 INDEX
Blackstone, William, 64 Cohen, L. Jonathan, 27

bounded rationality, 196 Cohen, Marshall, 92
Bowman, Cynthia Grant, 212n, Cohen, Morris, 2In, 122, 206n
232n Coleman, Jules L., 12n, 24n, 44,
Boyle, James, 205, 219 49, 56n, 83, 96n, 125n,
Brandeis Brief, 172 131, 183n, 186n, 201
Brandeis, Louis D., 172 command theory of law, 33-34
Brennan, Geoffrey, 202 commensurability, see
Brest, Paul, 122n, 212n incommensurability
Brewer, Scott, 207n common law, common law
Brint, Michael, 232 reasoning, x, 84—85, 121,
Brooks, Peter, 226 122,129n, 133-137
Brownsword, Roger, 71 vs. civil law , x, 133
Buchanan, James M., 195, 201, see also precedent
202 communitarianism, 104— 106,
Burgess Jackson, Keith, 45n 151
Burstyn, Varda, 213n concepts, conceptual analysis,
claims, theory, 5, 10-28,
Calabresi, Guido, 188, 201 75n, 77-78, 115, 171, 173
Campbell, Tom D., 44, 45n as reflecting linguistic usage,
Cardozo, Benjamin N., 127, 19, 27, 77
136, 137, 169, 170n, 221, as responses to normative
228n questions, 17
Carrington, Paul D., 204n as setting evaluative standards,
Carter, Stephen, 215n 21-22, 27, 77-78
Case Method of legal as showing significance,
instruction, 167 19-20, 27, 115
causation, 13, 15, 172, 218 as stipulation, 17-18, 19, 27,
reciprocity of, 184 78, 115, 117-118
see also proximate cause contestedness of boundaries,
Chang, Robert S., 218n 16, 25, 26
Chang, Ruth, 88n purposes of, 15, 17-23, 27
Christie, George, 3In to what extent descriptive, 17
Cicero, Marcus Tullius, 62, 64, vs. naturalism, 9, 23-25
67, 73, 74, 108 consent, 98, 124n, 125-126,
civic republicanism, 106-107 156-157, 160, 161, 181,
civil disobedience, 128 190-191
civil law systems, x, 133 tacit consent, 98, 124n,
Civil Rights Movement, 203, 156-157
214 consequentialism, 109n,
Coase, Ronald H., Coasean, 111-112, 157-158, 179
183-187, 195n, 200, 201 constitutional law, 121, 128n,
Coase theorem, 183-187, 177
197 constructive interpretation,
Cohen, Felix, 90n, 17In, 17-37 83-87
INDEX 263
contract law, 95, 121, 133, 145, Derrida, Jacques, 205n, 231,
168, 206 232n, 233
default rules, 194 description, descriptive theory,
Coombs, Mary, 207n 4-5, 15
Cooter, Robert, 189n balancing descriptive accuracy
Cornell, Drucilla, 216n, 233 with explanatory power
corrective justice, 95-96, 199 55-56
Cotterrell, Roger, 33n de-Shalit, Avner, 108
Cover, Robert M., 224, 225 deterrence, 111
Crenshaw, Kimberle Williams, Devlin, Patrick, 147-150, 153
213n, 214n, 215n, 220, Dewey, John, 227, 228, 229, 233
232n Dickens, Charles, 221
critical latino/a theory, 218-219 difference, 207-210
critical legal studies, 7, 79, 92n, Diplock, Lord, 127, 128
119n, 142n, 173, 203-207, distributive justice, 95-96
208, 214, 232 Douzinas, Costas, 233
critical race theory, 7, 173, 203, Duff, Anthony, 113
204, 207, 208, 213n, Dupre, John, 16n
214-219 Durkheim, Emile, 148n
Cross, Rupert, 135n, 137, 141, Duxbury, Neil, 78n, 165n, 17In,
144 173n, 174, 203n
Culler, Jonathan, 233 Dworkin, Andrea, 211-213
Cumming-Bruce, Lord Justice, Dworkin, Gerald, 153
141, 142 Dworkin, Ronald, Dworkinian,
custom, 122 6, lOn, 11, 19n, 21n, 26n,
39, 44, 46n, 6In, 74,
Dan-Cohen, Meir, 144 81-92, 98n, 123, 124n,
Daniels, Norman, 96n 125n, 128, 139n, 140n,
Davidson, Donald, 23n 144, 153, 155, 188n, 191n,
charity in interpretation, 201, 21 In, 222, 224, 232
23n constructive interpretation,
Davies, Howard, 58n 83-87,222
debunking, 90-92 critique of legal positivism,
Declaration of Independence, 81-82,85
67 earlier vs. later work, 83, 85
deconstruction, 227n, 232 Integrity, 84—85
definitions, 6, 11, 12, 13 interpretive approach, lOn,
functional definitions, 11 39,81,83-87,89-90,
Delgado, Richard, 208n, 213n, 91,155
214n, 215n, 217n, 218n, judicial reasoning as like a
220,225n chain novel, 222
de Man, Paul, 231 right answer thesis, 82, 85,
deontology, 109n 87-89,91
dependency, inevitable and rules vs. principles, 81-82
derivative, 108 vs. Hart, 89-90
264 INDEX
Easterbrook, Frank, 177 Finnis, John M.,—contd

Eastland, Terry, 204n list of basic goods, 68-69
economic analysis of law, see on self-evidence, 69
law and economics Fish, Stanley, 223, 226, 229n,
Eekelaar, J.M., 26n 232
efficiency, 125, 183-184, 186, Fisher, William, 17In, 174
197, 199, 230 Fiss, Owen, 223
Eisenberg, Melvin Aron, 137 Fitzpatrick, Peter, 203n
Ellickson, Robert C., 196, 201 Fletcher, George, 113, 182n,
empathy, 218, 226 184n,187n
Engle, George, 144 Foot, Philippa, 2In
epistemology, 24, 25n formalism, 33n, 79, 91,
Epstein, Richard A., 146n, 167-169, 178n
184n, 201 Foucault, Michel, 205, 231
Eskridge, William N., Jr., 78n, foundationalism, 23In
142n, 143n, 144, 195n, Frank, Jerome, 170, 17 In, 175
202, 217n free will and responsibility,
essentialism, 219n, 23In 71-72
Estrich, Susan, 211 n Freeman, Alan David, 204n
ethical confrontation, 146 Freeman, M.D.A., 58n, 233
Etzioni, Amitai, 151 n Freud, Sigmund, Freudian, 198n
externalities, 183-184 Frickey, Philip P., 78n, 192n,
195n, 201,202
faith, 123 Frug, Jerry, 204n
false consciousness, 213-214 Frug, Mary Joe, 233
falsifiability, 13, 14, 15 Fuller, Lon L., 3, 5, 8, 18n, 2In,
family life and justice, 107 22-23, 61n, 73-79, 122,
Farber, Daniel A, 192n, 195n, 123, 155, 159
201,202, 218n, 220 debate with Hart, 3, 22-23,
Feigenson, Neal, 129n 73- 78,81,89, 159
Feinberg,Joel, 112n, 153 internal morality of law, 5, 8,
feminism, feminist legal theory, 74- 78,155
7, 107-108, 174, 203, 204, law vs. managerial direction
207, 208, 209-214, 217n, 74—75
219n “fundamental contradiction”,
Ferejohn, John, 195n 206
Field, Martha, 211 n
finality, 93, 127-131 Gabel, Peter, 9In, 204n, 219
Fineman, Martha A., 108, 217n, game theory, 192-194, 196
220 Garland, David, 113
Finnis,John M., 4, 19n, 26n, Garvey, Stephen P., 1 lOn
3In, 39, 48n, 49, 65n, 66, Gauthier, David, 98
67n, 68-71,72,73, 115n, George, Robert R, 49, 67n, 68n,
122n, 153, 154, 155, 160n, 69n, 71, 72, 150n, 151,
161, 198, 200n, 207n 153, 154
INDEX 265
Gertner, Robert H., 192n, 194n, Hart, H.L.A.,—contd

201 claim/will theory of legal
Gewirth, Alan, 71 rights, 19-20
Gewirtz, Paul, 226 debate with Fuller, 3, 22-23,
Gilles, Stephen G., 187n, 199n 73-78,81,89, 159
Gilligan, Carol, 108n, 21 On “descriptive sociology”,
Golding, Martin P., 113 34-35, 57
Golding, William, 218 internal aspect of rules (and
Goldstein, Laurence, 137 of law); internal point of
Gordon, Robert, 205n, 219 view, 37-40, 46, 47, 48,
Gotanda, Neil, 220, 232n 52,57, 70-71,90
Gramsci, Antonio, 205n minimum content of natural
gratitude, 158, 160 law, 43-44
Gray, John Chipman, 128, 129 on feeling obliged vs. having
Greenawalt, Kent, 92, 154 an obligation, 35, 57
Grey, Thomas C., 4In, 170n, on rules vs. habits, 34, 38, 57
233 on the variety of legal rules,
Griffith, John, 142n 35, 36n, 52, 56, 57
Grisez, Germain G., 68n, 71 open texture, 40-43, 52, 91
Grotius, Hugo, 63, 67 rule of recognition, 35,
Guinier, Lani, 215n 36-37,44, 122
vs. Dworkin, 89-90
Habermas, Jurgen, 40n, 205n vs. Kelsen, 56-58
Hacker, P.M.S., 48 Hart, Henry M., Jr., 78n
Hale, Robert, 206n Hart, Melissa R., 197, 200
Halpin, Andrew, 9n, 18n Hartney, Michael, 51, 58n
Hand, Learned, 187n hate speech, 213n
Hanson, Jon D., 197, 200 Hay, Douglas, 204n, 205n, 219
Harel, Alon, 119n Heidegger, Martin, 231
harm principle, 145—146, 147 Herget, James E., 165n
Harman, Gilbert, 28 hermeneutic approach, 8, 14n,
Harris, Angela R, 214n, 215n, 32n, 33, 37-40, 47, 48, 90
217n, 218n, 219n whether it permits criticism of
Harris, J.W., 56n, 59, 117n, the subject of
119n, 135n, 137 explanation, 39-40
Harris, Paul, 204n Hicks, J.R., 182n
Hart, H.L.A., Hartian, vii, viiin, Hill, H. Hamner, 39n, 40n
3, 4, 5-6, 9, 9n, 12n, 18n, historical theories, 14—15
19-20, 2In, 22-23,31-49, Hittinger, Russell, 68n
5In, 52, 56-58, 59, 65n, Hobbes, Thomas, Hobbesian,
70, 71, 73-74, 77, 82, 87n, 31,44, 67n, 97n, 98n, 124,
89-90,91,92, lOOn, 11 On, 157
112n, 113, 115n, 119, 122, Hohfeld, Wesley, 18, 116,
129, 131, 146n, 147-150, 117-118, 119
154, 155, 158, 159, 173n Holdcroft, David, 58n
266 INDEX
Holmes, Oliver Wendell Jr, vii, interpretation—contd

5n, 41n, 48n, 73, 86, 127, Dworkin’s interpretive
128, 129, 141n, 165-166, approach, lOn, 39, 81,
167n, 169, 170, 173n, 177, 83-87,89-90,91, 155
228-229, 233 principle of charity in, 4, 23
“bad man’s view” of law, 48,
86, 166, 173 James, Henry, 227
Homer, 96n James, William, 227, 229, 233
Honderich, Ted, 228n Jamieson, Dale, 233
Honore, A.M., 157-158, 160n, Jolls, Christine, 196n
161 Jolowicz, H.F., 115n
Horwitz, MortonJ., 79n, 9In, judicial decision-making, 24, 45,
119n, 121n, 171n, 172n, 166, 170n, 171-172,
173n, 174, 198n, 205n, 222-224
206n, 207n,219 legitimacy of, 42, 45, 91, 170,
Hume, David, 31, 52, 108 223-224
is/ought division, 52-53 judicial discretion, 41—4-2, 81,
Hunt, Alan, 203n, 219 171
Hurd, Heidi, 144 judicial reasoning, 81-90, 91,
Hurley, Susan, 16n 166
Hutcheson, Joseph, 17 In “Grand Style”, 91
judicial restraint, 79, 170
inalienability, 188n judicial review, 42n
incommensurability, 70n, 88, 89, jurisprudence
197-198 the possibility of general,
institutional competence, 78-79, 10-12,89-90
139 practical uses of, viii—ix
intentions, 139-144, 222 justice, 7, 9n, 17, 76, 85, 93,
individual vs. group, 139-140 95-108, 109, 110,
levels of, 140, 222n 124-126, 133, 163, 178,
internal aspect of rules, law; 180-181, 187, 189-191,
internal point of view, 199, 208,230,232
37-40, 46, 47, 48, 52, 57, between generations, 101 n
70-71,90 corrective vs. distributive,
internal morality of law, 5, 8, 95-96
74-78, 155 in punishment, 109-111
international law, 10, 51, 66, procedural aspects of, 76, 96,
67 133
interpretation, 4,1 On, 23, 39, 42, vs. morality generally, 95
81,83-87,91, 121,205, justification, 227-228, 231
221-225
and constraint, 223-224 Kadish, Sanford H., 113
clear meaning, 42 Kafka, Franz, 221
constructive interpretation, Kahneman, Daniel, 196n
83-87,222 Kairys, David, 219
INDEX 267
Kaldor-Hicks analysis, 182-183 Landes, William, 188n, 198n,

Kaldor, Nicholas, 182n 201
Kant, Immanuel, Kantian, 51, Langdell, Christopher
53, 98n, 105, 110, 124n, Columbus, 33n, 37, 91,
181,190 167-168, 170
Transcendental Argument, 53 language, nature of, 42, 130,
Kaplan, Benjamin, 17In 139, 141-142, 172, 227
Katz, Avery Wiener, 200 LatCrit theory, 218-219
Kay, Herma Hill, 211 n law
Kay, Richard, 122n applying old law vs. making
Kelly, J.M., 67n, 123n new law, 45, 87-88,
Kelman, Mark, 79n, 188n, 122-123
198n, 202, 204n, 206n, as claiming legitimate
219 authority, 46
Kelsen, Hans, 5, 26n, 32n, as ideology, politics, 204
51-59, 73, 122 as striving towards an ideal,
and neo-Kantian philosophy, 74—75
51,57 boundary with “non-law”,
Basic Norm (Grundnorm), 5, 10-11, 25-26, 87-88
52-55 contrasted with orders of
on continuity of legal systems, gangsters or terrorists,
26n, 34 34, 35, 57
pure theory of law, 32n, distinguished from,
52-55, 57 conceptual separation
vs. Hart, 56-58 from, morality, 6, 26,
Kemp, John, 18 In 31-33, 36-37,42, 43,
Kennedy, David, 233 45, 65, 73, 74, 82, 155,
Kennedy, Duncan, 200, 201, 161
204n, 206, 219, 232n “higher law”, 61
Kennedy, Randall, 217n, 220 internal aspect of, 37-40, 46,
Kennedy, Rosanne, 220 47,48, 52,57, 70-71
Kornblith, Hilary, 24n moral obligation to obey, 6, 7,
Kornhauser, Lewis, 188n, 193n, 32, 39, 47,48,61,
204n 64-66, 70, 71, 78,91,
Kramer, Matthew H., 79, 118n, 98,124n,155-161
119, 209n,227n,232n nature of, 11-12, 19n, 21,
Kress, Kenneth J., 205n 55-56, 82, 139, 204
Kretzmann, Norman, 64n normativity of, 37-40, 47-48,
Kripke, Saul, 149n 52-55, 57
Kronman, Anthony T., 33n, possibility of a descriptive
168n theory of, 31-33, 90
Kymlicka, Will, 108 possibility of a general theory
of, 9, 10-12, 40
Lacan, Jacques, 205n question: what is law?, 5-6,
Lacey, Nicola, 21 In 67
268 INDEX
law—contd legal theory—contd

whether evil regimes have law, possibility of a scientific or
6, 14, 22, 77-78 empirical theory, 32-33,
whether unjust law is “law”, 34, 37-40, 47-48,
64-66 167-168, 170, 174
law and economics, 5, 8, 56, legal validity, 65, 128
125, 173, 174n, 177-202, legislative history, 139-143
204,214, 229-230 legislative intention, 42, 43,
law and literature, 83-84, 139-144
221-226 legitimation, 91, 204, 206
Lawrence, Charles, 213n, 214n, Leiter, Brian, 23-25, 49, 172n,
215n 173n,175, 206n
Lear, Jonathan, 198n Lessig, Lawrence, 196
Leff, Arthur, 174n, 179n, 180n, Lessnoff, Michael, 98n
197n, 198n, 199n, 200n, Levi, Edward H., 137
201 Levinson, Sanford, 223—224,
legal determinacy, 226
indeterminacy, 42, 82, “lex iniusta non est lex”, 64—66
87-89, 166, 171-172, 174, “lex talionis”, 109-110
204, 205, 206n, 232 liability rules vs. property rules,
legal education, 163, 167, 188-189
170-171, 203, 204, 209 liberalism, liberal individualism,
legal formalism, see formalism 104-106, 108, 206
legal history, 205 libertarianism, 72, 102-104,
legal mistake, 127-131 105,150
legal positivism, 7, 18n, 21, 24n, liberty, 145-146, 150-151, 152
25, 27n, 31-59, 67, 70,71, Limerick, Patricia Nelson, 13n
73-75,81-82,85, 89, Linebaugh, Peter, 204n, 205n,
122-123, 155, 159, 161 219
legal principles, 81-82 linguistic usage, intuitions, 18,
legal process, 78-79, 174 19,21-22, 23, 25, 34-35,
legal realism, see American legal 58
realism, Scandinavian legal Littleton, Christine, 220
realism Llewellyn, Karl, 5n, 9In,
legal reasoning, 91, 166, 165n,175
168-171, 178, 205 Locke, John, 35n, 67, 98, 124,
legal rights, see rights 156n
legal systems, continuity of, Luban, David, 225n
26-27 Lyons, David, 44, 49
legal theory Lyotard, Jean-Fran^ois, 231
and ethical theory, 70, 71
and reduction, 35-36, 55-56, MacCormick, Neil, 20, 36n,
57 38n, 44, 49, 59, 115n, 119,
as contrasted with other social 135n,137, 207n
theories, 7 Macedo, Stephen, 154
INDEX 269
Macey, Jonathan R., 195n, 201, moral luck, 11 On

202 moral obligation to obey the law,
MacIntyre, Alasdair, 108 6, 7, 32, 39, 47,48,61,
MacKinnon, Catharine A., 210, 64-66, 70,71,78,91,98,
211-213,220 124n, 155-161
Maier, Pauline, 67n moral truth, objective, 148, 230,
mailbox rule, 168 232
Mailloux, Steven, 226 morality
Maine, Henry Sumner, 115n, conventional vs. critical, 10,
231n 148-150
Marmor, Andrei, 84n, 92, 130, legal enforcement of,
140n, 144 145-154, 155
Martin, Patrick, 31 n master vs. slave, 21 On
Marx, Karl, 108, 205n shared, 148, 149-150
Massaro, Toni M., 113n Morawetz, Thomas, 9, 28, 37n,
Matsuda, Mari, 207n, 213n, 226n
214n,215n, 217n, 225n Morgenstern, Oskar, 192n
McClennan, Edward E, 201 Morison, W. L., 33n, 48
McElroy, Wendy, 213n Morris, Herbert, 116n
McGinn, Colin, 14n Morris, Norval, 225n
McVeigh, Shaun, 233 Muller, Ingo, 77n
meaning, theories of, 7n, 72, Munzer, Stephen, 92
223-224, 227-228, Murphy, Jeffrie G., 56n,183n,
231-232 186n, 201
mechanical jurisprudence, 167, Murphy, Mark C., 108
169, 171
medical decision-making, 125n Nader, Laura, lOn
Meese, Edwin, III, 128n narrative, 217-218, 225
Melamed, A. Douglas, 188 Nash, John, 192n
Menand, Louis, 169n, 204n, 233 natural kinds, 15
metaphysical realism, 72, 139n, natural law theory, 7, 19, 25,
231n 32n, 35n, 42, 43-44, 47,
metaphysics, metaphysical 57,61-79,81, 121,
claims, questions, 6, 12, 58, 122-123, 155, 156n, 158,
102 161,174
Michelman, Frank I., 107n, 201, connection with positive law,
227n 63-66
Mill, John Stuart, Millian, 108, Hart’s minimum content of
145-153, 154 natural law, 43-44
Miller, J. Hillis, 233 traditional vs. modern, 42n,
Minow, Martha, 207n, 21 In 6In, 73-74, 75, 76, 123
mistake, see legal mistake natural rights, 67, 116, 123
Mnookin, Robert H., 193n natural sciences, 13, 14, 15, 24,
Moore, Michael S., 11, 72, 88n, 33
1 lOn, 113, 137, 144 naturalism, 9, 23—25
270 INDEX
Nazi regime, was it “law”, 6, 22 paternalism, 152-153

neo-Kantian philosophy, 51, 53, patriarchy, 209
57 Patterson, Dennis, 168n, 233
neutral principles, 91 Paulson, Bonnie Litschewski, 59
New Criticism, 222 Paulson, Stanley L., lOn, 27n,
New Deal, 173, 221 51n, 53n, 54n, 57n, 59, 79
Newman, Peter, 201 Peirce, Charles Sanders, 227,
Nietzsche, Friedrich, 54n, 21 On, 229, 233
21 In, 231 Peller, Gary, 220, 232n
nihilism, 174, 204n Penner,J.E., 119n
Nino, Carlos S., 59 perfectionism, 150-153
norms, nature of, 58-59 Perry, Stephen R., 32n, 38n, 49,
Norris, Christopher, 232n, 233 96n, 137
Nozick, Robert, 13n, 102-104, Picker, Randal C., 192n, 201
108 Pigou, A.C., 183-184
historical principles of justice, plain meaning, 140-143, 224
103 Plato, Platonist, 62n, 64, 72,
justice in holdings, 103-104 97n, 98n, 108, 111, 156n,
nuisance law, 188 158n
Nussbaum, Martha C., 196n, Pocock, J.G.A., 106n
197-198, 201, 226n Polinsky, A.M., 201
pornography, 146, 153,
Oakley, Francis, 123n, 126 208-209,211-214
offence, regulations to prevent, positive discrimination,
147 215-216
offer prices, vs. asking prices, Posner, Eric A., 196
189n Posner, Richard A., 84n,
Okin, Susan Moller, 107, 108 125-126, 143n, 173n,
Olivecrona, Karl, 58 174n, 177, 180n, 181n,
Olsen, Frances, 206n, 211 n, 187-188, 189-191, 196n,
213n,219 198n, 199n, 200n, 201,
ontology, 7 202, 218n, 222-223,226,
open texture of rules, language, 229-230, 232
law, 40-43 Postema, GeraldJ., 49, 79, 86n,
original intent, 222n 137
outsider jurisprudence, 207-219 postmodernism, 142n, 214n,
216, 227,230-232
Palmer, Ben W., 174n poststructuralism, 227n
Papineau, David, 24n Pound, Roscoe, 165n, 167n,
Papke, David Ray, 226n 175,228
paradox, 227n practical reasoning, 39, 46, 71
Pareto analysis, Pareto superior, pragmatism, 227-230. 231
Pareto optimal, 181-182, precedent, 129, 133-137, 170,
190 171,222, 224, 230
Pareto, Vilfredo, 181 n prisoner’s dilemma, 193-194
INDEX 271
properties — accidental vs. Rawls, John—contd.

essential, 15, 16 reflective equilibrium, 90, 136
property rights, 103-104, 184n, right prior to the good, 99n
230 veil of ignorance, 99
property rules vs. liability rules, Ray, Man, 13-14
188-189 Raz, Joseph, 11, 14n, 19n, 26n,
proximate cause, 169, 170, 199 36n, 40, 44, 45-46, 48, 49,
public choice theory, 107, 192, 59, 70, 71,82n, 86n,
194-196 87-88, 118n, 119, 144,
public policy, 166, 170, 171, 151-152, 154, 159-160,
194n 161
public/private distinction, 206 deliberation vs. execution, 45,
Pufendorf, Samuel, 67n, 98n 87-88
punishment, 7, 91, 96, 109-113, denying a general moral
115-116 obligation to obey the
deterrence, 111 law, 159-160
educative, 112 law as claiming legitimate
expressive, 112, 151 authority, 46, 71
incapacitation, 112 sources thesis, 45
rehabilitation, 111—112 statements from a point of
retribution, 109-111 view/detached
shaming, 112-113 normative statements, 40
Purcell, Edward A., 174n realism, see American legal
Putnam, Hilary, 15n, 229, 230n, realism, Scandinavian legal
232 realism
Putnam, Ruth Anna, 97n, 107 Reason, 67, 121
see also will vs. reason
queer theory, 218-219 reasons for action, 34, 46, 65,
70,156, 159-160
racism, 214—219 exclusionary reasons, 46
Radin, Margaret Jane, 198n, protected reasons, 46
227n, 230n Reed, Thomas, 17In, 174
Rakowski, Eric, 229n reflective equilibrium, 90
rape, 211, 212 rehabilitation, 111-112
rational choice theory, 192n Reid, Lord, 141
Rawls, John, 9n, 90, 96-103, republicanism, see civic
104, 105, 108, 124-125, republicanism
136,158n retribution, 109-111
difference principle, 100-101 reverse discrimination, see
just savings principle, 10In affirmative action
justice as fairness, 99n, 102 Richards, David, 92
maximin principle, lOOn right answer thesis, 82, 85,
original position, 98-100, 87-89,91
105,124 rights, rights talk, 12, 19-20,
overlapping consensus, 102 115-119, 204, 207
272 INDEX
rights, rights talk—contd Scalia, Antonin, 134n, 140n,

claim/will theory, 19-20, 119 142-143, 144, 150n, 167n
Hohfeld’s analysis, 117—118 Scandinavian legal realism, 38,
in rem vs. in personam, 119 58-59
interest/benefit theory, 20, Schauer, Frederick, 11, 23n, 44,
115n,118 47—48, 49, 79, 131, 135n,
moral vs. legal, 118 136n, 137, 167n
nature of, 12, 19-20, 58-59, Scheffler, Samuel, 179n
115-116, 118-119 Schlag, Pierre, 186n, 23In, 233
Roberts, Simon, 22 Schulhofer, Stephen J., 113
Roman Law, 115, 133 science, see natural sciences,
Rorty, Richard, 227n, 229, 231, social sciences
232 Sebok, Anthony J., 42n, 77n
Rosenberg, Jay, 14, 28 sexual harassment, 211, 216n
Ross, Alf, 38, 58n, 59 sexuality, 146—147
Rousseau, Jean-Jacques, 67, 98n, Shapiro, Scott J., 34n, 201
124 ' Sherry, Suzanna, 218n, 220
rule-following, 16,38,41,57, Shiner, Roger, 47, 122n
149n Simmonds, N.E., 82n, 85n, 119
Rule, John, 204n, 205n, 219 Simpson, A.W.B., 137
Rule of Law, 76, 142-143, 174, Singer, Joseph, 178n
207, 224 Slovic, Paul, 196n
rule of recognition, 35, 36-37, Smith, Adam, 194
44,122 “Invisible Hand”, 194
rules Smith, M.B.E., 159n, 160n,
and legal determinacy, 42 161
duty-imposing vs. power- Smith, Patricia, 209, 220
conferring, 35, 36, 52 social construction, 209-210,
internal aspect of, 37-40, 46, 231,232
47, 48, 52,57, 70-71 social contract theory, 67n,
law, a matter of, 6, 81-82 96-100, 124-126
nature of, 34n, 41, 42, 46, 172 social norms, social meanings,
open texture of, 40-43, 52 196
practice theory of, 46 social sciences, 9n, 13, 14, 21,
primary vs. secondary, 35, 36, 24, 32-33, 166, 172-173,
52 185
vs. habits, 34 social theory, problems of, 4—5,
vs. principles, standards, 37-40, 185
81-82, 206n Socrates, 98n
Russell, Bertrand, 41 n Solomon, Robert C., 108
Ryan, Alan, 108 Solum, Lawrence, 18In, 205n
Soper, Philip, 23n, 28, 49
Sacks, Albert M., 78n Sophocles, 62n
Sandel, Michael J., 104—106, Spann, Girardeau A., 215n,
108, 154 220
INDEX 273
statutory interpretation, 42, 43, Twining, William, viin, 37n, 59,

85, 121, 127-129, 86n, 165n, 168n, 175
139-144, 195, 222-223
Stavropoulos, Nicos, 92n Ulen, Thomas, 189n
Stearns, Maxwell L., 202 Unger, Roberto Mangabeira,
Stefancic, Jean, 208n, 214n, 206n, 219
217n,218n,220 utilitarianism, 69, 100, 111—112,
Steiner, Hillel, 119 179-180, 183, 189-191,
Stephen, James Fitzjames, 198n
150-151, 154
Stoic philosophy, 62 Valdes, Francisco, 218n
Stone, Christopher D., 221 Vandenberg, Ann, 212n
storytelling, see narrative vonjhering, Rudolf, 165n
Suarez, Francisco, 63, 66-67, von Neumann, John, 192n
73, 74 von Wright, Georg Henrik, 59
Summers, Robert S., 79, 167n
Sunstein, Cass R., 107n, 196, Waismann, Friedrich, 41n
201, 224n Waldron, Jeremy, 79, 11 On,
surrogate motherhood, 146, 119n, 140n, 144, 146n, 154
211 Walker, David M., 115n, 134n
Wallace, Stephen, 165n
Tamanaha, Brian, 9n, 28 Waluchow, WJ., 44
Tannen, Deborah, 21 On Walzer, Michael, 106, 108, 124n
Taylor, Charles, 39n, 108 Warner, Richard, 233
technocracy, 172 Warren Court, 91
Thaler, Richard, 196n Warrington, Ronnie, 233
thick concepts, 21 wealth maximization, 5, 125,
Thomadsen, Nancy, 217n, 220 182, 187-188, 189-191,
Thomas, Kendall, 220, 232n 197, 199
Thomas, W. John, 148n Weaver, William, 232
Thompson, E.P., 204n, 205n, Weber, Max, 13n, 33n, 37n, 65n
207n, 219 Wechsler, Herbert, 9In
Torrey, Morrison, 212n, 232n Weinberger, Ota, 59
tort law, 95, 133, 136, 145, Weinreb, Lloyd, 71, 72, 75n,
146n, 177, 188, 190-191 76n, 96n, 123n, 126
transaction costs, 184n, Weinrib, ErnestJ., 12n, 124n,
185-187, 189, 195, 197 147n, 167n, 178n, 199n
Treitel, G. H., 226n Weisberg, D. Kelly, 220
Tribe, Laurence H., 144 Weisberg, Richard H., 226n
Trillin, Calvin, 204n Weisberg, Robert, 225n
truth, 227-228, 230, 231,232 West, Robin, 108n, 180n, 198n,
Tullock, Gordon, 201 225,226n
Tur, Richard, 59 White, Alan R., 14n, 19n, 28
Tushnet, Mark, 204n, 207n White, James Boyd, 198n, 221,
Tversky, Amos, 196n 224n, 225n, 226
274 INDEX
Whitman, James Q., 113n Wing, Adrien Katherine, 219n

Wicke, Jennifer, 2 31 n Winslow, Cal, 204n, 205n, 219
Wieacker, Franz, 6In, 67n Winston, Kenneth, 2In, 28, 74n,
will vs. reason, 66-67, 78, 93, 79,122n
121-126, 129n Wiseman, Zipporah, 209n
Williams, Bernard, 2In Wittgenstein, Ludwig, 6, 16n,
Williams, Patricia J., 119n, 215n, 59n, 205n, 231
218n, 220, 225n Wolff, Robert Paul, 96n
Winch, Peter, 33n, 37n, 40n
Winfield, Richard Dien, 32n Zeno, 13n

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JURISPRUDENCE:

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CANADA AND USA

SINGAPORE AND MALAYSIA

Sweet & Maxwell Asia

A CIP catalogue record for this book

ISBN 0421 653205

All rights reserved. U.K. statutory material in this publication is acknowledged as

No natural forests were destroyed to make this product,

This book derives from past efforts to teach jurisprudence: in particular,

I do not purport to be able to offer the powerful insights or the elegant

Why study jurisprudence?

THE SELECTION OF TOPICS

in this book will be primarily to the practices in the American and

Preface to the Second Edition vii

PART i. Legal Theory: Problems and Possibilities 1

Chapter One: Overview, Purpose and Methodology 3

Chapter Two: Conceptual Questions and Jurisprudence 9

PART B Individual Theories About the Nature of Law 29

Chapter Three: H.L.A. Hart and Legal Positivism 31

Chapter Four: Hans Kelsen’s Pure Theory of Law 51

Chapter Five: Natural Law Theory and John Finnis 61

Chapter Six: Understanding Lon Fuller 73

Chapter Seven: Ronald Dworkin’s Interpretive Approach 81

PART C Themes and Principles 93

Chapter Eight: Justice t 95

Chapter Nine: Punishment 109

Chapter Ten: Rights and Rights Talk 115

Chapter Eleven: Will and Reason 121

Social Contracts and Economic Analysis 124

Chapter Twelve: Authority, Finality and Mistake 127

Chapter Thirteen: Common Faw Reasoning and Precedent 133

Chapter Fourteen: Statutory Interpretation and Legislative

Chapter Fifteen: Legal Enforcement of Morality 145

Chapter Sixteen: The Obligation to Obey the Law 155

PART D Modern Perspectives on Legal Theory 163

Chapter Seventeen: American Legal Realism 165

Chapter Eighteen: Economic Analysis of Law 177

Chapter Nineteen: Modern Critical Perspectives 203

Chapter Twenty: Law and Literature 221

Chapter Twenty One: Pragmatism and Postmodernism 227

Legal Theory: Problems

(1) In what sense is a general theory of law possible?

Overview, Purpose and Methodology

QUESTIONS AND ANSWERS IN JURISPRUDENCE

making the significance of their claims clear, “charity” in interpretation is

The approach discussed above, emphasizing the extent to which different

to offer this assistance without harming the power or the complexity of

TRANSFORMING THE QUESTION

4 Hart, The Concept of Law, pp. 1-6.

may be most remarkable about Hart’s discussion is that he never direcdy

6 Hart, The Concept of Law, p. 13.

TO WHAT EXTENT IS IT LEGAL THEORY?

To what extent is there or should there be legal theory? The question is

Occasionally, there are arguments about what is or should be distinctive

Suggested Further Readings

Brian Bix, “Questions in Legal Interpretation”, in Law and Interpretation (A.

Conceptual Questions and Jurisprudence

Conceptual analysis is an integral part of jurisprudence,1 but the nature