Legal Philosophy in America
Abstract and Keywords
This article offers an overview of the major areas and approaches where American theorists have offered significant contributions to legal philosophy. The first section discusses American legal realism; the second section looks briefly at the legal process school; the third section gives brief overviews of law and economics and the other post-realist critical theories; the fourth section summarizes the approach of Lon Fuller; the fifth section examines the legal theory of Ronald Dworkin; and the fifth section summarizes some significant American contributors to schools of thought that originated in Europe, as well as American contributions to the analysis of legal concepts and doctrinal areas.
To the extent that there is something distinctive about legal philosophy in America or by Americans (cf. Leiter 1997), it connects to a pragmatic or prescriptive focus, and a fixation on judicial reasoning in general, and constitutional decision making in particular. However, American theorists have also made important contributions to analytical legal philosophy (if mostly thereby furthering projects begun in Britain or continental Europe).
This chapter offers an overview of the major areas and approaches where American theorists have offered significant contributions to legal philosophy. Section I discusses American legal realism; section II looks briefly at the legal process school; section III gives brief overviews of law and economics and the other post‐realist critical theories; section IV summarizes the approach of Lon Fuller; section V examines the legal theory of Ronald Dworkin; and section VI summarizes some significant American contributors to schools of thought that originated in Europe, as well as American contributions to the analysis of legal concepts and doctrinal areas.
(p. 552) I. American Legal Realism
At the center spoke of almost all legal philosophy in America is the movement known as “(American) legal realism”, the work of a loose group of theorists working in the 1920s, 1930s, and 1940s (Fisher et al. 1993). While it may seem unusual to begin the history of American legal philosophy in the twentieth century, for the most part the few American legal theorists writing in the eighteenth and nineteenth centuries were either unimportant followers of European schools or else are remembered mostly for their role in inspiring the legal realists.
Many of the themes (and much of the tone) of the legal realists can be found in the earlier work of Oliver Wendell Holmes Jr. (1841–1935). In The Common Law, Holmes wrote:
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 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. (Holmes 1881: 5)
Roscoe Pound (1870–1964), with the “sociological jurisprudence” of his early work (Pound 1911, 1912), was also an important influence (though Pound would live long enough to become a conservative critic of the legal realists (Pound 1931; Llewellyn 1931)). American legal realism may also be traceable, at least in part, to Rudolf von Jhering (1818–92) and other European theorists of the late nineteenth century (particularly those associated with the “Free Law Movement”) (e.g. Fuller 1934: 440 n. 46; Herget and Wallace 1987). A more obvious and more proximate source of influence were the American pragmatist philosophers; in fact, some consider Holmes himself to be an integral part of the pragmatism movement in American philosophy (e.g. Menand 2001), and the pragmatist philosopher John Dewey published two articles on legal topics that contributed significantly to the realist movement (Dewey 1924, 1926). Additionally, there were ongoing exchanges of ideas between the American legal realists and the Scandinavian legal realists (the two movements overlapped both in time and tone, but there were also substantial differences in theme and methodology (e.g. Bix 2006: 257–9)).
In the label “American legal realism”, “realism” follows the conventional use of that term—to be worldly, skeptical, or cynical—not the narrow philosophical sense associated with Platonism and other forms of metaphysical realism. This “realism” was made vivid in another image of Holmes's: 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” (Holmes 1897: 460–1). 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, to him, superfluous and beside the point.
The main focus of American legal realism was judicial decision making. On that topic, the realists' writings contained a number of themes: 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); that a proper understanding of judicial decision making would show that it was fact‐centered (e.g. Frank 1930, 1949); that judges' decisions were often based (consciously or unconsciously) on personal or political biases and constructed from hunches (e.g. Hutcheson 1929); and that express reference to public policy and the social sciences should play a larger role in such decisions (e.g. Cardozo 1921). Feeding into this central focus on adjudication was a critique of judicial reasoning in particular, and legal reasoning in general: 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, according to the realists, led to the need to explain judicial decisions in other terms (hunches and biases), as well as an opportunity to encourage a different focus for advocacy and judicial reasoning: social sciences and “public policy”.
The legal analysis dominant at the time when the legal realists were writing was criticized as “formalistic”; this 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 conclusion soon followed (e.g. F. S. Cohen 1935). The notion that most judicial decisions should or could be deduced from general concepts or general rules, with no attention to real‐world conditions or consequences, realist (and proto‐realist) critics labeled as “mechanical jurisprudence” (Pound 1908).
An equally distinctive version of formalism had been influential in American legal education. Christopher Columbus Langdell (1826–1906), Dean of the Harvard Law School and originator of the “case method” of teaching law, famously advocated that law was a science, whose principles and doctrines could be “discovered” in cases, much as biologists discover the principles of their science in their laboratories. Langdell tried to derive the law from basic axioms and logical deduction. Real‐world consequences and moral evaluations were excluded from this process. In one discussion of whether a proper understanding of contract law entailed the “postal acceptance rule”, 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” (Langdell 1880: 20–1).
As noted, the American legal realists' attack on formalism could be divided into two separate criticisms: (1) arguing against the idea that legal concepts and standards were “neutral” or “objective”; and (2) arguing against the idea that general legal concepts or general legal rules could determine the results in particular cases. As to the first criticism, 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.
As to the second criticism—which Holmes famously summarized by the comment, “General propositions do not decide concrete cases” (Lochner v. New York, 198 US 45, 76 (1905) (Holmes, J., dissenting))—the idea is that adjudication can rarely be accurately seen as a mechanical, 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. On this analysis, the final conclusion regarding, for example, whether the plaintiff's action was the “proximate cause” of the defendant's injury or not will be based on unstated premises regarding public policy (or perhaps based on unstated biases or prejudices).
One can offer an additional 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 certainly not the first to subject the law to moral criticism. However, the realists' attack on the scientific pretensions of Langdell's “legal science”, and on the notion that law was a self‐contained moral‐logical system, created an opening for moral (and policy‐based) criticism, for the possibility that legislative or judicial 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 argument from tradition: “It (p. 555) 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” (Holmes 1897: 469). (For Holmes, a strong believer in judicial restraint (in judges deferring to legislative decisions and following precedent strictly), this was an argument for legislative change of old common‐law rules. In the hands of some of the later realists, like Benjamin Cardozo (1870–1938), however, the same argument was a justification for judicial reform of outdated rules (e.g. Cardozo 1921).)
The American legal realist view of adjudication was that judges often have discretion, and that judicial decisions were often in practice determined by factors other than the legal rules. The realists hoped to move the focus from conceptual analysis to policy‐based arguments and fact finding. One can get a sense of realism's view of judges and judging just from the titles of some of its best‐known articles: e.g. “Are Judges Human?” (Frank 1931); “What Courts Do in Fact” (Frank 1932); “Transcendental Nonsense and the Functional Approach” (F. S. Cohen 1935); and “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision” (Hutcheson 1929).
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 do so, are quite distinct. The first is a statement about causation in the world: why judges decide cases the way they do. The second is an analytical statement about logical possibility, the nature of language, or the nature of rules, the assertion 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 perhaps vice versa). Both themes were present in the writings of the legal realists, though the realists tended to be significantly more persuasive on the causal (descriptive) claim than on the more ambitious, analytical one. The first theme, at least, has also become embedded in the way in which modern American lawyers and legal academics think about law, and in the way in which law is taught in American law schools. If it was once subversive to think that extra‐legal factors influence judicial decisions, it now seems naïve 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.
The realists preferred a picture of law as a human product meant to serve social needs, and subject to criticism and reform when it fails to serve those needs, or fails to serve them well. This view now seems so obvious and so (p. 556) much a matter of common sense that it is hard to comprehend how it could once have been controversial. However, it is in contrast to a view of law and legal reasoning as robustly “autonomous” (cf. Bix 2003).
The problem with formalist reasoning, according to the realists, was that it could result in legal doctrines and legal rules that were too autonomous—too abstracted from the conditions of life. Felix Cohen described the formalist thinking of his day as “an autonomous system of legal concepts, rules, and arguments … independent both of ethics and of such positive sciences as economics or psychology. In effect, it is a special branch of the science of transcendental nonsense” (F. S. Cohen 1935: 821).
What was to fill the conceptual gap left when one's faith in the neutrality 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 behavior. This turn to the social sciences can be seen in a number of places, including “The Brandeis Brief”, a legal advocate's brief (named after the prominent lawyer and, later, United States Supreme Court Justice who used it, Louis D. Brandeis) that supplements and supports legal doctrinal argument with extensive sociological research. This faith in the social sciences can also be seen indirectly through the work that many realists did in the President Franklin D. Roosevelt's “New Deal”, creating administrative agencies and regulations meant to solve various social problems through the law. The weak point of realist thinking in this area was the tendency towards technocracy, the belief that social‐scientific expertise by 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. This misplaced faith in the possibility of neutral expertise on social matters was to continue through the legal process school (discussed below, in section II), only to be rejected by the various critical approaches to law (discussed briefly, below, in section III) that were to arise in the 1970s and 1980s.
Two other realists warrant special mention: Karl Llewellyn (1893–1962) and Robert Hale (1884–1969). Llewellyn was arguably the leader of the realists, the major advocate for realism (e.g. Llewellyn 1930, 1931; Twining 1985), and its most influential scholar. In his earlier work, Llewellyn argued for the difference between “paper rules” and “real rules”—that we should not too quickly assume that announced “black‐letter” legal rules were either accurate predictors of how courts decide cases or reliable summaries of how (p. 557) judges came their decisions (Llewellyn 1930: 438–43, 447–53). He also argued for a greater congruence between legal rules and the social norms accepted by those subject to the law, especially within his specialty, commercial law. For example, Llewellyn argued that if business people see themselves as bound to a commercial transaction under a certain set of facts, the law should usually also treat them as so bound. He was able to put these ideas into practice in his work as a primary author of the Uniform Commercial Code (see, e.g., Wiseman 1987), a set of uniform laws that continues to this day (with some amendments to update and revise the Code) to regulate much of commercial life within the United States.
A more marginal figure in the realist movement, though one who has had disproportionate influence on later critical theory, Robert Hale (1884–1969) brought a sharply political tone to his criticisms of legal reasoning. Hale's most significant argument (1923, 1943) was that conventional legal thought made too much turn on the distinction between “public” and “private” areas of law. Under that conventional view, “public law” is administrative law and constitutional law, where government regulation and coercion is expected and legitimate, while “private law” is the law of contract, property, employment, etc., where the government does not intervene, but leaves private parties to purely consensual interactions under purportedly neutral private law rules. Hale's basic contention was that the ground rules of private transactions (e.g. which forms of persuasion and pressure are acceptable, and which are unacceptable and will justify legal relief) are never neutral, but in fact favor some parties over others (e.g. employers over employees, corporations over consumers), and that coercion is pervasive even in private transactions (e.g. in the State's willingness to enforce certain transactions and punish others). As was perhaps common with many of the arguments by the American legal realists, Hale's critique was built on an insight that was then overstated. Governments are responsible for the baselines they create for private interactions, but the type of responsibility involved is different from that of public‐law actions, and the two forms of “intervention” need to be treated differently for the purpose of political and moral evaluation (Leiter 1996: 278–9; 2005: 65; for a general debate on Hale's merits, see B. H. Fried 1998 and Epstein 1999).
In various ways, American legal realism can be seen as the forerunner of various modern critical perspectives on law: law and economics, critical legal studies, critical race theory, and feminist legal theory. The connection is partly indirect: by undermining the confidence in the “science” of law and the ability (p. 558) to deduce unique correct answers from legal principles (as well as questioning the “neutrality” of those legal principles), the realists created a need for new justifications of legal rules and judicial decisions, justifications that would have to come from outside law and legal reasoning, narrowly understood. Thus, the realists' arguments were the starting point for most of the modern “law and” interdisciplinary work in legal scholarship. Additionally, 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 further developed by later critical theory movements. Finally, the legal realists experimented (with limited success) with methodological approaches that would bear greater fruit from later theorists: for example, empirical investigations regarding the effects of rules, and the application of economic ideas to legal analysis.
II. Focus on Judicial Reasoning
There are a handful of themes that are distinctive to legal philosophy in the United States (though far from universal among American theorists). The first, already mentioned in connection with the American legal realists, is a tendency towards “pragmatism” (understood here broadly as an anti‐foundationalist, anti‐metaphysical approach, focused on practice and “the bottom line”). A second theme is a focus on judicial reasoning and decision making in general, and constitutional reasoning and decision making in particular. This focus is evident with the realists, but it can also be found in quite different works, like the legal process school of the 1950s and 1960s, the work of Ronald Dworkin (discussed in section V, below), and the recent work within analytical legal philosophy by those known as “inclusive legal positivists” (mentioned below, in section VI).
The legal process school was primarily a response to American legal realism (e.g. Duxbury 1995: 205–99). The legal process school conceded many of the realists' criticisms of the “formalist” judging of that period—for example, that legal materials were frequently indeterminate, and that some extra‐legal values or norms would be required to decide many legal disputes; however, the legal process theorists argued that there was nonetheless room for a distinctively legal response to disputes. Legal process saw the distinctive legal response as involving understanding the relative strengths and weaknesses of different (p. 559) institutions and decision‐making processes (“institutional competence”), and thus being able to determine whether (for example) it would be best to use adjudication, arbitration, agency rule making, or public legislation to resolve a particular dispute (Hart and Sacks 1994). Additionally, legal process offered a picture of adjudication in which courts had discretion, but this discretion was bounded by a proper understanding of the judicial role (e.g. Wechsler 1959). The major text of the legal process school was a casebook by Henry M. Hart Jr. (1904–69) and Albert M. Sacks (1920–91), The Legal Process: Basic Problems in the Making and Application of Law (Hart and Sacks 1994). The influential basic text of the legal process school was completed in 1958 (the “tentative edition”), and widely circulated, but was not formally published until decades later.
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?”. The legal process approach combined emphasis on the functions of law with detailed attention to the relative institutional competence of various institutions within the law, and how these institutions interact.
Especially at times when there is pervasive doubt about achieving certainty or consensus in resolving basic social questions (as the American legal realists created doubt in American legal thought), it is understandable that people might prefer to focus on the question of who should decide, and how. There is a sense, however, that, in the way in which the legal process approach developed, questions of process and institutional competence were over‐emphasized, leading to an indifference to the justice of the results reached and a mistaken and extreme version of judicial restraint (cf. Wechsler 1959; Horwitz 1992: 247–68).
Legal process was an intermediate movement in American jurisprudential thought. As noted, it can be seen as a kind of mainstream response to the challenges raised by American legal realism. In turn, critical legal studies and the other critical theories developed in large part in reaction to legal process's emphasis on “neutral” procedures.
III. Law Reform and Critical Theory
Pragmatism and a focus on judicial decision making have already been mentioned as major themes in American legal philosophy. A third theme (p. 560) is a tendency to focus on law reform: a preference for prescriptive theory or justice‐focused theory, over analytical theory or other non‐evaluative investigations into the nature of concepts, practices, and institutions. The theme of a prescriptive or critical focus may be most evident with feminist legal theory, critical race theory, and critical legal studies, but it is also implicit in law and economics.
As American schools of legal thought tend to be grounded less in purely philosophical argument, and more in non‐philosophical claims—either political views about how society should be organized or economic theories—only brief overviews of these prescriptive or critical schools of thought will be offered in the present text.
Law and economics is the most influential approach to law in contemporary American legal scholarship, with significant (if markedly less dominant) influence in other countries. This approach calls for the application of economic ideas both basic (incentives/disincentives, Pareto and Kaldor–Hicks efficiency) and more intricate (game theory, public choice theory, social choice theory, bounded rationality, etc.) to legal regulation and legal processes. There are also some distinctive ideas that arose regarding the intersection of law and economics: most significantly, the Coase theory, from Ronald Coase's paper “The Problem of Social Cost” (1960).
In “The Problem of Social Cost”, Coase argues against a particular welfare‐economics justification for state regulation. Some economists had asserted that businesses that impose costs on third parties (“externalities”) through pollution or other nuisances should be forced to “internalize their externalities”, through fines, tort law liability, or taxation; for otherwise the businesses in question would be receiving a kind of subsidy, which would lead to an inefficient distribution of goods and services. Coase argued that this view was based on a series of misunderstandings. What is now known as “the Coase Theorem” is in fact an intermediate step in the article's analysis: that in a world without transaction costs, the distribution of legal entitlements (e.g. to pollute or to prevent pollution) would not matter, because the party that valued the right the most could always buy the right from a lower‐valuing user, if the higher‐valuing user did not have it initially. A further conclusion of Coase's analysis is that, in a world with pervasive transaction costs (such as our world), the initial distribution of legal rights does often matter, because high transaction costs may prevent a higher‐valuing user from buying the right from a lower‐valuing user (thus resulting in “inefficiency”). While the welfare economists had suggested that the proper response to externalities (p. 561) was government intervention by way of fines, tort liability, or taxation, Coase shows that private transactions in a world without transaction costs would respond adequately to the problem of externalities, and state regulation would have no effect on the efficiency of the ultimate distribution of entitlements. And, Coase argued, in a world with significant transaction costs, government intervention is still unlikely to produce efficient outcomes consistently, as efficient regulation would require a level of knowledge of the parties' costs and alternative uses of resources that would be impractical, if not impossible, to obtain.
Another central text of law and economics is Guido Calabresi and A. D. Melamed's “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972), in which they analyzed the different legal remedies as offering different sorts of protection for legal entitlements: most prominently, “property rules” (an entitlement may not be violated without the owner's consent; violations will meet with judicial injunctions) and “liability rules” (violations of entitlements are allowed as long as market‐value compensation is paid afterwards, through a judicial order of compensation). As the authors point out, a third sort of protection, inalienability rules (not allowing the transfer of an entitlement, even with consent) is also present in some circumstances—for example, not being allowed to sell or transfer one's right to liberty by selling oneself into slavery (Calabresi and Melamed 1972: 1111–15). The analysis of which sort of protective rule is used to protect different entitlements (and which sort would be most “efficient”) has proved to be an insightful approach to private wrongs (tort, delict), and the analysis has been extended to many other areas of law.
The most influential figure in the law and economics movement is Richard Posner (1939–), who was an early advocate for the movement, and who continues to be an extraordinarily prolific scholar, applying economic ideas to a wide range of topics (e.g. Posner 2007). In his work, Posner has followed Gary Becker (e.g. Becker 1976) in the view that economic (rational actor model) analysis can be usefully applied even to non‐market behavior.
In many of his earlier writings, Posner argued that a theory of wealth maximization served well both as an explanation of the past actions of the common‐law courts (explaining why common‐law rules of private law were, allegedly, “efficient”) and as a theory of justice, justifying how judges and other officials should act (Posner 1981). Neither claim has garnered much support (though the descriptive claim, modified in various ways, continues to have some advocates), and Posner has retreated somewhat from the equation (p. 562) of wealth maximization and justice, though he still claims that it is usually a worthy objective for judges and law makers. (Posner now characterizes his own views as “pragmatist” (e.g. Posner 1990: 454–69), though this follows a modern broad use of “pragmatism”, which seems to include a remarkably wide range of theorists and theories.)
Variations on neoclassical economics have also become prominent in American legal scholarship, including game theory (e.g. Baird, Gertner, and Picker 1994), public choice theory (e.g. Farber and Frickey 1991; Stearns 1997), and behavioral economics (e.g. Sunstein 2000). Game theory analyzes social interactions and the effects of legal norms through a version of economic analysis in which some of the rationality assumptions of neoclassical economics are loosened; the approach also emphasizes the strategic interactions of individuals. The best‐known “game” is the prisoner's dilemma, which shows how rational pursuit of individual self‐interest, where cooperation is called for, can lead to results that are contrary to both individual and collective interests. Public choice theory applies rational actor models to analyze the actions of judges and legislators, where viewing them as acting for their self‐interest rather than for the common good seems to have value in both explanation and prediction. Behavioral law and economics attempts to incorporate some of the empirical findings of bounded rationality into descriptive and predictive economic analysis (leading, according to some scholars, to justifications for protective legal rules). Behavioral economics effectively incorporates some of the criticisms of rational actor analysis into economic work. There are other well‐known problems with economics at both a descriptive and a prescriptive level (e.g. Nussbaum 1997; Hausman 2006), but none of these critiques have slowed the growing dominance that law and economics holds in American legal thought.
Critical race theory and related ethnic or identity movements (LatCrit theory, critical Asian‐American theory, queer theory, etc.) usually focus on concerns relating to a particular oppressed group—their experiences and perceptions within American society and relating to the American legal system—but there is generally no distinctive methodology or philosophical perspective. Among the theoretical views important to work by these schools are ideas about the “social construction” (e.g. Boghossian 2001) of race and the notion of “unconscious racism” (Lawrence 1987).
For feminist legal theory, the philosophical content is more salient and distinctive, but the school is best understood as an application (or, more precisely, a series of applications—sometimes overlapping, sometimes conflicting) of different ideas from modern feminist theory to legal regulation and legal (p. 563) processes. Important theoretical notions within this movement include Carol Gilligan's ideas (1982) about an “ethic of care”, an approach to moral reasoning offered as an alternative to thinking grounded on individuals, rights and justice, focusing instead on relationships, connection, and dependency. Gilligan argued that this “different voice” of moral analysis is largely associated with women and girls, with more traditional analyses of justice and rights being associated with boys and men. Gilligan's work has been central to the approach of the “cultural” or “difference” branch of feminist legal theory (e.g. West 1997). By contrast, Catharine MacKinnon's very influential feminist critique of law is grounded in a “domination theory” that derives partly from traditional Marxist analysis (e.g. MacKinnon 1987, 1989). For MacKinnon, if there is any “different voice” among women, it has been caused by pervasive, coercive, and violent domination by men.
Critical legal studies (CLS) flourished, briefly and amid constant controversy, in the late 1970s and early 1980s, before fading under institutional attack and internal division. CLS applied to legal studies a panoply of ideas borrowed or modified from a wide range of sources, including American legal realism, neo‐Marxist theory, phenomenology, and postmodernism (e.g. Kelman 1987). Among the conclusions common among CLS scholars were that the legal materials frequently did not determine the outcome of cases (“radical legal indeterminacy”), that legal rights often did more long‐term harm than good, that the appearance of neutrality and non‐intervention in the market and in the family hid pervasive biases and inequalities (“attack on the public–private distinction”, a variation of Hale's critique, discussed above, in section I), and a skepticism about the coherence or neutrality of legal reasoning as a purportedly autonomous and valuable form of reasoning (leading to the CLS slogan, “Law is politics”).
IV. Lon Fuller
Lon L. Fuller (1902–78) is a bridging figure in American legal philosophy: a sympathetic critic of the American legal realist movement (Fuller 1934), his work strongly influenced the legal process school; and Fuller's procedural natural law theory and critique of legal positivism raised many of the issues and arguments elaborated in somewhat different (and more sophisticated) form by Ronald Dworkin.
Fuller (1958, 1969) argued that law contained an “internal” (or “inner”) morality, “requirements” of law making that other and later theorists have discussed under the rubric of “the rule of law”. Fuller's “eight principles of legality” (laws should be general; they should be promulgated; retroactive law making should be minimized; laws should be understandable; they should not be contradictory; laws should not require conduct beyond the ability of those affected; laws should remain relatively constant through time; and there should be a congruence between the laws as announced and as applied (Fuller 1969: 33–91)) help portray law as a sort of process, as “the enterprise of subjecting human conduct to the governance of rules” (Fuller 1969: 96). For Fuller, it is an aspect of law that, he claims, legal positivists miss, that one cannot understand “order” without understanding “good order”, and that one cannot understand “law” without knowing what it means for law to be (procedurally) good. Fuller also emphasized the “reciprocity” between government and citizens that must be present in a good legal system (Fuller 1969: 39–40).
Fuller argued that his “principles of legality” are aspects of justice, and therefore have moral value, even if they might be compatible, in exceptional regimes, with substantive evil. Fuller took this to be a refutation of the separation that legal positivists advocate between law and morality. Whether his critique is valid, or should be construed as a refutation of legal positivism, remains highly disputed in the literature (e.g. Kramer 1998).
V. Ronald Dworkin
Ronald Dworkin (1931–) is probably the most influential English‐language legal theorist of this generation. In his early writings (Dworkin 1977), he challenged a particular version of legal positivism, under which law is seen as being composed entirely of rules and judges have discretion whenever the dispute before them is not covered by existing rules. Dworkin offered an alternative vision of law, in which the resources for resolving disputes “according to law” are more numerous and varied, and the process of determining what the law required in a particular case is more subtle.
Dworkin argued that, along with rules, legal systems also contain principles. Legal principles are moral propositions that are stated in or implied by past official acts (e.g. statutes, judicial decisions, and constitutional provisions). (p. 565) While rules act in an “all or nothing” way (if a rule applies, it is conclusive, it decides the case), principles 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” favoring one result; there can be—and often are—principles favoring contrary results on a single legal question.
Dworkin argued for the existence of legal principles (legal principles that are part of the legal system, which judges are bound to apply where appropriate) by reference to legal practice (in the United States and England). Particularly telling for Dworkin's argument are those “landmark” 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—though, at first glance, legal determinacy might seem also to be undermined by the abundance of sometimes contrary material. However, Dworkin had a response to that problem. On 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 that best combines “fit” and moral value, making the law the best it can be. Two tenets of Dworkin's early writings were thus indirectly related: that law contains principles as well as rules, and that for nearly all legal questions there are unique right answers.
In his later work (Dworkin 1985, 1986, 1987, 2006), Dworkin reworked his earlier ideas somewhat, offering what he called “an interpretive approach” to law. In Law's Empire, he argued that “legal claims are interpretive judgments and therefore combine backward‐ and forward‐looking elements; they interpret contemporary legal practice as an unfolding narrative” (Dworkin 1986: 225). According to Dworkin, every time a judge is confronted with a legal problem, he or she needs to construct a theory of what the law is. That theory must adequately fit the relevant past governmental actions (legislative enactments and judicial decisions), while making the law the best it can be.
According to Dworkin, both law (as a practice) and legal theory are best understood as processes of “constructive interpretation”, interpretation that makes its object the best it can be (in his words, an interpretation that makes (p. 566) it “the best possible example of the form or genre to which it is taken to belong” (Dworkin 1986: 52)). 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). Dworkin believes that constructive interpretation is also the proper approach to artistic and literary interpretation, and his writings frequently compare the role of a judge with that of a literary critic (e.g. Dworkin 1985: 158–62).
Constructive interpretation depends upon being able to assign a distinctive 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 interpretation of law, Dworkin states that the purpose of law is to constrain or justify the exercise of government power (Dworkin 1986: 93, 109, 127).
The past actions of officials, whether judges deciding cases and giving reasons for their decisions or legislators passing statutes, are the data that legal officials and legal commentators interpret constructively. In making the law, or an area of the law, the best it can be, the criteria Dworkin mentions most often are (as in his earlier work) “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 unsettled or inconsistent, or where the legal question is novel, there will usually 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 important for civil liberties questions).
Dworkin also writes of “Integrity”: the belief that judges should decide cases in a way which makes the law more coherent, preferring interpretations 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” (Dworkin 1986: 255). The interpretation of the law should, to the extent possible (given the relevant interpretive constraints), (p. 567) “express … a coherent conception of justice and fairness” (Dworkin 1986: 225). In some ways, the development of an interpretive 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 consistency, though a consistency sensitive to principle, and in part on a belief that past decisions should be seen as rough approximations or intuitions about justice and fairness.
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 participants in the legal system argue over even the most basic aspects of the way the system works (e.g. over the correct way to interpret ambiguous statutes, and over how one should apply constitutional 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, lawyers and judges 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 radically, both judges and commentators often speak of the new rule having “already been present” or the way the law “works itself pure”.
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 law “as it is” necessarily involves an interpretive process, which in turn requires determining what is the best interpretation of past official actions. 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”, which are 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 a lawyer 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 (p. 568) may be that the lawyer can point to certain statutes that are relevant, and to certain decisions by courts at various levels on related matters, and perhaps even to the writings of commentators suggesting that future decisions on this 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 the 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 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 mistaken and should be overturned, or that the decision was too broad and that it will probably be limited later.
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 revision too much and the likelihood of settledness too little; and that it celebrates the notion of the great individual judge rethinking whole areas of law and thereby deflecting attention from the important roles of consensus and shared understandings (cf. Cover 1986; Bix 1993: 111–18).
A related challenge has been offered to Dworkin's approach to law: that it is legal theory for (or from the perspective of) judges and adjudication, rather than the full theory of law it purports to be. Making the best theory of law one can from the relevant past legal decisions may be the appropriate prescription if one is a judge within a legal system; however, why would one take the same perspective if one were merely a citizen in the society? From the perspective of the ordinary 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 (recall Holmes's “bad man” from section I). Not only is there the desire to avoid legal sanctions, but if law is going to succeed in coordinating behavior, then it is important that different citizens view what the law requires in roughly the same way (e.g. if they all have comparable ideas about what traffic laws (p. 569) 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.
What is distinctive to Dworkin's approach, and part of what makes it seem suspicious to many other theorists, is the continuity between what would usually be thought to be jurisprudential questions (the nature of law in general or the basic nature of a particular legal system) and what would usually be considered practical or doctrinal legal questions (what the law in this jurisdiction requires on some issue or how a judge should resolve a dispute). Constructive interpretation is Dworkin's response to both kinds of queries, and he has expressly offered that “no firm line divides jurisprudence from adjudication or any other aspect of legal practice” (Dworkin 1987: 14). Most theorists discussing the nature of law would be more hesitant to find implications of their general theories for more particular questions of legal doctrine, finding such implications, if at all, only in rare and highly unusual cases. By contrast, Dworkin argues that one's jurisprudential stance is implied in every legal dispute settled.
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. While it is interesting to note some of the ways in which the presentation of this view, and attacks on it, have changed over time, there are three themes that persist throughout Dworkin's many discussions of that thesis. The first is that this claim reflects our practice: that even in difficult decisions, judges and lawyers discussing, 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 convention, and that judges in more reflective moments endorse a contrary position. A second theme, which has become more prominent in Dworkin's later writings, is that there are right answers to legal questions for the simple reason that judges must reach a result for the questions placed before them, and some answers are better than others. While many other theorists are concerned with distinguishing among judicial decisions, differentiating between 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”), Dworkin finds such distinctions to be beside the point. He sees no reason not to view every standard that a judge is required to apply as a “legal” standard. Arguments (p. 570) about 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. There is unlikely to be a global argument establishing or refuting legal determinacy.
General challenges have been raised to the possibility of right answers on 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”) (Bix 1993: 96–106) and demonstrability (that given Dworkin's other premises, Dworkin 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) (Moore 1987).
What interests would be served by asserting a “right answer thesis”, especially when no one assumes that the right answer will be demonstrable? One point is a psychological/sociological one directed at judges 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, their 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 answers for the more difficult legal questions, then the attention of advocates and judges in such cases might turn too quickly (whatever “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 discover the answers to legal disputes within the existing legal materials.
There is a vast critical literature on Dworkin's jurisprudential work, of which only a small sample of the arguments could be offered here. A broader overview can be found in M. Cohen (1984), Burley (2004), and Hershovitz (2006).
(p. 571) VI. Other Analytical Schools
American theorists have made substantial contributions elsewhere in analytical legal philosophy, but these contributions have been more in the way of elaborations or modifications of existing traditions: e.g. Robert P. George (1999) and Mark C. Murphy (2006) within the Thomist natural law tradition; Stanley L. Paulson (1980, 1992) and Michael Green (2003) on the work of Hans Kelsen (1992) and his neo‐Kantian form of legal positivism; and Jules L. Coleman (2001), Frederick Schauer (1998), David Lyons (1993), Philip Soper (1987), Gerald J. Postema (1982), and Scott Shapiro (1998) on the work of H. L. A. Hart (1994) and his hermeneutic and social‐fact‐centered form of legal positivism. As to the last group, those elaborating on Hart's legacy, American theorists have been particularly prominent in developing the “inclusive legal positivism” version of Hart's work, which argues that legal systems can contain moral criteria for legal validity, but only if so determined by the system's own conventions (as contrasted with “exclusive legal positivists”, who argue that law, by its nature, can never have moral criteria for legal validity, and some natural law theorists, who argue that by the nature of law, legal norms or legal systems must meet certain moral criteria (Bix 1999)).
Within analytical legal philosophy, there is another sub‐area in which American theorists have been prominent, an area that sometimes goes under the title “the philosophical foundations of the common law”. This area involves the descriptive, interpretive, or prescriptive/justificatory investigation of doctrinal areas of law (e.g. tort law, contract law, property law) or concepts within those areas (e.g. causation, excuse, mens rea). While in some ways well established, the theories of doctrinal areas of law remain somewhat unsettled as to the nature of the claims being made (or, perhaps to raise the same point a different way, the criteria for success for such theories). Like much common‐law legal argument itself, theories of doctrinal areas tends to sit uneasily between description and prescription—in what some call “rational reconstruction” (and which has some similarity to Ronald Dworkin's “construction interpretation” (Dworkin 1986: 52)).
Some of the American contributions in these areas have come from the application of economic analysis, from within the law and economics movement, discussed in section III (e.g. Posner 2007). Outside that distinctive (and not entirely persuasive) view of these legal concepts and areas (but see Kraus 2007 for a more sympathetic view), there have been substantial (p. 572) works by the likes of Wesley Hohfeld (1913, 1917) and Joel Feinberg (1970) on the nature of rights; Michael Moore on criminal law (e.g. Moore 1998); Jules Coleman on tort law (e.g. Coleman 2001); Charles Fried (1981) and Thomas Scanlon (1990, 2001) on contract law; and Stephen R. Munzer (1990) on property. There are also some theorists who have raised questions about whether there are or should be general and universal theories regarding particular doctrinal areas, or regarding all doctrinal areas—arguing instead for theories more narrowly tied to a certain jurisdiction, or to a sub‐category of cases within that jurisdiction (e.g. Bix 2007).
Finally, one should note Brian Leiter's work (e.g. Leiter 2007), which offers a critical view of mainstream analytical legal philosophy. His naturalist critique of conceptual analysis raises doubts about the theories of the nature of law offered by most legal positivists and by a number of other analytical legal philosophers.
It is a common experience: jurisprudential scholarly presentations at American law schools are met with questions like, “But what is the bottom line?” and “What normative prescriptions follow from your analysis?”. American legal thought has, for some decades, been focused on the questions of legal practice and legal reform, with purely analytical inquiries being both rare and received with suspicion. American legal practice has a substantial tradition of constitutionally based judicial review of legislation, and in its shadow many political questions get transformed into legal questions; for that reason, legal theory in America tends to be converted into theories about judicial decision making. The American legal realists responded to one tradition of judicial decision making with an alternative vision of what judges can and should do; and significant portions of the more recent schools of American legal thought, from legal process to law and economics to the various critical theories, have centered on how judges should decide cases. In some ways, for better and for worse, Ronald Dworkin's work is a culmination of American legal philosophy: Dworkin's theory is functionally a theory of the nature of law, but built primarily from an interpretation of judicial decision making. It thus contains elements of both traditional analytical legal theory and the distinctive practice orientation of American jurisprudence.
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