A Farewell to Principles

Iowa Law Review

Volumn 82, Issue 3, 1997, Pages 893-903

  Lawson, Gary ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 0031351191     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (41)

1. See Larry A. Alexander & Ken Kress, Against Legal Principles, in Law and Interpretation 279 (Andrei Marmor ed., 1995), reprinted in 82 Iowa. L. Rev. 739 (1997).
2. See Larry A. Alexander & Ken Kress, Against Legal Principles, in Law and Interpretation 279 (Andrei Marmor ed., 1995), reprinted in 82 Iowa. L. Rev. 739 (1997).
3. Id. at 304-06, reprinted in 82 Iowa L. Rev. 739, 764-65 (1997).
4. Id. at 292-93, reprinted in 82 Iowa L. Rev. 739, 752 (1997). To be sure, Dworkin's account of legal principles is the "most careful" in the same sense in which democracy, by Churchill's reckoning, is the best political system. Dworkin is notoriously hard to pin down even when he is being clear. It is especially hard to determine how much of his account of legal principles is positive, how much is normative, and how much (in question-begging fashion) is an attempt to provide the morally best theory of adjudication that explains a substantial threshold portion of our legal practice.
5. I do not mean to suggest that Dworkin's assumptions are wrong. Indeed, I suspect that I am even more optimistic about the possibility of a rational moral theory than is Dworkin. The point is only that many (and perhaps most) advocates of legal principles probably do not share this optimistic view of the power of moral reasoning.
6. I accept the elegant Alexander-Kress proof that Dworkinian legal principles must always be at the minimum threshold of fit. See Alexander & Kress, supra note 1, at 287-92, reprinted in 82 Iowa L. Rev. 739, 747-52 (1997) (discussing Dworkin's account of the fit between legal principles and legal rules).
7. Consider, for example, how one would distinguish two sets of principles that differ only in the prescribed outcome of one hypothetical case.
8. The "best" fitting set of principles, for example, cannot be the set that accounts for the highest percentage of the available legal materials, because even with a moral side constraint, innumerable sets of principles will account for all of the relevant materials. There is, of course, no single, received conception of fit in our legal culture - which is why there is no single, received conception of law.
9. This means that the applicable set of principles resolves a sufficient number of sufficiently important cases in a fashion that is consistent with moral understandings.
10. For a refreshingly clear exposition of one such theory, see Steven J. Burton, Judging in Good Faith (1992).
11. Of course, it would take a book - and a very long one at that - for Alexander and Kress to address in detail all of the jurisprudential theories that in some form make use of legal principles. Accordingly, it is totally unfair to fault Alexander and Kress for failing to address conventionalism at more length. But I am going to do it anyway.
12. Alexander & Kress, supra note 1, at 307 n.106, reprinted in 82 Iowa L. Rev. 739, 767 n.106 (1997).
13. See id. at 307-08, reprinted in 82 Iowa L. Rev. 739, 767-68 (1997) (questioning the explanatory power of agreement-based theories).
14. Id. at 307 n.106, reprinted in 82 Iowa L. Rev. 739, 766 n.106 (1997).
15. Id.
16. Id. at 308, reprinted in 82 Iowa L. Rev. 739, 767-68 (1997).
17. For a brilliant (if ultimately unsuccessful) argument that we cannot in any given case distinguish addition from different mathematical operations, see Saul A. Kripke, Wittgenstein on Rules and Private Language 8-22 (1982) (presenting an interpretation of Wittgenstein that suggests that there is no way to distinguish addition ("add 68 and 57 to get 125") from quaddition ("add 68 and 57 to get 125, except that on the nth operation, add 68 and 57 to get 5")).
18. This, in turn, quickly leads to an argument against the possibility of rule-following, as we cannot follow rules in any meaningful sense if we cannot tell in any given case whether or not we are following rules. Other legal scholars have tottered even closer to the brink of peril with respect to this "Kripkensteinian" argument. See Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 797-801 (1989) (using doubts about rule following to challenge traditional understandings of the role of law); see also Charles M. Yablon, Law and Metaphysics, 96 Yale L.J. 613, 624-36 (1987) (reviewing Kripke, supra note 16).
19. This, in turn, quickly leads to an argument against the possibility of rule-following, as we cannot follow rules in any meaningful sense if we cannot tell in any given case whether or not we are following rules. Other legal scholars have tottered even closer to the brink of peril with respect to this "Kripkensteinian" argument. See Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 797-801 (1989) (using doubts about rule following to challenge traditional understandings of the role of law); see also Charles M. Yablon, Law and Metaphysics, 96 Yale L.J. 613, 624-36 (1987) (reviewing Kripke, supra note 16).
20. This, in turn, quickly leads to an argument against the possibility of rule-following, as we cannot follow rules in any meaningful sense if we cannot tell in any given case whether or not we are following rules. Other legal scholars have tottered even closer to the brink of peril with respect to this "Kripkensteinian" argument. See Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 797-801 (1989) (using doubts about rule following to challenge traditional understandings of the role of law); see also Charles M. Yablon, Law and Metaphysics, 96 Yale L.J. 613, 624-36 (1987) (reviewing Kripke, supra note 16).
21. See infra notes 25-27 and accompanying text.
22. Kripke recognizes that a strong form of an argument against the possibility of rule-following extends to all concepts, Kripke, supra note 15, at 19-20, but does not acknowledge that this necessarily defeats any strong form of an argument against the possibility of rule-following.
23. There is still, of course, the problem of knowing whether others who report that they are performing addition rather than quaddition are deluded or lying, but that is just a manifestation of the general problem of other minds. That problem is solved, as are all other epistemological problems, by evaluating the evidence at hand, which overwhelmingly argues in favor of the existence of other minds that are structured similarly to our own and are therefore capable of reliably reporting on their contents.
24. Alexander & Kress, supra note 1, at 327, reprinted in 82 Iowa L. Rev. 739, 786 (1997).
25. For one such argument, see Burton, supra note 9, at 1-68.
26. See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 481 (1995) (defining "the class of legal reasons" to include both sources of law and legitimate interpretive operations). The choice of a set of primary rules is obviously normative and must be justified in terms of sound moral arguments. Such arguments might, of course, indicate that primary rules should be identified by reference to some rule of recognition rather than by direct, case-by-case moral examination. There can be very good natural law justifications for operational legal positivism, but that is a story for another time.
27. How quickly that happens in any given case depends, of course, on the content of the applicable rules. The system of rules sketched out in this Comment, see infra notes 36-37 and accompanying text, will generally resolve cases with a relatively small number of rules.
28. Fortunately, a very good one already exists. See generally Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991) (comprehensively analyzing rule-based decision-making).
29. Id. at 229-31.
30. Id. at 231.
31. Id. at 31-34.
32. See Radin, supra note 17, at 781 ("Among those who affirm the traditional ideal [of the rule of law] there is no canonical formulation of its meaning . . . .").
33. Steven G. Calabresi & Gary Lawson, Introduction: Prospects for the Rule of Law, 21 Cumb. L. Rev. 427, 428-29 (1991) (footnotes omitted).
34. One coherent way of giving meaning to the concept of "welfare" in this context is to ask whether a person would like to be placed at random in society X or society Y. If an overwhelming majority of people would choose society X, one can meaningfully say that society X is better, from a welfare standpoint, than society Y. Any other notion of social welfare encounters serious, and probably insuperable, methodological and conceptual problems. See Gary Lawson, Efficiency and Individualism, 42 Duke L.J. 53, 78-97 (1992) (criticizing different conceptions of social welfare).
35. See Calabresi & Lawson, supra note 30, at 429 (identifying the rule of law as a "complex, abstract institution that has emerged as an unplanned consequence of the actions of countless people aiming at ends other than the establishment of the rule of law").
36. See Radin, supra note 17, at 782 ("[T]he main formulations of the Rule of Law do agree upon an assumption that law consists of rules . . . .").
37. See Schauer, supra note 25, at 167-68 ("'the rule of law' is at least linguistically compatible with law not being an affair of rules").
38. I have elsewhere suggested that the legal system ought generally to require legal propositions to be proved beyond a reasonable doubt. See generally Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859 (1992). Larry Alexander has criticized this suggestion. See generally Larry Alexander, Proving the Law: Not Proven, 86 Nw. U. L. Rev. 905 (1992). My present argument is agnostic on the proper standard of proof for legal propositions.
39. I have elsewhere suggested that the legal system ought generally to require legal propositions to be proved beyond a reasonable doubt. See generally Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859 (1992). Larry Alexander has criticized this suggestion. See generally Larry Alexander, Proving the Law: Not Proven, 86 Nw. U. L. Rev. 905 (1992). My present argument is agnostic on the proper standard of proof for legal propositions.
40. See generally Gary Lawson, Legal Indeterminacy: Its Cause and Cure, 19 Harv. J.L. & Pub. Pol'y 411 (1996).
41. All else being equal, the higher the standard of proof to which a legal system holds legal claims, the greater the amount of indeterminacy. For example, if the standard of proof is beyond a reasonable doubt, there will surely be many claims in any legal system which fail to satisfy that standard of proof. On the other hand, if the standard of proof is simply that a claim must be better than the available alternatives, there will be indeterminacy only in the very rare cases when one can honestly say that no answer is better than others.