Pragmatic conceptualism

Legal Theory

Volumn 6, Issue 4, 2000, Pages 457-485

  Zipursky, Benjamin C ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 85009446942     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325200064053     Document Type: Article

References (65)

1. See, e.g., Jules L. Coleman, RISKS AND WRONGS (1992); Ernest J. Weinrib, THE IDEA OF PRIVATE LAW (1995). See also Arthur Ripstein, EQUALITY, RESPONSIBILITY AND THE LAW (1998); Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973); George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449 (1992).
2. The most thorough, and impressive, attempt to provide a positive theory of tort law from an economic perspective is that of William Landes and Richard Posner. William M. Landes & Richard A. Posner, THE ECONOMIC STRUCTURE OF TORT LAW (1987). See also, Guido Calabresi, THE COSTS OF ACCIDENTS (1970); Steven Shavell, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987); Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
3. See esp. Weinrib, The most thorough, and impressive, attempt to provide a positive theory of tort law from an economic perspective is that of William Landes and Richard Posner. note 1.
4. See infra text accompanying notes 41-46.
5. See, e.g.,Wilfrid Sellars, Reflections on Language Games, reprinted inWilfrid Sellars, SCIENCE, PERCEPTION AND REALITY 321 (1963).
6. See Benjamin C. Zipursky, Legal Coherentism, 50 S.M.U. L. REV. 1679 (1997) (explaining jurisprudential significance of development of pragmatism in philosophy of language and epistemology, and endorsing nonrealist form of legal pragmatism); Benjamin C. Zipursky, Legal Malpractice and the Structure of Negligence Law, 67 FORDHAM L. REV. 649 (1998) (advancing conceptualistic form of pragmatism in opposition to legal realism).
7. See John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV. 1733 (1998) (outlining possibility of noninstrumentalist and conceptualistic, but pragmatic, conception of duty in negligence law). See also John C.P. Goldberg, The Life of the Law (reviewing Andrew Kaufman, CARDOZO (1998)) 51 STAN. L. REV. 1419 (1999) (arguing against Kaufman and Posner that Cardozo was not a realist but a pragmatic conceptualist).
8. See Arthur Ripstein & Benjamin C. Zipursky, Corrective Justice in an Age of Mass Torts, in PHILOSOPHY IN U.S. TORT LAW (G. Postema ed., forthcoming) (arguing that contemporary problems in mass torts can be sensibly and pragmatically resolved within a conceptualistic framework).
9. It appears that Coleman's substantive views in tort theory may have changed in the past few years. See Jules Coleman & Arthur Ripstein, Mischief&Misfortune, 41MCGILL L.J. 91 (1995). For the purposes of this article, when I refer to Coleman's substantive views in tort theory I will be referring to the views expressed in RISKS AND WRONGS. If there was a shift in his views, there is no evidence that it was motivated by any of the sorts of concerns raised in this article.
10. See generally Jules Coleman, MARKETS, MORALS AND THE LAW (1988).
11. Coleman, generally Jules Coleman note 1, at 374-85.
12. Jules Coleman, The Structure of Tort Law, 97 YALE L. J. 1233 (1988) (reviewing William L. Landes & Richard S. Posner, THE ECONOMIC STRUCTURE OF TORT LAW (1987) and Steven Shavell, THE ECONOMIC ANALYSIS OF ACCIDENT LAW (1987)).
13. Weinrib, The Structure of Tort Law note 1, at 46-48.
14. Ernest Weinrib, Understanding Private Law, 23 VAL. U. L. REV. 485 (1989).
15. Landes & Posner, Understanding Private Law note 2, at 9-12.
16. See Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972).
17. Coleman, A Theory of Negligence note 1, at 380-82.
18. This point is made in a very different context by two leaders in the economic theory of tort law, arguing from a prescriptive point of view that the availability of damages beyond the cost of the plaintiff's injury should turn on reduced likelihood of detection, and recognizing that in our actual tort law, it does not. See A. Mitchell Polinsky & Steven Shavell, Punitive Damages: an Economic Analysis, 111 HARV. L. REV. 869 (1998).
19. Coleman, This point is made in a very different context by two leaders in the economic theory of tort law, arguing from a prescriptive point of view that the availability of damages beyond the cost of the plaintiff's injury should turn on reduced likelihood of detection, and recognizing that in our actual tort law, it does not. note 1, at 381-82; Weinrib, This point is made in a very different context by two leaders in the economic theory of tort law, arguing from a prescriptive point of view that the availability of damages beyond the cost of the plaintiff's injury should turn on reduced likelihood of detection, and recognizing that in our actual tort law, it does not. note 1, at 143-44.
20. Coleman, This point is made in a very different context by two leaders in the economic theory of tort law, arguing from a prescriptive point of view that the availability of damages beyond the cost of the plaintiff's injury should turn on reduced likelihood of detection, and recognizing that in our actual tort law, it does not. note 1 note 1, at 378-79, 381. Coleman's discussion of cheapest cost-avoiders implicitly refers to Calabresi's discussion in Calabresi, This point is made in a very different context by two leaders in the economic theory of tort law, arguing from a prescriptive point of view that the availability of damages beyond the cost of the plaintiff's injury should turn on reduced likelihood of detection, and recognizing that in our actual tort law, it does not. note 1 note 2.
21. Coleman, Coleman's discussion of cheapest cost-avoiders implicitly refers to Calabresi's discussion in Calabresi note 1, at 374-75.
22. See generally Landes & Posner, Coleman's discussion of cheapest cost-avoiders implicitly refers to Calabresi's discussion in Calabresi note 1 note 2.
23. Two articles by Mark Geistfeld have been particularly useful in coming to grips with the responses of the economists: Mark Geistfeld, Corrective Justice, Economics and the Positive Analysis of Tort Law, in PHILOSOPHY IN THE U.S. TORT LAW, generally Landes & Posner note 8; Mark Geistfeld, The Analytical Structure of Tort Law (unpublished manuscript).
24. A sophisticated, and nonhistorical, version of the path-dependency argument and of pluralism, is offered by Bruce Chapman, Pluralism in Tort and Accident Law: Towards a Reasonable Accommodation, PHILOSOPHY IN U.S. TORT LAW, Two articles by Mark Geistfeld have been particularly useful in coming to grips with the responses of the economists: Mark Geistfeld note 8.
25. See, e.g., Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 TEX. L. REV. 1801 (1997).
26. Weinrib, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice note 1 at 19, 25ff. (developing classical formalism as jurisprudential basis).
27. Weinrib is cautions to reject certain forms of essentialism, namely, those that would be satisfied with the identification of features that were demonstrably not contingent, id. at 30, or those that relied upon establishing a semantic point about the use of phrases, such as “tort law.” Id. at 31. Ultimately, I believe that Weinrib's formalism is intended to be, and is, a form of conceptualism. Id. at 205 (“Now it is true that the formalist account is avowedly and unabashedly conceptual.”). Nevertheless, his development of the notion of “Form in Juridical Relationships” as the methodological and jurisprudential basis of his formalism sustains the charge that at some important level, the existence of attributes whose ontological character is essential is pivotally important to Weinrib's formalism, as he himself understands it. “Form” is explained as having three interrelated aspects: character, means of classification, and principle of unity. These are explained in a manner that makes extensive reference to the idea of an essence. “Through reference to the ensemble of characteristics that give a thing its character, we comprehend the thing in question as what it is; in classical terminology, we grasp its nature or essence…. Form goes to species as well as to essence…. Form is the abstracted representation of what connects the essential attributes to one another, so that together they determine the thing's character…. Id. at 27. Weinrib then asserts that “[t]he legal formalist understands juridical relations in the light of this venerable notion of form.” Id. at 28.
28. Weinrib, Weinrib is cautions to reject certain forms of essentialism, namely, those that would be satisfied with the identification of features that were demonstrably not contingent note 14, at 526.
29. Coleman, Weinrib is cautions to reject certain forms of essentialism, namely, those that would be satisfied with the identification of features that were demonstrably not contingent note 14 note 1, at 383.
30. Weinrib, Weinrib is cautions to reject certain forms of essentialism, namely, those that would be satisfied with the identification of features that were demonstrably not contingent note 14 note 1 note 1, at 1-55; Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949 (1988).
31. Weinrib; Weinrib is cautions to reject certain forms of essentialism, namely, those that would be satisfied with the identification of features that were demonstrably not contingent note 14 note 1 note 1 note 1, at 22-29, especially 28-29.
32. See, e.g., Martin Stone, On the Idea of Private Law, 9 CANADIAN J.L. & JURIS. 235 (1996), for a particularly important contribution to this literature. Stone's Wittgensteinian reinterpretation of Weinrib in that review has influenced my pragmatic understanding of corrective justice theory. With respect to Weinrib more generally, there are large aspects of Weinrib's theory, most notably its importation of Kant and Hegel, that I simply have not undertaken to address at the present time. This is not to say that I deem them irrelevant to a full assessment of this theory. On the contrary, I recognize that Weinrib's particular synthesis of Kant, Hegel, and Aristotle presents a substantially different version of corrective justice theory and of conceptualistic jurisprudence than those derived from Coleman and Perry, and that certain ideas, such as “normative equilibrium,” should only be removed from his framework with a high level of caution.
33. See, e.g., Stephen R. Perry, Loss, Agency, and Responsibility for Outcomes: Three Conceptions of Corrective Justice, in TORT THEORY 24 (Ken Cooper-Stephenson & Elaine Gibson eds., 1993).
34. See Robert L. Rabin, Law for Law's Sake, 105 YALE L.J. 2261, 2270-72 (1996) (reviewing Ernest J. Weinrib, THE IDEA OF PRIVATE LAW (1995)) (criticizing Weinrib's methodological emphasis on coherence and form).
35. See Chapman, Law for Law's Sake note 25.
36. See Weinrib, Law for Law's Sake note note 14.
37. See, e.g., H.L.A. Hart, THE CONCEPT OF LAW (2d ed. 1992) (concept of law is concept of humanly created systems of rules); Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897), reprinted in 110 HARV. L. REV. 991 (1997) (analyzing law as a human creation).
38. Ronald Dworkin, LAW'S EMPIRE (1986) (explaining law in terms of human practices, notwithstanding the rejection of positivism and legal realism); Lon L. Fuller, THE MORALITY OF LAW (2d ed. 1964) (view of law as created human system leaves room for notion of moral constraints on concept of law).
39. See Weinrib, LAW'S EMPIRE note 31. The Yale article displays an enthusiastic embrace of what Critical Legal Studies scholars targeted as “legal formalism,” including the metaphysics these scholars assigned to that view. The Idea of Private Law, LAW'S EMPIRE note 1, written seven years later, arguably works from a less metaphysically robust view; Weinrib has suggested this to me in personal conversation. In any case, however, The Idea of Private Law, LAW'S EMPIRE note 1, still depends upon the idea that it is vitally important to understanding the nature of law to understand the Aristotelean point that law has a certain form, which is to be understood in essentialistic manner, and relatedly that grasping the form of law is vital to understanding both its nature and its essence. See note 28, LAW'S EMPIRE. Whether such ideas can ultimately be harmonized with a form of pragmatism is an interesting question that I will not address here. It is clear, however, that if one takes as a desideratum for a legal theory not merely ultimate consistency with pragmatism, but also independence from metaphysically rich notions in explaining and expounding the theory, then Weinrib's Aristotelean formalism in earlier or later versions does not satisfy this desideratum.
40. See, e.g., Rabin, The Yale article displays an enthusiastic embrace of what Critical Legal Studies scholars targeted as “legal formalism,” including the metaphysics these scholars assigned to that view. note 38.
41. For Coleman's positivism, see especially Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), reprinted in MARKETS, MORALS AND THE LAW, The Yale article displays an enthusiastic embrace of what Critical Legal Studies scholars targeted as “legal formalism,” including the metaphysics these scholars assigned to that view. note note 10. For his pragmatism, see especially Jules Coleman, Truth and Objectivity in Law, 1 LEGAL THEORY 33 (1995). More directly to the point, in Risks and Wrongs, Coleman expressly states that his anti-instrumentalism does not commit him to Weinribian formalism and is consistent with an emphasis on practices as primary, however, he does not elaborate there on the methodological differences between his own view and Weinrib's. Coleman, The Yale article displays an enthusiastic embrace of what Critical Legal Studies scholars targeted as “legal formalism,” including the metaphysics these scholars assigned to that view. note note 1, at 384-85.
42. PHILOSOPHICAL FOUNDATIONS OF TORT LAW 53 (David G. Owen ed., 1995).
43. For a discussion of the implications of the work of these thinkers for the possibility of a modest, pragmatic semantics of legal statements, see Zipursky, Legal Coherentism, PHILOSOPHICAL FOUNDATIONS OF TORT LAW 53 note 6. As to Coleman's sympathies with the aforementioned thinkers, see Coleman, PHILOSOPHICAL FOUNDATIONS OF TORT LAW 53 note 45.
44. Willard Van Orman Quine, Two Dogmas of Empiricism, reprinted in Willard Van Orman Quine, FROM A LOGICAL POINT OF VIEW (1953). For a useful caution against too facile an association between Quine and legal theory, see Brian Leiter, Why Quine is not a Postmodernist
45. S.M.U. L. REV. 1739 (1997).
46. See Robert Brandom, MAKING IT EXPLICIT 87-94 (1994).
47. See Sellars, MAKING IT EXPLICIT note 5.
48. See Coleman, MAKING IT EXPLICIT note note 41.
49. Since reading an earlier draft of this article, Coleman has, in fact, explicitly endorsed the semantical view and the metatheoretical view I call “pragmatic conceptualism,” as well as the phrase itself. See Jules L. Coleman, THE PRACTICE OF PRINCIPLE: THE CLARENDON LECTURES IN LAW (forthcoming).
50. Larry Alexander and Kenneth Kress have mounted an important attack on legal principles in Against Legal Principles, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 279 (Andrei Marmor ed., 1995), reprinted with commentaries and responses in 82 IOWA L. REV. (1997). It would go beyond the scope of this article to respond to their arguments here. For the present, suffice it to say (1) that their attack focuses largely on a particular sort of justification for the deployment of legal principles in adjudication, one most closely associated with Law's Empire, Since reading an earlier draft of this article, Coleman has, in fact, explicitly endorsed the semantical view and the metatheoretical view I call “pragmatic conceptualism,” as well as the phrase itself. note 44, and, as indicated in note 56, infra, I reject this model of the place of principles; (2) that the view developed here is a view of the content of the law, a view that relates to, but does not constitute, an ultimate normative theory of adjudication; and (3) that the view developed here, insofar as it rests on the primacy of principles as a particular sort of legal provision (as opposed to rules or other sorts of provisions), depends significantly on the common law status of torts, and pragmatic conceptualism may assume different forms that are more rule-dependent in other areas of the law.
51. I am sympathetic with Stephen Perry's reconstruction of a “normative primacy model of legal principles” to be found in Dworkin's early work. See Stephen R. Perry, Two Models of Legal Principles, 82 IOWA L. REV. 787, 796, 807-15 (1997), citing Ronald Dworkin, The Model of Rules I, in Ronald Dworkin, TAKING RIGHTS SERIOUSLY 14 (rev. ed. 1977), and contrasting its view of legal principles with that of Dworkin, Larry Alexander and Kenneth Kress have mounted an important attack on legal principles in Against Legal Principles note 44.
52. Zipursky, Legal Coherentism, I am sympathetic with Stephen Perry's reconstruction of a “normative primacy model of legal principles” to be found in Dworkin's early work. note 6, at 1695-1705. It is somewhat misleading to suggest that the phrase “pragmatic inclinations” captures the practice-based view of meaning expressed in this paragraph, because the view is probably a Wittgensteinian one in the first instance, and it is misleading to label Wittgenstein a pragmatist. However, figures such as Putnam, Rorty, and Sellars-who do qualify as “pragmatists” by their own description-treat large aspects of the Wittgensteinian view within broad forms of holism and pragmatism.
53. Other scholars, including most prominently Hilary Putnam and Jules Coleman, have attempted to articulate jurisprudential positions that draw heavily from contemporary American pragmatism. Closely related, and more common, is the effort to draw jurisprudential morals from the late Wittgenstein, and my own prior work articulates a set of jurisprudential suggestions to be drawn from both pragmatists and Wittgenstein. See Zipursky, Legal Coherentism, Legal Coherentism note 6.
54. U.S. 483 (1954). See Ronald Dworkin, TAKING RIGHTS SERIOUSLY (1977).
55. N.E. 1050 (N.Y. 1916).
56. See Goldberg & Zipursky, N.E. note 7 at 1812-25 (explaining MacPherson as simultaneously conceptualistic, progressive, and pragmatic).
57. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 299 (1958).
58. But see Zipursky, Legal Coherentism, Hart attributes the quoted view to Bentham and Austin and implicitly endorses it himself, in explicitly defending the positivistic tradition that includes this view. note 6 (rejecting the social facts thesis and expressing reservations about the manner in which even inclusive positivism conditions the permissibility of moral considerations on social facts).
59. It might be argued that Posner has attempted to meet the demands of conceptualism in his seminal article, A Theory of Negligence, Legal Coherentism note 16. That article analyzes the concept of the reasonable person in negligence law in terms of economic rationality, and claims to find this concept rooted in the case law, focusing on Judge Learned Hand's famous opinion in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). This account of what “reasonableness” means in negligence law has been the subject of serious criticism from a number of sources. See, e.g., Ripstein, Legal Coherentism note 1; Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 STAN. L. REV. 311 (1996). I have recently argued that a more fundamental shortcoming of the Hand standard analysis is the idea that notions of diligence, competence, and custom play a far greater role than Posner recognizes. See Zipursky, Legal Malpractice and the Structure of Negligence Law, Legal Coherentism note 6, at 673-79, 688.
60. But see note 64 It might be argued that Posner has attempted to meet the demands of conceptualism in his seminal article (pointing to shortcomings of Posner's account of the concept of negligence). An early effort to produce an economic account that is consistent with corrective justice theory is found in Richard A. Posner, The Concept of Corrective Justice in Recent Theories of Tort Law, 10 J. LEGAL STUD. 187 (1981). Posner argues, in essence, (1) that Aristotle's conception of corrective justice is merely formal, and therefore permits an economically driven definition of “wrongs”; and (2) that economic theory itself justifies a privately driven system that imposes the costs of (economically defined) wrongs on defendants. Apart from the reasons offered by Coleman, Weinrib, and others, for doubting the plausibility of (2), and the reasons offered for doubting whether (1) captures our tort law, Posner's account fails because it explicitly treats the framework of bipolar litigation in a merely instrumentalist manner. But the larger, and, I believe, deeper point is that the economist who treats the corrective justice framework as a fixed point, but still treats efficiency as that to which the system aims, will be forced to treat the notion of a “wrong” in a reductive manner, and will, therefore, offer an inadequate and disingenuous account of the sense in which liability is infererred from the defendant having committed a wrong upon the plaintiff.
61. For a rigorous and illuminating account of several possible forms of pluralism in another common law context, see Jody Kraus, Legal Theory and Contract Law (1999) (unpublished manuscript).
62. See Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, at 70-93.
63. See Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice (draft of March 20, 2000) (unpublished manuscript, on file with author).
64. See, e.g., Symposium: Formalism Revisited, 66 U. CHI. L. REV. 527-942 (1999); Frederick Schauer, Formalism, 97 YALE L.J. 509 (1988). Plainly, Schauer's formalism is prima facie opposed to pragmatic conceptualism, insofar as the former expressly privileges rules (rather than principles). As the text suggests, however, there may be a deeper commonality, namely, the commitment to identifying the content of the law in a manner not wholly dependent on the functions served by the law.
65. See, e.g., Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787 (1989).