FOREWORD: WHY WE NEED LEGAL PHILOSOPHY
RANDY E. BARNETT*
8 Harvard J Of Pub Pol 1 (1985)
As I see it, the
object of legal philosophy is to give an effective and meaningful direction to
the work of lawyers, judges, legislatures, and law teachers. If it leaves the
activities of these men untouched, if it has no implications for the question
of what they do with their working days, then legal philosophy is a failure.
- Lon L. Fuller1
Do we need legal philosophy? Legal
philosophy or jurisprudence, like many other areas of philosophy, is of
intrinsic interest to many people. But this does not tell us whether or why we
need it. The answer suggested by Lon Fuller is that legal philosophy has - or
should have - implications for lawyers, judges, legislators and law professors.
And yet in 1952 Fuller concluded that: "Judged by this standard I don't
think we can claim that the last quarter of a century has been a fruitful one
for legal philosophy in this country - certainly not in terms of immediate
yield."2
Fuller's dour observation, if it was true
when made and remained true, leads to two further questions: First, in what manner
does legal philosophy affect the practice of law? Second, how is it that some
philosophies are useful to legal institutions and others are not? In this essay
I shall briefly describe the present state of legal philosophy and, then,
sketch the answers to these questions that are suggested by one particular
strain of recent jurisprudential thought. We will then be in a position to
address the question of why we need legal philosophy. In addressing that
question, the purpose of this symposium can be better understood.
LEGAL PHILOSOPHY: THE STATE OF THE ART
American legal scholarship of the past
several decades has centered primarily on justifying and advocating the
expansion
--------- FOOTNOTES ---------
* Assistant Professor of Law, Illinois
Institute of Technology, Chicago-Kent College of Law. B.A., Northwestern
University. 1974;J.D.,
1.
L. FULLER. THE PRINCIPLES OF SOCIAL. ORDER
249-50 (K. Winston ed. 1981)
2.
---------- END FOOTNOTES ---------
of governmental jurisdiction and power at the
expense of private jurisdiction and liberty. Consequently contracts, torts and
property, the private law categories that define the nature and scope of
individual property rights - the key concept in the classical liberal vision of
a free and just society - have been slighted in favor of such public law
subjects as constitutional law, administrative law, labor law, and antitrust
law, subjects that concern the nature and scope of government.
When private law is discussed, it has
been fashionable to treat the rights of individuals as simply one
"factor" to be "balanced" against the "public
good" within a calculus of what is called a "public policy"
analysis. How one attaches real weights to things that cannot be measured is
never specified. Nonetheless, this theoretical approach has spawned a generation
of lawyers, teachers and jurists that views the legal system as an instrument
by which any aspect of human achievement and enterprise, particularly
commercial enterprise, may be regulated.
It is no coincidence that a period so
neglectful of the private rights of the common law has corresponded to a period
where legal philosophy was mired in the twin ruts of Legal Positivism and Legal
Realism. Legal Positivism is a philosophy that conceives of law as the command
of the sovereign. Law is law because of who pronounces it, not what it
commands. The question, "what is law" is asserted to be wholly
distinct from that of "what should be the law." Judges have a legal
duty to follow the law as it is. To a positivist, any moral duty to refuse to
follow an unjust law that might exist is an extralegal affair.
Against this view, the proponents of the
natural law position argue that this positivist definition of law puts the cart
before the horse. The institution of Law, they argue, has a social function
(more on what this function might be below). While it is true that law often times
requires enforcement3 and that the proper source or sources of law
must be determined if the institution of law is to fulfill its function, what
the law requires is at least as important to this end as who decides on the
law. In short, substance is as important as process. The private rights of the
common law evolved to fulfill the proper end or function of law. Substantive
scrutiny of the commands called "law" is
--------- FOOTNOTES ---------
3. Cf.
L. FULLER, THE MORALITY OF LAW 108-110 (rev. ed. 1969) (rejecting force as a "distinguishing
mark" of law).
--------- END FOOTNOTES ---------
therefore needed to ensure that positive legal
commands are truly Law, as opposed in mere "directives." Positivism
denies that such scrutiny is a part of a correct concept of law. In this respect,
the Natural Law position holds that Legal Positivism is fatally flawed.
To those who would assert that a judge's
function is to discern and enforce the private rights of the parties to a
dispute, the philosophy of Legal Realism is a useful adjunct to positivism. By asserting
that judges don't mean what they say, or that the process of judicial reasoning
is "nondeterminative" meaning that it does
not dictate any particular outcome in a given case - this view enables
supporters of State-made law of whatever substance to ridicule any judicial
effort to discern the "rights" litigants have against each other or
any "rights" individuals may have against the State. If, at their
root, rights are and can be nothing other than naked judicial assertions, then
two views hostile to private rights arise. First, no legal criticism can be
made when a judge declares a right or refuses to enforce one, since there is no
legal standard against which the judge's action can be assessed. Second, what
warrant is there for a judge to thwart the "will of the people" as
expressed by their "representatives?"
The fact that Legal Positivism and Legal Realism each have valuable
insights to offer us all does not diminish the truth that for decades now they
both have been employed by some to expand State power in all of its guises. In
recent years, however, there has arisen in graduate and law schools across the
country an interest in legal philosophy, individual rights and private law that
has not been witnessed since the 1930s. Although I have recently chronicled
this story elsewhere at some length,4 in
1979, David A.J.
--------- FOOTNOTES ---------
4. See Barnett, Contract Scholarship and Reemergence of Legal Philosophy (Book
Review), 97 HARV. L. REV. 1223 (1984) (reviewing E. A. FARNSWORTH. CONTRACTS (1982)). In the discussion that follows, I shall
not retrace the existence and resurgence of this new movement I called
normative legal philosophy. I will, however, offer a new twist.
--------- END FOOTNOTES ---------
certain of the final form the paradigm will take or
of the extent of its influence on thought about and the practice of law.5
The members of this movement reject Legal
Positivism in favor of a view of law that involves morality, and they defend
traditional forms of legal reasoning and adjudication from the Legal Realist
critique.6 Since
One group of philosophers - represented
by such writers as John Rawls, Ronald Dworkin and
Bruce Ackerman - would be described in political terms as "modern"
liberals. In philosophical terms, they might be more precisely called Neo-Rousseauian liberals. In a distinct and important break
with the jurisprudential consensus of the last several decades, these thinkers
have rejected the positivist assertion that might, in some sense, makes right. They maintain that preventing the use of State
power to aggrandize a few at the expense of the many is, perhaps, the central
problem of political and legal theory and, therefore, in their writings they
search for constraints on this power. They also part company with the realists
by recognizing that the development and refinement of legal doctrine by judges
engaged in "legal reasoning" is a viable and valuable means of
achieving the ends both of law and of politics.
Yet, while they believe that at times it
is a legitimate part of legal analysis to judge the legality of State decrees
by a normative evaluation of their substance and while they acknowledge a
judge's responsibility to strike down statutes when the legislature goes
astray, the Neo-Rousseauian liberals also believe
that without the State, people are in some way incomplete; that in their
"private roles" people are merely selfish aggrandizers or private
wealth maximizers. Therefore, their search for normative
--------- FOOTNOTES ---------
5.
6. See Barnett, supra note 4, at 1230-33.
--------- END FOOTNOTES ---------
standards against which a political and legal order
may be judged centers on identifying public values or, perhaps more accurately,
public virtues. When these values are found and implemented:
The
individual is thereby invested with another kind of goodness, a genuine virtue
of the man who is not an isolated being but part of a great whole. Liberated
from the narrow confines of his own being, he finds fulfillment in a truly social
experience of fraternity and equality with citizens who accept the same ideal.7
To the Neo-Rousseauians
the State may be necessary to protect individuals from each other, but that is
not its only role. They see the State as the ultimate source of social good. In
contrast, the other group of philosophers - represented by such writers as
Robert Nozick, F.A. Hayek, and
Neo-Lockean
liberals are extremely skeptical about the institution of the State. Some view
the State as a necessary evil and would limit the role of the State to
formulating and enforcing rights.8 Others view the
State as an unnecessary evil. They question whether the State may legitimately
perform even these functions.9 To a classical liberal,
if society is to be protected from the public power, the common law bulwark
against both public and private exercises of power - the rights of all
--------- FOOTNOTES ---------
7. Grimslev, Jean-Jacques
Rousseau in 7 THE ENCYCLOPEDIA OF PHILOSOPHY 223 (P. Edwards ed. 1967). See
also B. ACKERMAN, RECONSTRUCTING AMERICAN LAW (1984). There he describes a
vision of "a world where the affirmation of individual freedom does not
conceal the pervasive reality of social injustice, where the affirmation of
communal responsibility enriches the significance of personal liberty."
8. See, e.g. R. NOZICK, ANARCHY, STATE AND
UTOPIA (1974).
9. See, e.g., M. ROTUBARD, THE ETHICS OF
LIBERTY (1982).
--------- END FOOTNOTES ---------
people to be secure in their person and possession
from the forcible interference by others - must be articulated and refined by a
legal system. It is probably not coincidental, then, that the renewed interest
in normative legal philosophy, one strain of which is Neo-Lockean,
has been accompanied by a renewed interest in the private law categories of
contracts, torts and property as an alternative to and limit on public
regulation. 10
THE FUNCTION OF LAW
Legal philosophy, like all philosophy,
cannot take its subject matter for granted. A legal philosopher must develop a
theory of what he is philosophizing about.11
To understand how legal philosophy
affects the practice of law we must first have some idea of why we have law.
The explanation of why we have law offered by the classical or Neo-Lockean liberals will help in formulating an understanding
of the needs for legal philosophy.12
The institution of law, they say, should
be viewed as an answer to a fundamental social problem: How are individuals in
society, i.e., living in close proximity to other individuals, to peacefully
coexist so that each of them may pursue his or her vision of the good live
without getting in the way of the same pursuit by others? For example, if, in
pursuit of my happiness, desire to read a book that is in your possession and,
therefore, I simply take it, there is no assurance that my taking the book will
not adversely affect your pursuit of happiness. And your likely retaliation for
my act will have an effect on my well-being and the well-being of others.
The fundamental problem inherent in
creating a social order, then, is the necessity of discovering of a way to
satisfy or
--------- FOOTNOTES ---------
10. The recent organization of the Conference
on Critical Legal Studies may be seen as reflecting a response to the two
approaches to legal philosophy described in the text that is Marxist in
political terms and Neo-Hegelian in philosophical terms. The possibility that
this position is reactionary in nature is discussed in Barnett. supra note 4. 1233-36.
11.
12. In the discussion that follows I will
only occasionally attribute the positions I describe to any particular writer
or writers. For those who are interested in a more comprehensive consideration
of the themes I discuss, see F. A.
HAYEK. 1-2 LAW, LEGISLATION AND
--------- END FOOTNOTES ---------
"coordinate" the varied desires and needs of each
individual in a world of scarcity, where any person's actions are likely to affect
the well-being of others. In the example given, there must be a way of assuring
that my use of the book will not adversely affect your well-being. Without this
social coordination, we would have a society made up not of individuals living
peacefully together, but of random actors intruding on one another constantly
impeding each other's efforts to be happy. There are several approaches that
might be taken to solving this problem. I shall consider just two.
One approach would be simply to delegate
to one individual or group of individuals the responsibility of telling every
person what he or she is supposed to do and when. This individual or group
would first decide that this week I get to read the book, next week is your
turn and then it would command this behavior, punishing those who violate the
command. Assuming that the object of this rule is the happiness of the individuals
who are the subjects of ruler(s), choices would be made by the ruler(s) to
facilitate the happiness of the people competing for scarce resources.13
We might call this solution the "Rule of Men," for it depends upon
the discretion of certain individuals to solve the social problem of
coordination. The problems with this approach are several and obvious.
First, it would be physically impossible
for a person or group of persons to administer these directives. Every time
anyone wanted to read a book or use any other resource in a way that might
conflict with another's desires, the appropriate order must be issued to the
person wishing to read and to the person possessing the book. While everyone
would acknowledge that such a system is not possible, it is important to note
that we are not here speaking merely of imperfections created by an imperfect
world. Given the virtual infinity of such choices made every day, with even the
most powerful computers at the ruler's disposal, we are describing a recipe for
social disaster.
Second, the "directors" or
planners would lack something so vital that such an endeavor must fail even if
the technology existed for the directives to be given. They would lack
information,
---------- FOOTNOTES ---------
13. There are
several standards by which this may be done. One might wish to
"maximize" the total wealth in society; or one might wish to permit
increases in individual wealth that do not make anyone else "worse off"
Much of political philosophy has been devoted to determining the "correct”s version of this type of standard.
---------- END FOOTNOTES ---------
information about the needs and desires of the
individuals living in society, needs and desires that are not only infinitely
varied, but are constantly and forever changing. They would have no way of
knowing that I want to read a book, which book I want to read or when I want to
read it. No computer could provide this information because no data bank could
ever contain the relevant information: the variable and ever-changing
preferences of each person in society.
Another solution to this problem is not to
delegate this decision-making responsibility to an individual or group of
individuals, but to identify general principles and more precise rules - backed
by the threat of force - that would apply to everyone equally, so that all
persons would be able to discern the boundaries within which they are free to
make their own decisions about what they will do. The name we might give to
these general principles and more particular rules that apply to everyone (as
opposed to the specific directives applying to only one individual or group in
specific situations) is Law. In contrast to the Rule of Men, this approach to
social order might then be called the "Rule of Law."
A naive objection to the concept of the
Rule of Law is that, because it must ultimately be administered by men, it is
at root no different from a Rule of Men approach. It is naive because adherents
to a Rule of Law position never believed or suggested otherwise14
and because it misses the fundamental difference between a Rule of Law solution
and a Rule of Men solution to the problem of social order: A Rule of Men
solution relies on the discretion of a subgroup of society to create social
order; a Rule of Law approach discerns the principles and rules which all
persons - including the "lawmakers" - must follow
---------- FOOTNOTES ---------
14. Aquinas. for
example, distinguished between men operating in the capacity of
lawmakers and men
operating in the capacity of judges:
As the philosopher says, "it is
better that all things be regulated by law than left to be decided by
judges," and this for three reasons. First, because it is easier to find a
few wise men competent to frame right laws than to find the many who would be
necessary to judge rightly of each single case.
Secondly, because those who make laws consider long beforehand what laws to
make; but judgment on each single case has to be pronounced as soon as it
arises. And it is easier for man to see what is right by taking many instances
into consideration than by considering one solitary fact. Thirdly, because
lawgivers judge universally and of future events while those sit in judgment
judge of things present, toward which they are affected by love, hatred or some
kind of cupidity, so that their judgment is perverted.
T.
AQUINAS, SUMMA THEOLOGICA in 20 GREAT BOOKS OF THE WESTERN WORLD 227 (1980).
---------- END FOOTNOTES ---------
if social order, in a real world of scarce
resources and of varied and ever-changing individuals preferences, is to be
achieved.
LEGAL FORM: THE THREE DIMENSIONS OF LAW
The form that law takes is three-dimensional.
The legal analyst must operate, often simultaneously, on the level of legal
theory, legal doctrine, and legal practice. When any of these dimensions is
missing or deficient, law cannot fulfill its function of providing a framework
within which people living in society can conduct their affairs in an orderly,
i.e., coordinated manner.
Legal doctrine is what most lay people
(and first-year law students) identify as law: rules to govern the conduct of
individuals. Some examples are "Contracts requires a manifestation of
assent and consideration;" "To constitute
consideration, a performance of a return promise must be bargained for;"
"An acceptance of an offer sent through the mail is effective upon proper dispatch;"
etc. And an understanding of these rules may require still other rules defining
such terms as "assent," or "bargain" or "proper
dispatch." The process of deciding disputes by formulating and applying
such rules to the facts of individual conduct has been characterized as
formalistic or mechanistic. Yet, formalist or not, law cannot perform its function
without rules.
Without rules, individuals - or, more
likely, their lawyers - cannot distinguish proper from improper conduct.
Without rules, they cannot tell if a contemplated action is legally right or
wrong. They cannot tell, in short, whether their actions will contribute to an
orderly society or will instead create disorder. Without this knowledge, they are comparatively
more likely to act in a way that would impede the actions or others and be
adjudged "wrongful." If social order requires not only the rectification
of wrongful conduct, but also the minimization or prevention of wrongful
conduct, then that knowledge of what constitutes wrongful conduct must be
available to individuals in society before they act. Legal doctrine, for all
its shortcomings, is the only mechanism that will accomplish this vital social
mission.
The formulation of legal doctrine is not a
random process. We need some way of separating the doctrinal wheat from the
chaff. Legal theory is devised to help us make this selection. A theory of,
say, strict liability in tort tells that people should not impose the costs of
their misconduct on strangers even if they were acting with due care (and it
also tells us why this is so). This theory suggests certain principles of
causation, such as, "A hit B" that courts are to follow, and certain
rules of conduct, such as "If the front of my car collides with the rear
of yours, I am liable for the damages that result, unless I can make out a
valid defense (which will show that the presumption created by this rule that I
caused the accident is rebutted by other circumstances)."15
Legal theory does not do away, however,
with the need for doctrine. Legal practice, the application of legal doctrine
to given facts, must be taken into account as well. Law is useless unless it
can be applied to specific fact situations. Even if they knew and understood
legal theory (and most do not), the average judge or lawyer, much less the
average person, could not be expected to reliably apply it to particular fact
situations. This is no criticism of judges and lawyers. Theory is simply too
abstract to apply directly to facts. Law will not perform its decentralizing
coordinating function if individuals (or their lawyers) cannot figure out how
to fit their actions into the over-all social order. So legal
theory tells us which of a wide variety of possible rules we should choose, so
that, through the application of these rules, the Law is capable of governing
legal practice.
First-year law professors are quite right
to insist that understanding rules or "black-letter law" alone is
insufficient to understand the law. But they are quite wrong if they dismiss
rules or black-letter law entirely or give their students the impression that
they do - an impression that usually proves quite false come exam time. Legal
doctrine is the absolutely vital intermediary step between theory and practice
in the three-dimensional chain of legal reasoning.
THE SUBSTANCE OF THE LAW: PROPERTY RIGHTS
If we are going to coordinate social
interaction, not by specific directives issued by some person or persons to
others, but by principles and rules of general application that people can
---------- FOOTNOTES ---------
15. See.
e.g. Epstein, A
Theory of Strict Liability. 2J. LEGAL STUD. 151
(1973): Epstein, Defenses and Subsequent
Pleas in a System of Strict Liability. 3 J. LEGAL. STUD.
165 (1974).
---------- END FOOTNOTES ---------
understand and follow without individual directives,
which principles and rules will fulfill the coordinating function of a legal
system? Finding the answer to this question is not easy. (That is, it would not
be easy if we really had to invent the answer. Happily, much of the answer we
already know.) However, before the attempt can be mounted, one additional
social fact must be adduced that has until now been omitted from the analysis.
So far, our analysis has assumed that
goods such as books are already in existence ready to be distributed to those
who desire to use them and that the problem is how the use of these goods is to be
coordinated. The truth is, however, that human effort is required to create
these goods in the first place. Someone must conceive of and write the book;
others must edit it, print it and advertise its existence. How we decide to
solve the first two problems of distribution - the problems of administration
and obtaining information about individual preferences - will have serious
consequences for the problem of production. For if insufficient incentive
exists for the productive activities of conceiving, writing, editing, printing and advertising to be carried out, books will not
be produced and there will be nothing to distribute.
So the set of principles and rules we
arrive at must take account of at least three basic problems: the problems of
administration, information and production. The common law we have inherited
provides an answer to these problems. The answer is the concept of (private)
property. The common law arrived at this answer spontaneously, that is, no
identifiable individual ever sat down, approximated the above analysis, and
reached a particular conclusion that was then disseminated and accepted by the
people who made up the common law system. No, those who have written powerful
arguments in favor of property have done so in defense of a system that had
already evolved. But the fact that the concept of property was the ‘result of
human action and not of human design’ makes it no less a solution to the most
fundamental problems of coordinating social interaction.16
Before discussing how the concept of
property addresses the three problems of social order, it is necessary to first
define the
---------- FOOTNOTES
---------
16. For an
elaboration of this grown or spontaneous order concept that contrasts it with
designed order, see F.A. HAYEK. 1 LAW, LEGISLATION, AND
---------- END
FOOTNOTES ---------
concept, for the idea of property is so deeply
ingrained in our consciousness that we have taken to identifying the concept
with some of the things that the concept applies to. We have grown accustomed
to thinking of "property" as synonymous with external possessions. So
we say that this television or that piano is "our property," In truth,
the concept of private property is much broader than this use of the term
"property" suggests.
The concept of property describes the
moral jurisdiction17 that people have over physical resources in the
world, that is, the manner in which they may use resources in the world free
from the physical interference of others. The concept of property accords to
individuals the discretion to use resources as they choose. People have
property rights to the extent that they may use their possessions or
"property" free from the forcible interference of others (provided
always that their use of their possessions must not violate the like rights of
others). Herbert Spencer described as the "law of right social
relationships that - Every man has
freedom to do all that he will provided he infringes
not the equal freedom of any other man."18
Notice that, by this definition, our
bodies may also be considered "our property," because our bodies are
as much physical resources as external possessions are. The term "human
resources" is an illustrative perversion of this idea. It is illustrative
because it acknowledges that bodies are resources, the control and benefits of
which are in fact distributed to particular individuals. It is perverse because
it implies that one person can be owned by another, i.e., that these rights can
be redistributed.
Perhaps, the fact that the moral
jurisdiction one has over one's body has become so widely regarded as
inalienable explains why rights to free speech and freedom of sexual conduct,
for example, have come to be called "personal" and not property
rights. Perhaps, we have limited the term "property rights" to claims
to external resources, because such claims are inherently more contingent and
contestable. In any event, there is no reason why the concept of property must
be limited in this way and many of the liberals who helped develop and refine
the term - such as the abolitionists of the nineteenth
---------- FOOTNOTES
---------
17. I thank George Smith for suggesting
this term to me.
18.H. SPENCER. SOCIAL STATICS 95 (
---------- END
FOOTNOTES ---------
century19 did not so limit it. 20
Some critics, of course, would argue that
an assertion of the social primacy of property rights, puts ‘property rights
above human rights,’ meaning that it somehow gives priority to possessions over
people. This is a complete misunderstanding of the claim being made. Rights to
possession are human rights; no one besides a human can have such rights.
Certainly possessions themselves can have no property rights. Moreover, if, as
just discussed, the concept of property also includes the human right to one's
body, what more could "human rights" mean than this? The critics'
usually unstated answer is it means a right to someone else ~s possessions or
body, which is no less a concern about possessions than the view they are
attacking. The concept of private
property to this point is abstract. It requires further analysis to connect it
up with human conduct.
Further theoretical (as opposed to
doctrinal) distinctions must be made. To better understand the concept and its
application, we might, for example, find it useful to distinguish issues of
property
acquisition, from those of property use and property transfer. Not
coincidentally, the common law developed a parallel set of categories known as
property law, tort law and contract law.
[T]he function of the law is essentially
threefold, where for each function there is an associated branch of the law.
The first function is to determine the original property holdings of given
individuals, including rights over one's own body. Such is governed by the law
of property, especially with the rules for the acquisition of unowned things. The second is the law of contracts
(including conveyancing) which governs cooperative efforts among individuals
and exchanges of things that are already owned. The third is the protection of
persons and property (and their methods of transfer) from
---------- FOOTNOTES ---------
19.
Some abolitionists characterized slavery as the crime of "manstealing." The connotation of this term is quite
obviously that one's person is one's property. An example of this usage is
found in the writings of Stephen Foster:
Man-stealing. What is it to steal a man? Is it not to
claim him as your property? To call him yours? God has
given to every man an inalienable right to himself- a right of which no
conceivable circumstance of birth, or forms of law, can divest him; and he who
interferes with the free and unrestricted exercise of that right, who, not
content with the proprietership of his own body, claims
the body of his neighbor, is a manstealer.
Foster, The Brotherhood of Thieves, or a True Picture of
THE ANTISLAVERY ARGUMENT
138 (W. &J. Pease eds. 1965).
20. See,
e.g., C. MACPHERS0N, THE POLITICAL THOERY OF POSSESSIVE INDIVIDUALISM 137-48
(corrected ed. 1964).
---------- END FOOTNOTES ---------
the aggression of third parties; such is the
traditional function of the law of torts.21
Once these subjects have been
distinguished, our analysis is three-dimensional, consistent with the
categories outlined above. First, we can then proceed to identify theories that
are both externally consistent with the social function of law that generated
the original inquiry and internally consistent with each other. Second,
principles and rules that elaborate each theory must be identified and their
consistency with the doctrines elaborating other theories must be assessed.
Third, this doctrinal analysis must be applied to the facts of individual
cases. Human fallibility and the constantly evolving preferences of individuals
will virtually assure that we will never have a perfectly consistent set of
theories and doctrine to be unerringly applied to facts. However, all that the
functional approach to law imposes on us is the obligation to make the legal
system as consistent with social order as possible.
How does the concept of private property -
properly expressed through correct theory, doctrine and application to facts -
solve the three social problems of administration, information and production?
On the one hand, a complete answer would be too long to present here. On the
other hand, the basic answer to this should be reasonably obvious.
Briefly, the correct theories of the
private law categories of contract, tort, and property entail a decentralized
administration of resource allocation. All decisions concerning the use and
enjoyment of one's property can be made without external direction, provided
only that the boundaries of others' rights are discernable and not violated.
When a boundary is crossed, the victim of the violation is generally
well-positioned to know about it. If our theories of contract, tort and
property law are correctly formulated, the victim's knowledge and interest in seeking
legal redress will deter conflicts over resource use, by increasing the
perceived likelihood that rights violations will be defended against and
rectified. Moreover, the adversary system of adjudication delegates the
evidence gathering function to those who have a direct incentive to do it well.
Informational problems are reduced by the
understandable nature of a well-crafted private law system of property rights.
---------- FOOTNOTES ---------
21. Epstein, The Static conception of the Common Law, supra note 12, at 255.
---------- END FOOTNOTES ---------
Even children know
where their family's yard ends and the next family's begins. But as important
as the law of property and tort is to the provision of information, the law of
contract is of special significance in this regard. For, if our law of contract
is done right, it will acknowledge our rights to freely alienate external
possessions and this will bring about a price system that provides vital
information about the highest-valued use of resources - information that can be
discovered in no other way. Incentives then can exist to exchange rights to
improve the well-being of the parties to the transaction.
So, to return to the example used earlier,
your property right in the book forces me to obtain your consent to borrow the
book, thereby inducing me to obtain your consent by, for example, offering you
something in exchange for the book that you value more highly and which I value
less highly than having the book. By this process of exchange, we will both be
made subjectively better off and our otherwise conflicting preferences are made
compatible and, in this sense, become "coordinated."22
Finally, and perhaps most obviously, a
properly worked out concept of private property will provide powerful
incentives for production. Those who transform resources they own from things
of little or no value to others to things of greater value to others will be
encouraged (but not forced) to do so, because their ownership gives them the
right to withhold the use and enjoyment of their produce, unless something they
value more - their net gain being called their "profit" - is given in
exchange. This means that more things of value will be produced by more people
making the material wealth (and that degree of spiritual well-being which
depends upon material wealth) that much more accessible to everyone.
THE NEED FOR LEGAL PHILOSOPHY AND THIS
SYMPOSIUM
This account of what law is and why the
private law categories
---------- FOOTNOTES ---------
22. All that was ever meant by the
metaphor of "the invisible hand" is that the price mechanism works
like an invisible hand to allocate property rights in a way that best
coordinates the preferences of individuals in society. The charge that
classical liberals put all their "faith" in an invisible hand tends
to confuse the substance of their rights and market analysis with the metaphor
used to elucidate the analysis for an eighteenth century audience. There is
more "science" in the sense of knowledge about the actual state of
the real world - and less "faith" at work here, than in the arguments
of some of those who believe in the State as an institution that is capable of
addressing the fundamental problems of social order.
---------- END FOOTNOTES ---------
of property, torts, and contracts are so
essential to the institution of law fulfilling its societal function enables us
now to say why we need legal philosophy. The short answer is that the classical
liberal story of law I just told was legal philosophy and, to the extent that
legal philosophers and law professors have gotten the story wrong, it is very
likely that other legal thinkers like judges, lawyers, and legislatures will
produce legal rules - whether by statute or by judicial decisions - that impede
rather than facilitate human well-being. Still worse, they may produce no rules
at all. Indeed, as we have seen, American legal philosophy - with its twin
preoccupations with Legal Positivism and Legal Realism - has had the story
wrong for some time.
The longer answer is that this view of
law, which is once again being taken seriously, undergirds
the Western legal tradition of individual property rights and the adjudication
of those rights by judges who discern and refine the idea of property by developing
and applying legal theory and doctrine as consistently as possible on a case by
case basis. Without legal philosophy providing this foundation, our private law
rights and common law process of adjudication - the twin institutions of
classical liberal legal thought - can be made to appear as empty or irrational exercises we have
inherited from our ancient past and blindly continue to follow.
This perception has two pernicious
consequences. First, it makes these institutions ripe for rejection by those
who consider themselves to be "rational" and "progressive."
Second, without an understanding of its philosophical roots, lawyers attempting
to adhere to these institutions are likely to run across intractable and
seemingly insoluble problems. If so, without the insights of legal philosophy
which discovers and refines first principles, practitioners will find
themselves hopelessly adrift.23
The Neo-Lockean
or classical liberal legal philosophers do not have all the answers to the
questions they raise. But their insights are extremely valuable in large
measure because they are beginning to force the profession to again ask the
right questions. As new generations of legal thinkers continue the
---------- FOOTNOTES ---------
23. For an example
of such a doctrinal problem in the contract law area, see Barnett, supra note
4. at 1238-1245. There I describe the tension between
the bargain theory of consideration and the reliance principle
of recovery embodied in 90 of the
RESTATEMENT (SECOND) OF CONTRACTS (1979) and suggest how this tension
might be resolved by a more fundamental rights analysis.
---------- END FOOTNOTES ---------
task of applying the
insights of legal philosophy to the evolving social problems of our age, then
and only then can legal philosophy touch and guide the activities of lawyers,
judges, legislators, and law teachers (as Fuller argued that it must). It does
so by informing our choice of legal theories, and, through theory, informing
our choice of legal doctrines, so that we might achieve the promise of a free
and prosperous society.
To this end, in the 1960s the Institute
for Humane Studies established a program to support young intellectuals in
pursuing their interests in law and philosophy. As part of this program, in
1982, with the support of the Veritas Fund, Inc., the
Institute established the Leonard B. Cassidy Summer Research Fellowships in Law
and Philosophy. Cassidy Fellowships are awarded to promising law students and
graduate students in philosophy to pursue their interests in legal philosophy
or in private law theory. Each grant requires the production of a scholarly
paper. This symposium represents the first fruits of this endeavor.
The papers that follow run the gamut from
theory to doctrine to practice and back again. Each shares a common commitment
to develop and refine the concept of individual rights in response to new
social and technological problems. They range form Stephen Macedo's
effort to put the modern liberal political vision of Ronald Dworkin
into a broader classical liberal perspective, to Deborah Mathieu's examination
of the rights of women and those of the fetuses they carry within them in the
context of new medical technology; from Greg Temple's application of contract
principles to the subject of intimate relations that is now governed by
principles of status, to William Manson's suggested reformulation of nuisance
law.
Of course, few ideas of importance are
ever born whole. They require for their development the shaping influence of
knowledgeable criticism and repair. Sometimes we learn almost as much from the
insightful criticism of a flawed effort as we do from a success. In the collection
that follows, each paper receives the critical attention of one of an
impressive group of scholars - Henry B. Veatch, Joel
Feinberg, R. H. Helmholz, and Lawrence H. White -
scholars who are not easily satisfied.
The ideas presented by the four authors can only benefit from this
careful attention. The many people who are associated with the Institute for Humane
Studies, the Veritas Fund, Inc., and the Harvard Journal
of Law and Public Policy have made this symposium possible.
While no view expressed in this issue
(including mine) necessarily represents the views of any of these institutions,
it is their common hope that this symposium will contribute, in some small way,
to the development of legal thinkers who are committed to a legal philosophy that
will be of use to the lawyer and to society. Again, in the words of Lon Fuller:
What we need is someone with the
imagination, the patience, and the skill to work out a seating arrangement that
will put us all within reach of the banquet, but will keep out elbows from
knocking against one another. Only the lawyer is capable of doing this job. It
is our responsibility to train him for it.24
---------- FOOTNOTES ---------
24.L.
FULLER. supra note 1. at 281.
---------- END FOOTNOTES ---------