FOREWORD: CAN
JUSTICE AND THE RULE OF LAW BE RECONCILED?
RANDY E. BARNETT*
I. The Conflict Between Justice and the Rule Law
Much of the current debate between activists on "the left" and "the right" concerning the legal system can be conceived in purely jurisprudential, as opposed to political, terms. Today, many on the left insist that the decisions made by the legal system conform as closely as possible to some substantive conception of "justice" that is independent of the legal system itself. They call those who disagree "formalists." Many on the right insist that the procedural values of the "rule of law" general rule-making, impartially administered among persons and over time preempt concern for correct outcomes. They call those who disagree "result-oriented."
In pursuit of their preferred values, many of these conservatives and liberals are willing to allow a degree of slippage in the other less favored value. Jerome Frank, for example, rejected the rule of law values of generality and uniformity in legal precepts in favor of justice:
Once trapped by the belief that the
announced rules are the paramount thing in the law, and that uniformity and certainty
are of major importance, and are to be procured by uniformity and certainty in
the phrasing of rules, a judge is
likely to be affected, in determining what is fair to the parties in the
unique situation before him, by consideration of the possible, yet scarcely
imaginable, bad effect of a just opinion in the instant case on possible unlike
cases which may later be brought into court. He then refuses to do justice in
the case on trial because he fears that "hard cases make bad laws."
And thus arises what may aptly be called "injustice
according to law." Such injustice is particularly tragic because it
is based on a hope doomed to futility, a hope of controlling the future.... For it is the nature of the future that it never arrives....
The judge,
at his best, is an arbitrator, a "sound man" who
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* Professor of Law, Illinois
Institute of Technology, Chicago-Kent College of Law. B.A.,
Northwestern University, 1974; J.D.,
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FOOTNOTES ---------
strives to do justice to the parties by exercising a wise
discretion with reference to the peculiar circumstances of the case. He does
not merely "find" or invent some generalized rule which he
"applies" to the facts presented to him. He does "equity"
in the sense in which Aristotle--when thinking most clearly--described it.1
According to this view, the
formal requirements of the rule of law are either redundant or pernicious.
Where justice in the particular case and the tenets of the rule of law
correspond, the rule of law is redundant. Where justice in the particular case
and the rule of law diverge, the rule of law is pernicious to the extent that
it detracts from achieving justice.
On the other side we have scholars such as Robert Bork who favor the rule of law over justice because:
There is no principled way to decide that
one man's gratifications are more deserving of respect than another's or that
one form of gratification is more worthy than another. There is no way of
deciding these matters other than by reference to some system of moral or
ethical values that has no objective or intrinsic validity of its own and about
which men can and do differ.... The issue of the community's moral and ethical
values, the issue of degree of pain an activity causes, are
matters concluded by the passage and enforcement of the laws in question. The
judiciary has no role to play other than that of applying the statutes in a
fair and impartial manner.2
According to this view, there is no "objective"
category of justice to which judges may appeal. Because justice is not neutral,
there are no "neutral principles" by which judges may conclude that
one result is more just than another. Lacking the authority of neutral
principles, judges must defer to the legislative will, and conform to the
procedural constraints of the rule of law.
The tension between justice and the rule of law should come as no surprise. Conceived substantively, justice speaks to the "correctness" of the outcome of individual cases. Conceived procedurally, the rule of law speaks to the form of a "fair" legal process. Conflict between these two values arises when the outcome of a "fair" legal system is deemed to be unjust; or when the effort by the legal system to be "just" is deemed by critics
--------- FOOTNOTES ---------
1. J. FRANK,
LAW AND THE MODERN MIND 165-66, 168 (1963) (italics in original). Frank
describes Aristotle's separation of law and equity as "unfortunate."
2. Bork. Neutral Principles and Some First Amendment Problems. 47 IND. L.J. 1, 10 (1971).
-------- END FOOTNOTES ---------
to be
unfair. Such a conflict is inevitable because these concepts are not identical.
When applied to particular cases or controversies, concepts that are different
must sometimes point in different directions.
Notwithstanding the unavoidable tension between these concepts,
the interminable nature of the debate stems from the tendency of each side to
see its favored value as (in some sense) an "end" to which the other
value must remain subservient. Both sides fail to see that, although both
justice and the rule of law are "ends" for certain analytic purposes,
both are also "means" of dealing with a set of fundamental and
pervasive social problems. Today's activists on the left fail to see the essential
role that the rule of law plays in solving these problems, while today's
activists on the right do not recognize why these problems make certain
principles of justice necessary. Although I shall not accomplish a final
reconciliation of these two values in this essay,3
I will explain how, in practice, the conflict between justice and the rule of
law may be resolved by determining a specific content of each value that
addresses these more fundamental social problems.
II. The Social Problems of Knowledge, Interest,
And Power
The concepts
of justice and the rule of law presuppose a social context.4 Unless and until persons interact with each other, such
ideas or practices are inapplicable. A human being may be a "social
animal" who needs the company of others to be truly happy, but when such
company is sought certain social
problems invariably arise. Justice and the rule of law may be conceived
as solutions to particular fundamental social problems that are unavoidable
features of human social life.
It is almost a truism that the possibility of social conflict between persons gives rise to a need for justice and the rule of law. It is less commonly acknowledged that certain identifiable features of social life in our world shape the nature of this con-
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FOOTNOTES --------
3. The thesis
presented in this Foreword is part of a larger research project in progress and
should be considered as tentative.
4. See Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269. 294-95 (1986) (discussing allocative and distributional functions of individual
entitlements) [hereinafter Consent Theory]; Barnett, Pursuing Justice in a Free Society: Part One-Power vs. Liberty, Crim. Just. Ethics, Summer/Fall 1985, at 50 (discussing sources and
proper content of entitlements theory) [hereinafter Pursuing Justice].
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flict and limit the range of possible solutions to
it. Any effort to resolve or reduce social conflict and to promote social
harmony must confront the social problems of knowledge, interest, and power.
A. The Problem of Knowledge
Let us begin
by assuming what we know is untrue: that all persons sincerely desire to be
good to one another. (Pessimists fear not, for we shall relax this assumption
in the next section.) Even if all persons were "good" in this way,
there would still be an important social role for both justice and the rule of
law. In a world of scarce resources,5 even persons
with benign intentions may inadvertently harm another or interfere with an other's
plans. The intention that one's actions be good for others is insufficient to
achieve this end. One must somehow know what actions are truly good for others.
Suppose, for
example, that Ann cultivates some land for crops. While Ann is away foraging
for food, Ben comes along and discovers the clearing that Ann has made. Seeing
no one around, Ben begins to build a shelter in the clearing. Ann returns,
informs Ben of her prior activities, and asks him to leave. Ben refuses. In the
absence of a voluntary compromise, how is this conflict to be resolved? Does
Ann or Ben have the superior claim to the clearing, or is the correct outcome
that they must somehow share? Whatever the proper resolution of this dispute
may be, unless Ben and Ann have some way of knowing whose claim is stronger, or
that they must share, Ben and Ann do not know which of them must yield to the
other.
Nor is this situation limited to "state of nature" scenarios. Precisely the same problem arises if, while Ann is away working, Ben enters the apartment in which Ann has been living and begins to fix himself some dinner with the food he finds in the refrigerator. Who has the stronger claim to this apartment or must they share? Or suppose that Ben wishes to have sexual relations with Ann, but Ann refuses. Who has the stronger claim to Ann's body or must they "share" (whatever this may
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5. "Scarce
resources" here refers only to the possibility that two persons may wish
to use the same resource at the same time. According to this definition, no
amount of material abundance can eliminate the scarcity of resources, so long
as one person may wish, for example, to have sexual relations with another who
does not share the desire.
In this sense, "scarcity" arises because human desires for resource use are not naturally coordinated, and not solely from the physical limits of resources.
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FOOTNOTES ---------
mean)?
So strong are our moral intuitions about this last situation that it is
difficult even to state the problem in ways that do not presuppose the validity
of Ann's claim to her body.
Remember we are assuming that Ann and Ben have only the best of intentions; neither wants to harm the other. The problem is that neither knows what constitutes harm to one rather than harm to the other unless there is some baseline allocation of resources from which they may make such an assessment.
Without this
baseline, Ann and Ben cannot know that it is Ben and not Ann who must vacate
the clearing or the apartment. Put another way, assuming that both Ann and Ben
desire only to pursue their goals without harming anyone else,
both need somehow to know the domain in which they may act. There is a "knowledge
problem."
The knowledge
problem in this context concerns two types of subsidiary questions. The first
is substantive: What is the proper allocation of resources that are subject to
potentially conflicting use and what are the appropriate uses to which allotted
resources may be put? The second is methodological: How should the decision be made and who
should make it? My purpose is not to answer these questions here, but only to
suggest that justice and the rule of law have evolved as answers to these
questions. Justice concerns the "proper" allocation of resources. The
rule of law concerns the "method" by which this allocation is made
and the decision conveyed. Justice addresses the substantively correct answer
to the question of allocation. The rule of law addresses the proper manner by
which such an answer is determined, promulgated, and enforced.6
One may argue that there is no substantively correct or "just" outcome that is independent of a legal decision; that prior to an official determination there are only different preferences for allocation. Ann prefers to have the clearing or apartment; so does Ben. Ann does not wish to have sexual relations with Ben; Ben desires such relations. There is, the argument goes, no principled way to prefer one of these claims to the other in the absence of an official ruling.
Alternatively, one may argue that while there may be a correct or just outcome in principle, there is no way to know what it is independent of an authoritative decision of a fair legal pro-
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6. This corresponds to Lon Fuller's distinction between the "external" and "internal" moralities of law. See L. Fuller, The Morality of Law 96-97 (1969).
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cess. Whether or not Ann has an antecedent "right" to the clearing, the apartment, or her body, it is not a "real" right until a legal system acknowledges it. According to either argument, then, the "just" outcome would be whatever outcome is reached by a "fair" process; there is no independent basis for challenging the validity of whatever decision a "fair" procedure reaches.
How plausible
are such arguments? Are we really unable to give any reasons why certain
allocations are not truly better or more just than others? Suppose
a seemingly fair process determined that Ben should get the clearing simply
because he was a male and Ann a female. Are there any compelling reasons
that support the justice of such a decision? Are there no compelling reasons to
be given against the justice of such a decision? On the contrary, such a
proposition may so lack for rational support, or some objections to it that are
rooted injustice may be so compelling, that we would question the fairness of
any system that disagreed.
Suppose that a "fair" coin flip is
used to decide the issue-so that despite Ann's previous work to clear the
field, Ben may get rightful possession by winning the flip. Suppose that Ann
may refuse Ben's sexual advances only if she wins a "fair" flip. It
can only be a substantive judgment of the injustice of the results that would
undermine the fairness of this procedure. What is fair, then, may very well
depend in part on what we have reason to think is just. Determining fair
procedures may sometimes be impossible without a peek at what is just.
1. The Epistemic Function of the Rule of Law
Does this
mean that a decision is "fair" solely because it conforms to what we
believe to be just? No, for there is an important sense in which the rule of
law is operationally independent of a substantively "correct"
outcome. We have already assumed that
Ann and Ben desire to know what they may rightly do and they will do it.
Deprived of such knowledge each may act in good faith and still
"unjustly" harm the other. Now let us assume that a perfect theory of
just allocation is already in existence but it is entirely unknown to both Ann
and Ben. Lacking knowledge of this perfect theory of justice, they are still likely
to harm one another inadvertently.
There are two
promising ways of responding to this instance of the knowledge problem. First,
suppose that the theory of justice is based on some natural feature or features
of the situation - first possession, for example. Based on our common knowledge
of what motivates possession, the mere fact of first possession may be presumed
to be for the purpose of beneficial use by the possessor who is first.
Moreover, investment in life-enhancing improvements requires reliance on
continued beneficial use over time. In this situation, beneficial use and expectations
based on prior investment may best be protected by applying a precept of
"first in time, first in right."
If such is
the case and the natural feature on which the precept rests is
"prominent"7 enough, both Ann and Ben may be able to reach
the correct result simply by reflecting upon the situation. This does not
necessarily mean, however, that Ann and Ben will explicitly formulate the
precept itself.
Man
certainly does not know all the rules which guide his actions in the sense that
he is able to state them in words.... Although man never existed without laws
that he obeyed, he did, of course, exist for hundreds of thousands of years
without laws he "knew" in the sense that he was able to articulate them.8
Perhaps if
our intuitions favor Ann's claim over Ben's, it is because our intuitions
reflect this "common sense" of the situation. When a dispute arises
and a third party is called in to judge the merits of the claim, the precept
that is articulated may simply render explicit this tacit or inchoate
knowledge. Once articulated, others may be able to reach the correct decision
more reliably and quickly if they (or their advisors) are aware of the precept
that best captures the common sense of this situation.
If the first
method of deciding disputes corresponds to what Aquinas called rational
"conclusion" from principle, other conflicts require what he called a
"determination"9 consistent with
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7. The important role that
natural prominence or obviousness plays in the formation of legal norms is
discussed in R. Sugden,
The Economics of Rights, Co-Operation and Welfare 44-52 (1986)
[hereinafter Economics of Rights].
Professor Sugden discusses a very similar example in Sugden, Labour, Property and the Morality of Markets, in
The Market in History 28-28 (B.
Anderson & A. Latham eds. 1986).
8. 1 F. Hayek, Law, Legislation and
9. As Aquinas explains:
Some things are. . . derived from the common principles of the natural law by way of conclusions: for instance, that one must not kill may be derived as a conclusion from the principle that one should do harm to no man. But some are derived from these principles by way of determination: for instance, the law of nature has it that the evil-doer should be punished, but that he be punished in this or that way is a determination of the law of nature.
Accordingly, both modes of derivation are found in human law. But those things which are derived in the first way are contained in human law not as emanating from it exclusively, but have some force from the natural law also. But those things which are derived in the second way have no other force than that of human law.
Aquinas, Summa Theologica, in 20 Great Books of the Western World 228 (1980).
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principle,
or what we may today call convention.10 For example, although there
may be no reason whatsoever to prefer that traffic flow on one side of the road
rather than the other, there is good reason to "determine" that
traffic shall flow on one of the two sides. It matters not which of two
alternatives is chosen, so long as one is chosen. Once
chosen, such a convention will decide a dispute. If such is the case, Ann and
Ben need some way to learn the relevant convention.
Whether
derived from rational principle or convention or some combination of the two,
then, both Ann and Ben still need some way of knowing what the just outcome is
in a particular dispute. Assuming good intentions, they may sometimes learn the just outcome on their own by
reflecting on the situation and responding to some prominent feature of it.
When they cannot generate their own solution, conflict can be avoided only if
others somehow inform them of the just outcome. Moreover, when one of them
relies on a social convention, the other must already know of it or be able to
substantiate its existence. In short, justice is not purely instinctive. Even a
perfect theory of justice will sometimes require an effective mechanism of communication.
Furthermore,
the timing of this communication is crucial. Communication can take place
either before a conflict arises (ex ante)
or after a conflict arises (ex post).
There are advantages to each approach. Only ex
post may we learn the actual facts of a particular dispute and base our
judgment upon them. Ex ante we are
able only to know in general terms the kinds of disputes that may arise.
Presumably, an ex post decision can
be much more exactly tailored to fit what actually occurred than an ex ante decision. Only ex post, arguably, can we know exactly
why and how much Ann and Ben desire to control the clearing, the apartment, or
Ann's body.
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10. For a discussion of the spontaneous development and stability of certain conventions, see Economics of Rights, supra note 7.
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FOOTNOTES ---------
There is
however a serious drawback to particularistic ex post decisionmaking.
A purely ex post system unavoidably requires that a dispute first occur. This
means that ex post decisionmaking actually requires
the disruption of social life and that scarce resources be spent on an ex post adjudicative process. Without a real
dispute, one cannot know the particular facts on which to base an ex post judgment. Without an ex post adjudicative process, no
authoritative judgments are possible. In principle, then, an ex post approach is incapable of
avoiding or preventing costly social disruption. While some may argue that
parties could learn future decisions from very detailed accounts of the factual
bases of past ex post judgments, such
an argument concedes the desireability of ex ante judgment and rejects a pure ex post approach.
Despite the
social disruption it causes, an ex post
approach might be acceptable if a legal system were ever completely able to undo
costlessly the wrong ex post-to turn back the clock and adjust the situation. In our
world, however, this is quite impossible. When a dispute takes place costs that
can never be fully compensated, such as the costs of adjudication itself, must
be
born
by both disputing parties. The subjective costs of any action are borne by the
actor in the form of opportunities for alternative conduct that can never be
recaptured.11 Whoever loses this or any
dispute ex post can never arrange his
or her affairs so as to avoid the conflict. If Ann loses, she can never use her
expended time and energies to clear a different piece of land. If Ben loses, he
can never use his expended time and energies to build another shelter on land
that is truly his. Once her body is violated, Ann can never be returned to an ex ante position. She can never be
"unraped."
Moreover, even an ex post analysis is not infallible. A legal system faces its own knowledge problem. For many reasons, it is extremely difficult for ex post fact-finders to put themselves in the shoes of the parties to a dispute. Adjudicative errors are inevitable. The costs of such errors are magnified when they occur after it is too late to avoid the conflict. Perhaps a decision that the clearing belongs to Ann is unjust. The injustice is magnified, however, if the decision comes after rather than before Ben has built a shelter on the land. Even if Ann keeps the shel-
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11. See
J. Buchanan, Cost and Choice 1-26
(1969) (distinguishing objective and subjective concepts of cost).
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ter
and compensates Ben for his loss ex post,
it means that the time it takes her to produce the compensation may not be used
in the manner she would have preferred had Ben not built the shelter in the
first place. Do we really want to wait until after the fact to adjudicate the
justice of Ben's claim to Ann's body? If not, then perhaps this is due to our ex ante convictions concerning the
justice of Ben's claim, the costs to Ann of waiting, and, to a much lesser
extent, the risk of an adjudicative error in Ben's favor.
In sum,
whatever an ex post system may gain
by its ability to render more particularistic judgments is jeopardized by its
inability to avoid losses being inflicted on the guilty and innocent alike.
Therefore it would be preferable that such information be communicated ex ante. For, assuming that ex ante knowledge of justice is
possible, it is clearly preferable that a conflict be avoided altogether, so neither Ann's nor
Ben's life is disrupted at all. When the full costs to the parties of ex post adjudication is taken into
account, the application of an ex ante
precept need not be perfect to be preferable.
It is no
accident, then, that a standard feature of the rule of law is communication
before the fact. Without advance communication, vital information about justice
is not conveyed to persons who may inadvertently come into conflict with one another.
Prospective communication is not merely a part of a formal definition of law.
Nor is it solely a product of the belief that it is "unfair" to hold
persons to a rule of conduct that was unknown to them. Prospective communication
is a practical necessity if costly disputes-and resultant injustices-are to be
avoided by those who wish only to know how.
To
effectively achieve prospective communication, law must take a certain form.
Lon Fuller listed eight requirements of legality12: generality,
promulgation, prospectivity, clarity, consistency,
requirements that are possible to obey, constancy through time, and congruence
between official action and declared rule. These features serve “the enterprise
of subjecting human conduct to the governance of rules. Unlike most modern
theories of law, this view treats law as an activity and regards a legal system
as the product of a sustained purposive effort.” 13
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12. L. FULLER, supra note 6, at 33-94.
13.
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The purpose or function14 of this lawmaking effort is the conveyance of vital information to members of a society. Each of these features of the "rule of law" can be understood as enabling the communication of useful information about "justice" in advance of conflicts and thereby making possible the avoidance of interpersonal conflict. The absence of any of these features impedes, sometimes completely, the ability to convey the relevant information.
A
total failure in any one of these eight directions does not simply result in a
bad system of law; it results in something
that is not properly called a legal system at all, except perhaps in the
Pickwickian sense in which a void contract can still
be said to be one kind of contract.15
This claim is not a matter of
semantics,16 but of function.
The analysis
thus far may be summarized as follows: Without ex ante knowledge of substantive justice, even good people will
inadvertently harm one another unjustly. Knowledge of justice that cannot be
obtained by personal intuition and reason must be obtained from communication
with others. To be understandable ex ante
this communication must take certain recognizable forms that are associated
with the rule of law. Without the formal characteristics of the rule of law,
justice will be unknowable in advance of personal decisions to act and, consequently,
avoidable injustices will unavoidably occur.
Some have questioned whether it really is possible to convey such ex ante knowledge. Some legal realists argued that it is simply impossible to convey sufficiently accurate knowledge about just conduct in advance of a dispute. They alleged that any effort to convey information by general rules and principles17 is
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14. F.A. Hayek argues that
using the term "purpose" to describe a spontaneously evolved order is
potentially misleading. It suggests that a human maker had a particular purpose
in mind in creating and maintaining the order, whereas a spontaneous order is
not deliberately made or preserved and therefore "cannot legitimately be
said to have a particular purpose, although our awareness of its existence may
be extremely important for our successful pursuit of a great variety of
different purposes." F. Hayek,
supra note 8, at 38 (emphasis in
original). For this reason he suggests that "it is preferable to avoid in
this connection the term ‘purpose’ and to speak instead of ‘function.’ "
15. L. Fuller, supra
note 6, at 39.
16. For a criticism of
"semantic" legal philosophies, see R.
Dworkin, Law’s Empire 31-46 (1986).
17. I have described law as
"three-dimensional," embracing the dimensions of theory (rationale),
doctrine (rules and principles), and practice (application of doctrine to facts).
See Barnett, Foreword: Why We Need Legal Philosophy, 8 Harv. J. L. & Pub. Pol'y 1, 9-10 (1985). Rather than continually repeat the phrase
"legal rules and principles," in this Foreword, I am employing the
term "legal precepts" to embrace both kinds of doctrine.
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futile,
either because abstract precepts would fail to reflect the justice of
particular situations, or because these precepts are too indeterminate for
judges, much less individual citizens, to follow. Moreover, they argue,
citizens-even commercial actors-are pervasively ignorant of what legal precepts
have to say.
In recent
years there have been potent responses to the last two of these accusations. I
shall only list a few. First, the fact that legal precepts are sometimes
indeterminate does not mean that they are always or even mostly indeterminate.18
For every hard case there are a vast multitude of easy
cases.19 For every easy case there are a vast multitude of
transactions that never become cases at all. The indeterminacy thesis is based
on a misleading sample of disputes. Second, even hard cases may have right
answers and, as we saw with the example of Ann and Ben, such answers may be
present and available at the time of the dispute.20 Third, while
many persons may be ignorant of the law, this may not matter if there is a
common sense of the matter and the law accurately reflects it.21
Fourth, ignorance of the law does not provide an ex post excuse provided
knowledge of the law is possible ex ante.22 Finally, repeat players
in the legal sytem usually know the rules and usually
deal with other repeat players. Novices
may obtain such knowledge from lawyers. Indeed this analysis explains the vital
role that lawyers play as private disseminators of information. When the risk
of a dispute is too small to make this investment likely and when the rules do
not conform to common sense, repeat players should
be compelled to make
the operative rule explicit in their
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18. See, e.g., H.L.A. Hart, The
Concept of Law 121-50 (1961) (criticizing “rule skepticism" of the legal realists); Solum, On the
Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462 (1987) (criticizing the
"indeterminacy thesis as it has been developed in critical legal
scholarship").
19. See Hegland, Goodbye to Deconstruction, 58
20. See, e.g., R. Dworkin, Taking Rights Seriously 81-130 (1977)
(defending the thesis that even
"hard cases" have right answers); R.
Dworkin, A Matter of Principle 119-45 (1985)
(same).
21. See, e.g., F. Hayek, supra note 8, at 43; "[T]he rules
which govern the actions of elements of such spontaneous orders need not be
rules which are "known" to these elements; it is sufficient that the
elements actually behave in a manner which can be described by such
rules."
22. See Consent Theory, supra note 4, at
300-09 (justifying the "objective" interpretation of rights).
--------- END FOOTNOTES ---------
agreements.23
What about
the claim that ex ante
rules and principles are inherently unjust because they cannot capture
all the details of actual disputes? Part of the answer to this objection has
already been suggested. Although ex ante
precepts may be far from perfect in avoiding and resolving conflicts, ex post justice actually requires that
conflicts occur-conflicts that will be incurably unjust to at least one and possibly both of
the parties. Because only some effort at ex
ante justice stands even a chance of avoiding this injustice, the injustice
avoided by ex post adjudication is likely to be dwarfed by the injustice
avoided by good ex ante precepts.24
Another part of the response to this claim rests on the epistemic function of justice itself.
2. The Epistemic Function of Justice
To this point
we have assumed that a perfect theory of substantive justice existed, and this
theory needed to be communicated for it to be known and observed. Even if a
perfect theory were possible, however, we do not possess it. How, then, do we
go about determining what is a "just" allocation of resources? Not surprisingly, perhaps, it turns out that
the knowledge problem plays an important role here as well.
Ann and Ben need to know how to resolve their conflict, preferably before they invest time and energy improving resources that they must later divest. This is why waiting for a conflict to develop and then taking it before an adjudicator would be wasteful. Precepts by which the "just" outcome may be determined should be promulgated in advance.
Not all precepts are equally informative, however.25 Sup-
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23. See, e.g., Barnett, Contract Remedies and Inalienable Rights, 4 Soc. Phil. & Pol'y 179,
200-01(1986) (firms who wish to avoid specific relief should have to make this
an explicit term of any contract with a consumer).
24. Of
course, where an ex ante formulation
of a precept proves to be unsatisfactory, it can be modified ex post provided we are willing to apply
the modified rule in the future. The effort to reform ex ante precepts in particular cases creates an engine of change
that accounts for the knowledge embedded in an evolved tradition. See infra text accompanying notes 42-43.
Moreover, the traditional separation of law and equity permitted ex post adjustments in certain cases
where an ex ante
precept was generally satisfactory, but its failure in a particular dispute was
extreme. This approach was practical so long as the division of law and equity
was maintained and equitable "exceptions" could be distinguished from "the
rule." Finally, even a completely satisfactory legal precept is only
presumptively binding. See infra note
31.
25. Cf. F. Hayek, supra note 8, at 43-44:
{N}ot every regularity in the behaviour of the elements does secure an overall order.
Some rules governing individual behavior might clearly make altogether
impossible the formation of an overall order. Our problem is what kind of rules
of conduct will produce an order of society and what kind of order particular
rules will produce.
--------- END FOOTNOTES ---------
pose, for example, that the promulgated precept is: "The one who needs the land the most gets it." Assume that both Ann and Ben are aware of this precept in advance of any dispute between them. Ben comes across the clearing. Can he know that it is safe to erect a shelter upon it? How can he know that he needs it more than Ann? When Ann returns, how can she know whether to vacate or remain? The problem of knowledge created by this precept is compounded when third parties such as judges attempt to answer such a question. The same difficulties exist with a precept that: "The person who places the highest value on the land gets it." How is any potential claimant to know who values the land the most?26 With either proposition, the knowledge problem stems not from the form of the relevant precept but from its substance.
Suppose
instead that the rule is simply, "first in time, first in right."27
Both Ann and Ben are aware of this precept when Ben happens across the
clearing. Can he know that it is safe to erect a shelter upon it? How is he to
know whether he is the first one to the clearing? When Ann returns, how does
Ben know that Ann is not the second in time? The rule is inadequate because it
does not specify some mode of communicating "first in time." It would
be improved if it required that a cleared area be fenced, or that its
boundaries be artificially marked or "staked" by Ann, the first
possessor, to establish the timing of her claim. So the better precept would be
"first to stake a recognizable claim, first in right."28
--------- FOOTNOTES --------
26. Cf.
Consent Theory, supra note 4, at
277-83 (criticizing efficiency theories of contract for failing to address the
knowledge problem).
27. See
Epstein, Past and Future: The Temporal
Dimension in the Law of Property, 64 Wash.
U.L.Q. 667, 669-74 (1986) (discussing the rule that "Prior in Time is
Higher in Right").
28. Time,
Properly Rights, and the Common Law: Round Table Discussion, 64 Wash. U.L.Q. 793, 801(1986) (statement
of Richard Epstein):
The usual way in which people handled the problem of demarcation is that, instead of having a rule of naked first possession, they had a rule in which they put out claim stakes at the edges that formed a visible and known barrier. Everybody else then had notice and was able to alter his conduct accordingly,
See
also Rose, Possession as the Origin of Properly, 52
U. Chi. L. Rev. 73, 77 (1985)
("The clear-act principle suggests that the common law defines acts of
possession as some kind of statement.
As Blackstone said, the acts must be a declaration
of one's intent to appropriate.") (citation
omitted; emphasis in original); id.
at 78-79 ("Possession now begins to look even more like something that
requires a kind of communication, and the original claim to the property looks
like a kind of speech, with the audience composed of all others who might be
interested in claiming the object in question.").
--------- END FOOTNOTES ---------
This precept offers some
significant epistemic advantages over other alternatives. It enables
well-meaning claimants to determine for themselves the comparative merits of their
claims, and it makes it easier for third parties to assess the merits of
claims.29 This suggests that both the form
and the substance of justice are influenced by the problem of knowledge in
society.
This or any other isolated precept is
undoubtedly incomplete. For example, in a particular case the knowledge problem
would be solved (both ex ante and ex post) if it could be shown that Ben
had actually observed Ann clearing the field, even though she had failed to
stake her claim.30 In a well-conceived system of law, there is no legal
precept that does not potentially admit of certain exceptions. More accurately,
all precepts are only presumptively binding.31 Still, if it can be
justified as presumptively binding, the precept, "first to stake a recognizable
claim, first in right," does not require that every adjudicator consider ex post the substantive justice of first
possession in particular cases. By informing potential claimants and
adjudicators alike of the relative merits of claims ex ante, the precept helps to avoid disputes and permits justice to
be done in most cases.
Notice, however, that the justice of this suggested precept or even a complete set of such presumptively binding precepts is
---------
FOOTNOTES ---------
29. This example is replicated in every
department of private law theory. In contract law, for example, we require a
manifestation or communication of assent. See
Consent Theory, supra note 4, at
300-07 (describing and defending the objective approach to contractual
interpretation). In agency law we have a doctrine of "apparent"
agency. See Barnett, Squaring Undisclosed Agency With Contract
Theory, 75 Calif. L. Rev.
1969, 1944-97 (1987).
30. So too in contract law, we protect a
party's reliance upon the objective appearances. When the parties shared a
common subjective understanding of a term, however, it will generally be
enforced even when it differs from the objective meaning.
31. A precept is presumptively or prima
fade binding because it captures the right outcome for the majority of cases
within its reach, but it may be rebutted by showing additional and exceptional
facts that normally undermine the correctness of the prima fade case. This
response or "defense" to the prima fade case is itself only
presumptively or prima facie compelling and may be rebutted by other still more
exceptional facts. The law governing a particular dispute consists of a series
of such presumptions at a succession of stages, each of which captures the
majority of cases at a particular stage of analysis. As the analysis progresses
the number of unresolved cases is steadily reduced.
See, e.g., Epstein, Pleadings and Presumptions, 40 U. Chi. L. Rev. 556 (1973)
(discussing the appropriate role of presumptions and staged pleadings in legal
analysis); Consent Theory, supra note
4, at 309-10 (discussing the presumptive nature of consent in contract theory).
--------- END FOOTNOTES ---------
not
self-evident or self-explanatory. Such precepts may strike some as an arbitrary
or purely "formal" way of assigning of rights adopted strictly for
administrative convenience, rather than from a concern for justice. To fully
appreciate the justice of the precept, "first to stake a recognizable
claim, first in right," requires an examination of the reasons why anyone
appropriates resources to their own use, the reasons why reliance on such
claims is beneficial to the claimant and to the common good, the reasons why
the claims of first possessors as a rule are superior to those who come later.
In short, such a precept requires moral justification.
This suggests that the justice of a
particular precept or set of precepts depends on more than the fact that a
particular precept or set of precepts may be applied and known in advance of a
dispute. It requires as well a consideration of what Lon Fuller called the
"external" morality of law.32 Although
justice ex tends beyond the concern for formal legality, this enhanced moral
analysis also has an important epistemic dimension. For the justification
of the substance of certain legal rules also depends on the type of
"local" knowledge about personal and group plans and goals that only
individuals and groups possess. Once initially allocated, the discretion
of individuals to reallocate resources stems, at least in part, from where the
knowledge of how resources may best be used resides.33
Individuals and their close associates are
generally in the best position to know what they need and desire and what is
required to achieve it. For example, should Ann and Ben both decide to have
sexual relations with each other, they are in a far better position than a
third party to know that this will make them happy. They may err, of course,
but given that they are the most likely to know what makes them happy and that
they bear the subjective costs of choice, it is their mistake to make. The
practical alternative to individual discretion is not a correct choice made by
third parties, but a different and far more egregious set of mistakes.
--------- FOOTNOTES ---------
32. L. FULLER, supra note 6, at 96.
33. The seminal modern work on this aspect
of the knowledge problem is F. HAYEK, The
Use of Knowledge in Society, in INDIVIDUALISM AND ECONOMIC ORDER 137-42
(1951). Professor Hayek's role in explaining the epistemological functions of
market institutions and processes is described in J. GRAY, HAYEK ON
--------- FOOTNOTES ---------
Even if Ann and Ben are mistaken about their own best interests, the simple fact that they subjectively prefer a course of conduct that may be "bad" for them affects the propriety (and the efficacy) of a third party's forcible intervention to correct their mistake. Successful persuasion that changes their subjective preferences yields significantly different results than successful coercion to change their objective conduct.
Moreover,
individual discretion is especially important if one accepts Aristotle's view
that happiness is not a state of being, but an activity34 or, in the
words of Henry Veatch, a "do-it-yourself job."35
That is, the activity of choice is an indispensable element of a good life,
rather than an incidental or ancillary feature.
Of course, contemporary intuitions largely
support a deferential respect for the consensual choices of Ann and Ben in this
area. Had I chosen a consensual commercial exchange or the injection of an
intoxicating substance into one's body,36
the analysis would be much the same, but the intuitions of many would differ.
The issue there is not whether the same analysis extends to these other domains,37 but whether, at a minimum, the problem of
knowledge plausibly pertains, albeit along with other concerns, to this domain.
Regardless of what other justifications exist for respecting Ann and Ben's
exercise of consent, most would admit that epistemic concerns can be seen to
operate here.
The substance of justice, therefore, must
also take into account the consensual action that is required for the pursuit
of survival and happiness in society with others. This consensual activity may
be in pursuit of ends that are common to the consenting parties or may be based
on a reciprocal exchange of
--------- FOOTNOTES ---------
34. See,
e.g., Aristotle, NICOMACHEAN ETHICS 20-21 (M. Ostwald
trans. 1962) (distinguishing between "the possession" and "the
practice of virtue, viz., as being a characteristic or an activity" and
favoring the latter).
35. H. VEATCH, HUMAN RIGHTS: FACT OR FANCY?
114 (1985).
36. This is an issue I discuss elsewhere. See Barnett, Curing the Drug Law Addiction: The Harmful Side Ejects of Legal
Prohibition, in DEALING WITH DRUGS 73 (R. Hamowy
ed. 1987).
37. Elsewhere, for example, I distinguish
between the inalienable rights one has in one's body and the alienable rights
one has in external resources. See
Barnett, supra note 23. As I explain
there, the Consent of a rights-holder normally passes title to external
resources to another but does not convey the ownership one has in one's own
body.
Whether there are other differences between the ownership of one's body and the ownership of external resources is a worthwhile inquiry. The value of the principle of "self-ownership" to the discussion here is that it establishes for most the acceptability of some domain of private ownership. The rest is line-drawing.
--------- END FOOTNOTES ---------
resources.38
In addition to avoiding disputes by conveying knowledge of what belongs to whom
in advance, the substance of legal precepts should harnesses the local
knowledge that resides in all of us by acknowledging a right to use and dispose
of what is otherwise determined to be "ours."39
Showing how the knowledge problem is better solved by one particular set
of allocative precepts than another is not my purpose
here. My thesis is that while the rule of law and justice may sometimes
conflict, they are both different means of solving the vital social problem of
knowledge. Their respective contents should be significantly influenced by this
function. Conflicts that may arise between justice and the rule of law may be
fruitfully addressed by considering which of the two competing concerns best
ameliorates the knowledge problem.
For example, the fact that the rule of law
requires prospective lawmaking sometimes clashes with justice when a particular
lawsuit reveals a prior formulation of a rule to be deficient. Which gives way,
the rule of law or justice? The fact that both address the knowledge problem
helps us to choose. Suppose a good faith dispute exists about the justice of
applying an unquestionably relevant precept to an unanticipated set of facts.
In such a case, at least, the precept has failed to avoid a dispute among two
persons acting in good faith. At this point the requirements of both justice
between the parties and ex ante communication to future actors may justify a
new explicit exception to the rule.40 As F.A. Hayek, an ardent
proponent of the rule of law, explains:
What has been promulgated or announced beforehand will often be only a very imperfect formulation of principles which people can better honour in action than express in words. Only if one believes that all law is an expression of the will of a legislator and has been invented by him, rather than an expression of the principles required by the exigencies of a going order, does it seem that previous announce
--------- FOOTNOTES ---------
38. See
Fuller, The Forms and Limits of
Adjudication, 92 HARV. L. REV. 353, 357 (1978) ("It is submitted that
there are two basic forms of social ordering: organization by common aims and
organization by reciprocity.").
39. The quotation marks reflect the fact
that what belongs to us cannot be based solely on the existence of local
knowledge. For example, two persons may both know (far better than outsiders)
how each would use a particular item that only one of them may possess.
Although local knowledge is not irrelevant to specifying the domain of private
ownership - it strongly supports respect for consensual exchanges, for example,
other factors must also be considered.
40. See F. HAYEK, supra note 8, at 115-18.
--------- END FOOTNOTES ---------
ment is an indispensible
condition of knowledge of the law.
Indeed it is
likely that few endeavours by judges to improve
the law have come to be accepted by others unless they found
expressed in them what in a sense they "knew" already.41
While of great importance, however, the
problem of knowledge is not the whole story.
B. The Problem of Interest
To this point
we have assumed that Ann and Ben wanted to act justly towards one another,
provided that they knew what was just. Of course, some people wish only to
benefit themselves and are indifferent to whether their actions may harm
another. Some even gain pleasure from the very act of harming others. This
suggests that solving the knowledge problem is not enough. Even in a world of
"perfect information" about the just allocation of resources, some
would attempt to serve their own interests by taking what they knew did not
belong to them. Some argue that legal sanctions are needed to influence the
decisions of such persons. This concern appears to animate Holmes' "bad
man" theory of law.42
H.L.A. Hart, describing this as the
"external point of view,"43 rejected the idea that either
a good man or a bad man theory explained the whole of law.
At any given moment the life of any society which lives by rules, legal or not, is likely to consist in a tension between those who, on the one hand, accept and voluntarily co-operate in maintaining the rules, and so see their own and other persons' behaviour in terms of the rules, and those who, on the other hand, reject the rules and attend to them only from the external point of view as a sign of possible punishment. One of the difficulties facing any legal theory anxious to do justice to the complexity of the facts is to remember the presence of both these points of view and not to define one of them out of existence.44
---------
FOOTNOTES ---------
41.
42. See
Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897): If you Want to know the law
and nothing else, you must look at it as a bad man, who cares only for the
material consequences which such knowledge enables him to predict, not as a good one, who
finds his reasons for conduct, whether inside the law or outside of it, in the
vaguer sanctions of conscience.
43. H.L.A. HART, supra note 18, at 86-87. Professor Hart's distinction between the
"external" and "internal" points of view does not
correspond to Fuller's distinction between the "external" and
"internal" moralities of law discussed supra note 6.
44. H.L.A. Hart, supra note 18, at 88.
--------- END
FOOTNOTES ---------
My thesis is
that each of these "points of view" reflect
distinguishable social problems. Properly conceived, justice and the rule of
law are based on neither undue optimism, nor undue pessimism about human nature
and the human condition, but a proper mixture of the two. Adopting Hart's
distinction, the "internal" view of law should realistically address
the problem of knowledge (while "optimistically" assuming good
intentions); the "external" view of law should realistically address
the problem of interest (while "optimistically" assuming knowledge of
required behavior).
What is the effect of the problem of interest on a proper conception of justice and the rule of law? As with the problem of knowledge, there are many more aspects of the interest problem than can be discussed here. Still, let me suggest a few ways that the problem of interest may supplement or alter an approach to justice and the rule of law that might otherwise satisfactorily address the knowledge problem.
Let us return to Ann and Ben. Ann comes
back to the clearing and finds Ben erecting a shelter. Both know that the rule
is "first to stake a recognizable claim, first in right." Ann clearly
has staked a claim. Ben refuses to vacate because he calculates that he will be
better off taking Ann's clearing from her than respecting her claim. How may
Ann respond to Ben's unjust act? Or suppose that, knowing full well that Ann
has a right to refuse his advances, Ben tries to force her to have sexual relations
with him. How may Ann respond to Ben's attack?
A common view is that, in one or both of
these situations, Ann may use force against Ben or at least that she may
prevail upon someone else (perhaps the state) to use force on her behalf. One
reason this is a common view, I think, is because common notions of justice
attempt to address the problem of interest. We know all too well that some will
disregard what they know to be just when it suits their interests. Some right
to use force in defense of one's rightful domain that would be unnecessary if
all people acted in good faith is quite necessary for a system of rights to
effectively maintain the individual discretion these domains are supposed to
provide.
To effectively address the problem of
interest, however, it is not enough that Ann is accorded a right to drive Ben
off the land or repel his advances by self-help or other means. It is necessary
that Ben know ex ante of Ann's right of self-defense and her ability to
exercise that right. If Ben is willing to violate the rights of others when he
perceives that it is in his interest, he must be aware of Ann's right of
self-defense and her ability to enforce this right before his calculation of
self-interest is affected and the conflict successfully avoided. Only if this
knowledge is successfully conveyed to Ben will he incorporate into his analysis
of his interest the costs he is likely to sustain as a result of his acting
unjustly. Only then will he perceive ex ante that the costs to him exceed the
benefits to be gained and refrain from his unjust conduct.
In a just society, Ann's rights and her enforcement ability are related to the extent that the help of others is more likely to be forthcoming if others are persuaded that Ann's legitimate rights are indeed threatened. This gives rise to a further problem of knowledge. It is not enough that Ann and Ben know who must vacate the clearing; others must know as well. Happily, the same substantive principles and formal requirements that address the first problem of knowledge help solve this knowledge problem as well. For example, a principle that required a manifested claim of ownership makes the claim demonstrable to third parties as well as to Ben.
Still, requiring that one prove the merits of one's claim to others may
require further modifications of substantive and formal dimensions of justice and
the rule of law. When the return of property is sought, for example, it would
seem to give rise to the need for some form of fact-finding procedure and a
body of evidence law to ensure that parties may effectively present
"proofs and reasoned arguments"45 in support of their
claims of right. Only when third parties have reliable means of knowing whose
claim of right is just may they confidently take the side of the victim or
refrain from defending those in the
wrong. If it is
well-known that such claims are accurately decided and effective assistance
provided, then the ex ante interest of potential rights violators is altered
and rights violations are thereby prevented.
Even with an effective means of assisting those whose rights are threatened, however, it seems that it would not be enough that ex post Ben will be effectively ousted from Ann's clearing. Ben may be willing to run the risk that he will be ousted on the
--------- FOOTNOTES ---------
45. Professor Fuller viewed “true” adjudication as providing this mode of participation to parties to a dispute. See Fuller, supra note 38, at 363-72.
--------- END FOOTNOTES ---------
chance
that his effort will succeed. Some additional sanction for his conduct would be
needed to cause him to sufficiently discount the probability that his
aggression will succeed. In short, the problem of interest explains not only
the forcible defense of self and others, but also the forcible exaction of
sanctions for successfully breaching a legal precept.
At least part of this requirement may
already be implicitly addressed by the precepts that address the knowledge problem.
If one has a "property interest" in certain resources, for example,
one may reclaim them if they are wrongfully taken. When reclaiming the
resources is not feasible or desirable, monetary compensation is a very short
step from the right to the resources themselves.46
It is commonly thought that the problem of
interest must be addressed by the imposition of legal penalties over and above those
that would serve to compensate the victim of injustice completely. Just as a
legal sanction may be needed to affect the interests of those who would take a
chance on overcoming self-defense, many would argue that enhanced sanctions are
needed to compensate for the chance that a rights-violator will not be caught
or successfully prosecuted. Without enhanced penalties, the "bad
man's" calculation of interest will inadequately deter him from unjust
conduct even if he has to make complete restitution.47
It is here, however, that we begin to
glimpse the limits of the ability of law to successfully address the problem of
interest. While the rule of law employs general rules and principles and other
formal requirements to address the problem of knowledge, law must employ force
or power to address the problem of interest. Yet the strategy of using force or
power gives rise to its own distinct set of problems that at some point produce
diminishing returns. This problem of power in turn accounts for a proper
conception of justice and the rule of law that limits in some manner the
availability of force to punish unjust conduct.
--------- FOOTNOTES ---------
46. I discuss a "restitutive
theory ofjustice" in Barnett, Restitution: A New
Paradigm of Criminal Justice, 87 ETHICS 279 (1977); Barnett, The Justice of Restitution, 25 AM. J. Juris. 117 (1980); and Pursuing
Justice, supra note 4, at 63-67.
47. It should be noted that even if enhanced
sanctions to compensate for the probability of a rights-violator escaping any
sanction is desirable, this does not necessarily entail a shift in the form of
relief away from compensation to victims.
--------- END FOOTNOTES ---------
C. The Problem of Power
1. Power and the Knowledge Problem
Any attempt to solve the problem of
interest by increasing the severity of forcible sanctions gives rise to its own
knowledge problems.48 The problem of
interest presupposes that ex ante knowledge of the rules is not enough to deter
the "bad man." The ex ante threat of ex post penalties must be such
as to deprive the "bad man" of any potential subjective gains from violating
rights. The intractable problems facing such an effort are commonly overlooked.
First, there is no reliable way to know how
to tailor an ex post sanction so that no one will perceive a potential gain
from aggression. Different persons will subjectively discount their future
costs and benefits at radically different rates and those who are most likely
to commit unjust acts are precisely those whose internal rates of discount are
the highest.49 Because we lack knowledge of individual subjective
discount rates, we are unable to tailor penalties that effectively take account
of the varying weight different persons place on future consequences in
deciding on present conduct.
Second, at some point pursuing justice by a
strategy of increasing all legal sanctions to address the problem of interest
will be self-defeating. The justice of any legal sanction depends upon the
existence of certain facts that show the commission of an unjust act, but no
fact-finding mechanism is error free. As
the costs of sanctions are raised, the costs of erroneously imposing sanctions is raised as well. Beyond a certain level of sanctions we will be doing more injustice than justice.
2. Power and the Problem of Interest
A strategy of increasing the severity of forcible sanctions to
--------- FOOTNOTES ---------
48. While this section describes problems
of power that would exist regardless of the structure of law enforcement, where
law enforcement is entrusted to monopoly institutions, special problems arise
that I describe elsewhere. See Pursuing
Justice, supra note 4, at 50-56 (describing the practical and moral problems
with the "power principle"); Barnett, Pursuing Justice in a Free Society: Part Two: Crime Prevention and the
Legal Order, 5 CRIM. JUST. ETHICS 30 (1986) (comparing
monopolistic with competitive legal institutions) [hereinafter Crime
Prevention].
49. See
Banfield, Present-Orientedness and Crime, in ASSESSING THE CRIMINAL:
RESTITUTION, RETRIBUTION AND THE LEGAL PROCESS 133 (R. Barnett &J. Hagel III eds. 1977). See also
O'Driscoll, Professor
Banfield on Time Horizon: What has He Taught Us About
Crime?, id. at 143;
Rizzo, Time Preference, Situational
Determinism, and Crime, id. at 163.
--------- END FOOTNOTES ---------
address
the problem of interest also creates two potent problems of interest of its
own. First, the object of increasing the severity of sanctions is to raise the
ex ante costs of engaging in unjust conduct. But the ex ante costs of unjust
consequences depends not only on the severity of ex post sanctions, but also on
the ex ante probability or certainty of their ex post imposition. Consequently,
declining to act unjustly is not the only rational response to a threatened
increase in severity. One may also reduce one's ex
ante costs by reducing the likelihood of receiving a legal sanction.
For example, one may increase resistance to
the imposition of sanctions ex post. We can expect
that as the level of threatened sanctions increases, the willingness of those who
are the object of sanctions to invest resources to resist the imposition of
sanctions can be expected to rise as well. As investment in resistance
increases, the rate of successful sanctioning will decline, adversely affecting
the ex ante probability of receiving a sanction.
Contrary to the implicit assumptions of
much academic discussion of this topic, whatever the theoretical relationship
is between severity and certainty of sanctions, in practice they are not
entirely independent variables.50 As the severity of sanctions
increases, the certainty of imposition declines to some extent. At some point
(that will vary widely depending on the circumstances) the effect of the decline
in certainty on the calculation of ex ante interest will exceed the effect of
the increase in severity, in which case increasing severity actually reduces
effective deterrence.51 This problem
together with the costs of
overenforcement give rise to the need to place some
general limit on the use of legal sanctions to solve the interest problem.
There is a second important problem of
interest that is also generally ignored in academic discussions. Just as we
cannot assume that Ann and Ben want only to be good, it is naive and
--------- FOOTNOTES ---------
50.
See Pursuing Justice, supra note 4, at 63-64.
51. This analysis suggests that the problem of interest may best be approached by efforts to increase the efficiency of law enforcement techniques so as to increase the certainty of sanctions. A substantial improvement in this area may require fundamental rethinking of how we provide law enforcement. In particular it may require a shift away from “public” or monopoly provision to "privates' or competitive provision. See Crime Prevention, supra note 48. The constant agitation to increase deterrence by increasing the severity of sanctions may best be viewed as an easy way to evade the real institutional responsibility for the inefficient monopoly law enforcement mechanisms that undermine the certainty of imposing sanctions both civil and criminal.
--------- END
FOOTNOTES ---------
dangerous
to assume that third parties empowered to adjudicate and intervene in disputes want
only to do good. Third parties are subject not only to the problem of
knowledge, but also to the problem of interest. They may see it in their
interest at times to help the rights violator against a genuine victim. Once empowered
to help victims, they are also able to use these same powers to help
themselves. Thus arises the age-old problem of "who
guards the guardians?"
Placing in the hands of some the power to
impose sanctions on others creates a potent problem of interest that becomes a cause
of rather than a cure for injustice. Making the powers to impose sanctions
unlimited by any publicly known precepts greatly exacerbates this serious
problem. Consequently, it becomes necessary to subject the imposition of
sanctions to principles of justice and to the rule of law. This most serious
problem of third party interest may make the ex post adjustment of legal
sanctions to deal with the problem of the interest of potential rights
violators quite impractical. In criminal law addressing this problem of interest
may take the form of determinate as opposed to indeterminate sentencing. In
civil law it may take the form of proportional caps on monetary awards for intangible
harms and for punitive damages.
Finally, it is commonly accepted that the
power to impose legal sanctions should be placed in the care of a legal system
that is a legal monopoly. Such a strategy whether or not it includes enhanced
sanctions further exacerbates the problem of interest by eliminating or greatly
weakening any effective institutional constraints on the exercise of such
power.52
3. Power and the Requirement of Moral Justification
There is another dimension to using legal
means in pursuit of social ends including solving the social problems of knowledge
and interest. This dimension is a moral one. Law necessarily involves the use
of force or power against an individual or group.53 For this reason the use of legal means requires a different
order of justification than purely social mechanisms. 54
--------- FOOTNOTES ---------
52. See
Pursuing Justice,
supra note 4, at 50-56.
53. See
Nance, Legal Theory and the Pivotal Role
of the Concept of Coercion, 57 U. COLO. L. REV. 1 (1985) (coercion is an
essential aspect of legal mechanisms that jurisprudential theories must take
into account).
54. Cf. R. DWORKIN, supra note 16, at 108-09 ("legal argument takes place on a plateau
of rough consensus that if law exists it provides a justification for the use
of collective power against individual citizens or groups).
--------- END FOOTNOTES ---------
Much of what we think of as a
moral justification of coercion may simply be a tacit cultural distillation of
something like the above analysis of knowledge, interest, and power. Even were
this true, however, the moral sentiment underlying a requirement of
justification would still be significant. For this sentiment ever reminds us
that only certain means are permissible in solving even the most basic of
social problems. The preservation of the individual's pursuit of happiness in a
social context is the problem that justice and the rule of law have evolved to
solve. In this light, respect for individual liberty secured by individual
rights - the source of the presumption against physical coercion and fraud - is
to be viewed, not as a bothersome obstacle to some higher social good, but
rather as essential to achieving in practice a truly common good.
III. CONCLUSION:
THE FUSION OF JUSTICE AND THE RULE OF LAW
Justice and the rule of law doubtlessly
perform many important social functions. In this Foreword, I have offered the
thesis that these ideas can be understood as the means of coping with, if not
solving, the pervasive social problems of knowledge, interest, and power.
Individual "entitlements" - substantively justified rights claims
having the appropriate form – provide cognizable areas where individual
discretion can be exercised free of outside interference. Entitlements also
provide boundaries beyond which individual discretion cannot be permitted.
Apart from permitting discretion in the
pursuit of happiness, the clear entitlements that result from the fusion of justice
and the rule of law serve a number of important functions. They give rise to
expectations that may be relied upon, permitting productive investment. They
provide third parties a way of avoiding needless and destructive conflict and a
means of distinguishing victims from aggressors. In this way they serve to
increase the costs of aggression and so diminish its likelihood. So conceived,
entitlements also serve as a benchmark by which to assess whether law
enforcement agencies are staying within their bounds. They provides
formal safeguards against the undue influence of interest and against abuses of
power. The rule of law is neither form for form's sake, nor a second-best
approximation of true justice. Rather, the rule of law is what makes possible
the knowledge and enforcement of justice in a social setting. Of course, as
with any evolving concept or institution, both justice and the rule of law have
evolved imperfectly. By understanding the social functions these institutions
perform, we may better understand and reform both ideas. As important as
reform, however, is the preservation of sufficient respect for both of these
institutions to avoid unnecessary and potentially disastrous experimentation.
Understanding the social problems addressed by justice and the rule of law
helps us resist extremists of both the left and right who would deprecate one
value in pursuit of the other. According to the thesis presented here, we need
not try a society based upon justice without the rule of law or upon the rule
of law without justice to know that either would be a nightmare -and why.
IV. THE IHS
SYMPOSIUM ON LAW AND PHILOSOPHY
This is the fourth annual Symposium on Law
and Philosophy sponsored by the Institute for Humane Studies at
Acknowledgements
As always there are people at several
institutions to thank. The editors and staff of the Harvard Journal of Law and Public Policy did their usual excellent
and professional job of editing and producing this issue. The staff of the Institute
for Humane Studies at