Legal Theory Lexicon Pdf Download
This installment in the Legal Theory Lexicon is intended to introduce law students (especially first years) to "the veil of ignorance"--an idea from political philosophy that has had an important influence on legal theory.
Legal Theory Lexicon Pdf Download
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But there is another important perspective on legal rules that is not captured by the the distinction between ex post/ex ante perspectives. This alternative perspective is frequently associated with the twentieth century's most important political philosopher, the late John Rawls. Rawls is famous for his book, A Theory of Justice, which argued for two principles of justice (the liberty principle and the difference principle) using a striking thought experiment called "the original position." The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance. That is, the representatives are deprived of information about the talents, abilities, and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the "state of nature" that Hobbes, Rousseau, and Locke used as the choice situation for the adoption of a social contract. Rawls's basic intuition was that the state of nature allowed morally irrelevant factors--e.g. the strategic advantages of the strong and cunning--to determine the content of the social contract. The point of the veil of ignorance is to filter out these factors, yielding a fair choice situation. Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chosen in the original position from behind the veil of ignorance?
So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to that question (in Part One), then we will introduce some objections and clarifications, and give a more complicated answer (n Part Two). So here goes.
It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So, here we go!
In fact, there are several different theories as to what constitutes the holding of a case. For simplicity's sake, we will focus on three of these. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:
The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least three holdings when you read a case. First, look for the true ratio decidendi, the rule that is implied by the reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court. Finally, identify all of the legally salient factual characteristics and then construct a rule that limits the holding of the case to those facts.
The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory.
As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then?
If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory.
Law students are likely to encounter the concept of discretion early in the first year of law school. Judges make decisions. Some of these decisions are constrained by law, but others are made in contexts in which the law permits the judge a range of choice or discretion. Likewise, sometimes executive officials carry out legal duties, but other executive actions are discretionary. This Lexicon entry provides a brief introduction to the idea of discretion. As always, the Lexicon is aimed at law students with an interest in legal theory.
The question whether discretion exists has at least two dimensions. We might use the phrase "de jure discretion" to designate cases in which the legal rules explicitly confer discretion on a given official or institution. But it might be the case that even though a decision is, in theory, governed by a rule or standard, it is, in fact, discretionary, because violations of the rule are not effectively subject to correction. For example, it might be argued that in theory, the Supreme Court is bound by the constitutional text, but in practice, the Court has discretion, because the decisions of the Supreme Court on constitutional questions are final. Thus, the Court might have de facto discretion to make constitutional law, even though it has not de jure power to do so.
In many ways, the "Legal Process" approach to positive and normative legal theory dominated American legal thought in the second half of the twentieth century. There was more than one version of "legal process" theorizing, but this entry in the Legal Theory Lexicon will focus on the idea of "reasoned elaboration" that is associated with with the Legal Process materials authored by Henry Hart and Albert Sacks and exemplified by the The Federal Courts and the Federal System, a casebook authored by Hart and Herbert Wechsler. Other figures that are associated with this version of the legal process approach include Lon Fuller, Alexander Bickel, and John Hart Ely. Among contemporary theorists, William Eskridge Jr. is strongly identified with an evolving version of legal process theory.
