August 28, 2009
Normative Methods
Joseph William Singer, Normative Methods for Lawyers, 56 U.C.L.A. L REV. 899 (2009).
What a marvelous article to introduce a discussion of justification. Joseph Singer explains the need for justification, describes the weaknesses of several contemporary justificational methods, and provides a methodology of practical reasoning called Normative Methods. Although this is not exactly the kind of justificational analysis I advocate, it is beautifully and thoughtfully presented and frames many relevant considerations. It should be read by those who care about justifications in law (which,in my view, should be all legal theorists).
His project is to create a typology of methods lawyers use to determine normative values and to characterize those methods in terms of the philosophical literature about justifications. For example, he points out that even a lawyer’s ought statements make moral demands that reveal the party’s acceptance of the moral principles underlying the demands, which form a discourse of justification. His approach is to take a single case and show how various methods of justification are represented by the arguments that shape the outcome. The case is State v. Shack, which dealt with the privilege of a lawyer and doctor to enter the defendant’s farm without permission to advise migrant workers who lived and worked on the farm. The farmer/defendant argued that property law gave him the right to exclude the plaintiffs and that contract law gave him the right to ask the migrant farmers to give up any right they might have had as tenants to invite visitors onto the land. The plaintiffs argued that the defendant should not be allowed to use property and contract rights to deny the migrant workers the right of association in their living quarters. Singer analyses various ways of encapsulating these general arguments and resolving the tension between them, continually linking the discussion with ideas about appropriate normative justifications in philosophy.
To fully appreciate Singer’s insights, we have to understand that when he relates the legal arguments that support one side or the other, he is not just repeating the wisdom of legal reasoning. He is probing for various methods of understanding the values that people use to support their claim of justice and the way those values come to be understood. Under this view, an argument or assertion is not just a legal reason for deciding the case one way rather than another; it is a statement about what values ought to be taken into account in determining the law. The process he describes for ascertaining those values is rational, focusing on how lawyers orient the legal problem, make assertions about what ought to be done, and analyze the case in light of existing principles to guide the definition of relevant values. But here is my query: he is using legal arguments to identify the values that are relevant to a just resolution of the dispute, but the values he is looking for are not the values of lawyers; they are the values of the clients – that is, the values of people who assert a just claim to have their interests vindicated. Legal arguments are proxies for social values (values that people hold as members of society); the right to exclude is a proxy for the value of human autonomy and independence. Would it not be better to admit that legal arguments are just proxies for arguments about social values and to also ask directly about the values that people in society use to make decisions? At a minimum, that view would connect the law to society (through social values) and might avoid the impression that justice exists outside of the fundamental principles o f social interaction.
Singer is acutely aware, and demonstrates, how indeterminate this justificatory method is. As he illustrates, the resolution of the legal arguments is indeterminate and the relevant values of the two sides of the case clash, requiring that the values be prioritized. Singer actually spends little time on the prioritization issue (a mere five pages), though that is the heart of the justificational enterprise, and he does not attempt to apply to the case he is discussing the three prioritization methods he outlines: the balancing method, the role reversal or golden rule method, and the concept of reflective equilibrium. This is a valuable start at a dialogue, but only a hint at the next step. His cautionary closing word reinforces the indeterminacy conveyed by the article: “we must develop justificatory strategies that keep competing claims in mind, that prompt us to investigate how people actually experience moral claims and human relationships, and remain open to the possibility that we may find out that we are wrong (at 979).” Although this describes an indeterminate process, I wonder whether his reference to how people experience moral claims and human relationships is not a key to grounding the normative discussion in human behavior.
Singer’s justificatory approach is rationalist in the sense that he posits that we can reason our way to an understanding of justice. We can accept that, but the question is not whether we are rational but what we reason about. All justification requires resort to reasons, but is it enough to reason about the content of principles and moral or legal assertions? Early in the paper he mentions the following dichotomy inhabiting the philosophy of justification: “Rationalists who view justice as based on human reason vie with irrationalists, who view justice as a human invention based on essentially nonrational grounds (902).” But I wonder if that dichotomy is sound (and Singer moves away from it). I believe it possible to hold a rationalist view of justice by looking at moral reasoning as a way of thinking about human behavior that appeals to reason, while at the same time understanding that justice is a human invention. The synthesis would follow Ken Binmore’s NATURAL JUSTICE, CAMBRIDGE UNIVERSITY PRESS (2005) which posits that people have an instinctive method of reasoning toward cooperative relationships that are efficient, fair, and stable, and argues that points of cooperation can be evaluated and understood as implementations of Rawls’s veil of ignorance. If we have evolved methods of cooperation that many people consider to be just (which we certainly have), then we have evolved a system of justice, a human invention, that can be understood and evaluated through rational thought.
The barrier to that form of justification, it seems to me, is that too often we try to ground our justifications in principles that we think of as the starting point for analysis, looking at legal and moral principles of conduct as sources of wisdom for legal decision-making rather than as the output of the process of normative justification. What if rather than starting with legal or moral principles (which inevitably clash) we started by asking how people normally develop principles that guide their action and which forms of thought about those principles we consider to be moral. We can then construct principles that are attached to the sense of justice that people ordinarily use when they make decisions in interpersonal relationships. Why, for example, do we not ask how the landowner ought to think about what principle will guide his decisions about whom to let on his land and who to exclude. Would that not be a fruitful source of inquiry?
Purpose and Scope
This blog is dedicated to the methodology of legal justification: the explanation of why legal results come out one way rather than another and how they might be justly evaluated. The blog will review selected books and articles to describe and evaluate various justificational methodologies and explore their relative merits. By commenting on the justificational methodology used, or recommended by various theorists, I invite a dialogue about the primary question facing legal scholars – namely, what counts as a good justification for a legal intervention?
Full disclosure: I am an advocate of a particular type of justification advocated by my colleague Ron Coffey, called Justificational Analysis, albeit in the way that I have developed it. Justificational analysis requires an explanation of why a legal decision comes out one way rather than another that identifies the circumstances, factors, and values that provide a normative and empirically-grounded basis for understanding and evaluating the decision. A justification of this type must be fully specified, determinate, normatively-grounded, and based on assumptions or assertions that can be scientifically tested and revised in light of new evidence. Many of my ideas about justificational analysis were developed in the course of writing my book, Tort Law and Social Morality: Just Justifications (Cambridge University Press (2010).