The Practice of Principle

Abstract

This book develops and expands the arguments of Coleman's Clarendon Lectures, presented at Oxford in the Fall of 1998. The book runs two distinct kinds of arguments simultaneously: one bearing on substantive issues in legal theory and jurisprudence; the other defending a particular version of philosophical pragmatism as an approach to legal theory. In the first part of the book, Coleman defends the view that tort law is best understood as articulating the principle of corrective justice. In defending this substantive view, Coleman presents his basic methodological commitments. First, a philosophical explanation of a social, political or legal practice can take the form of showing how a certain set of principles or concepts are embedded in it. The obvious contrast is with certain forms of functional explanations in which the existence and shape of a practice is understood in the light of some claimed function it serves. In the view defended in part one, Coleman claims that corrective justice stands (metaphorically) between our practices of tort law and abstract principles of fairness governing the allocation of life's misfortunes, themselves aspects of the fair terms of interaction among free and equal persons. There is a distinction between those misfortunes that result from human agency and those which are no one's doing. The principle of corrective justice helps articulate the requirements of fairness with respect to those of life's misfortunes owing to human agency. It does so by telling us that the requirements of fairness are to be understood in terms of other concepts: wrongful loss, responsibility and repair, among others perhaps. Fairness in the allocation of the costs of life's misfortunes requires imposing a duty of repair on those responsible for the wrongful losses others have absorbed through their agency. The content of these concepts is in turn rendered more concrete by the practices in which they figure, in particular tort law. At the same time that the practice of tort law makes the principle of corrective justice more concrete, and in doing so more fully articulates the requirements of fairness as regards the costs of life's misfortunes, corrective justice explains tort law. It does this in the following way. Tort law is itself understood as a scheme of practical reasoning. Evidence is introduced in support of various propositions. These propositions are thought to warrant other propositions. The scheme of reasoning--its structure and content--is made transparent by the principle of corrective justice. Thus, a typical plaintiff brings evidence that he was injured by the defendant wrongfully, that the harm of which he complains is protected, that the defendant acted unjustifiably in injuring him, and so on. If he can establish all this, the judgment that he is entitled to repair from the defendant is thought to be warranted. The principle of corrective justice--that each of us has a duty to repair the wrongful losses for which we are responsible--renders the content of each proposition and the relationship of each to the other coherent, mutually supporting and transparent. Thus at the same time that tort law more fully specifies the content of corrective justice, corrective justice explains tort law. Thus, the practice of principle.

In part two, Coleman articulates fully, and for the first time, the elements of the jurisprudential view that is most closely associated with him: Inclusive Legal Positivism--the position Hart came to acknowledge in the Postscript as the version of Positivism to which he himself was committed. In fully articulating his version of Inclusive Legal Positivism, Coleman takes pains to distinguish his view from other facially similar views, espoused most recently by the likes of Wilfrid Waluchow and Matthew Kramer. Both, according to Coleman, misunderstand the motivations that underlie legal positivism and the criticisms leveled against it. The most well known criticisms are Ronald Dworkin's and Joseph Raz's. Raz is himself a positivist, but defends what is widely referred to as Exclusive Legal Positivism. Coleman claims that what distinguishes legal positivists from the Dworkinians and natural lawyers is the claim that all criteria of legality are conventional. Inclusive Legal Positivists all allow that sometimes morality can be a condition of legality, and this is what divides them from exclusive legal positivists. The latter claim that law's claim to authority is incompatible with morality serving as a condition of legality. Coleman takes on the two strongest versions of this argument: one owing to Joseph Raz, the other to Scott Shapiro, and finds both wanting in related ways. The section concludes with a sketch of Coleman's account of legal authority in its relation to our concept of law.

In the third part of the book, Coleman returns to a variety of methodological issues in jurisprudence. According to Coleman, the distinctive philosophical method is conceptual analysis. Philosophers illuminate our practices by analyzing the concepts that figure in them. What sort of activity is conceptual analysis? Briefly, Coleman defends a form of apriori conceptual analysis in jurisprudence against the view taken by Brian Leiter that apriori conceptual analysis of adjudicatory practice is fruitless. Leiter defends a naturalistic approach to conceptual analysis that Coleman finds inadequately motivated, and, in any event, not a threat to traditional analytic jurisprudence. At the same time, Stephen Perry, following Ronald Dworkin, has advanced the view that conceptual analysis--at least of jurisprudential concepts--is a normative activity. This is meant to be an objection to a view they both attribute to legal positivists that denies that conceptual analysis is a normative activity. Coleman argues that the claim that conceptual analysis is a normative activity is ambiguous between the claim that our concepts must be responsive to theoretical norms and the very different claim that our concepts are answerable to the norms of political morality. No legal positivist-- including Hart--has ever denied the former, and no one could plausibly defend the latter, which would, in effect, turn conceptual analysis into a form of first-order moral philosophy. So in defending conceptual analysis, Coleman is committed to the project of identifying apriori the "thinnest" conceptions of our concepts that answer to the range of theoretical norms and intellectual interests that motivates philosophic inquiry in the first place. This activity is clearly normative, but not in a troubling way. The book concludes with a long look at what really is behind Dworkin's continued objections to the legal positivist project. Coleman argues that when reading Dworkin right from Model of Rules I through Law's Empire and beyond, one theme emerges--always slightly hidden from view. This is the thought that whether in identifying criteria of legality or criteria for the application of concepts, whether articulating a theory of legal authority or a theory of language, legal positivists are committed to the importance of conventions and to a difference between acceptance and validity, between the conditions for accepting conventions and for determining the validity of rules, and between, in effect, the conditions of revisibility for both. At the heart of Dworkin's argument is the thought that conventions are unnecessary to understand the practices we are interested in as legal philosophers--especially the practice of justification in legal argument; worse, invoking conventions adds confusion rather than illumination since it makes it impossible for us fully to understand important concepts within our legal practice, notably theoretical disagreement, and within our semantic practices, notably the existence of pivotal cases. Coleman develops this argument in full detail on behalf of Dworkin, but defends the centrality of the conventionality of the rule of recognition as part of the answer to the fundamental question of jurisprudence: what makes legal authority possible? A question, he argues, that Dworkin offers no plausible answer to.