legal theory: philosophy

Consequentialism/Non-Consequentialism

 

To understand the current situation in normative legal scholarship regarding its use of philosophical moral theories, you have to understand what is philosophically controversial about the moral theory of the hard-nosed claim. For this, we require a bit of introductory moral philosophy.

Someone who does an act is an agent of that act. We might think of any act as positioned between the agent and a set of results. Through the act, the agent produces good and bad outcomes -- benefits and harms -- for various persons, including the agent and anyone else affected. Moral appraisal of an act can (so to speak) look "forward" from the act to its consequential impacts on various people's interests, finding the act to be right if those consequences are favorable on the whole, but wrong if they are found unfavorable on the whole. Or moral appraisal can look "back" from the act to the agent, construing the act as a reflection or expression of something in or about the agent -- the state of the agent's will or motives, say, or the agent's conception of other persons and the treatment appropriate to them as such. Then the act will be found good -- a moment of flourishing or success for the person who does it -- if it reflects the right motives or conceptions. (That does not not mean that the consequences don't matter. An act's expected consequences for other people could have a lot to do with whether it does reflect the right motives or conceptions.)

Moral philosophers have focused a lot of attention on this kind of difference, and related ones, between ways of looking at acts from a moral point of view, and they have developed various terminologies for signaling the differences. One simple way to name two contrasting stances is to speak of "consequentialist" and "non-consequentialist" kinds of moral views or theories. Consequentialist theories, then, are those in which a judgment of the overall goodness or badness of the consequences completely decides the question of the rightness or wrongness of the act. All other theories are non-consequentialist. The difference can make a real difference in moral appraisals of acts, and therefore in legal outcomes insofar as they may be fashioned to track moral appraisals. For a detailed illustration, see our discussion of the application of moral theory to decide the "taking question" in constitutional law.

In a passage from his celebrated work of moral and political philosophy, A Theory of Justice (Cambridge, Mass: Harvard University Press, 1971) 22-27, John Rawls presents a related contrast between "teleological" and "deontological" moral theories.  Rawls' discussion includes a widely noted account of the concepts of "the right" and "the good" and how they are related. (If you read it, look especially for what Rawls has to say about (1) the question of distribution and (2) the relevance of consequences.) A theory is teleological, in Rawls' classification, if it starts out by first specifying the good (thus making the good the most basic moral notion) and then defines the right, derivatively, as whatever action or arrangement leads to the maximum amount of good in society. One important sub-class of teleological theories is that of utilitarian theories, which specify the good as "happiness" or the "satisfaction of rational desire" and accordingly say that the right arrangement or course of action is always the one that will result in the greatest sum of happiness or satisfaction, across society as a whole. Another, closely related class of teleological theories is economic theories, which say that the right arrangement or course of action is the one that will result in the maximization of wealth across society. The hard-nosed claim is an good example of utilitarianism in action, and it would be generally congenial, as well, to most normative economic theorists of law.

Normative legal scholars nowadays frequently employ utilitarian and wealth-maximizing approaches - "hard nosed claim" approaches -- to the criticism and recommended improvement of laws and legal doctrines. Variations of the hard-nosed claim and its embedded moral theory appear so commonly (if often implicitly) in contemporary normative legal scholarship that they don't any longer count -- though they once did -- as legal scholarly uses of anything from outside the law.

To moral philosophers, this must seem strange. To them, legal scholarship of this kind exhibits the legal scholar's partisan attachment to one of the contesting kinds of moral theory that they think it their professional business to analyze and debate. From their standpoint, legal scholarship in the utilitarian and wealth-maximizing molds is a clear case of legal scholarship importing a particular brand of moral philosophizing. And yet that is not how it registers to many who dwell on the inside of the contemporary culture of legal scholarship itself. To many of us in here, it seems that utilitarian and wealth-maximizing legal scholarship is, well, just legal scholarship, of a standard, commonplace kind.

How to explain this phenomenon? Some observers would chalk it up to a successful campaign in the academic politics of law schools. Others would call it a sign that utilitarianism and wealth-maximization simply fit the prevailing, untheorized intuitions of American lawyers and judges regarding what government in general and law in particular ought to be up to in the service of human interest. These consequentialist modes of normative legal thought, they say, are what come naturally to judges who, unschooled in philosophy or finding no use for whatever philosophical schooling they may have, are simply trying to arrive at doctrines and decisions that "work" in the service of human interest.[*]