The Zeal of Our Age

  • Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015), available at SSRN.
  • Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013), available at SSRN.
  • John Gardner, The Evil of Privatization, Univ. of Oxford (2014), available at SSRN.

Privatization is a phenomenon that legal theorists and legal philosophers have begun to notice and to stake out positions on, for and against. Privatization is defined with reference to the (too?) familiar distinction between public and private actors. Privatization happens when a good, service, or a function that is typically supplied by state government, through the efforts of its officials and personnel, comes to be provided by private actors, perhaps still at state expense. In a pair of recent articles, Avihay Dorfman and Alon Harel have singled out private prisons and mercenary armies as paradigm examples of privatized public goods. Dorfman and Harel lament the fact that both advocates and opponents of privatization conceive the normative issue in purely “instrumentalist” terms. Which type of actor, public or private, can provide a given good or service more efficiently? Discussions therefore deal in contingencies, and at retail level. Dorfman and Harel argue in their 2013 article that this sort of approach fails to engage the intuitive sense that there is something intrinsically worrisome about privatization that pervades it wholesale. It isn’t centrally a question whether private prisons, say, are more or less likely to do the job efficiently (without compromising prisoner rights). It is rather a conceptual question whether there is a category of goods—“intrinsically public goods”—that can only be provided by the state, directly, by its officials; and, for instance, whether criminal punishment is among them. The answer to conceptual question, and the answer’s retail application might allow the possibility of privatization: in which case, but only then, they say, it is proper to go on to the contingent question about the relative efficiency of public and of private delivery.

John Gardner warns of the futility of erecting a “conceptual stop,” and distills from Dorfman and Harel a more promising proposal, in these terms:

when certain actions are performed by non-state operatives, such as the employees of private contractors, they are incapable of realizing some important value that they are capable of realizing when they are performed by state officials, and that the important value in question is not captured by those who merely compare “the quality of the execution of the enterprise” as between the two classes of potential executors. (P. 3.)

But for Gardner it is still unhelpful to frame the issue this way, for it is

too narrow. Why should one restrict oneself to comparing a public functionary with a private functionary, having already identified some function that each is expected to perform? Surely an instrumentalist is entitled to say that although a private company is better at detaining or deporting or delivering mail or babies than a public body, nevertheless there are other bad consequences of moving over to a system in which detaining and deporting and delivering are handed over to the private sector which are not reflected in the quality of the detaining or deporting or delivering itself? (P. 4.)

What Gardner is awake to is the threat of creeping . . . —what I would call creeping de-socialism.

For privatization is not only the transformation of detention centres, trains, tax inquiry offices, forestry operations, and so on – considered one service at a time. It is also the creeping transformation of our political system and public culture from one of democratic oversight to one of plutocratic oversight. (P. 4.)

By way of clarifying why privatization is equally a move away from public governance (of any kind) and toward governance by corporate behemoths, Gardner points out the

complementary and in some ways continuous … transfer of power away from relatively independent professionals such as teachers, lawyers, architects, and doctors, and into the hands of large corporations, with their elaborate schemes of patronage and discipline and bureaucratic repression, replacing professionalism with “customer service” and “performance management”…. The contemporary zeal for privatization is not a zeal for independent-minded people who are only erratically susceptible to official or corporate patronage…. The zeal of our age is a zeal for the ever-increasing transfer of power, including political power, to the money industry. (P. 15.)

The wholesale problem is therefore not a conceptual one, but a matter implicating both political philosophy and a normative theory of political institutions (what Jeremy Waldron calls “political political theory”). Framing the issue as narrowly as Dorfman and Harel do has consequences.

Indeed aren’t we already giving the plutocrats the edge even by assuming that a system of government should be judged as a provider of various severable services, or clusters of services, to those we are now supposed to describe as its “customers”? If so, then [Dorfman and Harel are] surreptitiously stacking the instrumentalist deck in favour of privatization … landing instrumentalists with a narrow service-provider picture of government which allows the private sector to compete on quality of service provision, when the real question is: Can they compete on quality of government itself? For government itself is what the private sector is gradually morphing into. (P. 5.)

Gardner’s remarks were made in Harel’s presence, at a workshop on his book, Why Law Matters? of which his and Dorfman’s analysis made up a chapter. The two respond accommodatingly in their 2015 article. (Oral argument can make a difference.) But Gardner’s closing remarks are, to me, a disappointment.

In politics and policy, by and large, what we should currently do depends on what we have most cause to fear, and how we can best undermine it in advance of its arrival. The problems of social organization are themselves contingent and contingency is therefore an unthreatening feature of the solutions. The question, then, is not that of how we should eternally be organized, of which public sector pursuits are “essentially” public and which are not, but, as Bentham saw most clearly, of how to protect ourselves most effectively against the most egregious forms of misrule. (Pp. 16-17.)

Not fifty years ago, John Rawls offered a detailed answer to the question, how we should be eternally organized, “we” meaning, we citizens of modern constitutional democracies. “Eternally” meaning, as a scheme of cooperation for mutual benefit, intended to stably reproduce itself from generation to generation. It has become fashionable to dismiss this as mere “ideal theory,” as Gardner seems to do while hurriedly invoking both Benthamite utilitarianism and Judith Shklar’s liberalism of fear. A careful (re-)reading of Rawls, particularly his Justice as Fairness: a Restatement (2001), offers a more coherent and practical way of thinking how to respond to “the coming plutocracy” (P. 9) that, in Rawls’s view, had long ago arrived and rested its boots on the common table. At least by 2001, Rawls was explicit that achieving justice as fairness requires democratic socialism or something very like it. It isn’t clear who Gardner has in mind, in admonishing “progressives who are bewitched by memories of a class war fought in a different era” (P. 16); but, which era is this? The war sounds awfully familiar.

Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015); Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013); John Gardner, The Evil of Privatization, Univ. of Oxford (2014).

Brink on Dworkin’s Originalism

David O. Brink, Originalism and Constructive Interpretation (Univ. of San Diego Legal Studies Research Paper No. 14-167, 2014).

What was Ronald Dworkin’s relationship to constitutional originalism? One might think that Dworkin rejected originalism. After all, he famously advocated a normative approach to constitutional interpretation—indeed, a “moral reading” of the Constitution—an approach seemingly at odds with the historical approach favored by originalists. Moreover, he was explicitly critical of appeals to the intentions of the framers; in particular, he was critical of appeals to the framers’ expected applications of constitutional provisions. The latter criticism figured centrally in his commentary on Justice Antonin Scalia’s Tanner Lectures, A Matter of Interpretation. But in Originalism and Constructive Interpretation, David Brink offers a novel interpretation of Dworkin, arguing that, in fact, Dworkin subscribed to a version of originalism. This originalism differs markedly, however, from Scalia’s form of originalism, as well as from other contemporary versions of originalism. For what Dworkin advocated was an originalism of principle.

Brink’s defense of his interpretation of Dworkin proceeds in roughly three stages. The first stage defends a view of the semantics of legal norms, claiming that Dworkin (who defended the determinacy of law) would need something like this view in order to respond successfully to H.L.A. Hart’s argument for legal indeterminacy in hard cases. Hart argued that legal rules are formulated in general terms, that general terms are “open textured” (with a core determinate meaning, and an indeterminate periphery), and that for this reason, hard cases are legally indeterminate: they must be decided by an exercise of judicial discretion. As Brink depicts Hart’s semantic assumptions, Hart assumes that the meaning of language in a legal norm is determinate as long as the meaning and extension of its terms is uncontroversial. Where there is disagreement about criteria for the application of a term or about its extension, the term’s meaning is indeterminate.

But this assumption, Brink argues, is problematic. “Disagreement does not imply indeterminacy. There can be a fact of the matter about the extension of a term even if there is disagreement about its criteria of application or its extension.” (P. 277.) As Brink explains, the fact that people may disagree about the criteria for toxicity or the extension of the word ‘toxin’ doesn’t show that there isn’t a fact of the matter about which substances are toxic. Similarly, the fact that libertarians and egalitarians disagree about the nature of justice doesn’t show that the criteria of application or extension of ‘justice’ is indeterminate. In fact, Brink argues, Hart’s semantic assumptions would have the result that when people apparently disagree in their criteria for application of a term, they actually mean different things, in which case they aren’t really disagreeing after all. “Disagreement is typically disagreement in belief about the extension of terms, which presupposes invariant meaning and extension.” (P. 178.) In contrast to Hart’s “descriptional” conception of meaning, Dworkin must, he thinks, be committed to a “referential” conception of meaning, according to which the meaning and extension of terms depends on substantive facts about the nature of the objects to which those terms refer. In the case of general terms that occur in legal norms, their extension is determined by “substantive facts about the nature of the institutions, processes, properties, and relations that these norms concern.” (P. 279.) Brink suggests that the contrast between views might also be expressed in terms of the contrast between concepts and properties, or in terms of the contrast between nominal (or dictionary type) definitions and “real definitions,” which attempt to characterize the essence of a kind or property.

Though not explicitly defended by Dworkin himself, this semantic view fits, Brink contends, with Dworkin’s claims about constitutional interpretation in Taking Rights Seriously, as well as with his critique of conventionalism in Law’s Empire. It aligns with Dworkin’s distinction between concepts and conceptions. People might share a concept, such as the concept justice, while holding different conceptions of justice. They might share, in the case of distributive justice, the concept of an “appropriate distribution of the benefits and burdens of social interaction and cooperation” and might agree on paradigmatic instances of justice and injustice, while holding competing conceptions of the extension of the concept (for example, libertarian and egalitarian). (P. 280.)

The second stage of Brink’s interpretation of Dworkin discusses his critique of originalist appeals to framers’ intentions. Such appeals have well known difficulties; Paul Brest discussed them extensively in “The Misguided Quest for the Original Understanding.” Dworkin stressed some of these difficulties as well, and this might lead one to conclude that he rejected originalism altogether. But Brink argues that “there is a form of originalism about constitutional interpretation with which Dworkin has reason to be sympathetic.” (P. 283.) To explain this form of originalism, Brink turns to Dworkin’s distinction between abstract and concrete (or specific) intent. Consider the interpretative constraint of fidelity to the framers’ intentions. What this constraint entails is uncertain until we know which of the framers’ intentions interpreters must be faithful to—their abstract or specific intent. Fidelity to specific intent would require legal interpreters to engage in historical-psychological investigation of the sort commonly associated with originalism. In contrast, fidelity is to abstract intent would require legal interpreters to engage in moral inquiry into “the nature and extension of the values and principles that the framers introduced.” (P. 283.)

Which controls, abstract or specific intent? Dworkin offered a counterfactual test that asks us to consider “what a framer would have supported if he thought he had to choose between his abstract and specific intent.” (P. 283.) Brink offers the following example. (Pp. 283-84.) Suppose that I intend to strictly regulate the manufacture and disposal of toxins. As it happens, I believe that only x is toxic, and so I aim only to strictly regulate x. But now suppose that I came to believe that y is also toxic. Would I give up my intent to regulate toxins or my intent to regulate x? Although Dworkin, Brink reports, seems to have thought that application of this counterfactual test may often yield indeterminate results, Brink himself thinks that it usually has a determinate answer, and one that treats abstract intent as controlling. He remarks, (Pp. 284-85)

one would have expected Dworkin to combine his critique of specific intent with a defense of abstract intent. For an originalism of abstract intent is very similar to Dworkin’s own claim that constitutional adjudication should be faithful to the normative concepts of the framers, rather than reproducing their normative conceptions. For the abstract intent of the framers is just the kind of normative constraint they sought to introduce, specified at the level of abstract concept, principle, or value, and their specific intentions are just their beliefs about the extension of that concept, which reflects a conception, whether explicit or implicit, about the nature and demands of that concept. But then Dworkin’s own conception of constitutional adjudication can be formulated as a form of originalism that insists on fidelity to abstract intent, rather than specific intent. This would be an originalism of principle.

Brink goes on to argue that an originalism based on fidelity to abstract intentions overcomes the problems Brest and Dworkin himself raised for appeal to framers’ intent.

The third stage of Brink’s defense of his interpretation of Dworkin discusses how Dworkin defends an originalism of principle in his comments on Scalia’s defense of textualism in A Matter of Interpretation. In the course of spelling out what he takes to be Dworkin’s view, Brink offers a map of the forms originalism can take. Whereas Scalia defends a form of textualism that accepts a public meaning view of constitutional language, along with a descriptional view of meaning, Dworkin defends a form of textualism that accepts public meaning but with a referential theory of meaning, as described earlier. (Alternatively, Brink suggests, Dworkin’s position might be described as accepting framers’ intent (rather than textualism) where the relevant intent is abstract intent.)

Brink reflects on the relationship between this originalism of principle and Dworkin’s account of constructive interpretation in Law’s Empire. “Insofar as constructive interpretation and law as integrity incorporate Dworkin’s earlier idea that interpretation of a legal provision should aim to articulate and apply the best conception of the concepts underlying the legal provision, they can reasonably claim to embody an originalism of principle of the sort I have argued that he elsewhere embraces.” (P. 289.) Yet, Brink notes an important difference between an originalism of principle and constructive interpretation. Suppose that a judge must decide a case according to one of two principles, P1 or P2. And suppose that P1, while less attractive than P2, better fits with precedent than P2. Whereas an originalism of principle would have the judge follow P2, constructive interpretation might lead her to follow P1. Thus, whereas constructive interpretation would have interpreters take account of both fit and justification (or “acceptability”), seeking a balance between them, an originalism of principle favors attending to justification. (P. 292.) Although both constructive interpretation and an originalism of principle aim to resolve cases by identifying and applying the best conception of the concepts expressed in a legal provision, an originalism of principle takes this to exhaust legal interpretation, whereas constructive interpretation treats it as one factor that must be considered along with fit. (P. 294.)

Brink offers an illuminating and compelling interpretation of Dworkin that aims to make coherent sense of his disparate commitments and of the differing ways in which he formulated his views over the years—in terms of principles v. rules, concepts v. conceptions, and abstract v. specific intent. He offers a persuasive account of the differing semantic assumptions of Hart and Dworkin and persuasively shows how Dworkin’s semantic views help to buttress his case against legal indeterminacy. He also offers persuasive considerations in favor of the dominance of abstract intent in constitutional interpretation.

Brink’s interpretation of Dworkin is perhaps best understood as itself an exercise in constructive interpretation, which seeks to fit and make sense of Dworkin’s diverse claims, while showing his views in their best light. As such, it is bound to spark both interpretive and substantive disagreement. For example, there is some textual evidence that supports interpreting Dworkin as accepting a speaker’s meaning view rather than a public meaning view of the constitutional text. And some will be more worried than Brink about how to reconcile Dworkin’s constructive interpretation and the originalism of principle that Brink attributes to him. Some might question whether an originalism of principle is really a form of originalism at all, since it seems distant from the historical approach associated with originalism; whether it is depends, of course, on what makes a theory of interpretation originalist, which is a matter of some dispute.

In any case, the interest of Brink’s article goes well beyond whether it is ultimately convincing as an interpretation of Dworkin. His discussion reveals the key decision points in formulating an originalist theory and gives us some important considerations in favor of formulating originalism in some ways rather than others. Moreover, whether or not an originalism of principle was Dworkin’s own view, and whether or not it is plausibly a form of originalism, it is a view that merits serious attention. Of course, Brink does not, in Originalism and Constructive Interpretation, undertake to defend an originalism of principle as a stand-alone view; such an undertaking is more properly the project of positive theory construction rather than the project of an interpretive article. But he has succeeded in showing why we should be keenly interested in such a theory.

Cite as: Connie Rosati, Brink on Dworkin’s Originalism, JOTWELL (November 18, 2016) (reviewing David O. Brink, Originalism and Constructive Interpretation (Univ. of San Diego Legal Studies Research Paper No. 14-167, 2014)),

What’s “Private” about the Rule of Law?

Gillian K. Hadfield & Barry R. Weingast, Is Rule of Law an Equilibrium Without Private Ordering? (USC L. Legal Stud. Paper No. 16-18; Stan. L. & Econ. Olin Working Paper No. 493, 2016), available at SSRN.

In their new paper, Is Rule of Law an Equilibrium Without Private Ordering?, Gillian Hadfield and Barry Weingast make a provocative claim about the rule of law: that private ordering is what produces and sustains it, not the institutions of government. This is an important contribution to rule of law debates, which are so heavily focused on public institutions and public law while leaving the role of private ordering and private law undertheorized. But see Private Law and The Rule of Law (Lisa M. Austin & Dennis Klimchuk eds.).

Hadfield and Weingast are social scientists, not legal philosophers. However, their work engages with many different strands of theoretical literature on the rule of law, including analytic jurisprudence, and generates interesting conclusions for theorists and not just social scientists. The heart of their argument is the claim that “[m]ost regimes with fully centralized enforcement do not predictably achieve rule of law as a consequence of the structure of the regime itself.” If the rule of law is achieved, it is not because of institutions but because of “the peculiar, historical and contingent facts of individual identity or the balance of power.” (P. 25.) In other words, if we think that government is “a single body with the power to both make and enforce the law” then we should not expect the rule of law to emerge. (P. 27.) What is needed for the rule of law to reliably emerge, they argue, “is an essential role for private, decentralized, enforcement of law.” (P. 27.)

At first glance, this does not look very different from the claim that law relies upon the self-application of legal norms by individuals—a claim that can be found in the jurisprudential literature concerned with the guidance function of the rule of law. But Hadfield and Weingast want to point to the role of decentralized mechanisms for enforcing norms. And they claim that what is required for people to voluntarily decide to participate in helping to enforce the law is more demanding that what is required for people to voluntarily obey the law. (P. 21.)

In focusing on enforcement, what Hadfield and Weingast attempt to do is to pry apart the idea that law is a centralized public institution from the idea that enforcement must also have these attributes. Law is not necessarily associated with centralized coercive enforcement. Legal order, on their view, “is a normative social order in which behavioral classifications are articulated and subject to modification by a centralized classification institution that possesses legal attributes.” (P. 19.) These legal attributes are those that track closely what many legal philosophers take to be the central features of the rule of law: universality; publicity; clarity; non-contradiction and uniqueness; stability; prospectivity and congruence; generality; impersonal, neutral, and independent reasoning; and openness. Their key point is that these legal attributes are only properly incentivized in a system of private ordering and not in a system with fully centralized enforcement.

In offering their behavioural insights into how the rule of law is produced and sustained, Hadfield and Weingast are primarily concerned with rule-of-law building projects. However, their conclusions can also contribute to rule of law debates within jurisprudence. Private ordering implies a strong role for individuals and, for Hadfield and Weingast, can involve the imposition of social sanctions like criticism and exclusion, the authorized private use of force, and the cooperation of private individuals in law enforcement. Shifting the focus of rule of law debates to the role of individuals would be a welcome development within the more theoretical literature. In this regard, there is excellent recent work by Gerald Postema on the idea of fidelity and the rule of law. He emphasizes the need for members of the polity to participate in holding each other accountable under the law. Hadfield and Weingast point in the same direction, but utilizing a very different framework, and more work in this vein would be welcome.

Although Hadfield and Weingast are concerned with how to establish the rule of law, their work could offer important insights into questions of what might contribute to the erosion of the rule of law in societies where it has already been established. For example, in many Western liberal democracies—often used as the models for rule-of-law projects—law enforcement efforts are increasingly information-intensive and rely heavily upon collecting information that is itself initially collected and held by information intermediaries such as telecom giants and the Facebooks of the world. This displaces the role of the community and individual participation in law enforcement, erasing the need for the decisions that individuals make about whether to come forward and tell the state what they have seen or what they know. And if the need to ensure individual cooperation is one of the mechanisms for incentivizing compliance with the rule of law, then moving towards enforcement models that bypass this cooperation raises questions about the potential erosion of compliance with the rule of law. This is practically important, but might also call for new theoretical models regarding what it means to constrain the state in the information age. See Lisa M. Austin, Technological Tattletales and Constitutional Blackholes: Communications Intermediaries and Constitutional Constraints (2015).


Cite as: Lisa Austin, What’s “Private” about the Rule of Law?, JOTWELL (October 20, 2016) (reviewing Gillian K. Hadfield & Barry R. Weingast, Is Rule of Law an Equilibrium Without Private Ordering? (USC L. Legal Stud. Paper No. 16-18; Stan. L. & Econ. Olin Working Paper No. 493, 2016), available at SSRN),

Whistling for the Dog in Affirmative Action

Reviewing Khiara Bridges, The Deserving Poor, The Undeserving Poor and Class-Based Affirmative Action, 66 Emory L.J. (forthcoming 2017), available at SSRN.

The link between race and class inequality is a hot topic. The top two anti-establishment movements of the year are Black Lives Matter and Bernie Democrats, and the relationship between them is complicated. In addition, Donald Trump has built a campaign appealing to white middle- and working-class voters by blowing the racism dog whistle. Figuring out why those voters continue to support Trump despite (or because of) his racism is the question of the hour on my Facebook feed.

Which is why I was excited to see Khiara Bridges’ latest paper on class-based affirmative action (from here on, I’ll call it “class-based AA”) pop up in my inbox. Far from the heat of the election, Bridges has written a wonderful article that explores the race-class divide among supporters of affirmative action. In this paper, Bridges argues that class-based AA enjoys widespread bipartisan support because its beneficiaries are white. More specifically, she argues that continuing support for class-based AA depends on differentiating between poor whites as people who deserve to benefit from class-based AA and undeserving poor people of color, who should not. Indeed, she concludes, support for class-based AA might well dry up if people of color were to become class-based AA’s primary beneficiaries.

Bridges’ argument is a dog-whistle sort of claim, in which class-based AA supporters speak in code but often are more overt about their racial assumptions. Bridges’ argument is careful and nuanced. She develops a strong historical and empirical case against white supporters of class-based AA. In doing so, she refrains from the kinds of allegations of intentional racial conspiracy that made Michelle Alexander’s book The New Jim Crow a best seller. Her approach is more “here’s the evidence, sure looks fishy to me.”

The argument proceeds in three parts. In the first part, Bridges notes a potential contradiction in some vocal conservative support for class-based AA. Given conservatives’ lack of support for race-based affirmative action, one would not expect them to support class-based AA. After all, class-based AA is a form of wealth transfer that gives opportunity to the less qualified, who presumably will produce less wealth with the educational opportunity than a more qualified candidate. Conservatives are against anti-meritocratic wealth redistribution. And yet, here are Ward Connerly, Justices Scalia and Thomas, and Republicans in Texas all lining up behind class-based AA. How can we explain this contradiction?

In the second part of her article, Bridges builds a historical case to suggest that race and racism might be the answer to the contradiction. She has plenty to work with here. Others have written about Aid to Families with Dependent Children, and the way in which support for the social welfare program dried up when the program began to help more black unmarried mothers than white widowed mothers. The program was very popular when the public saw it as assisting white women who were poor through no fault of their own. Not so much when the beneficiary class shifted to black women, who were often single mothers via divorce and unmarried pregnancy.

Bridges draws on that history to suggest that the same dynamic might apply here, only in reverse. Conservatives who found recipients of race-based affirmative action to be undeserving now find the beneficiaries of class-based AA (who will include many more whites) to be deserving. Supporters like Scalia, Thomas, and Ward Connerly often emphasize the lack of fault on the part of those candidates who would benefit from class-based AA. In contrast, these supporters presume that beneficiaries of race-based affirmative action are not deserving, either because they are not sufficiently disadvantaged economically or because their disadvantage might be traced to their “culture” and not to structural racism.

The third part of the article constitutes a critique of class-based AA. Here, Bridges’ main critique is that class-based AA reinforces racialized notions of deserving and undeserving. Specifically, she points out that class-based AA would likely become unpopular if the main beneficiaries of the program were to become poor people of color from families of divorce or unwed mothers, or from non-English-speaking families.

To make her case, she draws in part on the country’s not-so-distant experience with welfare reform. She highlights the rhetorical references of personal responsibility and welfare queens that accompanied the Clinton 1.0 Administration’s decision to “end welfare as we know it.” In a more contemporary example, she points to Chief Justice Roberts’ opinion in NFIB v. Sebelius, the recent ruling on the Affordable Care Act. In his opinion, Roberts openly begrudges Medicaid expansion to people who live significantly below the poverty line, arguing that the more narrowly defined beneficiary group from the earlier legislation (blind, disabled, and elderly poor) was the nation’s neediest. Bridges concludes from such history that, at least among conservatives, support for class-based AA would shrivel if people of color were to dominate the beneficiary class.

This article is fresh and provocative, and sure to be a hit. I particularly admire how careful Bridges is to ground her work in history and to refrain from overclaiming. I am also very happy that Bridges has taken up the question of racialized poverty at length (she has several other papers on the subject). I’ve long said that critical race theorists ought to spend more time closely investigating the structural link between class and race, rather than seeing class as just an additional identity category with which to analyze identity more generally.

I had two quarrels with Bridges’ piece, both of which spring from how much I like the work. First, although I thought she refrained from vulgar racial conspiracy theory, I thought she could have spent more time exploring people’s good-faith motives for supporting class-based AA. More pragmatic conservatives suggest class-based AA as a compromise or common-ground position; she could have given more time to that argument.

Likewise, I wasn’t satisfied with her discussion of the Scalia argument that race-based AA is unconstitutional because it presumes that people of color suffer from disadvantage, and class-based AA does not. Scalia isn’t alone on that position. Sheryll Cashin (an African-American former White House advisor on urban neighborhoods and the daughter of civil rights activists) has also used this argument to defend her “place and not race” argument to shift to geography as the centerpiece of AA. In my view, Bridges’ response to Cashin—that liberals might act in good faith but still be subconsciously influenced by race—doesn’t really settle the question and smacks a bit of false consciousness.

Second, I wanted a more complicated structural link between race and the deserving/undeserving binary. Here’s a story to illuminate what I mean. When white soldiers returned from World War I to take up their jobs at the plant from blacks who had “filled in,” some government officials reclassified those jobs from unskilled to skilled. It wasn’t just that those officials were biased. It was also (more) that whites had had more shop training than had their black counterparts. Officials relied on levels of training to define the notion of skilled, and of course, levels of training are now and were then structurally correlated to race.

In the same way that notions of skill were racialized, notions of the deserving and undeserving poor in class-based AA are constructed not just by crude racial bias but also by structural things like connection to the criminal justice system. It might have been productive to explore Ward Connerly’s ideas about why criminals don’t deserve to take advantage of the social safety net when they get out.

That said, I am more than happy to have had the chance to quarrel with Bridges on these points. I know she’s also doing fabulous work on privacy and race, but I am looking forward to reading more work on race and class. I do wonder whether, owing to timing, this piece will be as celebrated as it should be. For the moment at least, class-based affirmative action won’t be as much in the limelight now that the Court in Fisher v. University of Texas at Austin has upheld race-based affirmative action.

Even so, there’s a presidential election and several Supreme Court nominations in our near future, so the issue could come roaring back sooner than we might hope. In any event, Khiara Bridges’ insightful discussion is terrific and a much-needed addition to the growing Critical Race Theory body of work on racialized poverty.

Cite as: Daria Roithmayr, Whistling for the Dog in Affirmative Action, JOTWELL (September 21, 2016) (reviewing Reviewing Khiara Bridges, The Deserving Poor, The Undeserving Poor and Class-Based Affirmative Action, 66 Emory L.J. (forthcoming 2017), available at SSRN),

Taking Interpretive Statutes Seriously

William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. (forthcoming 2017), available at SSRN.

“Interpretation,” as used by Baude and Sachs, names the process that starts with legal texts and ends with their contribution to antecedent law. This is not the same activity as uncovering full linguistic meaning (though this may be necessary to determine legal contribution), nor is it extending or repairing antecedent law.

This article presents Baude and Sachs’s case that system-specific law governs interpretation of legal texts. In short, the positive law in particular legal systems generates interpretive principles that shape the legal content established by statutes (and constitutional provisions). The authors’ view rejects any theory of law or legal interpretation that insists, on conceptual grounds, that the materials for interpretation are common to legal systems or that mandates a standard of interpretation for parts of our system (e.g., the Constitution) based on conceptual claims alone (such as “the purpose” of a written constitution). Some of the examples Baude and Sachs offer of system-relative legal standards that I find plausible as governing interpretation are: the Dictionary Act, the “repeal-revival rule” of 1 U.S.C. section 108 (according to which new repeals don’t automatically revive old statutes), the general savings statute (according to which repeal does not erase liabilities arising under the old statute), and some traditional canons of interpretation such as the “Mens Rea Canon” and the presumption against retroactivity.

One of Baude and Sachs’s most successful targets is the simplest form of what Mark Greenberg calls the “Standard Picture” of interpretation, according to which the communicative content of a statute is its contribution to the law (because the statute “was authoritatively pronounced”). Larry Alexander’s speaker-intention theory is a version of this view. I have always viewed this simple Standard Picture as a nonstarter, since in American law a statute can be unconstitutional (and therefore make no contribution to the law) because of its communicative content. Baude and Smith supply many other examples from our legal system where the interpretation of legal texts fails to “track any coherent theory of linguistic meaning” (P. 10).

Many theorists would agree with Baude and Sachs’s general point that the answers to the question of the legal content of legal texts “depend on the other legal rules in place” (P. 5). (Think of those with a holistic, coherentist view of law, and anyone believing that the Hartian master rule contains an entire interpretive code.) Their specific claim that in American law, there are laws of interpretation is not new, as Baude and Sachs admit. Nor is their more general idea that the standards of correct interpretation vary across legal systems. Hartian positivism, which Baude and Sachs endorse, is amenable to these ideas; the rule of recognition picks out system-relative rules, some of which are about how legal texts contribute to law. But one needn’t be a Hartian, or even a positivist, on the nature of law to accept that there are system-relative interpretive rules of law. The Ronald Dworkin of Law’s Empire can accept this idea. If I understand him, so can Scott Shapiro. (Greenberg, however, could not. On his view, the basic rule for correct interpretation is always this: interpret according to a universal master formula that takes into account all the circumstances, including the existence of alleged interpretive materials. Any rule apparently derived from the universal master formula and one of a particular legal system’s alleged interpretive materials – e.g., a statute, a canon of interpretation – will be of the form, “Interpret such-and-such way as long as the universal master formula is thus satisfied.” Such a rule would not fit his account of law, for it is an immediate logical consequent of the universal master formula and does not arise in what he regards as the right way for law.)

Given these facts, it is not necessary to point out why endorsing a Hartian model of law might not be the best philosophical choice in a discussion of legal interpretation, particularly when the authors are identifying interpretive precepts, about which there is considerable disagreement, from court decisions and legal practice (e.g., concerning the Constitution). Even when the authors restrict themselves to alleged interpretive texts (statutes and judicial opinions), it is plain that Baude and Sachs are interpreting the material on problematic assumptions – e.g., that court decisions yield whole precepts, that the authors have correctly identified the relevant interpretive texts and have interpreted them properly (without recourse to the Standard Picture as default), that the product of this interpretation is itself a law. In general, Baude and Sachs leave mysterious the grounds on which they interpret the alleged interpretive material and ignore the problem of whether there are such grounds compatible with their claim about system-relative laws of interpretation. (I think there may be.) Nonetheless, these and other difficulties are largely irrelevant to what I take to be the authors’ main contribution.

As I see it, their main contribution to the broader philosophical literature on law is the case they make that how the contribution to law of legal texts depends on (certain) legal rules is determined by these rules, and that these interpretive rules exist in the way that other ordinary legal rules, including those established by the interpretation, do.

Their case has two parts. First, there is an argument by analogy from the (less controversial) existence in the American legal system of laws for interpreting legal instruments such as contracts and wills. Second, the authors demonstrate in detail, through their use of legal argument and their reminder of the use of it by judges and other legal experts, that legal argument in the U.S. goes beyond linguistic meaning of legal texts at crucial points. Instead, statutes and constitutional provisions are read, apparently for legal contribution, by applying standards often accepted as law purportedly drawn from other legal texts (sometimes rather straightforwardly) and system-relative legal practices. There is this interpretive practice, and although, as the authors admit, there is disagreement about its details, they contend—rightly I think—that there isn’t disagreement about its existence or all of the details. There are easy cases of interpretation.

This enterprise amounts to taking parts of the U.S. Code and other statutes purporting to govern the interpretation of statutes (as well as various interpretive practices) seriously. One can argue that Dworkin’s greatest challenge to H.L.A. Hart, one that shaped the discussion in legal philosophy for decades, was to take seriously the practice by judges and lawyers in hard cases of arguing in terms of discovering (rather than extending) law and to suggest that we credit these experts with knowing what they are doing. Baude and Sachs’s article is richer and more suggestive of interesting philosophical points than I have had space to detail, yet it can be read as posing an analogous challenge to certain theories of legal interpretation and of law.

Cite as: Barbara Levenbook, Taking Interpretive Statutes Seriously, JOTWELL (August 5, 2016) (reviewing William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. (forthcoming 2017), available at SSRN),

Conceptual and Metaphysical Modalities in Jurisprudence

Stefan Sciaraffa, Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence, 6 Jurisprudence 391 (2015), available at SSRN.

Stefan Sciaraffa’s Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence is a review of a fine collection of essays edited by Luís Duarte d’Almeida, James Edwards, and Andrea Dolcetti, entitled Reading HLA Hart’s ‘The Concept of Law,’ published by Hart Publishing in 2013. While the volume contains many provocative and insightful pieces by leading theorists in conceptual jurisprudence, I want to focus on an important – and frequently overlooked – point made by Sciaraffa on the nature of the relevant sense of necessity in conceptual theories of law.

Sciaraffa’s essay makes a number of distinctions of theoretical importance, including the distinction between “constructed” and “wild” concepts of law; however, the most illuminating one, as it pertains to conceptual jurisprudential methodology, is between metaphysical and conceptual necessity. Sciaraffa defines “metaphysical necessity” as “concerned with identifying and explicating those features an object has by virtue of itself and irrespective of the way we conceptualise or talk about the object” (P. 392). He explains “conceptual necessity” as concerned with identifying “features that are true of law by virtue of the way we talk about or conceptualise the law” (Id.).

Sciaraffa believes that many theorists have wrongly claimed that the relevant modality for conceptual jurisprudence is metaphysical necessity, a feature that many of these theorists believe legitimately calls into question the very enterprise of giving an analysis of the concept of law. There are many influential theorists – most prominently, Brian Leiter – who have come to reject the project of conceptual analysis as resting on problematic foundations, which are commonly thought to be methodological in character.

Sciaraffa rejects the idea that the relevant modality is metaphysical on the ground that “no legal theorist has staked out a plausible account of such necessities in general or as applied to law specifically” (Id.). He argues, further, that “no legal theorist has offered a plausible account of how to separate those features that the objects that we refer to using the term ‘law’… have by virtue of themselves as opposed to those they have by virtue of the way we conceptualise them” (Id.). The use of the notion remains contentious to say the least.

It should be noted that Sciaraffa’s claims are somewhat stronger than they might seem given the charitable way in which he expresses them. Although Sciaraffa speaks in terms of a failure by legal theorists to justify the idea that the relevant modality is metaphysical necessity, the essay expresses a deeper skepticism about the relevance of metaphysical necessity to conceptual jurisprudence. Sciaraffa’s view seems to be the much stronger view that it makes little sense to think that law has any properties that are metaphysically necessary in the sense that they are essential properties that law has, no matter how we conceptualize them.

This stronger challenge should seem eminently sensible for a number of reasons. First, there is simply no denying that law is a social kind (i.e., a concept that depends for its content on human activities) that is artifactual in character. Neither positivists nor antipositivists can plausibly deny that law is a social institution – and, to my knowledge, no one does. Even the strong natural law theorist sees morality as operating only as a constraint on whether a social lawmaking practice can succeed in creating something that counts as law. It might be plausible to think that natural kinds (i.e., a concept that reflects the structure of the universe independent of human interests and activities), such as water, are best explicated in terms of metaphysical necessity. But the idea that the concept of a social institution that is manufactured by social practices, which include but are not limited to linguistic practices, is best explained by a form of necessity that is utterly mind-independent and hence independent of our social activities is deeply problematic.

Second, it is simply unclear how, as an epistemic matter, we could have access to the content of concepts that are objective in character. If the content of these concepts is determined in a way that is utterly independent of our practices and preferences, it is not clear how we could identify that content. We can verify the truth of the objective claim that the shape of the earth is roughly spherical because that claim, while the truth-makers are mind-independent, can be verified through sense experience. Insofar as the content of concepts cannot be verified by sense experience on the assumption that our empirical practices do not at all determine the content of the concept, all we have left to go with is intuition.

And there is simply no reason to think that intuition is a special faculty that is capable of discerning objective conceptual truths than it is of discerning objective moral truths. Intuitionism as an account of moral epistemology failed miserably; intuitionism as an account of how to determine the content of concepts on the assumption that the truth-makers of conceptual claims are wholly mind-independent is far less plausible. The only concept of law that we could possibly come to understand, as an epistemic matter, is the concept that is fixed by our core linguistic and legal practices.

The reason for this ultimately has to do with an important limit on our ability to know the world first identified by Kant. Kant famously claimed that we cannot know the world as it is independently of the “categories” we use to structure and give sense to our perceptions of the world. Kant distinguished between the thing “in-itself” and the thing as it appears to us, and argued that we can have knowledge of only the latter. The world does not come to us, in his view, unmediated through conceptual filters like those of space and time. How the world in-itself presents itself to us is mediated through these conceptual “categories,” which provide the world with a structure that can be processed by beings with brains and capacities like ours.

But insofar as we cannot know the world except through the filter of our conceptual frameworks, the only form of necessity that could be relevant in conceptual analysis is conceptual necessity. Conceptual necessity recognizes that the necessity of a proposition is relative to the conceptual framework in which it is processed, understood, and known. Such necessity is, thus, conditional upon the categories through which beings like us perceive and make sense of the world, and do not hold, as W.V.O. Quine put the matter, “come what may.” It is true that Quine used that language to delegitimize the general project of conceptual analysis, but his famous critique in Two Dogmas of Empiricism seems to presuppose – and implausibly, in my view – that the relevant form of necessity is metaphysical necessity.

Sciaraffa’s review essay might be comparatively brief, but it is rich in insight with respect to how we should conceive the project of analyzing legal concepts. The only real direction we can go in is to rely on the linguistic and legal practices that shape our intuitions about law, and these concepts shape our intuitions in a reliable way precisely because, as Raz observed, our practices construct those very concepts. Sciaraffa’s essay is a timely reminder about how the project of conceptual jurisprudence should properly proceed.

Cite as: Kenneth Himma, Conceptual and Metaphysical Modalities in Jurisprudence, JOTWELL (July 11, 2016) (reviewing Stefan Sciaraffa, Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence, 6 Jurisprudence 391 (2015), available at SSRN),

The Art of Promise and Power of Contract

Dori Kimel, Personal Autonomy and Change of Mind in Promise and in Contract, in Philosophical Foundations of Contract Law 96 (Klass, Letsas & Saprai eds., 2015).

For philosophers of private law, a central puzzle is to explain how people’s voluntary acts of promising and contracting can produce genuine obligations. One popular class of answers points to personal autonomy—or the capacity, real or hypothetical, to bind one’s will through free acts of self-legislation. For those who believe in personal autonomy and its value, there may seem to be relatively few puzzles about promise or contract. Indeed, promise and contract might seem to offer easy cases.

These initial impressions can, however, be misleading. Whether promise and contract can be grounded in concern for personal autonomy will ultimately depend on what personal autonomy is, why it is valuable, and how promise and contract work. While autonomy-based accounts of promise and contract have proven enormously popular in the legal literature, this popularity has not always been matched by sufficiently close attention to these foundational questions. One of the things I appreciate most about Dori Kimel’s work in Personal Autonomy and Change of Mind in Promise and Contract is that he offers an uncommonly rich description of personal autonomy and its value. Rather than exaggerating the ease with which personal autonomy can be used to explain various details of promise and contract, Kimel faces the difficulties head on.

To suggest some difficulties, let me start with three puzzles. Each will figure in my later descriptions of Kimel’s work.

  1. Both promise and contract are cases of strict liability. They give rise to obligations of performance in the first instance, regardless of fault and hence regardless of the quality of the breaching party’s will. If, however, personal autonomy is a capacity to bind one’s will, then shouldn’t contractual and promissory obligations bind nothing more than the will? Why, then, do both seem to guarantee outcomes like performance in the first instance, regardless of fault?
  1. Both promise and contract give rise not only to primary obligations (to perform) but also to secondary obligations (to repair). In neither promise nor contract, however, do parties have complete discretion to choose the reparative obligations that attend to breaches. These reparative obligations can also be quite onerous: often they require performance, or at least a substitute, regardless of fault. Hence, something more than free choice—at least as popularly construed—is needed to explain the full ways the will is bound by promises and contracts.
  1. Both promises and contracts give the promisee (or other contracting party) the authority to demand or waive compliance. This authority is relatively unbridled: it can be exercised with a broad range of attitudes, from generosity to spite. Hence, this authority can be used in ways that undermine the personal autonomy of the original promisor (or contracting party) without any deep autonomy gain to the person with the authority.

These puzzles share a common theme. Each reveals a way in which promissory and contractual obligations may be too onerous to reflect a simple concern for personal autonomy.

But why assume that the concern is simple? Kimel counteracts this assumption by offering a much richer description of personal autonomy than is common in the legal literature. He acknowledges—as surely he must—that personal autonomy involves a capacity to author one’s moral universe through acts of self-legislation. He also agrees that promise and contract can provide useful mechanisms for this self-achievement. Still, Kimel locates one of the central values of personal autonomy in its capacity to help people shape the deep personal relationships and foundational life projects that require some commitment but can help produce meaningful lives. In his words, some exercises of personal autonomy—like those that shape “long-term projects, careers, and relationships”—concern “the meaningful, the lasting, the profound—those choices that can truly be said to be the ones through which a person’s life acquires the particular character and meaning that it has.” (P. 97.)

Self-imposed commitments can thus contribute greatly to the value of personal autonomy. There is, however, a further question as to just how onerous these commitments should be to serve this purpose. Self-authorship of a meaningful life would appear to require both some capacity to commit and some permission to change one’s mind. Kimel explains that:

without straying into the realm of conceiving the self as perpetually fragmented, we can sometimes observe that certain choices that a person has made at some point in the past are now, in quite a profound sense, “no longer hers”; or, indeed, consider a person who remains unwaveringly true to past commitments which no longer meaningfully relate to her present vision of how she ought to live as anything but a model of personal autonomy in action.

(P. 100.)

It will thus help to distinguish two different types of changes of mind that might be prohibited. On the one hand, there are those changes that would, if prohibited by the right moral and legal rules, enhance people’s capacity to self-author coherent and meaningful lives. On the other, there are those changes that would, if prohibited by overly onerous demands, undermine that very same capacity. As is so often the case, the trick will be to get the delicate balance right. Otherwise, promise and contract may sometimes be onerous enough to threaten personal autonomy on its best construal.

Of course, this discussion raises a difficult question as to where precisely to draw the line between these two types of changes of mind. Kimel does not offer any general answer to this question, but he does not need to for current purposes. It is enough to observe that one cannot simply assume, without reflection, that the line is best rendered at the extreme pole that permits no changes of mind. Selves grow and evolve—not just in fragmented and adventitious ways but also in coherent and meaningful ones. These facts greatly complicate questions of how self-authorship should be understood to relate to promises and contracts.

So let us return to the three puzzles mentioned at the start of this essay with the aid of this more nuanced description of personal autonomy. Some of these puzzles should seem less mysterious but others more so. For example, because personal autonomy’s value lies in part in its capacity to help people shape meaningful personal relationships, it should be less mysterious why promises and contracts create special relationships that give promisees (or other contracting parties) the authority to demand or waive compliance. At the same time, however, it should be more puzzling why this authority is relatively unbridled. If no norms govern this authority, then its exercise need not be sensitive to fault; to the norms that sustain special personal relationships (and help give personal autonomy its value); or to changes of mind that might enhance personal autonomy if allowed. Unbridled authority can thus threaten personal autonomy.

Rather than shrink from such difficulties, Kimel highlights them in beautifully precise fashion. He then goes on to suggest ways in which promise and contract might be less onerous than they initially appear. His goal is to try to square promise and contract with a concern for personal autonomy, properly construed.

For example, with respect to the first puzzle (concerning strict liability), Kimel points out that one can promise to try to perform rather than to perform. Hence, whether fault is relevant to promissory breach is itself a matter of choice by the promising party. The same is true with respect to contract. Hence, the semblance of strict liability in promise and contract may be overwrought. Turning to the second puzzle (concerning the non-voluntary and seemingly onerous nature of reparative obligations in promise and contract), Kimel points out that the content of reparative obligations in morality and law is rarely under parties’ complete subjective control. Although the content of these obligations might appear overly onerous in promise and contract, at least in contract this content has a relatively straightforward connection to the will: upon breach, one is typically required either to perform or to place the victim in as good a position as if the chosen performance had occurred. Kimel argues—persuasively enough—that this is most likely true of promise as well. These facts thus soften the objection.

Turning to the third puzzle (concerning the relatively unbridled discretion that promises and contracts give to other parties to demand or waive compliance), Kimel observes that promises are often embedded in thick personal relationships that express people’s personal autonomy. (I will turn to contracts in a moment.) These relationships are, in turn, typically governed by their own internal norms, which help give them—and hence many exercises of personal autonomy—their special value. These norms can generate independent claims on promisees’ conduct, which limit the ways that promisees should exercise their otherwise-unbridled promissory authority to demand or waive compliance. Because these norms help explain personal autonomy’s value and why commitment is consistent with freedom, these limitations will often be sensitive to considerations of fault and changes of mind that are autonomy-enhancing. To illustrate with an everyday example, while loving relationships might typically require commitment, love can also require that one set one’s partner free if circumstances change enough that neither party is capable of continued fulfillment in the relationship. These requirements are separate from any that arise from promise, and they are not necessarily inconsistent with the requirements of love.

But what, then, of contract? One of Kimel’s most important observations is that contracts typically arise without the thick relational background that makes many promises less threatening to personal autonomy. As he puts the point:

parties to contract are invited to relate to each other predominantly as parties to contract; the relational background, in this instance, is at best a contingency: much of the very point of the institution is the way in which it avails itself to those who are not already interlocked in meaningful personal relationships.

(P. 113.) Now, this is probably a bit of an overstatement, given the relational aspects of commercial arrangements that people like Stewart Macaulay have famously highlighted. Still, there is no doubt that an important disanalogy exists. Indeed, one of the special freedoms of the marketplace, in which most contracts are embedded, is the freedom to choose without having to justify one’s choices to other persons. Although this freedom may be less expansive in the context of deep personal relationships—in part because this freedom would interfere with the distinctive value of deep personal relationships—commercial relationships seem to me to preserve much more of this peculiar market freedom. Hence, the commercial norms that Macaulay describes often involve requirements like good faith and fair dealing, but rarely the full commitments of friendship or marriage.

Still, a clear implication of the discussion thus far is that contract law may well pose a bigger threat to personal autonomy than promise. Just as he did with promise, Kimel offers several suggestions to resolve these tensions. For reasons I will explain, I do not believe these suggestions are quite as strong. This is not necessarily a criticism of Kimel, however, because I get the sense that he too has less conviction about contract. Still, it will be useful to consider his suggestions.

As an initial matter, Kimel points out that contract law is less onerous than it could be in common law jurisdictions because it focuses on bilateral exchanges as opposed to unilateral gifts. This limitation allows for more changes of mind and hence might be viewed as autonomy preserving—at least insofar as “[i]t is plausible to think that entirely unreciprocated undertakings are particularly likely to become the object of a change of mind, or that the capacity to act on a change of mind of this sort merits particularly robust protection.” (P. 114.) But is the first assumption really so plausible when so many people change their minds every day about the value of ordinary products they have purchased? And even if the first assumption were plausible, considerations like these should at most ground a legal rule of thumb—not a rule as general as the common law consideration requirement (even given its well-known exceptions). With respect to the second assumption, unilateral promises can also further deep commitments and foster special personal relationships that might be impossible if one were to require a quid pro quo. Hence, it is not all that clear that changes of mind that arise after unilateral promises typically merit special protection. Given what autonomy is, I worry, finally, about the view that one can autonomously guarantee outcomes (like performance or its fair market value), as opposed to autonomously binding the will. Whereas relational norms may help cure this problem in relation to promise, it is less clear that they do so when it comes to contract.

Another suggestion that Kimel makes is that expectation damages, which are the standard remedy for contractual breach, give contracting parties the option to pay damages in lieu of performance. This fact might be understood to be autonomy enhancing because it preserves a greater ability to change one’s mind. Expectation damages thus soften other parties’ unbridled authority to demand performance. When changes of mind occur in market contexts, these changes are, moreover, less likely to undermine the deep personal relationships and commitments that give life meaning. Still, if personal autonomy really requires broader permission to change one’s mind in commercial contexts, then why not limit damages to reliance damages? If—as we are presently assuming—these changes of mind really are autonomy enhancing, then reliance damages would at least ensure that the other party suffers no harm. Does the other party really have an autonomy interest in more?

In my view, problems like these will remain so long as contract is viewed too closely on the model of promise. Given his extraordinarily rich descriptions of the role that personal autonomy can play in shaping meaningful lives, Kimel rightly suggests that promising should be understood as an art if is to capture this value. He then says that contract should be understood on the same model, but I am less sure. As I explain in Contract as Empowerment, 83 U. Chi. L. Rev. 759 (2016), I think contract may be closer to a power—and, in particular, a power to use promises to influence others’ actions in circumstances that reasonably require the legal enforceability of a promise for the influence to work. Especially among relative strangers in the modern marketplace (and hence in the absence of thick personal relationships that can generate sufficient trust), legal enforceability is sometimes needed for promissory commitments to influence others’ actions. This fact explains why legal (and not just moral) authority to demand compliance might be needed. See id. This explanation only applies, however, to promises that seek to induce a return promise or performance from another party—and, hence, to promises that are supported by consideration and involve bilateral exchange. See id. (also explaining why some promissory estoppel claims, which have hidden consideration, are therefore rightly treated as warranting expectation damages, whereas others should be limited to reliance damages).

Importantly, to influence action in this context, contracting parties often need to give their counterparties an assurance of more than just reliance damages in the event of non-performance. See id. Parties must typically provide a legal assurance of either performance or its fair market value—regardless of any fault for non-performance. See id. An assurance of this kind is also sufficient to influence action in most commercial settings. These facts explain why contract law, viewed as a power, focuses on expectation damages and not more. See id. If contract is a power that is specially adapted to the modern marketplace, it should therefore tend toward the strict liability we see; it should involve reparative obligations that focus on expectation damages and are not completely subject to parties’ control; and it should give other contracting parties relatively unbridled authority to demand or waive compliance—subject only to the relational duties of good faith and fair dealing.

So construed, contract law gives people a power, and hence a freedom, that they would not otherwise have in the marketplace. To the extent that contract law is empowering in this sense, its rules are ones that each could freely agree to be bound by on the condition that all others similarly agree. Hence, many otherwise puzzling features of contract can be understood to promote personal autonomy. But unlike promises—which may well preserve this connection by facilitating special relationships “that have the propensity to shape a life, make it into the kind of life that it is” (P. 99)—contracts rarely involve anything so momentous. The value of contractual empowerment seems to me lie elsewhere: in its giving ordinary people, and sometimes certain associations (like churches or corporations), the ability to meet their many varied needs and interests through the modern marketplace. Contract is not more important than promise because of this fact. It is not exactly less. It is just different.

Herein lies the key to understanding how contract law might be genuinely squared with concern for personal autonomy. Kimel is nevertheless surely right about another point. He warns that “[i]t cannot be assumed too casually that by facilitating the capacity to make legally-binding agreements—by creating a law of contract—the state invariably enhances rather than endangers the personal autonomy of those who may deploy it.” (P. 115.) Whether the dimension of personal autonomy that contract law promotes is closer to what Kimel identifies in promise or what I see in contract, one must therefore continue to ask whether the right connection exists in practice. I worry about this in the information age because corporations increasingly attach mass boilerplate to consumer contracts and courts increasingly enforce many terms that are rarely read or understood by consumers. These terms are rarely subject to consumers’ meaningful influence or choice. In these circumstances, much of what passes as “contract enforcement” may therefore be too disempowering and too onerous to promote personal autonomy.

Cite as: Robin Kar, The Art of Promise and Power of Contract, JOTWELL (June 13, 2016) (reviewing Dori Kimel, Personal Autonomy and Change of Mind in Promise and in Contract, in Philosophical Foundations of Contract Law 96 (Klass, Letsas & Saprai eds., 2015)),

Alexy’s Anti-Positivism

Robert Alexy, Legal Certainty and Correctness, 20 Ratio Jur. 441 (2015), available at Universidade Nova de Lisboa.

Robert Alexy is one of the foremost contemporary legal theorists of this generation. His work has been very influential, both in analytic legal philosophy (e.g., A Theory of Legal Argumentation (Oxford, 1989) and The Argument from Injustice: A Reply to Legal Positivism (Oxford, 2002)) and in constitutional theory (A Theory of Constitutional Rights (Oxford, 2002)). He is a German theorist; while most of his important works were written first in German, many (like those just listed) have been translated into English, and many shorter articles have appeared originally in English, including the subject of the current jot.

In analytical legal philosophy, Alexy is best known for his “anti-positivist” views—views critical of the legal positivist theories associated with H. L. A. Hart, Joseph Raz, and others. His theory is nicely summarized in the short article being reviewed. Alexy argues that law has a dual nature: (1) a “real” or “factual” dimension, and (2) an “ideal” side. The real or factual dimension is associated with “authoritative issuance and social efficacy”; the ideal dimension is connected with “the element of correctness of content.” (P. 441.) Alexy argues that it is part of the nature of law that it claims to be (morally) correct. And following the German legal theorist of an earlier generation, Gustav Radbruch (in the works he wrote just after World War II), Alexy argues that a rule that is sufficiently unjust loses its status as valid law (the “Radbruch formula”). For Alexy, the claim of correctness and its correlate, the Radbruch formula, display necessary connections between law and morality, thus showing that legal positivism (which claims a separation between moral content and legal validity) is mistaken.

In the article, Alexy admits that there is a tension between the claim to correctness and the role of law in guiding behavior, which he connects to a “principle of legal certainty.” (P. 443.) Much of the article involves an evaluation of the extent to which legal certainty is undermined by the Radbruch formula (making extremely unjust legal rules void) or by claims that judicial application of general norms inevitably involves significant discretion. Alexy concludes that ultimately the inroads on certainty and predictability from those sources are modest and tolerable.

A challenge to Alexy (which I have raised in the past), similar to an objection Joseph Raz raised to Ronald Dworkin’s theory, states, roughly, that the theorist might be conflating a theory of adjudication with a theory of law. In the background is a problem of jurisprudential (or, more generally, philosophical) methodology: at a certain level of abstraction, it is hard to decide between competing characterizations of what judges have done or should do. Alexy and Radbruch say that an otherwise valid enactment, if sufficiently unjust, loses its status as valid law. Legal positivists (like Raz) would say that significantly unjust laws would often warrant citizen disobedience, and may create moral obligations for judges and other officials to change those rules or mitigate their impact, but the laws remain valid legal rules until they are changed. Alexy and Radbruch can point to German courts treating unjust rules (from Nazi Germany and East Germany) as “not law” because unjust. But what are we to say of cases where courts, in many countries and at many times, have (legally) enforced extremely unjust rules? Should we say (along with Raz) that the courts’ mistake is a moral one—that the judges should have done what they could to change the law or mitigate its effects—or should we say (with Alexy and Radbruch) that the mistake was a legal or conceptual mistake—that the courts somehow missed that the rules were not in fact legal norms? At the least, there are reasonable arguments for both characterizations, and I worry that Alexy—and Radbruch before him—have not offered enough arguments for treating their views as being conceptual claims about the nature of law rather than being prescriptive claims for how judges should decide cases.

At the same time, one should not too quickly dismiss (or overlook) Alexy’s views. If Ronald Dworkin was the most famous critic of legal positivism in recent decades in the United States, his counterpart in Europe was, and is, Robert Alexy. It is hard to overstate the influence of Alexy’s “Correctness Thesis” among Continental theorists; and this article, Legal Certainty and Correctness, works as a very good short introduction to the Alexy’s nuanced critique of legal positivism.

Cite as: Brian Bix, Alexy’s Anti-Positivism, JOTWELL (May 11, 2016) (reviewing Robert Alexy, Legal Certainty and Correctness, 20 Ratio Jur. 441 (2015), available at Universidade Nova de Lisboa),

Rights, Virtues, and Natural Law

John Finnis, Grounding Human Rights in Natural Law, 60 Am. J. Juris. 199 (2015).

Of the many reviews and critical notices that greeted the publication of Natural Law and Natural Rights [NLNR] in 1980, one of the most influential, and thus far unchallenged, was that by the distinguished American theologian Ernest Fortin, entitled The New Rights Theory and the Natural Law. In it, Fortin set out many of the principal criticisms that readers oppose to NLNR’s doctrines to this day: the book’s appearance of distance from traditional Aristotelian-Thomist concerns and modes of explanation; its focus on natural right in place of natural law (and the differences between the two concepts); the absence of the virtues from the book’s moral philosophy; its apparent surrender to liberal individualism.

In the years since 1980, John Finnis has amplified — sometimes considerably — upon these matters, including in the 2011 ‘Postscript’ to the second edition of NLNR, but until now had not directly replied to Fortin’s review. This long essay incorporates that reply. Whilst that Postscript served as an opportunity to comment upon and clarify the intention of many of the book’s passages, the present essay is closer in character to the ‘Postscript’ written by Hart for the second edition of The Concept of Law, focusing on the position of one critic in particular.

To some extent the lines of argument/clarification will be familiar to careful readers of Finnis’s work beyond NLNR, particularly those dealing with action-theory and his book Aquinas (Oxford University Press 1998). But here they are further supplemented, and in a way that brings to the forefront new issues: such as “the intellectual autonomy and integrity of work within an intellectual tradition that overlaps with a ‘faith tradition,’” (P. 199).

Of the responses to Fortin’s specific claims, I will briefly pick out only one: the place of virtue within the argument of NLNR. Finnis replies that although NLNR deliberately avoids talk of virtue(s), nevertheless “virtue dominates the book” (P. 207, emphasis in orig.) in the shape of: (a) practical reasonableness, Finnis’s term for Aquinas’s prudentia, or more precisely bonum rationis; and (b) justice, the quality of character in virtue of which one is [steadily] practically willing to care for the common good of the community. (P. 208; NLNR, P. 165.) But “[q]uite generally, the problems of individual and communal moral life are not solved by talk about virtues,” and “NLNR’s undertaking to its readers, in short, is to provide something more helpful as a guide to conscientious decision-making in individual and social life than a mere naming of relevant virtues and counselling a life of virtue … advice easy enough to give but not much help to anyone. …” (P. 209-10). Yet, surely an aspect of the decision of Aristotle and (at huge length) Aquinas to set forth their accounts of Ethics in terms of virtues is the thought that principles of the kind that in Finnis’s view take priority (and are ‘helpful’) are not always available to resolve ambiguities or conflicts in one’s reasons for acting: for example, whether in a particular case it is right to exercise mercy. In such cases, the instruction to locate the mean of virtue between extremes of vice is not empty: it is an acknowledgement that we possess no luminous guide untainted by error or vice, but have to light our way by navigating between courses of action that we can identify as vicious or erroneous. Despite its practical orientation, NLNR does not offer the citizen any advice about the demands of mercy, charity, fortitude, beneficence, etc.

One interesting facet of the essay is in Finnis’s explaining his assumptions and expectations of readers of NLNR, and the choices this caused him to make in arranging the book’s arguments and crafting its rhetoric. For example, he evidently felt some disappointment over the inattentiveness “to the book’s rhetorical and structural precautions for disarming or circumventing the hostility with which many modern readers approach anything associated by them with the past, especially the past of Christianity and of all that antedates the secular ‘liberalisms’ and conventional radicalisms of 1980 and today.” (P. 201.) But some at least of the book’s rhetorical strategies have proved to be over-subtle, and have converted friends into critics. On the subject of the book’s abstention from talk of virtue, Finnis states that the explanation is implicit in the following passage:

How does one tell that a decision is practically reasonable? This question is the subject-matter of the present chapter. The classical exponents of ethics (and of theories of natural law) were well aware of this problem of criteria and standards of judgment. They emphasize that an adequate response to that problem can be made only by one who has experience (both of human wants and passions and of the conditions of human life) and intelligence and a desire for reasonableness stronger than the desires that might overwhelm it.’ (P. 209; NLNR, P. 101.)

This sets a high standard of awareness for the book’s primary audience: “law students, undergraduate and graduate, [and] lecturers and other teachers many of whom have little acquaintance with, and no predisposition to favor, the philosophical and theological tradition in which the term ‘natural law’ finds its origins and its home.” (P. 201.)

It is not every author who has the good fortune to be able to specify, after the fact, the way in which his book is supposed to be read. But in reality, the good fortune in this instance is that of the reader, past or future, who may otherwise have missed out upon some of the subtleties the book has to offer. For as long as NLNR continues to be read (and misread), this essay will offer a valuable and authoritative commentary.

Cite as: Sean Coyle, Rights, Virtues, and Natural Law, JOTWELL (April 8, 2016) (reviewing John Finnis, Grounding Human Rights in Natural Law, 60 Am. J. Juris. 199 (2015)),

On Rape, Coercion and Consent

Scott Allen Anderson, Conceptualizing Rape as Coerced Sex, Univ. of British Colombia (2015), available at SSRN.

Scott Anderson’s article Conceptualizing Rape as Coerced Sex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.” So understood, rape is the criminal act of “either creating or taking advantage of pre-existing differentials in the ability and willingness to use force or violence,” toward the end of obtaining sexual gratification from the victim. The power differentials that render the pressure “coercive” are quintessentially created through direct force, violence, or threats of violence, but might also include taking physical advantage of another who is mentally or physically incapacitated because of intoxicants or cognitive or mental impairment. Most important, though, the power differentials at the core of the “coerciveness” that renders sex rape might be facilitated not by direct threats, but by drawing upon “the link between the threatener and others of a similar kind who have used similar powers in the past.” When sex is “coerced” in any of these ways, such that the victim is not able to “usefully or reasonably ignore, deflect, evade, or work-around the enforcement of the threat,” then the sex that results should be understood as rape.

Note that on Anderson’s account the victim’s consent or non-consent is not part of the definition of the crime (although it may enter as a defense). Rather, the definition focuses squarely on the assailant’s acts and mental states, rather than those of the victim: did the assailant create or take advantage of pre-existing differentials in the ability and willingness to use force or violence” to obtain sex. Nor does it require direct force: rather, the “differentials” in power that facilitate the rape may pre-exist the act itself, and may be as much a function of the similarity between the agent and others similarly situated, as anything the agent himself does in the particular encounter. This coercion-based account, Scott argues, would avoid both the under-inclusiveness of definitions of rape that center on force, and the possible over-inclusiveness of definitions of rape that center on consent. More significantly, it would better capture both what is distinctively harmful about rape, why rape is overwhelmingly (but not universally and certainly not by definition) a crime committed by men upon women, and why rape is a constitutive aspect of gender subordination to women’s detriment.

I believe this piece is an original and powerful contribution to the extensive rape literature, and a much needed intervention that might change the direction of a very longstanding and very stalemated debate. Let me briefly suggest why. The “rape debate” as it has existed for three decades now can be divided into three camps. On one side are, traditionalists, who define rape as (some variant of) “nonconsensual, forced sex” – thus requiring both non-consent and force (and sometimes adding on a requirement of “utmost resistance” for good measure), and on the other are reformers, all of whom view the traditional definition as at best redundant (because it requires both force and nonconsent) and at worst, dangerously under-inclusive. More specifically, the traditional definition – that requires both force and nonconsent – excludes rapes that are forced but arguably “consensual” where the consent is dubious (such as “date rape,” “marital rape” or “rape with prostitutes,” each of which, at various times in the near past, have been viewed as either literally or virtually consensual), and also excludes nonconsensual sex where there is no visible force (such as rapes where no force is required or used for the threat of violence to be viable). The dangerous under-inclusiveness of the traditional definition has prompted two camps of reformers: those who want to drop the force requirement altogether leaving rape defined as nonconsensual sex, and those who want to drop the consent requirement and define rape as forced sex.

But – both positions are problematic. There are several problems with the first (and dominant) reform position – that we should simply define rape as nonconsensual sex. Anderson focuses only on one: a lot of sex might be nonconsensual that really no one would want to make criminal. Sex obtained by fraud, for example, (obtaining sex by lying about one’s intentions or background) might be both immoral and nonconsensual in some important sense, but probably shouldn’t be a crime. Likewise, Anderson argues, some sex overrides a woman’s lack of consent in circumstances that clearly involve boorish and immoral behavior but not behavior that should be made criminal – such as where a partner in a long standing relationship eventually relents to her husband’s romantic overtures, but does so only “to get a good night’s sleep” – she doesn’t want the sex and at no time explicitly consents to it. So, a definition of rape as nonconsensual sex is simply too broad. The problem with the second definition – define rape as forced sex – is that such a definition limits the crime to sex obtained by either the use of force or the threatened use of force – thus leaving legal many marital, date, or acquaintance rapes where the threat of force is implicit rather than explicit – OR it defines “force” so broadly as to encompass virtually all sex – all sex, or at least all penetrative sex, requires some use of force. But more generally both “consent-based” definitions and “force-based” definitions run the risk of either trivializing the crime of rape by defining it in such a way as to encompass what are seemingly innocuous or at best immoral sexual transactions, or defining the crime so narrowly as to not pick up what seem to be seriously criminal and dangerous acts that do profound harm to victims. So the debate is badly stalemated at an unfortunate stopping point: we have a host of unpalatable legal-definitional choices.

Against that backdrop of a stalemated debate in which both sides hold seemingly untenable positions, Anderson’s intervention is very welcome. Anderson seems right to insist that coercion is the missing element in our understanding of rape: it is coercion, he argues, not either force or non-consent per se, that renders the sex that is obtained through various credible threats, so harmful. It is also coercion, as Anderson understands it, which ties the act of rape to the broader subordination of women – it is, on his account, the shared societal understanding of the background differentials of power between men and women that facilitates coercive sex. Thus, non-consensuality is not enough to make sex so seriously harmful as to be criminalized – but also, non-consensuality is not, at root, the point. We do indeed suffer harms to which we do not consent on a frequent basis (Anderson suggests, as an example, the harm suffered by the promisee when a promisor breaks a promise) some of which is innocuous. And, force is not the gravamen of the crime either: We can be seriously harmed by rapes which are not facilitated by either violence or the threat of it. The wrongness of rape and the harms of rape do seemingly stem, at least in substantial part, from the fact that the sex is coerced from the victim through a use or manipulation of power differentials between men and women that convey a credible threat whether or not such a threat is uttered, and thus facilitates the rape even in the absence of force. I think the piece succeeds in its general aim: Anderson promises to show, and does show, how such an understanding better accounts for the particular harms of rape, the ways in which rape occasions harms more profound than what might be occasioned by nonconsensual sex that is not coercive, and how it can occur even in the absence of direct force.

The coercion account directly resolves – because it directly addresses – a number of problems in the various reform positions on rape. Most important, it illuminates the role of power in rape, in a way that consent-based definitions, as well as the reform movement that embraces them, do not, and which force-based definitions – which do explicitly address rape an abuse of power – tend to confuse. Consent-based reforms identify the harm of rape as stemming from infringements on victims’ autonomy, by virtue of the baseline fact that their consent has been overborne. This both runs the risk of over-criminalizing sexual acts where consent is overborne for reasons having nothing or little to do with unequal power – such as deceit (as Rubenfeld complains) or fraud – and missing near entirely the nature of the harms rape occasions in both its direct and indirect victims: the ways in which it stems from and underscores the power differentials that make rape an overwhelmingly gendered crime and thereby reinforces as it relies on men’s physical power over women, and the potential for coercive behavior that differential entails. Force-based reforms, on the other hand, tend to not have a sufficiently nuanced account of the nature of power or force – the force required to coerce sex might originate in a socially shared understanding of the power imbalance generally between men and women. As a result, the force required in the rape itself by virtue of the definition of rape might be so great as to exclude a good bit of coerced sex which ought to be criminalized, at least to some degree: coerced sex that occurs because of a credible threat, given background conditions, but where no force is required or present. The coercion account of rape, unlike either the consent or force account, therefore points directly to the relation between the crime of rape and the subordination of women, both in the way rape is defined, and in the way it is explained and understood. For that reason alone, it is in my view a conceptual breakthrough.

There are of course problems. Some are obvious: for one, it is hard to see how the account of the “background differentials” could be codified into a rape definition. But there is also, I think, a problem with Anderson’s discussion of the inadequacies of consent-based reform movements that may not be so obvious but which might be of greater importance. In discussing the possible over-inclusion problem with consent definitions, Anderson distinguishes three cases. In the first a woman and her long-term partner awaken in the morning, the man makes sexual overtures, the woman tells him she’s not in the mood, the man persists, and she eventually relents – by which Anderson means that she “stops pushing him away and telling him ‘no’”– leaving her “somewhat peeved.” And, Anderson states, she “never explicitly gives consent to sex.” In the second, a woman tells her occasional lover to come over but that she is not interested in having sex, he comes over, they begin to kiss, after foreplay she tells him to leave, because it is “past her bedtime,” he doesn’t, she “simply gives in and allows him to have sex with her, without giving express consent, figuring that it’s the only way she’ll get to sleep.” In the third, a college student in a dorm kisses and fondles a woman who has come to his dorm room, she rebuffs him saying “No I gotta go, let me go,” he ignores her, gets up and locks the door, “picks her up, puts her on the bed….and has sex with her, despite her repeatedly saying ‘no, no’.”

Anderson argues that in all three cases the woman has not consented, but only in the third has there been a rape. He then analyses the differences between them in terms of coercion: coercion is present in the third case, but not in the first two. Thus, the result reached under an understanding of rape as coercion, best fits our intuitive understanding that the behavior in the third case is far worse than in the first two, and so much worse as to be criminal, while the first two should not. Therefore, the consent standard, which renders all three cases rapes, is a worse fit with our intuitions than a coercion standard, which would clearly classify the third case as a rape but not the first two, even though all three involve nonconsensual behavior.

I agree with Anderson that the first two cases should not be classified as rapes, and that the third should. I disagree, though, that the first two cases involve sex that is “nonconsensual.” It seems to me that in both of these cases the woman has consented, although the consent has not been express. The woman has in both cases voluntarily acquiesced, or submitted, and it seems to me that that act of acquiescence – because she wants a “good night’s sleep,” because its not worth the hassle, for whatever reason – is indeed consent. For Anderson’s purposes, I’m not sure this difference between us matters: I agree with him that there are other scenarios of truly nonconsensual sex that don’t involve coercion and that ought not to be criminalized for that reason. Some of the sex-by-deceit cases that also concern Rubenfeld, I think, fit into this category. So I agree with Anderson’s general point that coercion, rather than consent, is a better fit with our general intuitions about what sorts of sexual conduct ought be made the subject of criminal prosecution.

I do think it matters, though, for other purposes, whether we categorize the sex in the first two scenarios above as consensual or not. Many of us – particularly sexual liberals and libertarians – have a very general tendency to think that only nonconsensual sex can possibly be immoral, and that immoral sex, if it is truly immoral, simply must be nonconsensual. But this just isn’t true – there may be reasons to be critical of sexual behavior that is both consensual and legal, but nevertheless harmful and immoral. Some consensual sex in other words should be subject to moral and even political criticism. Women acquiesce in sex such as what is described in Anderson’s hypotheticals above very frequently. Sometimes, women do so for precisely the reason Anderson suggests – to get a good night’s sleep. Sometimes they do so for a host of other reasons: to avoid a boyfriend’s bad mood, to placate a husband who may otherwise refuse to be cooperative with other household responsibilities, because of peer pressure, because of a sense of religious obligation. Whatever the reason, she is consenting to and then engaging in unpleasurable and unwanted sex.

The cumulative effect of consenting to unpleasurable and unwanted sex might in turn be harmful – they all manifest an imbalance in the relative importance a woman ascribes to her own hedonistic pleasures and desires compared to that of her partner. Doing so repeatedly – engaging in unwanted, consensual sex – might harm a woman’s sense of physical self-possession, limit her autonomy, undermine her own moral integrity, and lead to self denigration, as she places her own sexual pleasure and desire, or lack of desire, second to that of the felt imperatives of her partner’s desires. That imbalance in self regard on the one hand and regard for the importance of the sexual drive of her partner on the other, might itself be one of the background conditions that facilitates broader patterns of gender based subordination, both in the sexual sphere but also elsewhere. It might be part of why so many view rape as not a significant crime. And, it might also be a part of why women tend to be bad economic negotiators, have problems raising their hands in law school classrooms, minimize their physical presence through shrinking postures, engage in excessive private altruism in their private lives – and so on. If it is, then we should attend to the harms we may be doing ourselves when we near-habitually consent to sex we don’t want – as the two women in Anderson’s hypothetical above are doing. Sometimes that consensual unwanted sex might be innocuous – we may consent to unwanted sex out of genuine and reciprocated love, for example. But often it may not be. Consensual unwanted sex can undermine our sense of self, and thus our ability to negotiate a liberal world. When we repeatedly engage in sex we don’t want, we risk having an undermined sense of self become our pervasive self definition. We shouldn’t so undermine ourselves – and we should tell our daughters (and sons) likewise.

Over-defining non-consent – concluding wrongly that there’s no consent where we have in fact consented, particularly in sexual contexts, but where we don’t want or desire that to which we’ve consented – I believe, has a host of bad consequences, only one of which is that it results in the over-criminalization of the act to which consent has in fact been given. It also tends to underscore – and perpetuate – our fetishistic overvaluation of consent as a marker of value. Anderson wants to argue that we sometimes withhold consent from sexual transactions even where there is no coercion – and that consequently non-consent should not be the mark of sexual harm, and therefore should not be essence of the crime of rape. That might be right, and I tend to think it is. But we also sometimes consent to sexual transactions we don’t want, in circumstances that might or might not be coercive. We should be aware of that class of behavior, so that we might subject it to moral and political scrutiny – whether or not the behavior in question is something which the law ought to regulate. The viability and opportunity for that critical lens is what Anderson’s tendency to collapse nonconsent with unwantedness – shared by and I think a result of larger societal forces – sacrifices.

Let me emphasize though that this undue collapse of nonconsent with unwantedness – if it is one – is incidental rather than central to Anderson’s project here. He wants to define rape in such a way that it does not pick up sexual transactions which on his description are nonconsensual but also noncoercive, and which on my description are consensual but unwanted. We both agree that these sexual transactions might be immoral but that they should not be criminal. I might think they are more harmful than Anderson believes them to be, but I agree with him that they should not be criminal. I don’t think that these examples usefully distinguish non-consent from coercion as the marker of rape – because I believe they are in fact consensual, and would not and should not be the subject of a rape prosecution for that reason. But I agree with Anderson that there are likely instances of nonconsensual sex that are also noncoercive and that should therefore not be criminalized – even if the particular examples he provides fail.

Anderson’s larger point, though, in this piece – that we should understand the gravamen of the crime of rape as well as the harm of rape to lie in its coerciveness, rather than its nonconsensuality – seems entirely right, and convincingly argued. I hope that it is widely read and debated. It could conceivably break the rape debate stalemate, and in a highly productive direction.

Cite as: Robin West, On Rape, Coercion and Consent, JOTWELL (March 15, 2016) (reviewing Scott Allen Anderson, Conceptualizing Rape as Coerced Sex, Univ. of British Colombia (2015), available at SSRN),