Legal determinacy and moral justification.

AuthorKraus, Jody S.

INTRODUCTION

Since this is a conference on law and morality, and the topic of this panel is theories of contract law, I thought it particularly appropriate to ask how a theory of contract law can provide a moral justification for contract law. That question can be answered only by providing a more general account of how a legal theory can provide a moral justification for any area of the private law. In this preliminary Essay, I argue that in order morally to justify the private law, a theory of the private law must derive reasons from a normative political theory that determine the outcomes of adjudication in cases within the private law. (1) I reject the claim that legal theories can provide a moral justification merely by demonstrating a correspondence or coherence between a normative political theory and the doctrinal statements found in cases, treatises, restatements, and the like, leaving the question of whether and how those doctrines determine outcomes unanswered. In short, my claim is that moral justification requires legal determinacy. (2) At the outset, let me be clear that I am not talking about causal determinacy. Rather, the claim is one about justification: an area of law cannot be justified unless it provides reasons that epistemically warrant the conclusion that its adjudicatory outcomes are uniquely justified. After developing the argument for this view, I conclude by considering three of its implications of this view. The first is that theories that purport to provide a moral justificant of any area of law must proceed by first explaining how the law in that area determines adjudicative outcomes. Explanatory theories of the private law are therefore methodologically prior to the moral justification of the private law. The second is that John Rawls's theory of public justification in Political Liberalism (3) requires normative theories of the private law to identify the content of the private law with the express judicial reasoning in decisions governed by the private law. Therefore, if that reasoning cannot be interpreted as providing reasons that determine the outcomes of private law adjudication, then the private law is not morally justified. A third implication is that whether the private law can be justified ultimately will depend on what jurisprudential theory of law turns out to be correct. Those that share Rawls's commitment to treating express judicial reasoning as constitutive of the law, for the same or different reasons, will have to interpret that language to make it outcome-determinative in order to justify the private law. Jurisprudential views that treat express judicial reasoning as mere theories of the law that are not constitutive of law will have a better prospect of demonstrating the determinacy of the reasoning in the private law.

  1. THE ARGUMENT FOR LEGAL DETERMINACY

    Let us begin by asking what a normative theory must demonstrate in order to provide a moral justification of the private law. At a minimum, it must demonstrate that the exercise of state coercion to enforce the outcomes of common law adjudication is justified. Rather than justifying the diffuse threat of coercion underlying political society generally, an adjudicative outcome produces a judicial order backed by the threat of state coercion directed specifically at an individual litigant. The need for the justification of the coercion exercised on behalf of an adjudicative outcome is therefore especially acute. Thus, if a normative theory of the private law cannot provide an adequate justification of outcomes of private law adjudication, it fails in its essential purpose.

    Normative theories of the private law, however, often take the moral justification of the private law to consist in the endorsement of a defensible normative theory combined with a demonstration that the rough outlines of, for example, contract or tort law, would be justified by that theory. Consider corrective justice theorists, who provide a normative justification of contract or tort law by demonstrating how the structure of adjudication in contract and tort, as well as the abstract content of the pre-theoretically defined "core" doctrines, cohere with the requirements of corrective justice. (4) Yet they fail to explain how those doctrines determine outcomes particularly in hard cases. I have argued elsewhere that the surface meaning of the language of private law doctrine is often too vague to be of use to determine the outcomes of adjudication in hard cases. (5) At best, the language of those doctrines determines a set of reasons judges may not use to decide the outcome of their cases. But it fails to direct or constrain the judicial choice among the reasons not prohibited by the doctrinal surface language, even though those reasons can support an outcome in favor of either litigant. (6) For this reason, the corrective justice justifications are inadequate: they fail to provide justifying reasons that explain why the losing party lost. (7) My claim, then, is that the justification of the private law requires an argument based on a normative political theory demonstrating that the outcomes of private law adjudication are justified. And further, I maintain that these outcomes cannot be justified by anything short of justifying reasons that determine them. Normative theories that do not provide determinative justifying reasons are to that extent defective. Though they may be of use to constrain judicial decisions, they nonetheless fail to provide sufficient guidance to determine and thereby justify them.

    In response, moral philosophers familiar with Robert Nozick's discussion of moral theory might argue that this conception of justification misconceives the role of normative theory in regulating human conduct. Nozick conceives of morality as providing what he calls "side constraints" only: that is, restrictions prohibiting interference with the liberty of others without their consent. (8) American employment law illustrates side constraints. Private employers are free to fire "at will" employees for no reason whatsoever or for any reason other than a discriminatory one. (9) Employment discrimination law only imposes limits on employer firing decisions, leaving them unfettered discretion within the bounds of those constraints. Rawls's claim that the principles of justice apply only to the basic structure of society provides a possible example of a normative political theory that sets side constraints only: it appears to render the theory of justice agnostic about the normative principles governing choice among non-basic structures. (10) Of course, one could accept the claim that the principles of justice should apply only to the basic structure of society, but still insist that a complete theory of justice must supply additional principles to assess the justness of society's non-basic structures as well. Rawls's position on the justice of non-basic structures is not clear.

    The conception of morality as providing only side constraints is a definitive feature of many deontic theories. It finds its most philosophically profound and influential expression in the deontic credo that the Right is prior to the Good. (11) By defining the Right independently of the Good, deontic theory leaves individuals free to pursue their...

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