The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory.

• Author: Perry, Stephen R.

The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. By Jules L. Coleman. * Oxford: Oxford University Press, 2001. Pp. 226. $39.95.

Jules Coleman is an exceptionally distinguished legal theorist who has made significant contributions to many different fields in legal and political philosophy, but he is particularly well known for his work in tort theory and in jurisprudence. In tort theory, he has offered a powerful and sustained defense of the view that tort law is best understood by reference to the principle of corrective justice. (1) In jurisprudence, he is one of the two most prominent contemporary legal positivists--the other is Joseph Raz--and also the leading proponent of the view that has come to be known as inclusive legal positivism. (2) That view holds that while a particular legal system's criteria of legality--the criteria that determine which norms are to count in the system as legal norms--must be grounded in a social convention of a certain kind, the criteria themselves need not refer exclusively to social sources; contrary to what Raz has argued, the sources of law can also be moral in character.

In his important new book The Practice of Principle, (3) Coleman further develops and deepens his views in both tort theory and jurisprudence. The versions of those views that he presents in the book are substantively appealing and often persuasive. Although torts and jurisprudence might appear to be not particularly closely related fields of theoretical inquiry, Coleman provides a unifying theme through his discussions of methodology. His sophisticated examination of methodological issues is one of the most rewarding aspects of a rich and rewarding book. Coleman presents his theory of corrective justice as an application of a more general method of theorizing about particular areas of substantive law, which he calls pragmatic conceptual analysis. The hallmark of this approach is the attempt to discover the principles that are embodied in a given area of the law, without concern for the moral appeal of those principles. So far as jurisprudence is concerned, Coleman argues that while the defense of jurisprudential theories necessarily relies on epistemic norms, it does not require appeal to moral or political considerations.

The methodology that is involved in studying tort law and other discrete areas of the law is, for Coleman, different from the methodology of jurisprudence. In the former case, the aim is to uncover underlying explanatory principles, whereas in the latter case, the aim is to explain the possibility conditions and the normativity of law considered as a general social phenomenon. But there is nonetheless a unifying connection between the respective methodological approaches that Coleman advocates for these two types of inquiry. Although both are subject to norms governing theory formation, neither, on his view, involves substantive moral or political argument. The central theme of this Review is that, in the case of both jurisprudence and the explanation of discrete areas of law, this methodological claim is mistaken. Sympathetic as I am to Coleman's substantive views, I do not think that his methods of arguing for them can ultimately be sustained.

Part I of The Practice of Principle is concerned with tort theory, Part II with the defense of inclusive legal positivism, and Part III with methodology in jurisprudence. Parts I-III of this Review follow the same organizing framework. Although I discuss both the substantive and the methodological aspects of Coleman's views, the emphasis throughout is on methodology.

1. TORT THEORY

   1. Pragmatic Conceptual Analysis

      The main thesis that Coleman defends in Part I, which is entitled Tort Law and Corrective Justice, is that tort law is "best explained" by the principle of corrective justice. (4) The principle of corrective justice states, on Coleman's understanding, that "individuals who are responsible for the wrongful losses of others have a duty to repair the losses." (5) The defense of the corrective justice view of tort law that Coleman advances in The Practice of Principle both strengthens and clarifies the arguments that he has offered in previous work. This is particularly true with regard to issues of methodology. Thus, Coleman makes clear that the role of corrective justice in explaining tort law is meant to be independent of the defensibility of corrective justice as a moral ideal. It is not part of Coleman' s explanatory claim that tort law is morally defensible, and this is so even though he accepts that corrective justice is indeed a form of justice and that tort law is, as it happens, a valuable social institution. (6) It is thus evident that the form of explanation Coleman is offering is not Dworkinian interpretation. This represents a departure from at least some of Coleman's previous work, since in the past he has on occasion explicitly embraced a Dworkinian methodological approach to explaining tort law. (7)

      As Coleman makes clear, the form of inquiry he now has in mind begins not with general principles that are independently believed to have a moral claim on us, nor with the fine-grained details of legal doctrine, but rather "in the middle." (8) The idea is to ask which principles, if any, are embodied in our current legal practices, without making any assumptions about the moral status of those principles. It is important to note that Coleman envisages the methodological approach he advocates as a pragmatically oriented form of conceptual analysis. The strategy of looking for mid-level principles that are embodied in the relevant practice, which Coleman labels "explanation by embodiment," is one of a cluster of features that characterize his version of this approach. (9) The other features are semantic nonatomism, which denies that any single element of a language, conceptual scheme, or other semantic system has a determinate meaning that is independent of at least some other elements of the system; inferential role semantics, which holds that the content of a concept is to be analyzed by reference to the practical inferences it warrants or in which it figures; holism, which in this context asserts that the different practices in which a concept figures must, for purposes of analyzing the concept, be considered together; and, finally, revisability, which holds that all beliefs, including those that are nonempirical in character, are revisable in the light of recalcitrant experience. (10)

      Coleman adopts this methodological stance to the explanation of social practices--a stance that has clearly been strongly influenced by the work of W.V.O. Quine (11)--in order to defend the central thesis of Part I of The Practice of Principle. That thesis is, to repeat, that tort law is best explained by a principle of corrective justice. Much of the argument for this thesis takes the form of a critique of the economic analysis of tort law. Coleman begins by suggesting that the "economic explanation" of tort is unsatisfactory if it is taken to be an instance of conceptual analysis, by which he clearly means his own pragmatic version of conceptual analysis. (12) For good measure he describes two other forms that an explanation of a social practice might possibly take, namely, a causal-functional explanation and a Dworkinian interpretation, and then argues that the economic understanding of tort law cannot be regarded as an adequate instance of either of those approaches.

      In the following Section, I consider Coleman's objections to each of these three possible forms that an economic explanation of tort law might take, paying attention not just to the substantive arguments but also to the underlying methodological issues. It is evident that Coleman regards the debate between corrective justice and the economic model as a kind of proving ground and showcase for pragmatic conceptual analysis. As clearly emerges from his discussion of this debate, the articulation of conceptual explanation into a number of distinct elements--semantic nonatomism, holism, revisability, and so on--is a very helpful analytic tool and a significant contribution to the methodology of legal explanation. There is, however, no reason to regard the five elements Coleman describes as the only criteria of adequacy that pragmatic conceptual analysis should bring to bear in assessing substantive theories of law. More particularly, there is no reason to exclude, and there is positive reason to include, substantive moral and political considerations. Including such considerations--or at least not excluding them from the outset--is more in keeping with Coleman's holistic, open-ended pragmatism than is a fixed list of evaluative criteria that has presumably been determined on an a priori basis.

   2. The Critique of the Economic Model

      Coleman observes that if the economic model is viewed as offering a conceptual analysis, then that analysis must be taken to be both reductive and functional. It is reductive because it "seeks to explain tort law by showing that its central concepts can be reduced to the concept of economic efficiency." (13) It is functional because in undertaking this reduction it ascribes to tort law a certain function, namely, the pursuit of efficiency. Coleman's critique of the economic model, understood as an instance of conceptual analysis, is a reformulated version of an argument he has offered before, based on the so-called structure of tort law. (14) The argument's starting point is the idea that tort law has a structural and a substantive "core." (15) The substantive core consists of liability rules, both fault-based and strict. The structural core of tort law is represented by "bilateral" adjudication, in which a particular victim sues a particular person or limited set of persons whom the victim claims to be responsible for her loss. "Responsibility" entails, at a minimum, actual causation. If the victim's action...