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

• Author: Kutz, Christopher

THE PRACTICE OF PRINCIPLE. By Jules Coleman. New York: Oxford University Press. 2001. Pp. xx, 226. $39.95.

1. FROM PRACTICE TO THEORY

   Jules Coleman's The Practice of Principle (1) serves as a focal point for current, newly intensified debates in legal theory, and provides some of the deepest, most sustained reflections on methodology that legal theory has seen. Coleman is one of the leading legal philosophers in the Anglo-American world, and his writings on tort theory, contract theory, the normative foundations of law and economics, social choice theory, and analytical jurisprudence have been the point of departure for much of the most interesting activity in the field for the last three decades. Indeed, the origin of this book lies in Oxford University's invitation to Coleman to deliver the Clarendon Lectures in Law in 1998, one of the greatest honors for legal scholars. Moreover, unlike many law school "legal theorists," Coleman's high standing within the legal academy is fully matched in the professional philosophical world. Practice will surely be mined for years for its many and subtle discussions of the nature of law and legal argument. The book is a wonderful achievement, both for Coleman himself, and for the development of rigorous philosophical study of the law.

   Coleman's first publication, "On the Moral Argument for the Fault System," appeared in the flagship Journal of Philosophy at a time when work on first-order problems of law--as opposed to second-order questions about the nature of law--was frequently disparaged by professional philosophers as mere "application." (2) Coleman's early writings helped significantly to change that, by showing that deep philosophical issues of responsibility and justice were raised by our legal practices and that our concepts of justice and fault could not be fully understood apart from those practices. What Coleman brought to the field of legal philosophy was both the conceptual rigor of his graduate training at Rockefeller University as well as an interest in and sensitivity to the way risk and responsibility are actually allocated through tort law. In his own work, and in fostering the work of others, Coleman has greatly expanded the range and interest of legal philosophy, moving beyond the mainstays of jurisprudence and constitutional law to the private law of tort and contract.

   His 1992 book, Risks and Wrongs, set out his general view of those fields. (3) Coleman argued that tort doctrine must be understood as the institutionalization of a distinctive moral view, "corrective justice," according to which wrongdoers bear duties to rectify the wrongful losses they inflict on their victims. Such a view is opposed, on the one hand, to the strict liability view put forward by Richard Epstein, (4) according to which causing harm, faultlessly or not, suffices for liability; and on the other to the economic theory of tort, whose chief proponents are Richard Posner and Guido Calabresi, (5) according to which liability properly rests with the party best able to reduce the costs of both accidents and accident prevention, independent of any causal or faulty responsibility for the accident. By contrast, Coleman's interpretation of contract law rejected seeing it as embodying a distinctive moral conception (as, for example, Charles Fried has influentially argued (6)). Rather, argues Coleman, contract law is best understood functionally, as a piece of a more general liberal political theory. With the economists, Coleman sees contract law's chief justification in its facilitation of economic markets. But where the economists see the chief value of markets as lying in their promotion of allocative efficiency, Coleman understands their virtues in richer, more political terms: markets permit social cooperation in the circumstances of liberal societies, that is, divisive pluralism and individual freedom.

   Coleman's argument in that earlier work reflects a general claim, that abstract concepts must be understood in terms of the practices they structure. This claim is a hallmark of philosophical pragmatism and has been implicit in most of Coleman's writing. Now he has paused to make it explicit, and to show how other, related, theses of philosophical pragmatism help to illuminate and ground the substantive positions he has advanced over the years.

   The Practice of Principle is, in effect, two books. The first returns to the subject of tort law. Here Coleman's concern is not setting out his substantive view of tort law, although this work does provide an opportunity for him to knit together his corrective justice view with some other recent work coauthored with Arthur Ripstein, setting out an account of the relation between corrective and distributive justice. (7) Rather, Coleman's concern is methodological, with the question of what kind of account of a body of law should be deemed an adequate explanation. In this half of the book, Coleman's principal adversary is named "the economic approach to law," and represents not any particular figures, but rather a theoretical commitment to explaining and justifying legal institutions in terms of the economic value of efficiency. Coleman hopes to offer an exceedingly ambitious argument: not just that his corrective justice account of tort law is superior to the economists', but that only an account like his, one that takes the internal structure of tort law seriously, could ever be a contender.

   The second "book" takes up questions of general, or "conceptual" jurisprudence: what is law, what authority does it have, and how is law possible? Again, the point of Coleman's discussion here is not to present new substantive answers to these questions, but rather to show how a position he originally put forward twenty years ago, in "Negative and Positive Positivism," (8) can draw upon a broader pragmatic approach to overcome powerful objections raised against his and similar accounts. Legal positivism, at the most general level, involves the claim that law is grounded ultimately and only in social facts, where "social facts" include conventions, practices, and beliefs. But positivists have disagreed whether moral criteria--tests of moral goodness--can be incorporated into the conventions defining a community's law, with Coleman (following H.L.A. Hart) arguing for a capacious view, while Joseph Raz and Scott Shapiro argue that moral tests can never partly constitute a community's law without undermining the basic function of law, guiding conduct. (9) Coleman also takes the occasion to defend the general project of conceptual jurisprudence against two objections voiced by Ronald Dworkin and Brian Leiter, who criticize positivism for, on the one hand, an impossible pretence of value-neutrality; and on the other of poaching on the proper territory of social scientists in claiming to illuminate a form of social organization.

   This Review will touch on the larger themes of Coleman's book, but it cannot do justice to all its contents, for Practice is dense and rich, with new arguments appearing on almost every page. It is also a difficult book, in great part because of the conceptual difficulties of the issues Coleman considers, and the great range of theoretical considerations he brings to bear on those issues. While the general subject matter should be of interest to anyone working in legal theory, broadly speaking, the detail and rigor of its arguments may leave non-specialists a little dazed. (10) But for those with a serious interest in the field of legal philosophy, this is a must-read. Even those who reject Coleman's methods and substantive claims will benefit from the characteristic lucidity and incisiveness with which he sketches rival positions, alternatives, and problems for the field.

   Just as important, a signal virtue of Coleman's book is the excitement it embodies about the state of the field. The book vibrates with critical engagement, with both arguments and authors. The reader has the impression of being invited to a particularly lively philosophy seminar, whose members are both familiar (e.g., Ronald Dworkin) and relatively new (e.g., Scott Shapiro). On every page Coleman is confronting, criticizing, and endorsing others' views, as well as explaining how his own views have shifted over time. The consequence of this strongly dialectical approach is that the book does not really purport to present definitive answers to the problems it treats; Coleman's views will likely shift again in the future. The book, then, offers a snapshot of Coleman's mind and the debates his work drives. In that sense, the book may seem less satisfying than the traditional philosophical treatise, in which the appearance of finality is scrupulously maintained by the rhetoric of the obviousness of the author's conclusions. Coleman's approach is, by contrast, refreshingly honest. The problems are hard, and a philosopher would be a fool to think his or her views the final words on the matter.

2. PRAGMATISM, PRINCIPLE AND TORT

   According to Coleman, The Practice of Principle is supposed to both exemplify and explain philosophical pragmatism as applied to legal theory (p. xi). Because pragmatism is, to varying degrees, the unifying thread of this book, it is worth getting clear from the start what Coleman means--and does not mean--by it. For "pragmatism" is a word much in vogue in legal academia. A recent Westlaw search turns up nearly 200 law journal articles with "pragmatic" or "pragmatism" in the title, (11) on subjects ranging from administrative law, (12) to environmental law, (13) to voting rights law, (14) not to mention at least two special symposia specifically noting the emergence of pragmatism. (15) These articles range in theoretical depth, and it is fair to say in many that "pragmatic" functions as a five-dollar synonym for "practical." Others invoke a more general methodological stance, one that abjures arguments from pure principle in the spirit...