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In Pursuit of Pragmatic Legal Theory

Published online by Cambridge University Press:  09 June 2015

Wil Waluchow
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Extract

A critical review of Jules Coleman’s The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Coleman’s book has two principal objectives: (1) to defend both Inclusive Legal Positivism and Coleman’s influential views on the role of corrective justice in explaining tort law; and (2) to show how philosophical pragmatism can usefully be employed in defending such views. In this article I both outline and critique the main elements of Coleman's book. I also explore ways in which some of its central arguments could usefully be modified or extended to solve related jurisprudential puzzles.

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Critical Notice
Information
Canadian Journal of Law & Jurisprudence , Volume 15 , Issue 1 , January 2002 , pp. 125 - 152
Copyright
Copyright © Cambridge University Press 2002

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References

1. Unless otherwise indicated, all page references included in the main text are to Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001).

2. Coleman, Jules L., Risks and Wrongs (Cambridge, MA: Cambridge University Press, 1992)Google Scholar.

3. Bratman, Michael E., “Shared Cooperative Activity” (1992)Google Scholar 101 Phil. Rev. 327; “Shared Intention” (1993) 104 Ethics 97.

4. See Dworkin, Ronald, Law’s Empire (Cambridge, MA: Belknap Press, 1986)Google Scholar, passim.

5. Neil MacCormick, “A Moralistic Case for A-Moralistic Law?” (1985) 20 Valparaiso L. Rev. 1; Liam Murphy “The Political Question of the Concept of Law” in Coleman, Jules L., ed., Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford: Clarendon Press, 2001)CrossRefGoogle Scholar.

6. For the distinction between “meta-theoretical- evaluative” and “moral-evaluative” factors, see ch. 2 of my Inclusive Legal Positivism (Oxford: Clarendon Press, 1994). I cannot resist the opportunity to distance myself from the rather naive “descriptive” methodology Coleman attributes to my arguments in Inclusive Legal Positivism at pages 109-11. In Chapter two of that book, I make plain the various ways in which values, including moral values, enter into what I call “descriptive-explanatory theories” of the kind I advance. The word “descriptive” was used to distance my efforts—and those of Hart—from the morally charged, constructive interpretations of Ronald Dworkin. But I nowhere claim, or argue, that Inclusive Positivism is a good theory simply because it offers a better description of legal practices in the way in which a description of Europe that mentions France is better than one that does not. Rather the argument is that it offers a better descriptive-explanatory account (“interpretation,” if one likes) of various legal phenomena. The aim is to explain without commending, and it is for this reason that I followed Hart in referring to my approach as “descriptive-explanatory.” My approach is perhaps best summed up by Hart’s description of his own efforts: “My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law, though a clear understanding of these is … an important preliminary to any useful moral criticism of law.” (“Postscript” to The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 240) Among the “forms and structures” best explained by Inclusive Positivism are Charter Rights systems and the challenges to legal validity which occur within them.

7. For another set of arguments in support of this conclusion, see Hart, ibid. See also Raz’s discussion of what he calls the “detached” point of view in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 140-43, 153-57. Of equal importance is Hart’s response to Dworkin’s attempt to convert The Concept of Law into an “essay in constructive interpretation.” For Hart’s response, see the “Postscript,” supra note 7 at 242-44. As Hart notes, “Description may still be description, even when what is described is an evaluation” (ibid, at 244).

8. For Coleman’s views on this aspect of corrective justice in relation to fairness, see supra note 1 at 44ff.

9. Hart makes a similar point when he writes of his descriptive-explanatory project in The Concept of Law, “The starting-point for this clarificatory task is the widespread common knowledge of the salient features of a modern municipal legal system which on page 3 of [The Concept of Law] I attribute to any educated man.” (“Postscript,” supra note 6).

10. See, e.g., Posner, Richard A., Economic Analysis of Law, 4th ed. (Boston: Little, Brown & Company, 1992)Google Scholar and Calabresi, Guido The Costs of Accidents: A Legal and Economic Analysis (New Haven, CT: Yale University Press, 1970)Google Scholar.

11. A highly influential discussion of utilitarianism in relation to the duty not to punish the innocent can be found in John Rawls’ classic paper “Two Concepts of Rules” (1955) 64 Phil. Rev. 3.

12. See Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978)Google ScholarPubMed chs. 2, 3.

13. This is a point I tried to drive home in Inclusive Legal Positivism where I provided some preliminary thoughts on the different “adjudicatory functions” applied by judges in discerning the requirements of valid laws. These adjudicatory functions are sensitive to what I termed that varying “institutional forces” of laws and the corresponding adjudicative powers different judges have to change, re-interpret, or in some other way avoid the force of, what would otherwise be binding law.

14. See Joseph Raz, “Authority and Justification” (1985) 14 Phil.& Publ. Affairs 3; “Authority, Law and Morality” (1985) 68 The Monist 295.

15. Ibid.

16. See Jules L. Coleman, “Incorporationism, Conventionality, and the Practical Difference Thesis” (1998) 4 Legal Theory 381; Waluchow, supra note 6 at 133-40; Wil Waluchow, “Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism” (2000) 6 Legal Theory 45.

17. R. v. Morgentaler, (1988) 1 S.C.R. 30.

18. See e.g., Coleman, Jules, “Authority and Practical Reason” in George, Robert P., ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996)Google Scholar.