From The Law and Politics Book Review

Vol. 9 No. 2 (February 1999) pp. 62-65.


ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY by Brian Bix (Editor). Oxford: Clarendon Press, 1998. 327 pp. Cloth $49.95. ISBN 0-19-826583-2.


Reviewed by Kenneth Einar Himma, Department of Philosophy, University of Washington.


The articles in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY grew out of a 1996 conference devoted to the work of Jules Coleman. The topics of these essays are as diverse as Coleman’s thought, ranging from the viability of inclusive positivism to the foundations of contract and tort law. In consequence, apart from touching on various facets of Coleman’s impressively large body of work, there is no unifying theme to the articles.

The contributions to the book are marshaled into four sections reflecting the range of Coleman’s intellectual interests: (1) Theory and Methodology; (2) Schools of Thought; (3) Philosophical Foundations of the Common Law; and (4) Critical Perspectives. The reader whose interests in legal theory are not as broad as Coleman’s may find cause for disappointment in the book’s breadth; none of the issues gets as much attention as it deserves. Nevertheless, all of the essays are worth reading—and at least three are likely to generate a body of literature themselves.

In "An Essay on the Objectivity of Law," Andrei Marmor distinguishes three conceptions of objectivity: (1) a statement is semantically objective if and only if "it is meant to be a statement about a certain object in the world"—as opposed to being about feelings or sensations; (2) a statement is metaphysically objective if and only if "there exist objects in the world purportedly described by that [statement]"; and (3) a statement is logically objective if and only if it makes sense to ascribe to it a determinate truth value (5-7). Marmor argues that logically objective legal values are defined by the conventions that establish law as an institutional practice—in much the same way logically objective chess values arise out of the conventions that constitute the game of chess.

Scott J. Shapiro mounts a powerful critique of Coleman’s inclusive positivism in "The Difference that Rules Make." Shapiro argues that rules cannot guide behavior unless they are capable of affecting the output of an agent’s practical reasoning. According to what Shapiro calls the Constraint Model, an agent who guides her behavior by a rule constrains her future self by precluding future behavior that violates the rule: "[r]ule-guidance is absent … if these constraints are either missing, or present but redundant, that is, the future self would act in the same way even if not constrained" (39). Shapiro argues that inclusive positivism is inconsistent with the Constraint Model because a person cannot be guided both by an inclusive rule of recognition and the moral rules it purports to validate; for, on Shapiro’s view, "[t]he inclusive rule of recognition would effectively preempt all subsidiary norms, depriving them of any practical influence" (58).

In "Positivism through Thick and Thin," Frederick Schauer argues for a thin conception of positivism that allows for the possibility of legal systems lacking authority. Coleman believes any conceptual explanation of law must account for the authority of law. Schauer argues, intriguingly, that there is a tension between this conception of legal theory and positivism’s separability thesis (i.e., the thesis that law and morality are conceptually distinct): "[A theory] that an account of law need not explain law’s authority because something can be law and not have authority would be more faithful to the project of thinning out the concept of law that Coleman, properly, thinks is morally so important" (73).

In "Naturalism and Naturalized Jurisprudence," Brian Leiter distinguishes two main forms of naturalism to show how naturalism might prove fruitful as an approach to the philosophy of law. Methodological naturalism insists that "philosophical theories emulate the ‘methods’ of inquiry of successful sciences" (82). Substantive naturalism is "either the (ontological) view that the only things that exist are natural or physical things; or the (semantic) view that a suitable philosophical analysis of any concept must show it to be amenable to empirical inquiry" (84). Leiter conceptualizes legal realism as a form of methodological naturalism to illustrate the possibility of a "naturalistic turn" for legal philosophy.

The next essay in the book, "Coleman: Supereditor or Translator," is a slightly (and delightfully) ambivalent tribute to Coleman. Guido Calebresi begins by commending Coleman for his ability to clarify the ambiguities that arise when practitioners of one discipline attempt to assimilate the categories from another discipline but ends by gently chiding Coleman for occasionally indulging in philosophical self-love—a temptation to which Calebresi believes philosophers succumb all too frequently. Though there is little of substance here, the essay provides an entertaining interlude.

In "Is Coleman Hobbes or Hume (or Perhaps Locke)?," Jeremy Waldron considers Coleman’s view that cooperative decision-making is the basic form of human interaction with market competition, a secondary form appropriate only when cooperation is not feasible. Waldron explores three models of cooperation. On the Hobbesian model, property rights are established without moral constraint by a sovereign who ends the war of all against all in the state of nature. On the Lockean model, property rights have an institutional source in law, but natural law principles determine the appropriate means for acquiring and transferring property. On the Humean model, property rights emerge after a period of struggle for scarce resources. When people realize that they can no longer increase their share of the resources by conflict, they have reason to accept an agreement respecting the existing pattern of distribution. Waldron argues that each model can be reconciled with the rational choice theory that comprises the foundation of the Law and Economics movement.

In "The Distributive Turn: Mischief, Misfortune and Tort Law," Stephen R. Perry examines the relation between distributive justice and corrective justice as they concern mechanisms for compensating individuals for wrongful losses caused by others. Perry finds a tension between the fault standard that Coleman believes grounds a duty to compensate for wrongful losses and Coleman’s view that decisions about corrective justice and tort law are ultimately political: "In retaining a general version of the fairness principle while at the same time adopting a political, allocation-based conception of ownership, Coleman and Ripstein try to have their cake and eat it too" (154). Additionally, Perry argues that the concept of fault alone does not imply an agent-specific moral obligation to compensate the victim of one’s wrongful conduct.

Matthew H. Kramer wants to resurrect Coleman’s annulment thesis, which requires that wrongful gains and losses be annulled. Coleman came to reject this thesis for a couple of reasons, but one concern was that the defendant’s wrongful gain by negligent conduct need not match the victim’s wrongful loss by such conduct; in such cases, the annulment thesis’s requirement that the defendant disgorge her wrongful gain would not be sufficient, if awarded to the victim, to make the victim whole. In "Of Aristotle and Ice Cream Cones," Kramer argues that Coleman’s annulment thesis can be rescued by an Aristotelian conception of gain in which wrongful gains and losses are always equal.

In "Contract, Marriage and Background Rues," Martha Albertson Fineman considers how Coleman’s views about the relationship between markets and background property laws might apply to marital relations: "Is the existence of a separate, ‘private’ institution of marriage a prerequisite for the development of a coherent concept of the ‘public market" (191)? Though she does not attempt a comprehensive account of this relation, she reaffirms her provocative view that marriage should be abolished as an independent legal category. On her view, the laws of contract and tort, which exist to stabilize and protect private relationships, should be extended to intimate commitments.

Robin West distinguishes Bentham’s hedonic and Mill’s ideal utilitarianism as superior to the preference utilitarianism to which the former are sometimes thought to be reducible. In "The Other Utilitarians," she argues for an instrumental theory for evaluating law that takes into account "a hedonic utilitarianism that regards felt pleasures as the measure of value … and an ideal form that respects the idealized pleasures and pains of the perfectly informed, educated, and nurtured citizen as the measure of worth" (204). Thus, on her view, law should be evaluated in terms of how it fits with our felt desires and our ideals of what we can be—and not, contra the Law and Economics movement, just in terms of how many preferences it satisfies.

In "Defending the Indeterminacy Thesis," Mark Tushnet argues for a sociological understanding of indeterminacy. On Tushnet’s view, indeterminacy can arise with respect to any apparently determinate legal proposition because there are always background rules that a well-socialized lawyer can employ as part of a powerful counter-argument to the proposition. If so, indeterminacy is possible "in every or nearly every possible controversy" (230)—a situation he believes is inconsistent with ordinary intuitions about legitimacy. For, as Tushnet points out, ordinary citizens believe they have consented to the rule of law—and not to a rule of judges, as would occur if the indeterminacy thesis is true. This poses a problem insofar as it is a necessary (but not sufficient) condition for the legitimacy of a legal system that citizens believe it is legitimate.

In "Choice, White Supremacy, and Coleman," Jerome Culp, Jr. challenges the "liberal" assumption that racism in law (and in general) cannot exist if race is not acknowledged. Culp discusses a number of ways in which facially race-neutral laws unfairly impact people of color; he suggests, for example, that civil liability for race-based discrimination does no more than set a price for people who wish to discriminate. On Culp’s view, civil law should strive to reject white supremacy, which can be done only by acknowledging race as a social phenomenon: "We do this … by explicitly asking ourselves the race question—which consists of explicitly seeing if a particular rule helps to support white supremacy" (253-4).

As is evident from these summaries, the articles collected in Analyzing Law cover a wide range of topics. One of the highlights of the book is a long essay in which Coleman articulates his current thinking on many of the issues raised in the articles. For those with broad interests in

legal theory, there is much here to provoke reflection. For those with more specialized interests, the book provides a lively introduction to the issues that have engaged Jules Coleman for the last couple of decades.

Copyright 1995