Whereas part 1 of this book describes mainstream legal reasoning as it is commonly understood by lawyers at the beginning of the twenty-first century, this chapter represents in some respects an innovation. Lawyers commonly argue that a particular result is desirable because it would further certain public policies or that the contrary result is undesirable because it would impede certain public policies. Yet lawyers have devised no systematic method for analyzing, synthesizing, and applying policies. This chapter offers a sketch of such a method.

Before commencing the discussion, however, let me emphasize that in this book, and especially in part 2, I have used the word policy in a very broad and inexact way. Essentially, by the word policy, I mean any consideration other than the text of a rule on which the court bases a decision involving the creation or application of the rule. For example, in the discussion that follows, I speak of positivism and naturalism, which are generally regarded as jurisprudential theories and not policies. Similarly, I discuss formalism and instrumentalism, although they too are really jurisprudential theories and not policies as that word normally is understood. In some instances, I have used the term theory to refer to positivism, naturalism, formalism or instrumentalism, but I have not been scrupulous about it.

I have used the term policy in this very broad and inexact way for two reasons. First, grouping these many different concepts under the single term policy serves the interest of brevity. Second, because all of these concepts influence the way in which lawyers and courts create and apply rules, some kind of collective term was appropriate. That said, I would not quarrel with the suggestion that another word, such as theory, would have been a better choice. I chose policy because lawyers commonly speak of “making a policy argument” when they mean, essentially, looking outside the language of rules to construct an argument with respect to the application of the rules. Lawyers rarely refer to “making a jurisprudential argument” or “making a theoretical argument.”

Some legal scholars, particularly Ronald Dworkin, whose work is discussed in some detail in chapter 12, and those in the legal process school, which is discussed very briefly at the end of chapter 11, draw a distinction between principles and policies. For the legal process school, for example, a principle is a moral precept on which a court may base its decision, such as the precept that “no person should profit from his or her own wrong.” A policy, by contrast, is a goal that a legislature may seek to achieve in enacting legislation, such as a policy of promoting highway safety. The distinction is useful for a number of scholars addressing the problem, discussed in chapters 11 and 12, of how to distinguish adjudication, the work of a judge, from legislation, the work of a legislature. As will be seen in those chapters, distinguishing adjudication from legislation is often regarded as critical to preserving democracy and the rule of law. Although the distinction between principles and policies is useful for many purposes, it is not one that most lawyers strive to maintain in their practice. For example, a lawyer may refer to a policy of preventing a wrongdoer from benefiting from his or her wrongful conduct, without pausing to consider whether according to a particular theorist that idea is a principle rather than a policy. This book is not intended as an argument for how lawyers should think. Rather, it is intended as a description of how lawyers actually do think, although I concede that parts of the book, particularly this chapter, attempt to elaborate in an explicit, systematic way a process that for most lawyers is unconscious, intuitive, and ad hoc. That is, I am attempting to describe what they do, even if they are not entirely aware that they are doing it, much in the way that a coach might assist a tennis player in analyzing her forehand stroke. Thus, I use the term policy in a broad and inexact way, much as practicing attorneys often do.

In any event, the reader is duly warned that perhaps nowhere else but in this book will all of the concepts discussed in this chapter be grouped under the single term policies. I hope that the reader ultimately will conclude that the benefits of treating all of these various influences on judicial decision making as part of a collective grouping will justify the violence that I may have done to the English language or to conceptual clarity.

At its most general level, this tension raises the question of whether the will of the state or the will of the individual is to prevail in a given situation. The conflict between the will of the state and the will of the individual is characterized here as a conflict between majoritarianism and individualism.

Assume that a rule exists providing that, in a particular situation, the state must give effect to the will of the individual. Such a rule, however, does not fully resolve the question of primacy between the community and the individual; it merely relocates it. Although the rule states that the individual’s will is to prevail, the question of primacy reemerges as the question of how to define the individual’s will. Because an individual maybe coerced by circumstances into choices that are not truly free, deference to the will of the individual may require the state to intervene to protect the individual against private domination. Thus, the tension between the community and the individual reemerges as a tension between the policy of state evaluation of the circumstances of individual choice and the policy of presuming that individual choices represent the uncoerced will of that individual. This tension is discussed below as the conflict between the policy of paternalism and the policy of autonomy.

Now assume that the rule provides that the will of the state, rather than the will of the individual, shall prevail in a particular situation. Again, this does not fully resolve the question of primacy between the community and the individual but only relocates it. Because the law has authorized the state to impose its will, the state must decide whether to exercise its will in favor of the collective welfare or the rights of particular individuals. This tension might be characterized in a number of ways but is described below as the tension between efficiency and justice.

If the state chooses in a particular situation to seek justice, for example, that choice again merely relocates the tension between the community and the individual. The tension reemerges as a choice between a utilitarian theory of justice, which gives primacy to the welfare of the community, and a rights-based theory of justice, which gives primacy to the entitlements of the individual.

As this discussion illustrates, the tension between the community and the individual is never fully resolved. It constantly reemerges at different levels of generality as different cognate policy conflicts, with courts often preferring one policy at one level of generality and the opposing policy at another.

The conflict between majoritarianism and individualism exists most obviously where the legislature enacts a statute on behalf of the majority. Assume, for example, that a legislature enacts a law prohibiting the advocacy of communism as a form of government and the law is challenged as a violation of the Constitution’s guarantee of freedom of speech. A majoritarian court generally believes that the people have the power to punish speech that they consider injurious and is likely to uphold the law. An individualist court generally attempts to protect the right of individuals to express their political views and is likely to invalidate the law.

Because the common law is presumed to represent the popular will, the conflict between majoritarianism and individualism also pervades common law adjudication.² For example, under the legal doctrine of defamation, the court may force a speaker to compensate another individual whose reputation was injured by the speaker’s remarks. The majority’s wish to impose liability for defamatory comments thus conflicts with and prevails over the speaker’s right to say what he believes.

One can distinguish between a policy of majoritarianism and the more specific policies in support of which the majority may exercise its will, just as one can distinguish between a policy of individualism and the more specific decisions made by a given individual. A majoritarian takes the position that the will of the majority should generally prevail, whether that will is to prohibit nudity at the beach, ban smoking in restaurants, or impose an implied warranty on the sale of an automobile. An individualist takes the position that the will of the individual should prevail, whether the individual wishes to criticize the president, agree to mine coal for one dollar an hour, or practice animal sacrifice as a religious rite. Thus, the general policies of majoritarianism and individualism may be linked in a particular situation with any of a countless number of other more specific policies, ranging from the protection of the tobacco industry to the prevention of cruelty to animals.

American law does not consistently favor either majoritarianism or individualism. In some situations, one policy prevails, whereas in other situations the opposing policy does. The law of a particular community, for example, may allow smoking in a restaurant, but not nudity on the beach. Which policy prevails often depends upon the nature of the other policies with which each is linked in a particular situation. Thus, the lawyer can predict the choice between these two policies only within specific contexts.

If majority rule prevails in every case, then democracy will harden into the totalitarian state. If individual will prevails in every case, then the democratic society will collapse into anarchy. Majority rule and individual rights each act as a check on the other. The conflict between majoritarianism and individualism can never be fully resolved.

Further, the policies of majoritarianism and individualism are so general that even the choice of one or the other in a particular situation may not resolve the dispute. For example, as is discussed in the next subsection, individual will may be defined in more than one way. The choice of individualism thus leaves the conflict unresolved, merely shifting it to the more specific issue of how to define the will of the individual.

The conflict between paternalism and autonomy is rooted in two competing views of the possibility of individual freedom. The policy of autonomy assumes that the government is the primary threat to individual freedom and thus holds that the law should facilitate rather than regulate individual choice. The policy of paternalism assumes that the primary threat to individual freedom is powerful individuals or private organizations that dominate others, whether for economic or other reasons, and thus the law should regulate private transactions to prevent domination and to ensure that individual exercises of will are truly free.

Assume, for example, that an illiterate man has purchased a refrigerator from a department store and has signed a finance agreement permitting the store, whenever it believes he has missed a payment, to repossess his refrigerator and all other appliances previously purchased from the store.³

If the court prefers a policy of autonomy, it will probably conclude that the consumer freely signed the agreement without having someone read it to him and he should be bound by his choice. Indeed, continues the argument, invalidation of the repossession provision could force the store to adopt more expensive remedies, such as suing the consumer to obtain return of the refrigerator, thus raising the cost of doing business, a cost passed on to consumers. The store might even decide not to sell on an installment basis to individuals who are bad credit risks, thereby eliminating entirely their ability to purchase expensive appliances. In this view, refusal to enforce the contract would very likely lead to fewer choices for future consumers. The policy of autonomy, in other words, assumes that government interference in private arrangements is ultimately destructive of freedom.

If the court prefers a policy of paternalism, it will question whether the consumer freely chose a contractual arrangement that he did not understand. The court may also question whether he could realistically have found anyone who could have adequately explained the provision to him, whether any store would have sold him a refrigerator without such a term in the contract, and whether he had any real choice other than to sign the contract or forgo owning a refrigerator entirely. If the court enforces the provision, then all vendors will insert such provisions in their financing agreements. Thus, enforcing the agreement could limit the freedom of consumers to obtain goods considered virtual necessities in the modern world, in effect allowing them to do so only on certain unfavorable terms. The policy of paternalism, in other words, assumes that real freedom requires the state to police private arrangements to ensure that those with less power are not coerced by circumstances into agreements to which no person with equal bargaining power ever would consent.

Private domination is a greater threat to individual freedom in some situations, whereas state coercion is a greater threat in others. The lawyer can thus predict the choice between paternalism and autonomy only in specific contexts.

The conflict between autonomy and paternalism, moreover, is persistent and can never be fully resolved. If autonomy were to prevail in every case, the court would enforce all private arrangements, including contracts induced with a gun to the head. The threatened party, having freely chosen to sign rather than die, should be held to the agreement. If paternalism were to prevail in every case, then no individual decision would be free from judicial intervention. Every transaction that resulted in disappointment would lead to litigation over claims that the transaction was not the result of a truly free, informed choice.

Even where the choice between paternalism and autonomy is made in a particular situation, that choice may not resolve the dispute. The policies of paternalism and autonomy are so general that they may be indeterminate. For these policies to be determinate, one must have a relatively specific conception of what constitutes coercion or domination in a particular situation and what means would be effective in reducing or eliminating coercion or domination.

For example, assume that a woman complains to her employer about a male coworker who reads, in his cubicle during lunchtime, magazines that feature photographs of nude women. The supervisor then fires the male employee for sexually harassing the woman, whereupon the man sues the employer for wrongful termination. A paternalistic court determined to intervene in the workplace to prevent private domination of the weak by the strong needs more than its commitment to paternalism to decide the dispute. It must decide whether the man, by reading the magazine, is forcing the woman to endure sexist denigration or whether the employer, by firing the man for reading the magazine, is forcing the reader to defer to the employer’s vision of proper gender relations. Only by deciding what coercion means in this very specific situation can the paternalist court resolve the dispute.

A good example of the conflict between justice and efficiency involves the procedural doctrine of res judicata, a Latin phrase that can be translated as “the thing adjudicated.” That doctrine precludes a party from relitigating a previously adjudicated claim against the same party. The doctrine prevents wasteful relitigation and thus is based on the policy of efficiency. It can lead to injustice in particular cases, however. Assume, for example, that a worker receives a slight burn injury as a result of his employer’s negligence. The worker sues the employer and receives minor compensation. Ultimately, the burn does not heal properly, becomes cancerous, and causes severe injury.⁴ Most people would probably agree that because the employer’s negligence caused the injury, justice requires that the employer fully compensate the worker. Yet the doctrine of res judicata precludes the worker from filing a new suit to recover additional compensation for the unforeseen severity of the injury. In that case, the policy of efficiency prevails over the policy of justice.

If it is to retain the support of the people, the American legal system can never abandon its aspiration for justice. At the same time, a legal system that squanders its own resources and those of the society that it serves also will lose the respect and support of the people. The legal system must be both just and efficient. The conflict between these policies can never be fully resolved. The lawyer can predict the choice between efficiency and justice only in specific contexts.

Even where the choice between efficiency and justice is made in a particular case, that choice does not necessarily resolve the dispute. The concepts of efficiency and justice are so general that they often are indeterminate. For example, a decision that the court will seek the most just result does not resolve the dispute because there are many different conceptions of justice. And in selecting a particular conception of justice, the lawyer will again confront the tension between the community and the individual. That is, as discussed in the next subsection, the desire to seek the just result shifts the tension to the more specific question of how to define justice.

Rights theory posits that individuals have certain rights that the law should protect and enforce because to do so is just. A court that held a strong conception of individual rights, for example, might hold that the manufacturer of a product that injured a consumer must compensate the consumer because the consumer has a “right” to be free of physical injury caused by others. Rights theory can generally be traced to the natural law assumptions of Enlightenment thinkers like John Locke and has been reinforced by the deontological ethics of Immanuel Kant.

Utilitarianism generally posits that justice requires the result that affords the greatest happiness for the greatest number. That is, a just result is one that is beneficial for society as a whole, regardless of its impact on particular individuals. Utilitarianism is often traced to the work of Jeremy Bentham.

In utilitarianism, the importance or even the existence of individual rights is essentially denied. Under a utilitarian theory of justice, the court must do what is best for the community in general, even if that severely limits the rights of individuals. Individuals may be protected by utilitarianism, but only to the extent that their protection benefits the society as a whole.

The pursuit of the just result often poses a choice between a utilitarian theory of justice and a rights-based theory. For example, a motorist who is sued by a recreational bicyclist for accidentally striking the bicyclist on a crowded city street may base her defense on having taken every reasonable precaution to avoid hitting the bicyclist, claiming therefore that the only way to guarantee the safety of the bicyclist would be to ban traffic from the streets, which would be injurious to the welfare of the society. The bicyclist may base his claim for compensation on a person’s right to use the street free of injury caused by others. Thus, in this instance, the motorist has adopted a utilitarian theory of justice, whereas the bicyclist relies on rights theory.

Even making the choice between these two theories of justice, however, often does not resolve the dispute. The concepts of rights and utility are both so general that they can be highly indeterminate.

Deciding that individuals have rights, for example, does not determine which rights they have. And, even assuming that there was broad agreement that people have certain rights—such as the right to property, the right to privacy, or the right to free speech—the nature of the rights must still be defined.

Defining rights as absolute is unworkable because two absolute rights will eventually conflict.⁵ For example, a newspaper that wishes to publish the name of a rape victim who desires anonymity raises a conflict between the right of free speech and the right of privacy. If both rights are absolute, the case cannot be resolved. One or both rights must be limited in some way. But the simple statement that there is a right of free speech or a right of privacy provides no guidance as to how to limit the rights or which to prefer.

Because of the indeterminacy of the concept of rights, in many disputes the position of each party may be supported by a different conception of the nature of their respective rights. A musician who wants to play the tuba in an apartment house late at night will talk about her “right” to use her property, whereas a neighbor who wishes to sleep at that hour will talk about his “right” to peaceful enjoyment of his home. The court cannot decide the case merely by deciding that it wishes to protect individual rights. It must adopt a very particular conception of specific individual rights.

Utilitarianism poses a problem analogous to that of rights theory. The concept of the greatest happiness for the greatest number is so general that it can be highly indeterminate. To find the utilitarian result, one must first decide what forms of happiness are to be counted, how they are to be measured, and whether some forms are entitled to more weight than others. One person may believe, for example, that the greatest happiness for the greatest number requires closing down a factory that pollutes the air, whereas another person may believe that the greatest happiness for the greatest number requires permitting the factory, which employs a large segment of the community, to continue to operate. One needs to believe not merely in utilitarianism but in a particular conception of the greatest happiness before utilitarianism can be of assistance in resolving a dispute.

Individualism is a deeply rooted value in American society, and thus arguments based on individual rights have strong intuitive appeal. Indeed, most utilitarians at some level incorporate a notion of individual rights into their theory. For example, most utilitarians would probably recoil from a psychopath’s argument that he should be allowed to murder a comatose patient because he would obtain great pleasure from the act, whereas the comatose patient would suffer nothing, and thus the murder would increase the aggregate happiness in society. In effect, utilitarians would regard individual rights, in this case the right of the patient to life, as setting some kind of limit on the application of the utilitarian calculus. At the same time, a complete rejection of utilitarianism in favor of individual rights could allow the single, unreasonable individual to undermine the welfare of the entire community.

Thus, utilitarianism tends to be limited in extreme cases by individual rights, and extreme assertions of individual rights are usually limited by some utilitarian calculus. Few, if any, of us would be prepared to accept either theory without some limitation from the other. The tension between these different theories of justice can never be fully resolved. The lawyer can predict the choice between these theories of justice only in specific contexts.

Naturalism generally holds that universal laws exist that are applicable to all persons at all times and that these laws are based on the will of God or the nature of the universe. Naturalism is often traced to the Stoic philosophers of ancient Greece, who found natural law through reason. In the medieval period, Catholic theologians found the source of natural law in the will of God, which was revealed through the scriptures. The religious skepticism triggered by the Renaissance, the Reformation, and the Scientific Revolution shifted naturalism back to secular grounds so that by the time of the eighteenth-century Enlightenment, naturalists referred more often to reason than revelation for the source of law.

Naturalists generally take the position that human laws inconsistent with natural law are not truly law. Naturalism was an important element of American legal thought at the time of the Revolution, and, in the early years of the republic, courts claimed the right to void legislation that was inconsistent with natural law.

Positivism regards law as the command of a sovereign. Law is thus the creation of human society; it is not the product of God’s will or inherent in nature. Positivism is commonly traced to the work of Jeremy Bentham and John Austin in the eighteenth and nineteenth centuries and is represented in the twentieth century by the work of H. L. A. Hart.

As discussed in chapter 11, positivism displaced naturalism as the dominant theory of law in the United States during the early nineteenth century, thus bringing an end to the practice of voiding legislation that was inconsistent with unwritten natural law. Because sovereignty in the United States resides in the people, positivism seemed more consistent with democratic theory than naturalism, which found the source of law outside the will of the people.

Positivism has never entirely displaced naturalism, however. First, positivism seems an incomplete theory of law because it does not explain why the will of the majority should prevail. For that, one must resort to a naturalist explanation, such as the explanation that it is in the nature of things that the majority should rule or that democracy is the only morally just form of government. Thus, the legitimacy of positive law seems to rest ultimately on naturalist assumptions. The result is that positivist justifications of a particular rule or result inevitably lead back to naturalism.