In the realm of legal and moral Philosophy; (Book Review)

Reviews the book `In the Realm of Legal and Moral Philosophy;,' by Matthew H. Kramer.

Copyright © 2001. All rights reserved. Kramer, Matthew H. In the Realm of Legal and Moral Philosophy. New York: St. Martin's Press, 1999. Pp. x + 202. $59.95 (cloth). Kramer's announced goal is to "investigate the realm onegal and moral philo!;o­phy" (p. 1) by "critical encounters" (p. 9) \\ith "a number of prominent recent theories and central controversies" (p. 1). This volume, however, consists prin­cipally of republished versions of Kramer's recently published articles. These include encounters \\ith Finnis, Lyons, Dworkin, Posner, Coase, Coleman, Kron­man, and Ge\\irth. Although the essays are advertised as having undergone "nu­merous and sweeping" re\isions (p. ix), in the essay on Lyons which I checkfd, the re\ision consists in the addition of a footnote arguing that the uniform failure to enforce a statute is a procedural injustice in every case (because in each case, considered indhidually, the indhidual against whom the statute otherwise would have been enforced is pri\ileged \is-a-\is all others). Nonetheless, several themes emerge in the essays. Overall concerns are the rejection of grand theory, the embrace of indeterminacy, and the fascination \\ith paradox. Kramer offers partial defenses oflegal posithism in arguing against Fin­nis's support for natural law theol]· and in working to develop a plausible positiv­ist account of procedural justice. He offers related support for utilitarianism, criticizing the anti utilitarian \iews of Finnis, Dworkin, and Ge\\irth, and defend­ing the utilitarianism of Posner and Coase. The essays are thought provokir.g, albeit sometimes puzzling and not entirely comincing. This brief re\iew takes lip two of them, one \\ith a posithist and the other \\ith a utilitarian theme. In "On Formal Justice," an article first published by now over twenty-the years ago (and more recently reprinted), David Lyons argued that formal justice Copyright © 2001. All rights reserved. 422 Ethics January 2001 in the sense of official action in conformity to law is not really a species of justice at all. The article was part of Lyons's then-effort to purge legal posithism, as a pure theory oflaw, of any moral commitments. (Lyons has since come to the view that we do think of law as haling pretensions to justice; positivist efforts to argue that formal justice is a species of justice might be regarded as a manifestation of this connection.) Lyons argued that the connection between following the law and doing any kind of justice at all is contingent, depending on the substantive content of the law. Efforts to ground the justice of official compliance in the maxim "treat like cases alike," the injunction to follow rules, or the stricture that officials should behave impartially and \\ithout bias, are likewise contingent, Ly­ons contended. As a counterexample to formal justice, Lyons offered a law that prescribes extermination of members of a hated group, and a judge who stays on the bench in order to til' to avoid strict enforcement of the law (knm\ing that were she or he to resign, the replacement would strictIy enforce the law). Would the judge's success in preventing a single extermination be unjust? To whom? Lyons contends that it would not be unjust to the person saved or to others who have been or \,il1 be exterminated. To be sure, all those who are exterminated are \\Tonged, but that is a matter of the horror of the law, not of the \iolation of formal justice. Kramer disagrees. His \iew is that formal justice, in the sense of the strict application of legal norms, is a species of justice. It does not, however, carry any moral weight, even prima facie weight. Lyons's basic mistake, according to Kra­mer, lies in thinking that the requirements of formal justice are moral require­ments of any sort; in this, Lyons blurs the distinction between formal and sub­stance justice. (A reply here might be that it is hard to see the point of defending formal justice as Kramer understands it, or indeed of terming it "formaljustice" at all; the defense of formalism may have been part of the legal positilist's effort to have his cake in the sense of separating law and morality and eating it too in the sense of insisting that law as a normative system commands obligation.) Kra­mer's ,iew is that an applicable legal norm creates a procedural warrant that it be followed, although it does not create even a prima facie moral justification for such compliance; in this respect, Kramer thinks, recognition of procedural jus­tice as a species of justice furthers the positilist project of separating law and morality. Kramer concedes Lyons's claim that we cannot know whether the strict application of law is prima facie morally legitimate unless we know the moral legitimacy of the underlying law itself, but he distinguishes his view from Lyons's in two respects. First, he maintains that even though procedural justice carries no moral weight on its mm, it does "partake ofa certain moral import" (p. 41): by ,irtue of requiring strict compliance to law, it insures that the administration of laws is no better or worse than the laws themselves. Second, procedural justice, by guaranteeing that no one will be treated better or worse than applicable law, can generate decisions without any moral weight whatsoever, such as in the ex­ample of the law requiring extermination. Yet Kramer does find something of moral significance here: the official in applying the law "has a moral obligation not to go below the minimum of decency secured by procedural justice, but he also has a moral obligation not to treat that minimum as a maximum" (p. 42). Procedural justice tells us that unrestrained elil is worse than legalistic elil, but that legalistic evil has no moral claim on us at all. But why should this be so? And if unrestrained e\il is indeed worse, why is Copyright © 2001. All rights reserved. Book Reviews 423 that a matter of procedural injustice, of nonconformity to law, rather than a mat­ter of the underl}ing pattern of e\il that results? Isn't Kramer also seeking to have his moral cake (procedural justice is a species of justice) and to eat it too (pro­cedural justice carries no moral weight)? His answer is given in his discussi.m of Lyons's supposed counterexample to procedural justice, the judge who in a single instance fails to follow a law requiring extermination of all members of a hated group. Kramer contends that we can judge the judge as hming act,~d unjustly to those who have been exterminated, altllOugh not as ha\ing acted in a manner that was even prima facie morally "Tong. The "ictims of extermination were "Tonged by the extermination, and by the fact that the judge acted wronf:ly in not following the policy consistently. \\11en we judge the judge in this case, we should note that although the judge did the morally right thing, and that what she or he did was not in any sense prima facie morally "Tong, the judge none­theless committed a procedural injustice. Kramer fails to make the case, however, that thisjudgment is anything other than the observation that the judge failed to follow the law. Yet he clearly wants it to be more: he regards it as a procedural injustice, a minimum of moral decency, albeit one Mth no moral weight at all. Another essay in the volume is devoted to Anthony Kronman's criticism of both libertarian and liberal opposition to redistributive uses of contract law (such as the refusal to enforce contracts that are substantive1yunconscionable). Kramer uses this essay as an occasion to criticize Rawlsian theory and thereby to suggest indirect support for utilitarianism. Kronman's strategy is to argue that both lib­ertarians and Rawlsian liberals are committed to at least some redistributhism in the law of contracts. Libertarians would refuse to enforce contracts that are ar­rived at by force or fraud or that \iolate the rights of third parties. But when, Kronman asks, are contracts involuntary? To ask this question is, in Kronman's ,ie\\', to inquire which forms of advantage taking in exchange relationships are compatible ",ith libertarian freedom. In answering this question, it will not do for the libertarian simply to say "contracts that \iolate rights," or "contracts that in­volve force or fraud"; the libertarian needs to prO\ide a principled explanation of when, for example, a failure to supply information amounts to fraud. As a means for drm\ing such lines, Kronman suggestions the Paretian principle: ad­vantage taking should be permitted in just those types of cases in which it works to the long-nm advantage of the promisee. On this view, advantage taking that consists offraudulent concealment would not be enforced, but advantage taking that encourages generally beneficial information gathering would be. Kronman also argues that taxation is not a preferred substitute for redistributive contrac­tual regulation in achieving liberal social justice. Kramer's criticism, quite fairly, begins Mth Kronman's efforts to commit the libertarian to the form ofParetianism he suggests. Kramer argues comincingly that Kronman begs the question against the libertarian. Why should the Iiberta.r­ian concede that not making promisees worse off is the touchstone oflibertari<,n freedom? And, why should libertarians accept the baseline Kronman proposes, that advantage taking is presumptively illegitimate, rather than the reverse, that it is presumptively legitimate? \%ere Kramer fails is in his further argument that adopting Paretianis::n opens Kronman up to the charge of indeterminacy. Kramer's point is that be­cause there are many possible Paretian improvements from a baseline in which a particular contractual process is forbidden, Kronman cannot prO\ide us "ith a 424 Ethics January 2001 theory about which contracts should be enforced and which should not be. But this misunderstands Kronman's "iew. Kronman is contending only that when en­forcing a particular class of contracts would make promisees worse off than a baseline of refusing to enforce them, those contracts should not be enforced. He is not arguing for a theory of optimization, although Kramer as a utilitarian might prefer such a ,iew. A final note. Kramer potentially brings a professional ethics problem to light in the preface. Two of the essays (including the one on Kronman) were originally published as coauthored and are presented here as single authored (whether with the permission of the coauthor is not stated). The justification is that "most of the ideas and all ofthe prose" (p. x) in the two are Kramer's, but the coauthor "contributed a key idea" (p. x) and "carefully pemsed the typescript" ofthe first (p. x), and "engaged in some long conversations that helped refine [the] argu­ment" (p. x) in the second. This justification would appear to open Kramer up to questioning about whether the essays were properly published as coauthored in the first place. LESLIE PICKERING FRANCIS University of Utah