Remarks on the Connection of Substantive Morality to the Rule of Law and Stare Decisis

I enjoyed speaking about the relationship of substantive and procedural ideas of justice to the rule of law and stare decisis on this panel, part of The International Forum on the Future of Constitutionalism’s “Global Summit” organized by Professor Richard Albert. In my remarks, I argued against a thin, purely proceduralist view of the rule of law and stare decisis, and also against a morally thick, substantive view of the rule of law and stare decisis. I urged an intermediate possibility. As the rule of law seems to be in the air, so to speak, I thought I would reproduce my remarks. They are below.

“I want to reflect on the relationship of substantive political morality to the rule of law and stare decisis. On some accounts, the virtues of both the rule of law and stare decisis are purely procedural. On other accounts, the rule of law incorporates thick, substantive conceptions of political morality. For example, a set of substantive human rights as defined by an international body or other community. Or some thick, substantive ideal of equality or justice. Interestingly, people do not take this second view about stare decisis, the obligation of courts as a general matter to stand by a prior precedent even when they disagree with it. So far as I know, nobody thinks stare decisis contains an ideal of human rights, for example.

So, which account is right? There are a few possibilities. One possibility is that the rule of law *and* stare decisis both embody purely procedural ideals, and that those arguing for a substantive political morality within the rule of law are wrong. A second possibility is that the rule of law embodies substantive political morality while stare decisis does not. That is, the rule of law and stare decisis are relevantly different on this score. And a third possibility is that both the rule of law and stare decisis incorporate procedural and moral values. Now, even though as I indicated, nobody takes this view as to stare decisis (though some do as to the rule of law), I actually think this is the correct position.

But the type of substantive political morality incorporated within the rule of law and stare decisis is not the sort of thick view of the second possibility—equality or human rights or liberty or antidiscrimination, for example. It is instead a kind of political morality related to the procedural virtues of both.

Let me briefly describe the first two views. I’ll then take on the third view, sketching Lon Fuller’s position and extending it in ways that thicken it somewhat, but not all the way, so to speak. Not to oatmeal or gruel thickness, but more like to lobster bisque or vichyssoise thickness.

First, the purely procedural view. This is the view that the rule of law and stare decisis incorporate nothing of substantive political morality. Rather, the rule of law is about the law’s generality, its equal application, its predictability, consistency, and prospectivity. In societies governed by the rule of law, the rules are supposed to rule, not the people making and implementing those rules. Stare decisis’ procedural virtues are similarly generally conceived as including legal stability, consistency, and predictability. Notice the overlap of procedural virtues here. In fact, we might say that stare decisis incorporates many, though not all, the procedural virtues of the rule of law, but it does so in a particular context—judicial decisionmaking. That’s the first view.

The second view is that in addition to these procedural virtues, the rule of law incorporates thick substantive ideals of political morality like human rights, sexual equality, whatever. This position has become more popular of late, perhaps in part because of the felt need to anchor contested substantive political ideals in a comparatively uncontested procedural ideal like the rule of law.

Still, I think this second view is wrong. To believe in the law’s predictability and stability has nothing necessarily to do with believing in human rights or equality or nondiscrimination. Let me give three reasons, which should be familiar.

First, legal regimes with unjust or repressive laws can be committed to the rule of law. Now you might say—well, even in morally unjust regimes, consistency in legal application is a virtue and a kind of justice. And that’s true, but then we’ve reduced the idea of justice to equality of legal application. That is at least a very thin understanding of justice.

Second, someone might say, well, we have to affirm the procedural virtues of the rule of law because we can only achieve thick, substantive political and moral ideals like human rights and human dignity if we affirm the rule of law. We have to affirm the rule of law for instrumental reasons. But I think that’s wrong too. Procedural rule of law virtues actually may be *in tension* with achieving some of these thick political-moral ideals. A person committed to, say, a particular conception of sexual equality might think it important, or even required, to reject some procedural rule of law virtue that is perceived to obstruct that substantive vision of the good.

Third, as for the rule of law as a rule of rules, rather than people, here again, various thick, substantive political or moral ideals might just as easily clash with the rule of law as be promoted by it. As Lon Fuller, to whom I will return in a moment, puts it: “From the standpoint of the inner morality of law, it is desirable that laws remain stable through time. But it is obvious that changes in circumstances, or changes in men’s consciences, may demand changes in the substantive aims of law, and sometimes disturbingly frequent ones.” 44 So much for what I’ve described as the second view—that the rule of law incorporates or somehow necessarily subserves a thick version, an oatmeal or pea soup version, of substantive political morality—liberalism, human rights, distributive justice, and so on.

Does this mean that the first view—the purely procedural view of the rule of law (and, for that matter, of stare decisis)—is the correct one? I do not think so. I think there is an intermediate conceptual possibility between the purely procedural and the thickest political-moral conception of the rule of law. It’s a conception of the morality of the rule of law that also applies, I think, to the morality of stare decisis. What is that conception?

Here I think it’s helpful to return to Fuller’s book, The Morality of Law. Fuller described what he called the “internal morality of law” and its “neutrality” toward substantive aims. The internal morality of law, Fuller claimed in Chapter 2, consists of several virtues of a legal system that sound proceduralist: (1) generality—the requirement that there actually be rules rather than patternless commands; (2) promulgation—to ensure to some degree that those subject to the law know what it is; (3) prospectivity—to be ruled by law is to be ruled by existing law, not non-existing law; (4) clarity; (5) avoiding contradictory laws; (6) avoiding laws that require the impossible; (7) constancy or stability of the law through time; and (8) congruence between law and official action enforcing it.

And in chapter 4, Fuller is explicit that law’s internal morality comprised of these 8 virtues is “indifferent toward the substantive aims of law and ready to serve a variety of such aims with equal efficiency.” The example Fuller uses is contraception—which can be legally protected or prohibited without affecting the law’s internal integrity at all.

Nevertheless, Fuller maintains that the inner morality of law, while neutral over a wide range of moral issues, “is not neutral in its view of man himself.” Adhering to the inner morality of law, Fuller claimed, is committing oneself to the view that people can be “responsible agents, capable of understanding and following rules, and answerable for their defaults.” So for Fuller, commitment to certain concepts of moral agency and responsibility follows from commitment to the procedural values of law—to law’s inner morality.

I want to suggest some other moral commitments that follow from commitment to the inner morality of law, but that Fuller did not raise. Moral commitments that are not of the thickest sort—not a particular conception of human rights, for example, or a contested view of equality. Rather, these are thinner moral commitments that are still thicker than the proceduralist’s virtues. Vichyssoise rather oatmeal.

Take what Fuller says about Clarity as part of the inner morality of law: “Sometimes the best way to achieve clarity is to take advantage of, and to incorporate into law, common sense standards of judgment that have grown up in the ordinary life lived outside legislative halls.” Good faith, due care, due process, cruel and unusual punishment, and so on. Or take instead his view that Constancy/stability of the law through time is part of the inner morality of law. Can we say something more in reflecting on clarity, and constancy or stability, about the connection between the rule of law and political morality. Or between stare decisis and political morality?

I think we can. Clarity and constancy depend upon the longevity and endurance of law. For the law to be clear, it must often depend upon shared assumptions, shared cultural ways of thinking and knowing that have developed over time, sometimes a very long time, and extend well before the simple text of the law itself. There are very few, if any, self-evident truths in law and politics. The truths that we have are largely truths because they have been cultivated and transmitted over time.

For the law to be constant and stable, it has to have endured. It has to have lasted. The longer the better, the older the more stable and the more constant. So that to favor law’s constancy and stability as a part of the rule of law is to make a necessary claim about law’s traditionalism. The importance of its age and its endurance. Endurance implies durability—the capacity to withstand sudden or rapid changes in the law that are deeply unsettling to the law’s internal morality.

What about stare decisis? Well, stare decisis is a concept derived from the common law. What made the law “common” was that it reflected the substantive and long-enduring habits, practices, and traditions of the people. Legal stability of the sort promoted by stare decisis allows people to coordinate their lives and their common projects now and intergenerationally. So it’s not just the satisfaction of reliance interests that is at stake. The stability promoted by both stare decisis and the rule of law enables the law to connect and align a people’s past, present, and future. It creates roots—rooting present law to “precedent” law and subsequent law.

The value of the rule of law and stare decisis, therefore, must incorporate an orientation toward preserving law’s traditionalism, its age, durability, and intergenerational transmission. Law’s traditionalism as a feature of the rule of law and stare decisis, I think, is a thicker sort of political morality than the strictly procedural view. But it is a thinner sort of political morality than the thickly substantive view.

One more thought. This intermediate possibility I am describing is not only different from the thicker substantive possibility. The two views of the rule of law are in tension. The rule of law and stare decisis conceived as incorporating this intermediate thickness political morality—this traditionalism connected to law’s clarity and its stability—may well conflict with rule of law conceptions that incorporate substantive positions on distributive justice, human rights, equality.

That conflict will occur, I think, when the thicker conceptions of political morality simply are not part of law’s traditionalism but instead run counter to it. In those circumstances, to favor the rule of law and stare decisis may well be to favor moral visions of law at odds with those thicker understandings that blend procedure and substantive morality.”

Panel Friday on Stare Decisis, Justice, and the Rule of Law

I’m very happy to be participating in an online panel discussion this Friday on Stare Decisis, Justice, and the Rule of Law. The panel is part of The Global Summit on the Future of Constitutionalism, a huge conference put together by Professor Richard Albert of the University of Texas Law School. My co-panelists are Lisa Burton-Crawford (University of New South Wales Faculty of Law); Jeffrey Pojanowski (Notre Dame Law School); and Leonid Sirota (Auckland University of Technology). Andrea Pin (University of Padua) will moderate.

The title of my presentation: “How the Morality of the Rule of Law and Stare Decisis is More Like Vichyssoise Than Oatmeal.”

The panel is this Friday at 2:00. Registration is free! Zoom on by.

Originalism and Its Discontents

I’m on a panel today at the Federalist Society Faculty Conference with this subject as its title, moderated by Professor John McGinnis (Northwestern) and with commentary by Professor Randy Barnett (Georgetown). The panel runs from 11:00-12:30. Here’s a link to the livestream, which I’ve also included below–please listen in!



Originalism & Its Discontents
11:00 am – 12:30 pm

This panel will discuss some of the critiques of originalism as offered by libertarians and social conservatives.

  • Prof. Randy Barnett, Georgetown University Law Center
  • Prof. Marc DeGirolami, St. John’s University School of Law
  • Prof. Joshua Kleinfeld, Northwestern University Pritzker School of Law
  • Dr. Jesse Merriam, Patrick Henry College
  • Prof. Christina Mulligan, Brooklyn Law School
  • Moderator: Prof. John McGinnis, Northwestern University Pritzker School of Law

“Reconstructing Malice in the Law of Punitive Damages”

I’m pleased to announce that my new paper, Reconstructing Malice in the Law of Punitive Damages, will be published by the Journal of Tort Law next year. The paper is my first foray into tort law scholarship, though I have been teaching Torts for the last 3 years at St. John’s. Malice, in the common law of crime and tort, is a thorny subject with a complicated and ancient lineage. Indeed, there are interesting connections between law and religion, on the one hand, and notions of malice in the law, on the other. But malice’s legacy was questioned beginning in the 19th century with Holmes (and others including J.F. Stephen) and then repudiated more decisively in the work of 20th century tort law giants like William Prosser and criminal law giants like Herbert Wechsler.

This paper attempts to reconstruct a historically correct, conceptually coherent, and normatively compelling case for malice’s reintroduction into the law of punitive damages. It also speculates about the utility of this reconstructed account of malice in other fields, especially criminal law. Finally, though this paper does not approach this topic, it does suggest the possibility of reconstructivism as a broader theory of law and legal development, something about which I hope to write in the future. Here is the abstract.

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.

This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.

2020 Year-End Message

This has been a productive year for our Center, featuring regular Legal Spirits podcasts; our biennial colloquium in law and religion; a student reading society; and articles and appearances by Center Co-Directors Marc DeGirolami and Mark Movsesian. You can read all about it in our annual year-end message, here. Happy Holidays!

Movsesian Named Co-Editor of the Journal of Law and Religion

We are delighted to announce that the Journal of Law and Religion (Cambridge University Press) has named Center Co-Director Mark Movsesian to its board of editors. Professor Movsesian will assist the interdisciplinary, peer-review journal in selecting and developing articles for publication.

“I am grateful for the invitation and am delighted to join the Journal‘s editorial board,” Professor Movsesian said. “I look forward to helping the journal continue to explore issues at the intersection of law and religion, both domestically, in the United States, and across the globe.”

More information about the Journal and its editorial board is here.

Moscow State University Roundtable

I was delighted to speak at a roundtable on law and religion at Lomonosov Moscow State University this morning, along with faculty colleagues from Russia, Greece, Canada, Italy and Israel. Comparative studies add so much to the understanding of church-state issues, and it is always striking how the same issues come up in so many cultures–though not the same answers. The questions from other scholars and the student participants were great. Thanks for Prof. Gayane Davidyan at Lomonosov for inviting me!

UPDATE: For anyone interested, Lomonosov has now posted the YouTube Video of the event:

Christianity and Conservatism’s Multiethnic Future

At the First Things site today, I have an essay on how a broad, ecumenical Christianity will feature in a new, multiethnic conservative movement. Here’s a sample:

The factors Salam identifies no doubt figure in minorities’ increasing affinity for conservative politics. But I think his explanation misses another important factor: conservative Christianity. The media typically presents conservative Christians as monolithically white, but that is not the case. For example, about one-quarter of evangelicals are members of racial and ethnic minorities, and Republicans apparently did very well among them. According to Gaston Espinoza, a researcher at Claremont McKenna College who conducted a survey of Latino voters, it was “Latino evangelicals” who “helped Trump to do better than anyone expected in Texas … and in Florida.”

I don’t know of studies that analyze minority voters in terms of church attendance, but in the general population, religious observance correlates with voting for the GOP, and that pattern presumably holds for many minorities as well. According to the AP Vote Cast Survey, people who attend church regularly—up to a few times a month—broke solidly for Trump, 54 percent to 45 percent. People who attend church once a week or more voted 61 percent for Trump. By contrast, people who never attend church went strongly for Biden, 63 percent to 32 percent. (This last figure is consistent with surveys that reveal that more than two-thirds of Democrats “never attend religious services.”) To be sure, differences exist among minority communities; black Christians, for example, continue to vote Democrat in very large numbers. Still, it is reasonable to think that, with respect to minorities, as with respect to the American public generally, the religiously observant tend to vote Republican.

If Republicans are to become a multiethnic, middle-class movement, a popular, ecumenical Christianity of the sort I observed at the Museum of the Bible will likely have an important place in it. In fact, the religious identity of the movement need not be exclusively Christian. Americans are famously non-sectarian when it comes to public religion, and it’s possible to imagine a political coalition of the traditionally religious from all faith communities. Although good studies are difficult to find, some suggest that Orthodox Jews increasingly vote Republican. And President Trump drew one-third of Muslim voters in 2020, a large increase over 2016.

You can read the whole essay here.

Law & Religion Roundtable at Lomonosov-Moscow State (Nov. 25)

A programming note: on Wednesday, November 25, I will participate in a roundtable on law and religion sponsored by the Faculty of Law at Lomonosov Moscow State University. The roundtable, organized by Lomonosov Professor Gayane Davidyan, will take place online starting at 17:30 Moscow time. Visitors are welcome. Please use the You Tube link here. The roster for the roundtable, along with the titles of the presentations, is below. Stop by and say hello!

  • Mark Movsesian, Frederick A. Whitney Professor, Co-Director of Center for Law & Religion, St. John’s Law School, United States, Church-State Cases at the US Supreme Court in 2020
  • Lina Papadopoulou, Associate Professor, Law School, Academic Coordinator of the Jean Monnet Centre of Excellence “European Constitution and Religion”, Aristotle University of Thessaloniki, Greece, God and the Constitution in a country (Greece) with a prevailing religion
  • Andrea Pin, Associate Professor, Department of Public, International and Community Law, University of Padua, Italy, The Constitution as an ID
  • Kathryn Chan, Associate Professor, Faculty of Law, University of Victoria, Canada, The source and scope of religious freedom in Canada
  • Xavier Barre, Ph.D in Law, Avocat au barreau de Paris, Member of New York Bar and Advocat of Moscow Regional bar
  • Anton Kanevsky, Associate Professor of Higher School of Economics, Moscow, Russia, Attorney in Jerusalem, The Divine Name in Earthly Affairs: Non-specific Talmudic Legal Principles and Israeli Practice
  • Gayane Davidyan, Associate Professor, School of Law, Lomonosov Moscow State University, Director Center of Law and Religion, Can God be Constitutional?

Don Drakeman’s New Book: “The Hollow Core of Constitutional Theory”

Congratulations to Center board member Don Drakeman for his new book, available later this month, The Hollow Core of Constitutional Theory: Why We Need the Framers (CUP 2020)! Don has been making the case for an approach to originalism that looks to original meaning as well as original intention for several years. I know that I have benefited from his work greatly over the years.

More later, when I’ve had a chance to read the book. But for the moment, wonderful news.