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.

Legal Spirits Episode 029: “What It Means to Be Human”–a Discussion with Professor Carter Snead

What is the anthropology–the account of human nature and human flourishing–that grounds the American law of bioethics? Is it an appealing one, or are there problems with it? In our latest podcast with Professor O. Carter Snead of the University of Notre Dame Law School, we probe these and related questions in his recently released book, What It Means to Be Human: The Case for the Body in Public Bioethics (Harvard University Press). Professor Snead discussed several chapters with us and our students in our Colloquium in Law and Religion. Listen in as we range over some of the deep questions covered by this important new book!

A New Work on Patriotism and Other Loyalties

I’ve learned a great deal from Professor Steven B. Smith’s work on political philosophy over the years. A few years back, I watched his terrific lectures (and tried to keep up with the reading!) which are available to everybody, and then read his fine book, Modernity and Its Discontents.

Early next year, Professor Smith has a new book in the offing: Reclaiming Patriotism in an Age of Extremes (Yale University Press) that is worth highlighting. For the law and religion crowd, I’m sure this will be a timely and important contribution on the question of balancing various competing loyalties. Here is the description.

The concept of patriotism has fallen on hard times. What was once a value that united Americans has become so politicized by both the left and the right that it threatens to rip apart the social fabric. On the right, patriotism has become synonymous with nationalism and an “us versus them” worldview, while on the left it is seen as an impediment to acknowledging important ethnic, religious, or racial identities and a threat to cosmopolitan globalism.
Steven B. Smith reclaims patriotism from these extremist positions and advocates for a patriotism that is broad enough to balance loyalty to country against other loyalties. Describing how it is a matter of both the head and the heart, Smith shows how patriotism can bring the country together around the highest ideals of equality and is a central and ennobling disposition that democratic societies cannot afford to do without.

Legal Spirits Episode 028: Oral Argument in Fulton v. Philadelphia

Last Wednesday, the Supreme Court heard oral argument in Fulton v. City of Philadelphia, involving a dispute between Catholic Social Services of Philadelphia, a foster-care placement agency, and the City of Philadelphia with respect to the former’s request for a religious accommodation from a local nondiscrimination provision in carrying out foster care placement. In this podcast, Mark and I discuss the major themes that emerged in the argument and offer a few predictions about the result and reasoning the Court might adopt. Listen in!

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.

JCLS Symposium on A Light Unseen: A History of Catholic Legal Education

Congratulations to the staff of the Journal of Catholic Legal Studies for the publication of these papers connected to the symposium last February on Professors John Breen and Lee Strang’s forthcoming book, A Light Unseen: A History of Catholic Legal Education. The volume contains contributions by several law school deans and professors reflecting on the project.

For more details on the symposium, see these two notices.

On Judge Barrett, Stare Decisis, and Methodological Disagreement

I have an essay at First Things that lays out my understanding of what Judge Amy Coney Barrett has written about stare decisis and the fact of methodological disagreement in constitutional interpretation. The essay in part aims to correct this grossly misinformed and error-saturated piece published at Commonweal. But in much larger part, it tries simply to do justice to Judge Barrett’s view in her scholarly work. A bit:

Judge Barrett’s principal writing on this problem can be found in Precedent and Jurisprudential Disagreement and Originalism and Stare Decisis, although she has discussed these matters in other places as well. Her view can be summarized as originalist but also committed to the presumption of stare decisis force for existing precedent. She has elaborated a comparatively “weak” or “soft” presumption in favor of stare decisis in constitutional cases, but it is important to be clear about just what that means. 

For Judge Barrett, the fact of methodological pluralism about fundamental issues in constitutional methodology (for example, in the disagreements between originalism and varieties of non-originalism) makes a comparatively soft stare decisis presumption attractive. This pluralism has implications for how judges view basic doctrinal error, because such error is likely to concern foundational methodological differences and deep jurisprudential commitments. In such situations, Judge Barrett writes, “stare decisis seems less about error correction than about mediating intense jurisprudential disagreement.” 

As to precedents where a judge has a deep disagreement about method, it is not realistic or desirable, Judge Barrett says, to expect the judge to abandon her commitments simply for the sake of preserving those precedents. That would be asking the judge to betray her core judicial philosophy, something that would do no favors to judicial legitimacy, perceived or actual. Nevertheless, “the preference for continuity disciplines jurisprudential disagreement,” requiring from judges who would abandon stare decisis “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.” If these very strong reasons and explanations do not exist, then “the preference for continuity trumps.” New coalitions of judges (and at the Supreme Court, it is groups of judges that count) who argue for new interpretations are put at “an institutional disadvantage” by stare decisis, but they are not categorically disabled by it. 

Judge Barrett’s “soft stare decisis” approach, in sum, accommodates the fact of methodological pluralism and deep substantive disagreement with the need for legal stability. The presumption favors existing doctrinal arrangements but permits challenges to them. To say that it is “soft,” therefore, is not at all to say that it encourages “constant upheaval” or wild unpredictability. To the contrary: Under a soft presumption of stare decisis force, “[t]he Court follows precedent far more often than it reverses precedent.” 

This view is very much in line with the Court’s current approach to the force of stare decisis. And it flows not so much from Judge Barrett’s originalism, but instead from her view that stare decisis poses a problem for all theories of constitutional interpretation. She is “soft” on stare decisis not because she is an originalist, but because people disagree in good faith about how to interpret the Constitution.