Theorists analyzing the concepts of race and gender disagree over whether the terms refer to natural kinds, social kinds, or nothing at all. The question arises: what do we mean by the terms? It is usually assumed that ordinary intuitions of native speakers are definitive. However, I argue that contemporary semantic externalism can usefully combine with insights from Foucauldian genealogy to challenge mainstream methods of analysis and lend credibility to social constructionist projects.

The premise of contract law is that the redistribution of entitlements that results from contract is justified by the process of agreement. But theories of contract differ importantly on how and when voluntary exchange justifies a resorting of entitlements. Pure theories regard the principles of contract as essentially derivative from some aspect of the principle of autonomy; contracting parties’ intent to assume legal obligation is in principle necessary and sufficient for its enforcement. Perfect theories do not view contract as self-justifying (...) but regard the process of agreement as reliable evidence that contracts are welfare-improving. This article demonstrates the limitations of pure and perfect views. It favours instead imperfect theories of contract, which would have judges self-consciously pursue the normative ends of contract law as they apply context-sensitive rules. (shrink)

Interpretation, in the sense relevant to hermeneutics, is an attempt to make clear, to make sense of an object of study. This object must, therefore, be a text or a text-analogue, which in some way is confused, incomplete, cloudy, seemingly contradictory--in one way or another, unclear. The interpretation aims to bring to light an underlying coherence or sense.

Interpretation, in the sense relevant to hermeneutics, is an attempt to make clear, to make sense of an object of study. This object must, therefore, be a text or a text-analogue, which in some way is confused, incomplete, cloudy, seemingly contradictory--in one way or another, unclear. The interpretation aims to bring to light an underlying coherence or sense.

The idea that legal theories seek not only to explain but to evaluate the moral justification of particular areas of law is quite familiar. Yet little attention has been paid to the minimal criteria of adequacy for justificatory legal theories. Whereas many theories claim to identify the moral grounds that justify a particular area of law, such as contracts or torts, none of them explains how its justification determines the outcomes of adjudication governed by the law in that area. In (...) this brief Essay for the William and Mary Law Review Symposium on Law and Morality, I argue that a particular area of law can be justified only by identifying moral reasons that fully determine the results of adjudication. No matter how compelling the moral reasons a legal theory identifies, and how tight the fit between those reasons and the structure and content of the legal rules governing a judicial decision, a legal theory fails to justify a particular area of law if the reasoning it identifies falls short of fully determining the results in the judicial decisions governed by that law. Though this bold claim may seem unrealistic, I argue that legal theories can satisfy this determinacy requirement by identifying determinate but inconclusive reasoning that explains outcomes in adjudication. While such reasoning may prove to be erroneous, that does not undermine its justificatory force. (shrink)

Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the (...) express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of why judges would use deontic moral terms to explain cases they decide using consequentialist economic reasoning, arguing instead that only a deontic moral account of judicial reasoning can be squared with the judicial use of deontic moral language. Second, the common law has a bilateral structure, in which a plaintiff's right to recover and a defendant's duty to compensate are treated as correlative. Philosophers have observed that this structure seems custom tailored to retrospective moral rights adjudication and ill suited to prospective efficient regulation. Recently, two philosophers, Jules L. Coleman and Stephen A. Smith, have developed these ideas into a full-scale assault on the explanatory credentials of the economic analysis. I defend the economic analysis by arguing that the bilateral structure of the common law either constitutes a "second best" approach to providing incentives for efficient behavior, as economic analysts have maintained, or that it is the vestigial remnant of the common law's originally deontic conception. I also claim that the economic analysis satisfies the transparency criterion by arguing that terms with a deontic plain meaning have acquired a consequentialist contextual meaning within the common law. Although this "contextualist convergence" thesis is counterintuitive, I build on Coleman's semantic theory to explain how it is possible. To demonstrate that it is plausible as well, I argue that evolutionary forces would have naturally led to this result over the course of the common law's development. In particular, I claim that the substantial indeterminacy of deontic moral theory, and the superior determinacy of the economic analysis, explains why judges would be intuitively attracted to reasoning that is best reconstructed in economic terms, notwithstanding the superior normative force of deontic moral theory. Thus, the core of my defense of explanatory economic analysis is that its critics overlook the central theoretical and practical role determinacy plays in explanation and justification generally, and in the explanation of judicial reasoning in particular, where determinacy is prized, if not above all else, no less than any other virtue. (shrink)

A contract theory is an attempt both to make normative sense of contract law as an institutional type and to come up with criteria for the evaluation of the law of any particular place. There is no precise rule telling us how far the prescriptions of a theory can deviate from actually existing contract law and still be a theory of contract — rather than a political proposal to replace contract law with something else. But we can say roughly that (...) contract theory aims to provide normative foundations for the type of legal institution that enforces (some) agreements and unilateral commitments. Having provided an account of the point of having an institution of that general kind, the theory can then be used to evaluate existing examples. (shrink)