Title

Principled Consequentialism

Abstract

This Article characterizes and seeks to reconcile two competing approaches to legal reasoning, through the lens of the problem of the determinacy of legal doctrine. On the “neo-formalist” approach, characteristic of many modern liberal scholars, the appropriate doctrinal answer to any legal problem can be determined by working out, in a quasi-deductive way and in isolation from consequentialist considerations, the implications of a small and stable set of legal principles. On the “neo-realist” approach, characteristic of many economic analysts of law but also of certain leftist critics of liberalism, principles provide no determinate answer to legal problems; the only way to decide on the appropriate legal doctrine is to ask about the effects of adopting that doctrine on some favored value. The Article accepts the neo-realist claim that doctrine is indeterminate, but also accepts the neo-formalist claim that principles matter. It is argued that legal reasoning can, and should, follow a method of “principled consequentialism”. That is, legal decision-makers can use legal principles to establish a range of acceptable legal doctrines, and can then consider the consequential effects of those doctrines in choosing among them. The possibility and desirability of understanding legal reasoning as a form of principled consequentialism is illustrated through an examination of several specific legal doctrines, in particular, the problem of choosing appropriate standards of fault for criminal liability.

Disciplines

Criminal Law | Criminal Procedure | Jurisprudence

Date of this Version

January 2007