Principled Consequentialism


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.


Criminal Law | Criminal Procedure | Jurisprudence

Date of this Version

January 2007