Principles of Law: A Normative Analysis by Michael D. BaylesReview by: Douglas N. HusakLaw and Philosophy, Vol. 8, No. 3, Symposium on Legitimacy of Law (Dec., 1989), pp. 405-411Published by: SpringerStable URL: http://www.jstor.org/stable/3504595 .

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BOOK REVIEWS

Michael D. Bayles, Principles of Law: A Normative Analysis (Dordrecht: D. Reidel Publishing Co., 1987), xxi + 398 pp., $79.00 cloth, $22.50 paper.

Bayles begins by accurately noting the relative absence of normative

analyses of law "at an intermediate level" (p. xvii). He points out that there is no shortage of works that defend either "abstract considerations of principles for all legal systems" or "extremely detailed considera- tions of particular problems" (p. xvii). But chapter-length philosophical treatments of procedural, property, contract, tort, and criminal law are in short supply. It is this gap that Bayles hopes to fill by identifying "what legal principles and rules are justifiable or desirable" (p. 1).

Bayles succeeds admirably. The volume contains an astonishing amount of descriptive and prescriptive material. I am not aware of a

comparable single book that introduces readers who lack an extensive

background in law to so many diverse issues they are unlikely to have

pondered previously. Many readers will gain their first exposure to such questions as whether appellate courts should review findings of fact as well as of law, whether a television license is a form of

property, whether a previously acquired benefit qualifies as considera- tion necessary to establish a contractual commitment, whether a defendant should be liable for unforeseeable consequences of his

negligent acts, whether increased punishment for habitual offenders is

legitimate, and much, much more. Here is a valuable guide to the high points of a vast legal terrain, surprisingly comprehensive for its

length. Bayles has thoughtful observations about each of the many issues he addresses.

According to Bayles, the task of providing a normative analysis of procedural, property, contract, tort, and criminal law consists in

identifying the several principles "that rational persons would accept

Law and Philosophy 8: 405-411, 1989.

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Book Reviews

on their merits for courts to use to decide issues in an industrialized western society in which the persons are expected to live" (p. 14). Bayles contends that this perspective introduces a "methodological unity" in his analysis that "makes a significant difference" (p. 351) to the answers he provides for the questions he raises. Admittedly, this

"methodological unity" is different in kind from that defended by theorists who construe all law as derived from a single normative foundation such as utility, wealth maximization, equality of concern and respect, or a natural right of property, but Bayles counters that "rational persons will have a multiplicity of aims and purposes" which are obscured by these "simple (minded?)" approaches (p. 352).

It is doubtful, however, that the success or failure of this justifi- catory strategy contributes significantly to the value of Bayles's project. In order for this justificatory strategy to be viable, Bayles must provide a more detailed account of the basis for distinguishing between the information made available or unavailable to rational choosers about the status or role they will occupy in the society they are about to enter. Bayles assumes that such a person is aware that he "could be either party to a dispute in a legal case," although this probability need not be equal; the chooser may "have good reason to believe that [he] is extremely unlikely to be a defendant in a criminal case" (p. 6). But why does the agent have good reason to believe this (and any number of additional propositions Bayles does not hesitate to attribute to him)? Is he aware of his own criminal propensities in this yet nonexistent society? Does he know the incidence of criminality in this hypothetical place? How could he possess such information prior to having chosen legal principles that would influence these variables? I find Bayles's reliance on this quasi-Rawlsian foundation to be more distracting than illuminating. Fortunately, his subsequent arguments stand on their own merits, so the questionable foundation that Bayles constructs manages to support an impressive edifice.

It is somewhat unclear exactly how much of the structure of our existing legal system is to be regarded as given and beyond challenge according to Bayles's approach. He devotes several pages to a useful contrast between adversarial and inquisitorial systems, and concludes that "one cannot . . . make a rational choice between the two" (p. 34).

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But he replies to the criticism that the several principles he ultimately defends are "individualistically oriented" and "ignore the social, com- mon, or collective good" (p. 361) by responding that common law courts are "institutionally constrained" and lack "the powers of legisla- tures to raise funds and to create sweeping administrative schemes" (p. 362). Apparently Bayles is prepared to take seriously the question of whether rational persons would be persuaded to restructure the

judiciary to give it broader inquisitorial powers, but disables these

agents from inquiring whether the judiciary should be given greater authority to effectively pursue collective goals.

In fact, there are a host of important legal issues that Bayles does not place on the agenda for rational persons to decide, and a princi- pled basis for distinguishing the questions raised from those neglected would have been welcome. The most crucial questions not examined are those that most common law jurisdictions presently (but not

historically) allocate to the legislature. Virtually all common law courts have surrendered their (once unquestioned) power to create crimes, and their authority to create new criminal law defenses is eroding as well. Common law courts have been more successful in preserving their power to create torts. In restricting his focus to a justification of

principles to be used by the judiciary, Bayles apparently takes for

granted a separation of powers according to which courts have more or less the legislative powers they presently enjoy. Whether the scope of these powers should be expanded or contracted in a given area of law is seemingly not open for discussion. Thus Bayles's examination of tort law is highly substantive; he inquires, for example, whether malice is required before public figures can recover for defamation. But his discussion of criminal law is much less substantive; he does not consider what criminal statutes rational persons would choose for their

society. Thus, for example, the issue of whether or how rational

persons would use the criminal law to wage a "war on drugs" is

beyond the scope of Bayles's project. I am left wondering why (or if) rational persons would be prepared to prescribe principles to the

judiciary but not to the legislature. At the very least, the principles to be used by the judiciary would be influenced by the content of

statutory law.

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Book Reviews

But it is unfair to criticize Bayles for what he does not accomplish in a volume that encompasses so much. The sheer quantity (and quality) of factual and normative content is the overwhelming strength of this book. But a work that covers so much ground is inevitably uneven. Some sections are superficial, and a discussion that does not do justice to the complexity of an issue is probably worse than no discussion at all. For example, Bayles writes that the topic of burdens of proof "does not require much comment" (p. 58). In fact, the controversy surrounding the allocation of burdens of persuasion has been among the most difficult in recent legal theory. The placement of burdens of persuasion functions as a low visibility device to accom-

plish objectives that might not have been achieved by revisions in the substantive law itself.

After having examined the ninety-two "intermediate level princi- ples" Bayles finds defensible, it becomes more clear why so few theorists have sought to identify them. Many of them are so obvious that they could give rise to no reasonable opposition. Who could deny that the following principles have weight, that they can be used to evaluate particular actions or decisions in the absence of competing considerations? Consider, for example, "one should minimize the economic costs of legal procedures" (p. 24), or "procedures should be

peaceful" (p. 31). It would be difficult to imagine a legal system (Western industrialized or not) in which these principles would lack force. But the obviousness of many of Bayles's principles does not count as an objection to his project. After all, if the standard of justification is an appeal to rational persons, one would hope and

expect that the resultant principles would be beyond serious contro-

versy. Many other principles are not so obvious; Bayles is willing to "stick

his neck out" by competently (although seldom conclusively) defend-

ing nontrivial claims that have been the subjects of heated debate throughout legal history. Thus he would enforce "good faith modifi- cations of contracts regardless of consideration, past benefit, or reliance"

(p. 164), and concludes that "parties should ultimately be liable for

damages in proportion to their responsibility for the harm" (p. 255). Bayles is occasionally persuaded by (what I take to be) unsound

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Book Reviews

reasoning. He rejects a defense of ignorance of law on the ground that "to claim a person who does not know conduct is illegal is innocent amounts to holding that the conduct's illegality is part of the crime's definition, which it cannot be" (p. 314). I am not convinced that there are compelling reasons to deny the defense of ignorance of law, but if there are, this argument is not among them. For the acceptance of this defense does not "amount to" a redefinition of offenses; the absence of an excuse (of which this defense is a candidate) need not and should not be conceptualized as part of the definitions of various crimes. If, for example, duress is accepted as a defense to battery, the concept of a battery has been redefined no more and no less than by accepting ignorance of law as a defense. Bayles's argument, in short, proves too much; it would disallow the recognition of all excuses.

Nor am I persuaded by Bayles that rational agents would not allow negligence to give rise to criminal liability. Although Bayles seemingly concedes that persons might be blameworthy for negligent conduct, he responds that "not all blame is ethical blame," and that "individual acts of carelessness" do not "show a defect of character" largely because "everyone is occasionally careless" (p. 299). "No merely negligent defendant", he writes, "is ethically culpable" (p. 226). I believe that we cannot decide whether a person deserves moral blame for harming someone as a result of his failure to conform to a standard of reason- able care, i.e., for his negligence, unless we know why he fell short of that standard. If he failed to conform because of his subnormal abilities, blame is inappropriate. But if he failed to conform because he did not exercise the normal abilities he possessed (because, for example, he was thinking about his girlfriend rather than concen- trating on his driving), I see no good reason why moral blame should be withheld. I am less confident about whether Bayles is correct in denying that isolated acts of carelessness "indicate a character trait," but I am skeptical that moral blame must "indicate" a character trait.

Bayles's unwillingness to countenance negligence as a kind of moral fault might explain his failure to address one of the major issues in tort liability: which torts should require negligence, and which should give rise to strict liability. The controversy has been heated largely

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Book Reviews

because of the assumption that a negligence standard is morally superior to strict liability, in that it does not hold defendants liable in the absence of fault. But if defendants are not at (ethical) fault for their negligence, this explanation of the importance of the debate is unavailable.

A commentator who confines his attention to a single area of the law has little incentive to describe the relationships between it and other areas with which it is frequently confused. But an ambitious author, such as Bayles, who examines several areas of the law, has better reason to explore these connections. There is a great need for philosophical insight about the rationale for the boundaries between the many fields of law, and it is to Bayles's credit that he addresses this difficult problem. In one of the most original contributions in his book, Bayles relies on economic analysis to differentiate contract from tort. Contract law is alleged to "regulate mutually expected plus sum interactions transferring property or services between private persons;" tort law encompasses "most minus sum interactions" (p. 146). Like tort, most of criminal law deals with "interactions that are in fact minus sum" (p. 281), but is contrasted from tort by virtue of its unique remedy of punishment.

These attempts to demarcate the boundaries of contract, tort, and criminal law are suggestive but problematic. It is unclear why the tort of conversion, i.e., wrongfully taking another's property with the intent to keep it, must be construed as a minus rather than a zero (or even a plus) sum interaction. Bayles's response to this difficulty is curious. He claims that "one has no basis for an economic claim that the interac- tion is a zero sum rather than a minus sum one" because "the loser did not make a reasonable judgment that the interaction was beneficial" (p. 209). But one cannot ignore the judgment of the thief; after taking this judgment into account, Bayles is surely correct that there is "no basis" for a claim about whether the interaction was minus, zero, or plus sum. Unfortunately, this concession undermines his thesis that tort law concerns minus sum interations.

The attempt to differentiate tort from criminal law fares no better; it is accurate but unhelpful. Unless "punishment" can be defined as something other than (roughly) the remedy that is imposed upon a

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Book Reviews

criminal after he has committed a crime, this means of distinguishing tort from crime is circular: something is a crime (and not a tort) if its remedy is punishment, and a remedy is punishment if it is imposed for a crime. It is somewhat disappointing that Bayles did not attempt to contrast torts from crimes in virtue of their content rather than their remedies. He might have inquired about what conduct rational per- sons would have agreed to sanction by punishment. In the absence of such an inquiry, Bayles deprives his treatment of criminal law of much of the prescriptive potential it might have had; he provides almost no basis for concluding that a given kind of conduct should not be criminalized. He might have said that rational persons would agree not to expose one another (and possibly themselves) to punishment, com- plete with its denunciatory aspect, unless the conduct for which it is imposed is (according to rational persons? according to a broad social consensus? according to the correct moral theory?) morally wrong. Acceptance of such a principle might lead to a radical relocation of the boundary between crime and tort. But Bayles includes no such principle among his ninety-two, perhaps because, as indicated above, he believes that criminal legislation is beyond the scope of his inquiry.

But these examples represent minor blemishes in an outstanding effort. In view of the extraordinary breadth of this book, it is surpris- ing that Bayles is not persuaded by unsound arguments more often. Instead, he is eminently sensible, well balanced, and open to compet- ing points of view which he treats fairly and with respect. It seems incredible that Bayles could provide such a detailed account of so many diverse areas of law in a mere 363 pages. And it is doubtful that anyone could have accomplished his stated objective more successfully.

Department of Philosophy, DOUGLAS N. HUSAK Rutgers University, New Brunswick, NJ 08903, U.S.A.

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