Choosing Ends and Choosing Means: Teleological Reasoning in Law

Choosing Ends and Choosing Means: Teleological Reasoning in Law

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Legal reasoning is often teleological though in a broader sense than used by John Rawls (1971) who distinguished between deontological reasoning and teleological reasoning. For him, teleological reasoning is goal-directed and hence consequentialist; it evaluates proposed actions, proposed policies, and proposed institutions exclusively on the basis of the achievement of the presupposed goals or, phrased differently, exclusively on the basis of the consequences that these actions, policies, or institutions would have. Deontological reasoning, by contrast, evaluates actions, policies, or institutions at least in part on the basis of some non-consequentialist features of the action, policy or institution: something other than outcomes matters. Most deontological accounts, however, do not ignore consequences entirely; in some circumstances, deontologists may thus have to engage in teleological reasoning. Teleological reasoning in law is, as for Rawls, goal-directed, but legal goals need not (always) be moral ones and the criterion of evaluation need not be consequentialist in the moral sense. Legislators everywhere have goals that they seek to promote through statutes; they must reason consequentially when they decide which legislation to enact. Administrative agencies, when rule-making, must adopt a similarly consequential stance. So, for example, the US Congress enacted the Clean Air Act to reduce the number of pollutants in the air. The Environmental Protection Agency promulgates regulations to further that goal. Similarly, Congress enacted Title VII, the Employment Discrimination Act, to promote a specific vision of labor market performance. The specific policies adopted are chosen at least in part on the basis of the consequences they have. Consequentialist reasoning is thus a central feature of legal reasoning. Its extent and role, however, may vary with the institutional setting. The extent to which adjudicators, moreover, must deploy consequential reasoning may vary with the structure of the legal system and the set of tasks allocated to the judiciary. Teleological reasoning in law thus poses two questions. What legal goals do legal actors pursue? What is the process of teleological reasoning? I address the second question in two stages as the structure of teleological reasoning, though apparently straightforward, contains some subtleties. The chapter thus begins by articulating the nature of teleological reasoning itself and its relation to rational choice in general and to rational choice theory in particular. I then turn to a set of questions that arise in a legal context. In the course of this latter discussion, I shall argue that much non-teleological reasoning in law elaborates the legal ends that teleological reasoners must pursue. The difficulties that confront legal actors engaged in teleological reasoning are quite numerous though not unique to the legal setting. So, for example, legal ends are often unclear and incompletely specified; thus, as earlier chapters suggest, much legal reasoning is directed at the specification and elaboration of legal goals. In addition, legal ends are collective, rather than individual ends. The collective nature of legal ends poses two difficult problems of institutional design. Though legal ends are collective, they are interpreted and implemented by individuals. Each of these individuals has her own ends; legal institutions must insure that each individual reasons consequentially on the basis of the legal ends rather than on the basis of the individual’s own ends. In addition, legal institutions exhibit an extensive division of labor. One institution sketches a goal; a second institution elaborates that goal; and a third agent implements it. Or, two distinct institutions grapple with different but related aspects of a policy problem. Good institutional design would maximize the extent to which these different institutions coordinate their actions. A third difficulty arises from the nature of the choices that legal decision-makers confront. Legal actors typically choose among policies or institutional frameworks. Teleological reasoning requires that these actors evaluate their options in light of the legal goals. These legal goals are often consequentialist in a more ethical sense; achieving the goals requires that complex social behaviors change. The desired social states, however, are “distant” from the choices faced in two respects. Consider a choice of a simple policy such as the choice of a speed limit on a limited access highway. This choice only partially determines the outcomes relevant to pol- icy assessment—travel times and accident rates, for instance; these policy-relevant outcomes depend on the decisions of drivers that the policy influences. Teleological reasoning thus requires the policymaker to predict how agents will respond to each policy she might choose. The choice among institutional arrangements most clearly illustrates the second form of “distance.” Institutions are twice removed from outcomes. When a policymaker designs an institution, she creates an institution that will itself make policy which will structure but not fully determine the decisions of many other agents. Evaluating an institution thus requires not only predicting how other agents will respond to the policies formulated by the institution but also predicting what policies the institution will promulgate. As I will argue below, this additional level of predictions poses challenging barriers to assessment. Finally, and parallel to the last point, the relation between the options available to the agent and the criterion she seeks to maximize (or satisfy) are complex. Her choices may only indirectly advance her goals; typically, consequences depend not only on the agent’s actions but on chance and on the actions of others or even on additional choices of the agent. These features require refinement or modification of the notion of maximization. The rest of the chapter proceeds as follows. Section 2 explicates the nature of teleological reasoning. The direction “attend to consequences” is deceptively simple; it conceals a number of complexities. One must determine (1) to what aspects of consequences one must attend, (2) the nature of the attention one must give to consequences, and (3) the relation between the agent’s choices and the consequences that arise. Some analysts suggest that an agent may, in answer to the second question, either maximize or satisfice. I define these terms and suggest that, generally, we may understand satisficing as constrained maximization. Section 3 discusses various forms of legal instrumentalism, the view that law is an instrument for promoting collective ends. Legal instrumentalism thus dictates teleological reasoning but different forms dictate that the reasoning occurs at different levels and by different individuals. Section 4 briefly discusses the choice of legal ends and the role of interpretation. Different interpretive theories prescribe distinct styles of reasoning when elaborating these ends. Purposive theories of interpretation dictate the use of teleological reasoning in the elaboration of ends. Section 5 briefly discusses the choice of legal means.

Source Publication

Handbook of Legal Reasoning and Argumentation

Source Editors/Authors

Giorgio Bongiovanni, Gerald Postema, Antonino Rotolo, Giovanni Sartor, Chiara Valentini, Douglas Walton

Publication Date

2018

Choosing Ends and Choosing Means: Teleological Reasoning in Law

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