Introduction
As law students become more sophisticated, they begin to notice that
certain debates seem to repeat themselves over and over again.
Disagreements about disparate subjects–in procedure, criminal law,
torts, property, and constitutional law–frequently seem to turn on the
really big questions of ethics and political theory. On the one hand,
the proponents of inviolate individual rights appeal to deontological
premises in moral theory or liberal (or libertarian) ideas in political
philosophy. On the other hand, the proponents of balancing argue from
premises rooted in utilitarianism or welfarism (the economic version of
utilitarian moral philosophy).
For a short time, the ability to see this pattern may be
exhilarating. You begin to see big patterns that transcend courses and
doctrines. But after a while, exhilaration may give way to depression.
If all the great debates in legal theory boil down to debates about the
deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?"
Because it sure doesn't look like the debates between deontology and
consequentialism or between libertarians and communitarians are going
to be decisively resolved any time soon.
And that is where today's Legal Theory Lexicon comes into the
picture. Even if the deep debates of moral and political philosophy are
irresolvable, there may be other ways to make progress in legal theory.
In particular, we may be able to use the ideas of "incompletely
theorized agreements" (associated with Cass Sunstein) or "overlapping
consensus" (associated with John Rawls) to break the impasse on the
deep questions.
The basic idea is simple. We cannot agree on the deep questions, so
go shallow. Find the level at which those who disagree on the deep can
nonetheless find common ground. John Rawls calls the idea of common
ground by the name "overlapping consensus." Cass Sunstein calls a
similar idea, "incompletely theorized agreement." But both Sunstein and
Rawls express a similar intuition. When you cannot reach agreement at
the deep end of the pool of ideas, head for the shallow end!
Deep and Shallow
I suspect that you've already gotten it! But just to make sure,
let's work through the ideas one by one. The first idea we need is the
one that I have expressed by the metaphor of deep and shallow reasons.
The metaphor is based on the idea that particular applications (e.g.
particular questions of legal doctrine) are at the surface,
they are in the shallow end of the pool of ideas. Beneath the surface
of particular issues in legal doctrine and legislative policy are
deeper disagreements. Disagreements about the a surface level question
(e.g. the precise contours of the mailbox rule in contract law) lead to
beneath-the-surface issues (e.g. the nature of offer and acceptance)
and then to still-deeper issues (e.g. the basis for contractual
obligation) and finally to the deepest questions (e.g. the nature of
moral obligation). You might picture a chain of reasons, stretching
from the surface of legal doctrine down to the depths of political and
moral philosophy.
Overlapping Consensus
John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness),
the guarantee of basic liberties would mean that individual citizens
would be free to adopt their own views about morality and religion. As
a result, Rawls argued, it was likely that a variety of comprehensive
religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness
be stable (or reproduce itself) given the plurality of viewpoints that
is bound to emerge and persist under conditions of freedom? Rawls's
answer to this question was based on the idea that divergent moral and
religious conceptions of the good could (despite their diversity)
converge on some common ground. That is, citizens who held a plurality
of religious and moral beliefs could nonetheless agree on the
constitutional essentials–the basic constitutional principles
necessary for a society to satisfy the demands of justice as fairness.
This meant that different citizens would support justice as fairness
for different reasons. Catholics might affirm justice as fairness for
reasons found within the Catholic natural law tradition, while secular
humanists might affirm the same (or similar) ideas about justice for
different reasons. Although a deep consensus might on justice as
fairness might be impossible, an "overlapping consensus," Rawls argued,
is possible.
Incompletely Theorized Agreements
Cass Sunstein has a related but different idea. Here is a summary from his article in the Harvard Law Review:
Incompletely theorized agreements play a pervasive role in
law and society. It is rare for a person, and especially for a group,
to theorize any subject completely — that is, to accept both a highly
abstract theory and a series of steps that relate the theory to a
concrete conclusion. In fact, people often reach incompletely theorized
agreements on a general principle. Such agreements are incompletely
theorized in the sense that people who accept the principle need not
agree on what it entails in particular cases. People know that murder
is wrong, but they disagree about abortion. They favor racial equality,
but they are divided on affirmative action. Hence there is a familiar
phenomenon of a comfortable and even emphatic agreement on a general
principle, accompanied by sharp disagreement about particular cases.
This sort of agreement is incompletely theorized in the sense
that it is incompletely specified — a familiar phenomenon with
constitutional provisions and regulatory standards in administrative
law. Incompletely specified agreements have distinctive social uses.
They may permit acceptance of a general aspiration when people are
unclear about what the aspiration means, and in this sense, they can
maintain a measure of both stability and flexibility over time. At the
same time, they can conceal the fact of large- scale social
disagreement about particular cases.
There is a second and quite different kind of incompletely theorized
agreement. People may agree on a mid-level principle but disagree both
about the more general theory that accounts for it and about outcomes
in particular cases. They may believe that government cannot
discriminate on the basis of race, without settling on a large-scale
theory of equality, and without agreeing whether government may enact
affirmative action programs or segregate prisons when racial tensions
are severe. The connections are left unclear, either in people's minds
or in authoritative public documents, between the mid- level principle
and general theory; the connection is equally unclear between the
mid-level principle and concrete cases. So too, people may think that
government may not regulate speech unless it can show a clear and
present danger, but fail to settle whether this principle is founded in
utilitarian or Kantian considerations, and disagree about whether the
principle allows government to regulate a particular speech by members
of the Ku Klux Klan.
My special interest here is in a third kind of phenomenon —
incompletely theorized agreements on particular outcomes, accompanied
by agreements on the low-level principles that account for them. These
terms contain some ambiguities. There is no algorithm by which to
distinguish between a high-level theory and one that operates at an
intermediate or low level. We might consider Kantianism and
utilitarianism as conspicuous examples of high-level theories and see
legal illustrations in the many (academic) efforts to understand such
areas as tort law, contract law, free speech, and the law of equality
to be undergirded by highly abstract theories of the right or the good.
By contrast, we might think of low-level principles as including most
of the ordinary material of legal doctrine — the general class of
principles and justifications that are not said to derive from any
particular large theories of the right or the good, that have ambiguous
relations to large theories, and that are compatible with more than one
such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995)]
Applications
How can you use the idea of an overlapping consensus or incompletely theorized agreement?
These conceptual tools are useful when you believe that you have
reached a theoretical impasse at some deep level. You've identified an
issue, and you can see how the issue can be traced to a deep
disagreement in moral or political theory. Now, you have some choices
to make. On the one hand, you can try to resolve the deep disagreement.
But there is a problem with this option. The deep debates in moral and
political philosophy are both ancient and persistent. The world's great
thinkers have worked on these problems. If Aristotle, Kant, and Bentham
were unable to come up with a knock down argument in favor of their
respective moral theories, then it does seem unlikely that you will be
able to resolve these debates in an article or book that is mostly
focused on another topic or idea. Moreover, the current state of the
art in moral and political theory involves a complex field of
interconnected arguments. If you need to master these debates before
you can complete your work in legal theory, then the work may never be
completed.
The alternative is to see whether you can
find a different level at which the dispute can be resolved. One
possibility is that you can find convergence at the surface level. It
seems as if deontologists and utilitarians disagree, but perhaps you
can craft consequentialist arguments that converge with the arguments
of fairness. Another possibility is that you will be able to find
converged on what Sunstein calls "mid-level principles." For example,
both consequentialists and deontologists might be able to agree that
contract formation (normally) requires that both parties manifest and
intention to be bound–although they would have different reasons for
affirming this proposition.
Conclusion
The move to "overlapping consensus" or
"incompletely theorized agreements" is one of the niftiest and most
useful in contemporary legal theory. Add it your personal legal theory
toolbox!
(Last revised on November 22, 2009.)