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assumed in what follows).
I take it that many legal scholars have a general familiarity with moral philosophy,
not just classical work (Bentham, Hobbes, Locke) but also famous modern work.
They have read, or at least have heard of, the work of Robert Nozick, Derek Par¬t,
and John Rawls, and they aren™t surprised by terms like consequentialism, veil of
ignorance, difference principle, or side-constraint. But why aren™t there more legal
scholars who make it a point to remain well-versed in current developments in
moral philosophy? Academic moral philosophers, housed in university philosophy
departments, continue to work in the philosophical traditions to which Nozick,
Par¬t, and Rawls so notably contributed. Why do so few legal scholars try to stay
abreast of that work?
The reader might question the question™s premise. “How do you know, Adler,
that there aren™t many legal academics who read the current issues of Ethics,
Philosophy and Public Affairs, and similar journals and draw upon this literature in
their own work?” Well, I don™t know for sure. But I read a lot of law review articles (in
large part because of years of forced service on appointments committees!) and my
¬rm sense is that major ¬gures in contemporary moral philosophy, such as Larry
Temkin, Thomas Hurka, Frances Kamm, or T. M. Scanlon (an illustrative rather
than exhaustive list) and major recent issues, such as the debate about prioritarian
conceptions of equality, rarely surface in contemporary legal scholarship.
But maybe my memory is bad, or I read too quickly, so I did a little checking.1 A
search in Westlaw™s journals and law reviews database yields thirty-one hits for the
search term prioritarian or prioritarianism; forty for Larry Temkin; thirty-nine for
All the search numbers that follow are from a search I performed on November 30, 2007.
Thanks to Brian Bix and Dennis Patterson for comments.

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On (Moral) Philosophy and American Legal Scholarship 115

Thomas Hurka; eighty-nine for Frances Kamm; and one hundred for T. M. Scanlon
together with What We Owe to Each Other (Scanlon™s book on contractarianism).2
By comparison, John Rawls gets 5,387 hits, a huge number, which is in the range
of the most-cited legal scholars.3
So if it is true that relatively few legal academics try to stay abreast of academic
work in moral philosophy, and (a fortiori) that even fewer self-de¬ne as law-and-
moral-philosophy scholars, why is that? The answer can™t be that legal scholars
have no appetite for cutting-edge work in other disciplines. It™s easy to think of
counterexamples. Behavioral law and economics, also known as law and psychol-
ogy, is now booming. This body of legal scholarship is well versed in the research of
Amos Tversky and Daniel Kahneman and their successors about prospect theory
and heuristics and biases. (Amos Tversky gets 1,330 hits in the Westlaw search,
and Daniel Kahneman 1,745). Many of the papers presented at the large Amer-
ican Law and Economics Association conference every year are steeped in one
or another sub¬eld of contemporary economics. An increasing number of these
involve sophisticated econometrics “ a central focus of the new conference on
empirical legal studies. Positive political theory (PPT) is an increasingly popular
methodology in public law scholarship: PPT scholars use the tools of game theory
and spatial models, developed by economists and political scientists, to think about
the functioning of courts, agencies, Congress, and the president. Law and history
is hot these days, particularly in constitutional law, one of my areas of interest.
There are now a substantial number of scholars at law schools doing original work
in legal history, and many more (I would guess) who are pretty well read in the
¬eld. Law and sociology also seem to be ¬‚ourishing “ witness the size of the annual
Law and Society conference.
In short, these are boom days for interdisciplinary legal scholarship “ with some
exceptions. The ¬eld of law and moral philosophy is not the only exception “ that
law and literature is another “ but it is an exception, and it is the one that puzzles me.
It might be objected that, as a nonpractitioner of the booming “law-and”
methodologies described two paragraphs previously, I am overly impressed by
their claims to sophistication. Perhaps the legal scholars who style themselves
behavioral law and economists don™t really know much about what™s going on right
now in cognitive psychology. Perhaps the legal econometricians are using outdated
tools. It is surely true that interdisciplinary work by legal scholars has generally
lagged relative to the ¬elds that the scholars are trying to bring to bear. A new
idea, result, ¬nding, or method enters history, psychology, sociology, economics,
econometrics, or political science; x years later, with x greater than 0, it enters legal
scholarship. But my claim was not that many more legal scholars are fully up to

I put this in the search term for Scanlon so as to screen out law review articles in which Scanlon
is cited for his earlier, noncontractarian work, such as his well-known 1972 article on freedom of
I searched on the names of the ten most-cited legal scholars on a list compiled by Brian Leiter, posted
at impact cites.shtml. Cass Sunstein receives
more than 10,000 hits; Laurence Tribe, 9,149; Richard Epstein, 7,497; Ronald Dworkin, 7,127;
Mark Tushnet, 6,910; Bruce Ackerman, 5,379; Bill Eskridge, 5,320; Daniel Farber, 5,166; John Ely,
5,111; and Akhil Amar, 4,644.
116 Matthew D. Adler

date in ¬elds such as history, psychology, economics, and sociology than in moral
philosophy. The claim, rather, is that there are many more legal scholars who try to
stay up to date in these disciplines than try to stay up to date in moral philosophy.
So “ to sharpen the puzzle “ what™s curious is the comparatively low degree of
interest among legal scholars in academic work in moral philosophy compared to
the interest in a number of other academic ¬elds in the arts and sciences.
A partial explanation, perhaps, is the towering-¬gure effect. Perhaps another dis-
cipline generates excitement and interest among legal academics only when a truly
major, paradigm-shifting ¬gure emerges in that discipline: a Tversky/Kahneman.
But the towering-¬gure claim, thus stated, is untrue. It is not a necessary condition
for a substantial number of legal scholars to be interested in another academic ¬eld,
with potential relevance to law, that a towering ¬gure has recently reshaped the
¬eld. As far as I™m aware, there™s no ¬gure in economics, history, political science,
or sociology, within the past generation or even the past two generations, who has
had anything like the in¬‚uence within those ¬elds that Tversky and Kahneman
have had in psychology. It may be true that the emergence of a towering ¬gure in
another academic ¬eld, of potential relevance to law, is a suf¬cient condition for
substantial attention to that ¬eld by legal scholars. That is to say, the psychological
regularity R that predicts legal-scholarly interest in another academic ¬eld has a
disjunctive form: the emergence of a towering ¬gure or condition c2 or condition c3
or condition c4 and so on. Regularity R is consistent both with Rawls™s large in¬‚u-
ence in legal scholarship (Rawls is a towering ¬gure if there ever was) and with
the current vibrancy of law and economics, law and history, law and political sci-
ence, and law and sociology. But, because regularity R has the disjunctive form “
with c2, c3, c4, and so on, mere placeholders for whatever explains the vibrancy
of these ¬elds but would not predict vibrancy in law and moral philosophy “ the
puzzle remains.
The puzzle, as I further implicitly sharpened it in the preceding paragraph, is the
fact that contemporary legal scholars are particularly engaged by certain academic
literatures and not by academic moral philosophy, even though academic moral
philosophy “ like these other literatures “ has potential relevance to law. But it might
be suggested here that straight or ¬rst-order moral philosophy doesn™t really have
that much relevance to law.4 Legal scholars haven™t mined this literature for the
same reason they haven™t mined academic work in physics or chemistry.
The most sophisticated variant of this suggestion runs as follows: Much legal
scholarship is normative. Many legal scholars are interested in determining what
judges or legislators ought to do. And scholarship in moral philosophy is also nor-
mative. Moral philosophers are interested in defending, criticizing, or elaborating
By ¬rst-order, I mean to draw the fairly standard distinction between the second-order enterprises
of metaethics (which is about whether moral facts exist and, if so, what the nature of such facts is)
and moral epistemology and the (¬rst-order) enterprise of (1) defending or criticizing some claim
about what morally ought to be done, or (2) explaining the relationships between different claims
about what morally ought to be done, for example, showing that rule consequentialism collapses
to act consequentialism, without outright defending or criticizing some such claim. Obviously, the
distinction between ¬rst-order and second-order has lots of fuzziness. I make the distinction here
because I ¬nd the absence of legal-scholarly attention to metaethics and moral epistemology less
puzzling than the absence of attention to ¬rst-order work.
On (Moral) Philosophy and American Legal Scholarship 117

different views about what ought to be done, such as utilitarianism, nonutilitarian
consequentialism, contractarianism, and so forth. But these are different kinds
of oughts. Legal scholars are interested in legal normativity. They are interested
in what judges, legislators, and other legal actors have legal reason to do. Moral
philosophers, by contrast, are interested in moral normativity. They are interested
in what actors generally have moral reason to do. Legal and moral normativity are
distinct. Someone can have legal reason to perform an action that he or she lacks
moral reason to perform, and vice versa.
And the suggestion continues: There is a body of legal scholarship that is both
interested in normativity and philosophically sophisticated. This is jurisprudence,
a well-de¬ned ¬eld of legal scholarship since H. L. A. Hart and Ronald Dworkin,
with continuing work (in the United States) by ¬gures such as Larry Alexander,
Brian Bix, Jules Coleman, Mark Greenberg, Heidi Hurd, Brian Leiter, Stephen
Perry, Fred Schauer, Scott Shapiro, Jeremy Waldron, and others. This work focuses
on explicating the concept of law and on clarifying the relationship between law and
morality “ for example, discussing whether law has moral authority, or whether law
can incorporate moral norms (the issue at dispute between exclusive and inclusive
positivists). And it does draw on contemporary philosophy where relevant “ for
example, building on the work of the philosopher Michael Bratman about the
nature of collective intentions, or on recent developments in the philosophy of
language. But this work is fundamentally about legal normativity, and it talks
about moral normativity only where it bears on legal normativity. To expect legal
scholars to regularly draw from straight, ¬rst-order, moral philosophy is naive “ just
as it would be naive to expect legal scholars to regularly draw from the philosophy
of aesthetics, on the silly grounds that because legal scholars are interested in the
good and the right, and aesthetic philosophers also are, they should have loads to
say to one another. Aesthetics is about what™s artistically good and right, and legal
scholarship about what™s legally good and right.
But I don™t think the suggestion works. Rawls, at least in A Theory of Justice, was
engaged in ¬rst-order moral philosophy “ ¬rst-order philosophy about an aspect
of morality, namely, justice “ as much as any contemporary moral philosopher
explicating, defending, or criticizing consequentialism, contractarianism, virtue
ethics, or deontology. Further, what is morally good or right is of general interest
to legal actors “ much more so than, for example, what is artistically good or
right. What does “of interest” mean? Well, let™s say that many legal actors are
partly motivated, or at least claim to be partly motivated, by moral considerations,
not just legal considerations. This includes not merely civil disobedients “ who are
motivated to act morally, in the teeth of legal reasons “ but legal actors who believe,
often quite plausibly, that they have legal discretion. For example, the legislator
considering the enactment of a statute presumably quite often believes that there
are multiple courses of action available to him or her, all of which are legally
permissible under applicable law (the U.S. Constitution in the case of members
of Congress and state constitutions for state legislators). In this case, the legislator
chooses among the different possible options (or claims to thus choose) with
reference to the public interest “ which is just a less fancy term for moral reasons,
or at least a subset of moral reasons (consequentialist ones). Some of the options
118 Matthew D. Adler

the legislator may well claim to be impermissible as a matter of rights (not just
legal rights, but moral rights, such as the moral rights of privacy, free expression,
or property ownership). A similar story could be sketched for regulators and, to
some extent, judges.
In short, morality actually ¬gures into “ or at least is actually claimed to ¬gure
into “ the motivational set of many legal actors. It may be possible to have a
legal system in which actors rarely make reference to moral considerations, but
that system is not ours. Relatedly, there is in fact plenty of legal scholarship that
argues that some actor ought to do something, where the ought is best understood
as a moral ought and not (or at least not just) a legal ought. Consider the vast
corpus of law and economics scholarship claiming that legislators or regulators
ought to enact some statute or regulation, or that judges ought to issue some
doctrine, because it is Pareto ef¬cient. Surely law and economics scholars are not
laboring under the illusion that judges and legislators have a general, background
legal obligation to undertake Pareto-ef¬cient courses of action. Rather, the moral
goodness or rightness of a Pareto-ef¬cient choice is taken by economists as wholly
uncontroversial, and Pareto ef¬ciency is used as a moral criterion by which to
morally evaluate candidate statutes, regulations, and doctrines.
Perhaps the paucity of legal-scholarly attention to current moral philosophy is
explained not by the irrelevance of moral philosophy generally to law but by the
fact that contemporary moral philosophy is in the doldrums. ALEA has lots of
papers drawing on contemporary economics because economics is thriving. Ditto
for history, cognitive psychology, and so on. But contemporary moral philosophy
has not made much progress in the past decade or two. Contractarianism has
not advanced much beyond Rawls. Deontology has not advanced much beyond
Nozick. Consequentialism has not advanced much beyond Par¬t.
There may well be a perception among legal scholars that academic moral phi-
losophy hasn™t made much progress since the 1970s and 1980s. But the perception,
I suggest, is inaccurate. Academic moral philosophers continue to generate impor-
tant new insights and results, and the perception that they haven™t (if there is one)
is just part and parcel of the inattention to this literature that needs explaining.
What important insights and results am I thinking of? I am thinking, above
all, of the contemporary philosophical scholarship about equality: not just the
seminal work in the 1980s by Dworkin on equality and responsibility, and the
seminal work by Sen on “equality of what,” but more recent work, within the past
two decades. Much of this work centers on the distinction between egalitarianism
and prioritarianism, introduced into moral philosophy by Par¬t and Temkin in
the early 1990s. Is equality a matter of comparing how individuals fare, relative
to one another, or rather of giving extra moral weight to increases in the well-
being or resources of individuals who are badly off in absolute terms? This is, I
believe, an absolutely fundamental question, about the nature of equality, which
moral philosophers are now rigorously and illuminatingly discussing. A related
body of work centers on the Pareto principle: can actors have prima facie or all-
things-considered moral reason to make everyone worse off? A yet more recent
offshoot of the prioritarianism and egalitarianism literature distinguishes between
On (Moral) Philosophy and American Legal Scholarship 119

prioritarianism and suf¬cientism. At the same time, the literature continues to
work through the vital issues of integrating equality and responsibility and deciding
what the currency for equality is (e.g., resources, capabilities, midfare, well-being).
Three observations intensify the puzzle. One is that this literature is about
equality, a topic of long-standing interest to legal scholars, not just in the areas of
constitutional law and antidiscrimination law but in other areas of legal scholar-
ship too (e.g., tax policy, environmental law, family law, health law). A second is
that it addresses the Pareto principle, of even more general legal-scholarly interest.
A third is that there is much interaction between this literature and recent work in
social choice theory. The social-choice writing about equality tends to be published
in journals like Social Choice and Welfare rather than Ethics, to be more mathemat-
ically formal, and to be written by scholars who are housed in economics rather
than philosophy departments. But the very same range of subjects is addressed; the
social-choice theorists writing about equality are often well versed in, and draw
upon, the philosophical scholarship, and vice versa.5
The social-choice literature “looks” like some of the other ¬elds of economics
that are in¬‚uential in law (at least in using formal mathematical language, and in
often equating individual well-being with preference satisfaction and using utility
theory to analyze preferences). And the literature is normative: it is interested in
making formal deductions about appropriate policy choice or about the measure-
ment of policy impacts from normative axioms. Yet my sense is that this literature “
both the equality sub¬eld and other sub¬elds “ has had little impact on legal schol-
ars. Marc Fleurbaey, an important ¬gure in contemporary social choice theory,
who is the paradigm of a scholar who is interested in equality and working at the
intersection of social choice and moral philosophy, receives only ten (!) hits in
Perhaps the answer (or a partial answer) is that the recent, illuminating work in
moral philosophy (as well as the whole ¬eld of social choice) will hold little interest
for nonconsequentialists. There is a tradition, in the United States, of philosoph-
ically sophisticated work by legal scholars that draws on moral philosophy. I am
thinking, in particular, of scholarship about the content of private law and crim-
inal law. Michael Moore™s scholarship in criminal law would be exemplary. But
this work overwhelmingly tends to take a nonconsequentialist perspective. Unless
the contemporary philosophical literature has made substantial progress in deon-
tology, contractarianism, or some other variant of nonconsequentialism, why be
surprised that legal scholars aren™t reading it?
But I think contemporary moral philosophy does continue to advance our
understanding of nonconsequentialism. Think, for example, of Hurka™s work on
virtue ethics, Kamm™s work on deontology, or Scanlon™s work on contractarian-
ism, and the responses by other philosophers to this work. (There was a reason,
earlier, why I mentioned Hurka, Kamm, and Scanlon along with Temkin.) And
even if it were true that academic moral philosophy is currently in the doldrums

For a good sense of the two literatures, and the interaction between them, see the articles and papers
posted on the Equality Exchange Web site, at
120 Matthew D. Adler

with respect to the explication of nonconsequentialist rather than consequential-
ist moral views, that would at best partly explain the absence of legal-scholarly
attention to contemporary moral philosophy (namely, by explaining the inatten-
tion by legal scholars who reject consequentialism). To complete the explanation,
we™d need to say that there aren™t many legal scholars who both are sympathetic to
consequentialism and have a taste for philosophy. But this is hardly an explanation
(given that there are straight philosophers who have both characteristics)!
Anyway, the whole premise of this discussion, namely, that the vibrant recent
philosophical and social-choice literature on equality is consequentialist, is wrong.
Certainly many in the literature are not welfarists: the whole point of the equality-
of-what debate, about whether equality™s currency is well-being, capabilities,
resources, and so on, is to debate (not take for granted) the signi¬cance of welfare
facts to morality. Nor is it necessarily consequentialist in the sense of taking the
good to be prior to the right, or taking moral requirements to be derivative from an
agent-neutral ranking of outcomes. Some of the contributors are consequentialists;
others are not.
So we are left with a puzzle. Many, probably most, legal scholars have nor-
mative interests. By virtue of these interests, many legal scholars have read and
cited “ and not just that but, I believe, genuinely engaged “ the work of some
twentieth-century moral philosophers, above all John Rawls. Many legal scholars
have interdisciplinary tastes. Many legal scholars with interdisciplinary tastes are
well versed in other literatures, on an ongoing basis. Few legal scholars are well
versed in academic moral philosophy, on an ongoing basis. Academic moral phi-
losophy is doing ¬ne, and it is ¬‚ourishing with respect to topics at the core of
normative legal scholarship: equality and Paretianism.
I don™t have a solution to the puzzle. I do think “ and this should be clear “ that
the U.S. legal academy™s neglect of contemporary moral philosophy is a real pity.
Finally, let me respond to an important comment raised by a reader of the ¬rst
draft of this chapter. The reader notes that I focus exclusively on Anglo-American
philosophy and that I don™t mention Rorty or Habermas, who are cited often in
the law reviews.
Indeed, I did focus on Anglo-American moral philosophy, which is my area of
expertise. (Anglo-American is a crude shorthand, given the important work of con-
temporary European academic philosophers and economists in this tradition, such
as Serge-Christophe Kolm, Marc Fleurbaey, Philippe van Parijs, Wlodek Rabinow-
icz, or Bertil Tungodden; but I™ll acquiesce in the term here.) And, indeed, Rorty is
cited 1,246 times in a Westlaw search, and Habermas 2,548 times.6 But, notwith-
standing the high citation rate of world-famous philosophical ¬gures like Rorty
and Habermas (as a crude shorthand, let™s call them continental philosophers)
and Rawls (working within Anglo-American philosophy), the puzzle remains that
there are major ¬gures in current academic moral philosophy (I used Temkin,
Hurka, Kamm, and Scanlon as paradigms) who are barely cited.

Search performed on June 2, 2008.
On (Moral) Philosophy and American Legal Scholarship 121

Are the counterparts of Temkin, Hurka, Kamm, and Scanlon within Conti-
nental philosophy “ important academic ¬gures, but less visible than a Rorty or
Habermas “ in¬‚uential and cited by legal scholars? Given time constraints, and
my lack of expertise in contemporary continental philosophy, I haven™t attempted
to investigate this question. Even if the answer to this question is yes, the puzzle
I raise here remains. Despite the active state, and relevance for legal scholarship,
of a large and important branch of contemporary academic philosophy, namely,
Anglo-American moral philosophy, the legal academy generally ignores it.
15 The Aretaic Turn in American
Philosophy of Law
lawrence b. solum

American philosophy of law has begun to make what has been called the aretaic
turn. What is the aretaic turn in normative legal theory? This question has both
a positive and a negative answer. Begin with the negative “ the aretaic turn is a
turn away from the domination of normative legal theory by consequentialist and
deontological paradigms, including normative law and economics and Dworkin™s
theory of law as integrity. In other words, the aretaic turn rejects the dominant
traditions in contemporary theorizing about the ends of law.
A more illuminating description of the aretaic turn can begin with a de¬nition.
The word to express virtue or excellence in classical Greek was arˆte, from which
we derive the English word aretaic, of, or pertaining to, excellence or virtue. Thus,
the aretaic turn is a turn toward a virtue-centered theory of law, to which we can
give the name virtue jurisprudence. Virtue jurisprudence offers a rich and fruitful
account of the nature, means, and ends of law that simultaneously dissolves old
problems and poses a new set of challenges for legal theorists. A good place to start
our investigation of the aretaic turn in the philosophy of law is with a statement of
problems it attempts to address.

Contemporary legal theory is characterized by two antinomies: the antinomy
of rights and consequences and the antinomy of realism and formalism. Each
antinomy captures a persistent controversy in contemporary legal theory that
has proved resistant to resolution (or even clari¬cation) through the practice of
reasoned argument.
The antinomy of rights and consequences is the legal form of the modern
philosophical debate between consequentialists and deontologists. In the legal
academy, the ¬‚ag of consequentialism is borne by the normative law and economics
movement. An especially prominent and trenchant example is found in Fairness
versus Welfare, a monumental law review article and later book by Louis Kaplow and
Steven Shavell (2002) of Harvard Law School, but normative law and economics
has a long and distinguished pedigree, prominently including work by Ronald
Coase, Robert Cooter, Frank Easterbrook, Richard Posner, and many others.
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The Aretaic Turn in American Philosophy of Law 123

If the ¬‚ag of consequentialism is borne by normative law and economics, then
surely the most prominent standard-bearer for a rights-based approach to norma-
tive legal theory is Ronald Dworkin. Dworkin™s theory, law as integrity, emphasizes
the idea that the parties have preexisting rights that oblige judges to decide cases on
the basis of principle rather than policy. Of course, Dworkin is only one of many
who carry the ¬‚ag for deontology in the legal academy. Deontological approaches
are associated with such prominent legal theorists as Randy Barnett, Jules Coleman,
James Fleming, Michael Moore, and countless others.
When I describe the lay of the jurisprudential landscape as an antinomy of
rights and consequences, I mean to make a bold assertion about the state of debate
between the partisans of consequence and the advocates of rights. This debate does
not seem to be progressing toward a conclusion; instead, we seem to be in a state
of perpetual con¬‚ict (at best) or mutual disengagement (at worst).
Let me explain. On the one hand, there is considerable evidence for the propo-
sition that normative legal theory is fragmenting. Normative law and economics
have suf¬cient momentum so that it is institutionally feasible to proceed as if
there were no deontological critique of the moral foundations of welfarism. Like-
wise, deontologists can debate among themselves, with, for example, egalitarians
and libertarians arguing for the own preferred version of rights-based normative
legal theory. Genuine dialogue is rare. Genuine progress is even rarer. Kaplow and
Shavell™s Fairness versus Welfare certainly reignited the debate between the parti-
sans of consequence and the advocates of rights, but I do not think it can fairly be
said that much progress was made. Kaplow and Shavell™s critics declared victory,
but the normative law and economics movement proceeded as if nothing had
If the antinomy of rights and consequences is characterized by perpetual war-
fare or mutual disengagement between two more or less equally matched forces,
the antinomy of realism and formalism is re¬‚ected in a more fractured and less
crystalline pattern of legal discourse. We can remind ourselves of the dialectic with

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