Law as Policy: Justice and Interest
Discussion Paper No. 08–09
5 August 2008
Makoto Usami*
* Department of Social Engineering, Graduate School of Decision Science and Technology,
Tokyo Institute of Technology, 2–12–1–W9–90 O-okayama, Meguro, Tokyo 152–8552, Japan.
Phone & fax: +81–3–5734–2933. Email: [email protected]
1
Abstract
In newly emerging democracies, succeeding governments have numerous policy tasks for the
purpose of developing the free market and the democratic process. In such legal systems,
policy-oriented views of law, which regard law as a policy tool for diminishing public
problems, seem descriptively pertinent and prescriptively helpful. This is also the case in
mature democratic legal systems, where the public problems faced by governments become
more and more complex. Policy-directional views of law do not necessarily imply that law is a
value-neutral means that can serve any possible political ends. It is widely recognized among
legal theorists and practitioners, with notable exceptions represented by exclusive legal
positivists, that the law involves moral values, including justice and liberty. In the present
paper, I focus on one version of policy-oriented views of law that is based on the fundamental
ideals of justice and interest. By sketching out this version, I attempt to shed new light on some
concepts and issues in jurisprudence.
To begin, I articulate the concept of justice and identify the difficulties that interest-based
conceptions of justice encounter, by referring to some classical works. I also make a distinction
between different conceptions of interest. Next, the two basic concepts in law—rights and
liberty—are explained in terms of justice and interest. Efficiency, which is largely neglected in
traditional jurisprudence notwithstanding its practical significance, is briefly discussed. Then I
turn to exploring the implications that the law-as-policy theory grounded in justice and interest
might have for the foundations of two legal domains: criminal law and laws governing political
participation. Some allegations and objections against this theory are described, and responses
to them are given. The paper concludes by noting the questions that remain open in this theory.
Key words: criminal law, efficiency, liberty, political participation, rights
2
In this investigation I shall always attempt to combine
what right permits with what interest demands,
in order that no division may be made
between justice and utility.
—Jean-Jacques Rousseau, The Social Contract
Introduction
During the past four decades, a wave of democratization has swept across many parts of the
world, including the Mediterranean nations, Latin America, Eastern Europe, the former Soviet
Union, Southeast Asia, and some sub-Saharan countries. In these newly emerging democracies,
succeeding governments face numerous policy tasks. These tasks might include instituting or
reviving the free market, building infrastructure, developing the democratic process, deterring
an increase in crime, and repairing grievous human rights violations committed under a prior
regime. In such situations, policy-oriented views of law, which regard law as a policy tool for
diminishing public problems, seem descriptively pertinent and prescriptively helpful.
This is the case in mature democracies as well, where the phenomenon of Verrechtlichung
or legalization has been developing for several decades. The idea of legalization is susceptible
to several interpretations, but what is particularly relevant here seems to be the multiplication
of legal rules and the expansion of their scope. Governments today take on such new
challenges as regulating biotechnology, reducing environmental destruction, and preventing
crime in cyberspace. The more multitudinous and complex the public problems faced by
governments become, the more efficacious policy-oriented understandings of law may be. By
noting this apparent correlation, I do not intend to suggest that policy-directional views work
well only when they describe the legal treatment of novel types of public problems. On the
contrary, these views might provide a new explanation of long-standing institutions such as
criminal punishment, as I argue below. Legalization has nonetheless contributed to spreading
policy-oriented perspectives of law and to developing various theories based on these
perspectives. It is not a coincidence that in the United States, where legalization has markedly
3
progressed, the field of law and economics, which considers law as a public policy giving
incentives to individuals, has remarkably developed.
What is public policy? Many policy scientists adopt formalist definitions of the concept. A
well-known example is a formula by Thomas Dye (2005[1972]: 1), stating that public policy is
“whatever governments choose to do or not to do.” Yet such a formula seems too broad in
scope, because it includes in policy, for instance, even the purchase of a stapler by an
administrative agency. A more promising approach, which some policy researchers take,
involves substantivist definitions (e.g., Anderson, 2003[1990]: 2–5).
To develop a substantivist definition of policy, I begin by articulating the concept of a
problem. A problem means that a situation desirable to a person or a set of persons in any sense
is not currently realized, although it could be. When a possible circumstance is valuable to a
particular person, let us call the nonrealization of the circumstance a private problem. If one
person PO punches the nose of another person PV, causing the nose to be broken, then PV has
private problems: unrelieved pain and the uncompensated cost of medical care. The injury to
PV made by PO also indicates a token, as opposed to a type, of a public problem. Imagine a
society where there is no rule prohibiting physical harm to others and where the perpetrator is
not held responsible in monetary terms for the victim’s injury. The result is the Hobbesian state
of nature, in which, under the assumption of the rough equality of physical strength among
individuals, everyone lives in dread of violent attacks by others. The unrealized safety in this
society is a type of public problem, in that it is undesirable for all members of the society and
therefore should be collectively resolved or reduced. This is also the case in mature legal
systems: if the safety of citizens is not secured to a satisfactory extent, then that is a type of
public problem in these systems. This is why PO’s injury to PV is not only a private problem for
PV but also a token of a public problem for the citizenry.
Given the above example, one might think that a public problem can occur only when some
members of the society in question face the private problem of decline in welfare. This is
presumably true in most instances of public problems. However, circumstances may occur in
which we can identify a public problem, even though no members of the society are made
worse off. Possible public problems without any members annoyed by welfare decline fall into
two categories. The first is international problems. If one state SO had invaded another state SV
and committed grave human rights abuses, then the government’s refusal to pay reparations to
4
the victims living in SV would be arguably a public problem in SO, although no citizens of SO
had suffered from their soldiers’ injustices. The second category is intergenerational problems.
Suppose that, in a country where the vast majority of the population enthusiastically believes in
a religion forbidding idolatry, the government decided to destroy all historical statues and
pictures associated with another religion that was dominant several hundred years ago. Most
citizens support this policy decision, and the rest, who are atheists, are indifferent to the issue.
Nevertheless, it seems reasonable to say that the government’s decision causes a public
problem, because the decision makes it impossible for future generations in the country (as
well as in other countries) to enjoy and study that cultural heritage. These examples together
undermine the narrow view of public problems that exclusively regards the circumstance as a
public problem in which some current members of the society have the private problem of
welfare decline. A more promising approach to law and policy might be the broad view that
articulates a public problem as a nonrealized desirable situation in any sense, whether or not the
welfare level of some citizens decreases.
Public problems can be handled in several ways, depending on the nature of the problem in
question. Some types of public problem can be resolved conventionally. In Tokyo, a metropolis
with a notoriously dense population, people voluntarily form and keep lines in front of
museums, restaurants, and trains so that they can avoid push-and-shove situations. Other types
of public problem—that is, shortages of various private goods among people—are resolved
through cumulative market transactions under the price mechanism. Still other problems
require both organizational and conventional ways of handling them. The problem of frequent
crimes mentioned earlier cannot be effectively diminished until the legislature enacts the
criminal code (or courts develop case law regarding crimes) and most citizens obey the code
(or the judicial decisions). A public policy refers to a set of related guidelines of action for
private citizens and/or public officials, which are enacted, interpreted, and enforced by a
governing body to handle public problems. The policy may require, encourage, permit, and
prohibit a particular action by citizens or officials. By doing so, it attempts the resolution or
reduction of public problems in an organizational way.
The system of law is included in the whole system of public policy. The constitution,
statutes, and administrative ordinances are devices for handling types of public problem. In
common law systems, case law, including common law and equity, also contributes
5
substantially to the treatment of types of problem. If the shared rules governing warranty did
not exist, for example, that would be a problem for all merchants and consumers. This possible
problem is resolved by the civil code, the commercial code, specific statutes, and relevant case
law. On the other hand, judicial decisions and administrative directives are intended to deal
with tokens of public problem. Should a dispute over warranty arise between a seller and a
buyer, the unresolved dispute would be a token of the problem of lacking shared warranty rules.
Policy-oriented views of law do not necessarily imply that law is an empty vessel that can
consist of any moral content; that is, a value-neutral instrument that can serve any possible
political goals. It is widely recognized among legal theorists and practitioners, with notable
exceptions represented by exclusive legal positivists, that the law involves moral values that set
up an end or constrain a means.1 The following questions then arise: What kind of value does
the law contain? If it has two or more sorts of value, in what relationship do they stand? How
can a conflict be resolved between different kinds of value in a particular case of legislation or
litigation? These questions have been at the center of the controversy among legal philosophers.
Theories on values embedded in the practice of law can be divided into two groups: monism
and pluralism. Monist theories maintain that the whole body of law exclusively serves one kind
of value. A long tradition within monism is utilitarianism, according to which all legal policies
should maximize the utility—total or average—of all persons involved. However,
utilitarianism provokes theoretical and practical criticisms: the difficulty of measuring cardinal
utility and of comparing it between different individuals, the possible sacrifice of individual
basic rights, and the phenomenon of adaptive preference formation, among others. The monist
view is also present in law and economics. A systematic elaboration of monism is on full
display in a recent book written by Louis Kaplow and Steven Shavell (2002), in which they
claim, from the perspective of welfare economics, that all legal rules should be evaluated
entirely with respect to their effects on the welfare of individuals, denying any independent
weight of fairness in policy assessment. The principle of fairness, they argue, leads to the
objectionable conclusion that a public policy that makes everyone worse off is approved. It is
beyond the scope of the present paper to assess thoroughly their wide-ranging argument, and
only a brief comment is in order. Those who adhere to fairness fall into two categories:
pluralist fairness theorists and pure fairness theorists. The former group appreciates the
demands of both fairness and welfarist judgments and attempts to resolve the conflict between
6
them; in contrast, the latter exclusively invokes fairness. The argument made by Kaplow and
Shavell may be convincing to pluralist fairness theorists (or some of them) but cannot convert
pure fairness theorists to welfarism.
In the pluralist camp, there is a wide variety of theories on moral values embodied in the law.
I focus on one version of the pluralist view stating that different values in the law taken as
policy can be reduced to the fundamental ideals of justice and interest. The two concepts
appear to work in very different ways: the idea of interest offers a policy goal to pursue,
whereas that of justice restricts ways of achieving the goal. However, the appearance of
difference is incorrect. The ideal of justice can set up an end by depicting the status quo as a
situation of injustice in some sense; conversely, the notion of interest can make a demand on
policy measures, as illustrated below. If we adopt the law-as-policy theory grounded on only
the two concepts, perhaps following Occam’s razor, then the theory might supply both an
explanation of other basic concepts, including rights, liberty, equality, and autonomy, and a
justification for major legal domains, such as property, contract, tort, crime, tax, and political
participation.2 By sketching out several features of the law-as-policy theory on the basis of
justice and interest, I attempt to shed a new light on some concepts and issues in jurisprudence.
To begin, I articulate the concept of justice and identify the difficulties that interest-based
conceptions of justice involve, by referring to a few classical works. I also make a distinction
among different conceptions of interest. Next, the two basic concepts in law—rights and
liberty—are explained in terms of justice and interest. Demands of efficiency, which is a
largely neglected value in traditional jurisprudence notwithstanding its practical significance,
are briefly discussed. Then I turn to exploring the implications that the law-as-policy theory
might have for the foundations of criminal law and of laws governing political participation.3
Some of the allegations and objections against this theory are described, and responses to them
given. This paper concludes by noting the questions that remain open in this theory.
As the above summary indicates, the research topics discussed in the following are various
and the related literature is enormous. Depth of coverage is therefore sacrificed to maintain a
focused argument. This paper is intended not to present a full-scale discussion about the lawas-policy theory but to outline some of its jurisprudential aspects.
7
Two Cornerstones
The theory of law I sketch out is founded on the concepts of justice and interest. Let us begin
by considering the former. Justice, like liberty and equality, is a typical example of a contested
concept, of which people offer different noncompatible conceptions or interpretations. All
participants in the debate over justice should share the same concept, however, as long as their
controversy is about which interpretation is better than the others, rather than which ideal
outweighs the others.
From Plato to John Rawls, there is a long history of thought regarding justice, which cannot
be even briefly reviewed here. Instead of a historical review, two classical formulae of justice
are briefly considered. One is the definition of justice made by Ulpian: justitia est constans et
perpetua voluntas jus suum cuique tribuendi (Digesta 1.1.10.). The other is the precept
mentioned by H. L. A. Hart (1994[1961]: 159) and many other legal philosophers: treat like
cases alike and treat different cases differently. These formulae seem to suggest that the
concept of justice demands an appropriate proportion. The question then arises: what does an
appropriate proportion mean? There are two dimensions of proportion in the concept of justice.
First, this concept requires a proper balance between the status, features, and actions of a
person or a group of persons and the benefit or the burden given to the person or the group.
Which criterion we should adopt to decide on a good balance is, of course, a highly
controversial question. Nonetheless, authors on justice agree that the criterion should not vary
from person to person or from group to group. This agreement leads us to the second aspect of
proportion: the concept of justice requires the equal treatment of all individuals who are in
similar situations.
Some classical thinkers maintain that the basis of justice is the interest, benefit, or utility of
society at large. David Hume (1978[1888]: 477–491) insists that an artificial virtue, justice,
emerged through convention to deter selfishness and favoritism threatening social cooperation
and division of labor. In his defense of utilitarianism, John Stuart Mill (1998[1871]: 94–107)
notes the connection of justice with individual rights and then urges that these rights are based
on social utility. Hume and Mill present, from different angles, interest-based conceptions of
justice. Such conceptions naturally encounter an objection I mentioned earlier: justice (and the
individual rights supported by it) may be sacrificed for the interest of the whole society when
the two come into conflict. A standard rejoinder invokes rule utilitarianism, claiming that even
8
if the violation of justice (and rights) may increase social utility in some cases, rules protecting
justice (and rights) will promote utility in the long term. In fact, Hume (1978[1888]: 497–498)
suggests a rule-utilitarianism-like prescription for conflicts between justice and interest; besides,
the very notion of rule utilitarianism stems from a reading of Mill’s works. Rule utilitarianism,
however, invites a variety of criticisms, including the argument that this position can be finally
reduced to act utilitarianism, which is thought to be highly vulnerable to major objections.
Such interest-based understandings of justice are rejected by the law-as-policy theory,
according to which justice is a distinct ideal that is not grounded on social interest.
To explore the concept of interest, it seems useful to offer a pair of distinctions. First, there
are two kinds of interest, public and private, depending on the range of persons enjoying it.
Private interest means a benefit that only some members of society receive, whereas public
interest refers to a gain shared by all members. Consuming private goods is private interest for
the consumer, but enjoying public goods does not necessarily fall into the public interest. Some
public goods—a park in a small town, a bridge in an isolated village, and so forth—are usually
enjoyed by a certain group of individuals, and others—the armed forces, for instance—benefit
all members of society. The former category of public goods, which economists call local
public goods, belongs to private interest, while the latter is included in the public interest. The
constitution, statutes, and case law are, unless they benefit organized interests with spread cost
for the public at large, public goods enjoyed by everyone in a society, and thus appertain to the
public interest.
Second, I distinguish reflective interest from volitional interest. “Volitional interest” is a
term coined by Ronald Dworkin (2000: 216, 242–245), while reflective interest is different
from what he calls critical interest. One’s volitional interest is promoted, we can say, if one
holds or achieves what in fact one wants. It is my volitional interest to listen to a CD of
Chopin’s sonatas just because I like them. One’s reflective interest is advanced when one
maintains or accomplishes what one would deliberatively want if one were well informed and
made a choice with no fraud, threat, or mental disorder, irrespective of whatever is actually
desired. Drug abuse is reflective disinterest to everyone, because drugs are detrimental to
human health, even though drug addicts do want them.
The idea of reflective interest is crucial in the law. The reason for this is that this idea
furnishes a justification for a wide variety of paternalistic rules, including the criminalization of
9
drug use, the obligation to fasten a seat belt in a car, and the system of public pensions founded
on levied premiums. On the other hand, this same idea can offer a paternalist justification for
the legal enforcement of morality (Dworkin, 2000: 217–218) and for the violation of freedom
of religion. Some conservatives might assert that the legal prohibition of homosexual acts is
justified because the acts are grievously immoral and thus destructive to the moral life of the
agents. One can reply to this assertion by saying that it would not be in the homosexual’s
interest to refrain from performing desired acts because of fear of punishment. A further
question arises: Could a ban on these acts be legitimate if a homosexual were converted by
combining constraints with inducements and finally appreciated the conversion? To answer the
question, we need to consider further issues, into which I do not inquire here. Under what
detailed conditions is one’s counterfactual recognition of interest sufficient to identify it as
one’s reflective interest? How should we draw the boundaries of the realm of social life in
which we legitimately conceive reflective interests?
Demands of interest are constrained by the rights and liberties of individuals that were
established prior to the demands. A comfortable neighborhood is a local public good, and what
comfort means in a community depends on the (majority of) inhabitants. Suppose that for some
reason, a racial minority in a region begins to move into a city where most residents belong to
the racial majority. 4 The residents do not welcome the growth of the minority population,
possibly because they fear an increase in crime or because they are simply racist. If the
municipal council enacted a regulation restricting the minority’s movement, it would advance
the interest of the residents by keeping the neighborhood comfortable. In a legal system
protecting basic rights and liberties, however, such a regulation is null and void, because it
denies the right to travel and freedom of movement to the minority. This example illustrates
how the legitimacy of demands of interest depends on the system of rights and liberties
previously established.
Basic Concepts
In this section, an explanation of basic legal concepts is sketched out in terms of justice and
interest. Let me begin by considering the concept of rights. There are two opposing theories
about the nature of rights: the will theory and the interest theory. In legal philosophy in the
10
English-speaking world, the will theory is frequently associated with Hart (1982: 162–193),
who advocates a version of the theory—the choice theory (cf. Wellman, 1985: 195–196, 216–
217; Morimura, 1989: 43–57; Steiner, 1998). The will theory maintains that a legal right is an
individual will protected by law. As critics argue, the theory suffers from a number of
difficulties, two of which in particular seem serious. Although especially important rights are
taken to be inalienable, the will theory cannot explain inalienable rights in a satisfactory way.
Nor can it assign legal rights to those incapable of exercising will: infants, senile people, and
comatose persons.
The interest theory of rights dates back to Jeremy Bentham (e.g., Bentham, 1970[1945]:
293–294), and has been developed by many contemporary legal philosophers, including Neil
MacCormick (1977), Joseph Raz (1986: 180–183), David Lyons (1994: 23–46), and Matthew
Kramer (1998: 60–101). A naïve version of the theory equates a right with an interest protected
by law and claims that a right holder is the beneficiary of another’s duty. This version needs to
be refined in two ways. First, right holders do not always benefit from the fulfillment of duties
owed to them, but they do possess a general characteristic of getting profits from the duties.
Had I invested heavily in a hopeless business, I would not benefit from your doing duties owed
to me, such as your refraining from hindering my investment. Nonetheless, my property right is
characteristically of advantage to me. Second, one has a right not simply because one has an
interest protected by law but also because the interest can be universalized. Advocates of the
interest theory have been baffled by the puzzle that Rudolf von Jhering posed and tried to
resolve: in the case of a law prohibiting the importation of manufactured goods of a specific
kind that was in fact enacted to benefit a particular domestic manufacturer, should this law be
considered to bestow a right on the manufacturer? The explanation of the puzzle is that for a
benefit protected by law to be recognized as a right, the benefit should be capable of
universalization. If an embargo on commodities of a single sort is thought to confer a right on a
domestic producer, the same right should be given to all producers of goods of other sorts. The
result is that goods of all kinds will be more expensive than the international market price, and
hence all citizens, including the targeted producer, will suffer considerable loss. This is plainly
unreasonable. The import-forbidding law, therefore, does not grant domestic producers any
right at all, even though such a law can be prudently supported until a hopeful but immature
industry grows enough to survive without it.
11
The policy-oriented view of law grounded on justice and interest supports the refined
version of the interest theory. This view naturally explains a right in terms of interest, because
one cornerstone of the view is the concept of interest. A characteristic of profitability in a right
can be explained in terms of volitional and reflective interests. In the example of unwise
investment, I do not gain a volitional interest but a reflective one from my property right. The
other cornerstone, justice, explicates the universalizability of rights by demanding the equal
treatment of agents and agencies in similar situations. A right is distinct from a privilege. If a
right is conferred on one person by law in a certain circumstance, then the same right should be
given to all others in similar circumstances. The robust version of the interest theory requires
support from both justice and interest.
Another basic concept embodied in the practice of law is that of liberty or freedom. In the
following, “liberty” and “freedom” are employed interchangeably. Instead of inquiring into
liberty in general, I offer a set of distinctions regarding basic liberties. First, it seems helpful to
distinguish between private value and public value. Freedom of speech in political discourse
may not have any private value to those people who show no interest in political affairs and
who would sell off their freedom if permissible. Nevertheless, free speech does furnish public
values to all members of society, including those who are nonpolitical, in the sense that this
kind of freedom makes it possible to place a new public problem on the political agenda and
encourages the improvement of governmental policies through open criticism by citizens.
Second, this example of free speech in the political sphere can be also described in terms of
volitional and reflective values. Those alienated from democratic politics do not gain volitional
value but reflective value from this right. Third, holding liberties is different from exercising
them. Values are contained not merely in the exercising of liberties but also in the holding of
them. If indigenous people are proud of their freedom of expression in the political realm, for
the reason that it symbolically illustrates their citizenship, then it is valuable to them to hold
this form of freedom, whether or not they exercise it. Fourth, I make a distinction between
instrumental value and intrinsic value, though both are at times present in the same form of
liberty. When workers stage a demonstration demanding a rise in the minimum wage, the
exercise of free expression has instrumental value to the participants. In contrast, exercising the
freedom of expression is intrinsically (and maybe instrumentally) valuable to the
environmentalists who join a demonstration as a way of enjoying the expression of their own
12
opinions and lifestyles. In both cases, the demonstrators find instrumental value in the holding
of free expression.
The examples mentioned above illustrate a variety of public and private interests stemming
from the holding and the exercising of basic liberties. Values of these liberties are explainable
in terms of interest for liberty holders, liberty exercisers, and the general public. Another
feature—the equality of liberties among citizens—is understood as the appropriate-proportion
requirement of justice. What Rawls (1999[1971]) calls the first principle of justice can be
reinterpreted as a compound of demands of justice and those of interest. The final statement of
the principle reads: “Each person is to have an equal right to the most extensive total system of
equal basic liberties compatible with a similar system of liberty for all” (Rawls, 1999[1971]:
220, 266). Once we realize that given the fact of pluralism—the existence of multiple
conflicting conceptions of moral life—in modern societies, great interest should be produced
by or included in basic liberties, then the claim of extending basic liberties as far as possible
looks well grounded. On the other hand, the formal equality of liberties implied in Rawls’s
principle can be understood as the good-balance demand of justice.
The policy-oriented theory of law highlights a concept long neglected in jurisprudence—
efficiency—and explores its practical implications. Every act costs the agent or the agency.
While you read this paper, you cannot read another; a manager of a company cannot have one
worker labor at two different factories on the same day; a nongovernmental organization
cannot spend the personnel budget on public relations. Public policies cost in different ways:
First, governmental policies are largely funded through a tax system, but a tax increase reduces
the disposable income of citizens. Second, the more money flows into the government sector,
the less flows into the market sector and the voluntary sector. Third, if the government issues
bonds to cover the cost of policies exclusively benefiting the present generation, then the bonds
will put the burden on the next generation.
Taking account of the three facts mentioned above, I would say that it is a critical task in the
law taken as policy to pursue the efficiency of public-policy production. This task implies that
all legal policies should be assessed through cost-benefit analysis or cost-effectiveness analysis.
The former type of analysis is employed when the goals of feasible policy alternatives can be
measured in monetary terms. In contrast, the latter is utilized when these goals cannot be
monetarily measured. Two approaches to cost-effectiveness analysis have been developed in
13
the field of policy science: the fixed budget approach and the fixed effectiveness approach. The
fixed budget approach specifies a certain level of expenditure, and then adopts the policy
option that will provide the greatest achievement of the given goal. The fixed effectiveness
approach sets a certain degree of achievement of the goal, and then chooses the policy measure
promising this degree of achievement with the lowest cost. Putting aside all technicalities, the
point is that when the monetary measurement of the expected effects of a policy is impossible
or highly controversial, the officials in charge cannot adopt that difficulty as a good reason to
neglect an analysis made from the perspective of efficiency; rather, they are required to set up
another index and to carry out the analysis.
Foundations of Legal Domains
In legal theory, a great controversy has persisted over the foundations of several legal domains,
including property, contract, tort, and crime. Topics that have been largely disregarded by legal
philosophers but debated among scholars in other disciplines include the foundations of
political participation and of the tax system. Here I take up two domains: criminal law and laws
governing participation. My aim here is to illustrate the implications that the law-as-policy
theory grounded on justice and interest might have for the foundations of major legal domains
at large.
As to the nature of legal punishment, two primary theories are in fundamental conflict:
retributivism and deterrence theory.5 Retributivism has a long tradition in criminal law theory
and is currently represented by Michael Moore (1997). Retributivism holds that a criminal
should be punished by law precisely because the criminal deserves punishment, and that the
penalty inflicted should be proportional to the wrongness of the crime. However, the notion of
desert is obviously ambiguous. The historical root of retributivism is lex talionis, but taken
literally, it is an absurdity. Who would argue for torturing a torturer or setting fire to the house
of an arsonist? What would we do with those who counterfeited bills or purchased stolen
goods? These difficulties suggest that retributivism needs to explain the idea of desert without
invoking lex talionis.
To circumvent the difficulties of lex talionis, which demands that the form of an inflicted
penalty be equal to that of the committed crime, some contemporary retributivists suggest
14
parity between the severity of the penalty and the wickedness of the crime, without an
associated account of punishment measures. There are two conceivable versions of their
suggestion (cf. Finkelstein, 2005: 212–213). A strong version, which I call the equivalence
view, maintains that the perpetrator deserves a punishment whose amount is morally equivalent
to the amount of harm suffered by the victim. According to a weak version, which can be
called the ordering view, punishments of different degrees should be proportionally distributed
among various crimes so that the worst crimes are matched with the heaviest penalties, and so
on down the line.
Both the equivalence view and the ordering view encounter at least three objections. The
first is a metajudgmental criticism. To decide equivalence or ordering about an immense
variety of crimes, these views need some concept that facilitates the search for a single criterion
for the decision. However, both views fail to offer a helpful concept. The second objection
concerns a split between our moral intuition and legal evaluation. Suppose that in a poor
village, a man fully trained in medicine has long devoted himself to medical treatments while
charging a small fee, although he does not have a legal license for medical practice. Many
people may naturally doubt that he deserves moral condemnation, but he is no doubt guilty
under the law. Such a split cannot be explained by equivalence theorists or ordering theorists,
who both assess crimes in only ethical terms. The third censure concerns the explanatory power
of the two views. These views cannot explain the phenomenon of making a penalty for a
particular crime severer in response to an increase in offenders, without any change in moral
evaluation of the crime. Nor can they account for the practice of releasing a well-rehabilitated
convict before the end of a predetermined prison term.
Deterrence theory is advocated by utilitarians and scholars in law and economics. According
to this theory, the primary justification of punishment is that punishing the perpetrator will
deter other potential offenders from committing crimes of the same kind in the future.
Proponents of the theory frequently add that punishment is also intended to prevent the
perpetrator, through rehabilitation, from attempting the crime again. Deterrence theory is
immune to many of the objections encountered by retributivism. First, if one decides, in terms
of possible disinterest suffered by the victims or the general public, the extent to which each
crime should be deterred, then one will offer the unequivocal ordering of penalties. It seems
arduous, however, for this theory to determine the equivalent level of a penalty with the crime,
15
given the difficulty of interpersonal comparison of cardinal utility. Second, the deterrencebased explanation of a split between legal evaluation and moral intuition is that an act by a
person is punishable if a possible circumstance in which many other people commit acts of the
same sort needs to be prevented by law, even if this particular case of the act looks morally
permissible. Third, the idea of deterrence is capable of explaining heavier penalties in response
to an increase in offenders, and the notion of rehabilitation can justify the release of wellbehaved convicts.
Deterrence theory suffers from other difficulties than those faced by retributivism. For one
thing, it tends to recommend very severe penalties for some crimes. True, deterrence theory
will not lead to the proposal of extremely long terms of imprisonment for minor and moderate
crimes, if the theory takes into account the administrative cost of punishment through costeffectiveness analysis. The real problem is rather that this theory might recommend the death
penalty for a wide range of crimes, partly because its monetary cost is tiny and because it will
save the cost of future rehabilitation. This possible implication is unacceptable to opponents of
capital punishment, including myself. Besides, if hundreds or thousands of criminals were
executed every year, then that would be problematic for almost all supporters of this
punishment. Equally important, the deterrent effect depends on the expected utility of each
potential criminal, which is in many cases calculated from the subjective probability of arrest,
prosecution, and conviction and from the possible length of imprisonment. If punishment is
merely a system of deterrence, it follows that legislators should frequently adjust the level or
range of prison terms provided in criminal law, depending on the probability that potential
criminals will be arrested, prosecuted, and convicted. The same is true for judges: they should
decide jail terms in each case by speculating on the subjective probability calculated by
potential criminals. Such a prescription is indefensible from the perspective of political
morality and infeasible in institutional arrangements of criminal justice.
The above examination indicates that neither retribution nor deterrence furnishes a
satisfactory justification for criminal punishment. The invocation of deterrence needs to be
complemented with the idea of proportionality between crime and penalty. This task seems to
be achieved by the policy-oriented theory of law based on justice and interest. We can say that
crimes are a set of acts harming or threatening private and public interests. The main purpose
of punishing criminals is to prevent the perpetrator and other potential criminals from violating
16
private and public interests in the future. The degree of each penalty is, however, determined
by the crime-punishment proportion stemming from the ideal of justice. This line of argument
overcomes difficulties of retributivism and deterrence theory. On the one hand, the policydirectional view facilitates the search for a criterion in assessing various crimes, by offering the
far-reaching concept of interest. This view is not disturbed by a split between legal evaluation
and moral intuition, and explains institutions and their changes supported by the consideration
of deterrence and rehabilitation. On the other hand, this theory does not lead to the proliferation
of the death penalty, nor does it imply an unstable system of punishment grounded on the
subjective probability calculated by potential criminals.
Now I turn to the domain of laws governing political participation. In the following, I focus
on the right to vote, but my argument on this right may be applicable, with minor modifications,
to the right to apply for a public office. The distinctions I made about basic liberties are
relevant to the voting right as well. This right can provide private values to each citizen and
public values to the whole citizenry; holding the franchise is one thing, and exercising it is
another; the holding of the voting right and the exercising of it have intrinsic and instrumental
values respectively. In the remainder of this section, I describe how these distinctions indicate
distinct interests caused by and involved in the right to vote.
Not infrequently, democracy is thought to be an aggregating mechanism, in which
preferences of voters are summed up and transmitted to their representatives, who then enact a
law, following the distribution of preferences among citizens. This conception of democracy
can be called aggregativism. Assuming that the public value of exercising the right to vote is
solely instrumental, aggregativism maintains that acts of voting serve the summation and
transmission of voters’ preferences. Observations in rational choice theory on the political
process, however, reveal that the aggregating/transmitting function of democracy is
considerably limited. According to findings in social choice theory, the possibility of a cycle in
social orderings persists when voters have three or more alternatives. The outcome of an
election or a legislative voting in part depends on which decision rule was adopted in advance.
Strategic voting is theoretically inevitable on all democratic decision rules of reasonable
character and empirically observed in many democracies. Furthermore, theoretical models and
empirical results in positive political theory reveal the rent-seeking activity of powerful interest
groups, the political inactivity of most unorganized voters, and the sensitivity of politicians to
17
demands of special interests, among others. These together indicate multiple distortions in the
aggregating/transmitting process, although the phenomena mentioned might have the partial
merits that I note below.6
In contrast with rational choice theorists, some advocates of civic republicanism stress the
public intrinsic value of the franchise instead of its private instrumental values. They urge that
politics is not competition or bargaining among rational egoists but is the practice of collective
self-government in which citizens and officials deliberate on and cooperate for the public
interest. True, many people act not merely for the sake of their own interests but also because
of altruism or moral commitment, as republicans cogently argue. However, civic republican
claims have limitations and pitfalls. First, even in a democracy understood as self-government,
voting is indispensable as long as disagreement remains among citizens or their representatives,
and therefore civic republicanism is not free from the above findings in social choice theory. It
is also worth noting that in positive political theory, the rational egoist model has been
modified and refined so that naïve criticism does not apply to current sophisticated models.
Second, if one looks at the fact that altruistic and commitment-motivated acts are exceptions
rather than the norm in realities of the democratic process, one might say that claims of civic
republicanism are too idealistic, if not utopian. Third, the emphasis on the intrinsic value of
self-government may imply the exclusion of apolitical people and hence is hardly acceptable in
a society with pluralism of the good.
The observation that aggregativism and civic republicanism achieve only partial success in
explaining the significance of democratic participation suggests that we need to understand
values of participation more broadly than these positions do. As to private interest, when
citizens pursue their own goals—personal gains or social ideals—through voting, they obtain
interest as an instrumental value by exercising the right to vote. The exercise of this right is
also intrinsically valuable to those who enjoy the expression of their political opinions by
voting. In both cases, voters get instrumental value from holding the right. Furthermore,
holding the voting right provides the public interest as an intrinsic value to the whole citizenry,
whether or not people exercise it, because their holding it symbolizes their citizenship. When
the franchise was extended to women, for example, they presumably realized its intrinsic value
by virtue of its symbolic function. To put these interests of the voting right in another way, this
right consists of a right to pursue resultant value, a right to acquire participatory value, and a
18
right to maintain participatory opportunity. This right-based view of democracy is not
threatened by observations in social choice theory or positive political theory.
Regarding the public interest of the right to vote, no citizens, including apolitical ones, can
deny instrumental value in holding and exercising the right. This is because democratic
participation provides three forms of the reflective and resultant interest to the general public.
First, the opportunity of political objection effectively deters grave human rights violations—
murder, torture, rape, and abduction—committed by police and military officers. Researchers
report that the number of deaths caused by governments is much smaller in democracies than in
militarist and former communist regimes (e.g., Rummel, 1994). Second, the sensitivity of
democratic representatives to political demands of social groups contributes to securing the
basic needs of citizens. In Southeast Asia, for instance, pollution was not on the political
agenda or addressed by public policies until democratization, when the residents affected could
safely raise their voices against it. Another example is that excessive and extensive poverty has
been frequently witnessed under suppressive regimes, and to a lesser degree in fragile
democracies. Third, democratic participation drastically reduces the likelihood of international
and civil wars. The principle of democratic peace, for instance, states that war does not occur
between democracies, and the modern history of international politics presents no
counterexample to it (e.g., Russett, 1993). These interests are probabilistic in nature, because
even democratic governments at times make mistakes. Nevertheless, the right to vote in a
democracy no doubt has public instrumental values in that the right supplies several forms of
reflective interest to the citizenry.
Allegations and Objections
The law-as-policy theory on the basis of justice and interest may face allegations and
objections from different perspectives, two of which seem to be of great importance. Some
might urge that this theory implies the adjudicative claim that in some cases, a judge is advised
to seek policy goals instead of following legal enactments and precedents. According to this
claim, a judge should regard a legal rule as a prima facie guideline that can be overturned
whenever the objectives behind the rule do not deserve full respect.
19
The question of whether the pursuit of particular goals by a judge is advisable has been a
matter of great controversy among legal theorists. An increasing number of legal pragmatists,
notably Richard Posner (1999), advocate this pursuit. Yet legal pragmatists in general may
disagree on many issues. What specific end should judges achieve? Should judges identify the
goal that they think legislators would advance in the case in question? Or, are they supposed to
pursue their own aims? Under what conditions are they permitted or even required to promote a
particular goal? Should they pretend to follow rules and principles, while seeking that goal?
Despite their disagreement over these issues, legal pragmatists hold that a judge should not
adhere to rules and principles for their own sake. Following past decisions and enactments has
its own purposes such as the enhancement of predictability among citizens and the decrease of
the cost of judicial decision making. However, whenever the reasons behind the respect for
precedents are overturned by more urgent ones, the argument goes, judges should be ready to
sacrifice the former in favor of the latter.
In contrast, authors in the antipragmatist camp maintain that it is not permissible for judges
to promote any specific ends. Lon Fuller (1969[1964]: 46–49) refers to generality as the first of
eight demands of legality, and argues that ad hoc administrative adjudication and acts of
designing institutions are beyond the scope of the law because of their lack of generality. In his
earlier works, Dworkin (1978[1977]: 82–93) presents a contrast between the argument of
policy intended to achieve a collective goal of political community and the argument of
principle invoking individual rights, and he advances the rights thesis stating that judicial
decisions in civil cases, including hard cases, are and should be made not by the policy
argument but by the principle argument. He later emphasizes a distinct virtue of the integrity of
the law, rejecting the judicial pursuit of specific goals (Dworkin, 1986: 164–275). Moreover,
Dworkin (2006: 36–104) recently delivers a detailed and harsh criticism of Posner and other
legal pragmatists.
Does the policy-oriented theory of law that I have described imply the pragmatist
recommendation of the judicial pursuit of goals? Not necessarily. To explain why, it seems
useful as a start to distinguish between an easy case and a hard case. In an easy case, it seems
reasonable to say that if a judge closes a law book and decides the case according to the judge’s
own goals, that decision injures private and public interests. Judicial neglect of plain rules
undermines the loser’s expectations, reduces predictability for potential parties of similar
20
lawsuits, and erodes public trust in the law and the judiciary. This neglect may also infringe on
justice by treating one case very differently from another, despite relevant similarities between
the two. These considerations lead us to the conclusion that in an easy case, the pragmatist
approach to adjudication is highly implausible.
In a hard case, is a judge advised to pursue a purpose instead of invoking controversial rules
and principles? It is possible (but not necessary) that the law-as-policy theory leads to the
pragmatist recommendation of such a pursuit. One might say that this recommendation invites
objections based on the idea of political responsibility. If judges, who are not elected by
citizens and hence do not shoulder political responsibility, employ their power for the sake of
policy goals, then that is antidemocratic. The pursuit of ends should be undertaken, it might be
argued, by politically responsible legislators. This objection, however, does not apply to
judicial systems in which judges are elected by citizens, such as the majority of states in the
United States. More importantly, the assumption that legislators have political responsibility is
less convincing than it appears at first glance. The notion of political responsibility is
susceptible to different interpretations, but a reasonable reading seems to be that if an official,
legislative or judicial, pursues a goal that is counter to the preference of the majority of citizens,
then the official will lose the next election. Such a prediction is doubtful, however, as
observations of social choice theory and positive political theory indicate.7 The dependence of
election outcomes on rules that I mentioned earlier implies that in many cases, the majority
preference is difficult to identify prior to and independently from the outcome of an election. If
the majority preference is defined as an election outcome, losers of the election are not, by
definition, supported by the majority. Therefore, it does not make sense to ask whether an
official who opposes the majority preference will lose the election. In addition, even if the
majority preference is identified in some way prior to an election, the fact of strategic voting
implies that minorities may make it possible for the candidate opposing this preference to win
the election. It does not stem from the failure of the political responsibility argument, however,
that the pragmatist approach to adjudication is sound. In my view, the real problem with this
approach rather concerns the ideal of justice, as I suggest in the next paragraph.
The law-as-policy theory can imply a twofold argument on judicial decisions in hard cases.
The basic idea is that a mandate for a judge depends on the maturity of the legal system in
which the judge works. In a youthful legal system—an emerging democracy—where there are
21
only a small number of elaborate enactments, detailed precedents, and well-trained judges and
lawyers, it frequently occurs that a judge cannot help but seek particular goals in an ad hoc way.
The situation is very different in a mature legal system. In such a system, as Dworkin
eloquently argues, a judge is supposed to construct a legal theory that fits past relevant
enactments and decisions on the one hand and justifies values embodied in the practice of law
on the other. Where most, if not all, past cases were decided in this way, it is unjust for a
current judge to treat the parties in a present case in another way, by seeking a particular goal
in a pragmatist manner. By noting this, I do not intend to suggest that the policy-oriented
theory of law necessarily coincides with Dworkin’s interpretive approach. My point is that this
theory does not automatically support legal pragmatism, and that in mature legal systems, the
theory can be compatible with nonpragmatist approaches to adjudication, including Dworkin’s.
A nonnegligible criticism of the law-as-policy theory concerns the moral assessment of its
predicted social consequences. Critics might complain that instrumental conceptions of law
praised by this theory tend to induce legislators, lawyers, and citizens to seek their own selfinterest in a limitless and licentious way, disregarding other personal and social considerations
including the public interest. Individual citizens accepting instrumental views of law become
eager to obtain economic gains as much as possible through lawsuits; lawyers get involved in
jealous advocacy for the maximum fee; organized interests seek a monopoly rent by offering
votes and financial contribution to politicians in exchange for preferred statutes; politicians
attempt to secure their seats by enacting demanded laws for the benefit of interest groups who
will support their candidacy in the next election. The result is, the argument goes, the explosion
of litigation and the rampancy of powerful special interests. Brian Tamanaha (2006) warns that
in the United States, these and other problems caused by instrumental understandings of law
cut across the whole range of legal academia and practice, and the rule of law is consequently
threatened by these views.
I begin my response to this objection by noting that the consequences critically described
nevertheless have partial merits. Litigation can serve corrective justice by making wrongdoers
pay damages to victims; in addition, lawsuits against the government may advance the public
interest by drawing the attention of policy-makers and the citizenry to the shortcomings of
existing policies. Interest groups can foster democracy by providing a large variety of input to
the policy-making process. The sensitivity of representatives to political voices may be
22
desirable from the perspective of responsive government. True, the consequences depicted by
Tamanaha are problematic, despite their partial merits, but it is doubtful whether the
undesirable phenomena observed in the United States are totally due to instrumental views of
law. In particular, it is far from evident to what extent primary conceptions of law among legal
academics shape those of ordinary citizens. We need further empirical studies, for example, on
causal relationships between the explosion of litigation in the United States and cultural and
institutional factors in that country, including permeation of materialistic values among people,
confrontational relationships between strangers, and punitive damages in tort suits.
Conclusion
Previous sections of this paper explored the possibility of policy-oriented views of law. Above
all, I described how the law-as-policy theory based on justice and interest throws new light on
the concepts of rights and liberty and on the foundations of criminal law and laws governing
political participation. Yet many questions remain open. What conception of justice is
convincing in particular cases of legislation and litigation? What about interest? How should a
conflict of rights and that of liberties be resolved? To what extent should efficiency be taken
into account in the policy-making process? What does a good proportion between crime and
penalty specifically mean? What institutions of political participation are advisable? The reason
that these and many other questions are open is this: the theory that I sketched out belongs to
the dimension of semigeneral jurisprudence, in which each theory claims to be valid
irrespective of the legal system in the wide range of legal systems operating in liberal
democracies, whereas the questions just stated are answerable only within the context of a
particular legal system.8 In other words, the theory described is a thin theory of law, while a
possible theory that we would need in order to be able to answer the above questions, whatever
it might be, is a denser theory. Despite its thinness, my discussion hopefully shows possibilities
and prospects of the law-as-policy theory grounded on justice and interest.
23
References
Anderson, James E., 2003[1990], Public Policymaking: An Introduction, 5th ed., Boston:
Houghton Mifflin.
Bentham, Jeremy, 1970[1945], Of Laws in General, ed. by H. L. A. Hart, London: University
of London, Athlone Press.
Dworkin, Ronald, 1978[1977], Taking Rights Seriously, Cambridge, Mass.: Harvard University
Press.
——, 1986, Law’s Empire, Cambridge, Mass.: Harvard University Press.
——, 2000, Sovereign Virtue: The Theory and Practice of Equality, Cambridge, Mass.:
Harvard University Press.
——, 2006, Justice in Robes, Cambridge, Mass.: Harvard University Press.
Dye, Thomas R., 2005[1972], Understanding Public Policy, 11th ed., Upper Saddle River,
N.J.: Pearson Prentice Hall.
Feinberg, Joel, 1970, Doing and Deserving: Essays in the Theory of Responsibility, Princeton:
Princeton University Press.
Finkelstein, Claire, 2005, “A Contractarian Approach to Punishment,” in Martin P. Golding
and William A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and
Legal Theory, Oxford: Blackwell Publishing, pp. 207–220.
Fuller, Lon L., 1969[1964], The Morality of Law, rev. ed., New Haven: Yale University Press.
Hart, H. L. A., 1982, Essays on Bentham: Studies in Jurisprudence and Political Theory,
Oxford: Oxford University Press.
——, 1994[1961], The Concept of Law, 2nd ed., Oxford: Oxford University Press.
Hume, David, 1978[1888], A Treatise of Human Nature, 2nd ed., ed. by L. A. Selby-Bigge and
rev. by P. H. Nidditch, Oxford: Oxford University Press.
Kaplow, Louis and Steven Shavell, 2002, Fairness versus Welfare, Cambridge, Mass.: Harvard
University Press.
Kramer, Matthew H., 1998, “Rights Without Trimmings,” in Matthew H. Kramer, N. E.
Simmonds, and Hillel Steiner, A Debate over Rights: Philosophical Enquiries, Oxford:
Oxford University Press, pp. 7–111.
Lyons, David, 1994, Rights, Welfare, and Mill’s Moral Theory, New York: Oxford University
Press.
24
MacCormick, D. N., 1977, “Rights in Legislation,” in P. M. S. Hacker and J. Raz (eds.), Law,
Morality, and Society: Essays in Honour of H. L. A. Hart, Oxford: Oxford University
Press, pp. 189–209.
Mill, J. S., 1998[1871], Utilitarianism, ed. by Roger Crisp, Oxford: Oxford University Press.
Moore, Michael, 1997, Placing Blame: A General Theory of the Criminal Law, Oxford:
Oxford University Press.
Morimura, Susumu, 1989, Rights and Persons: A Normative Theory of Ultra-individualism,
Tokyo: Sobunsha (in Japanese).
Nino, C. S., 1983, “A Consensual Theory of Punishment,” Philosophy and Public Affairs,
12(4): 289–306.
Posner, Richard A., 1999, The Problematics of Moral and Legal Theory, Cambridge, Mass.:
Harvard University Press.
Rawls, John, 1999[1971], A Theory of Justice, rev. ed., Cambridge, Mass.: Harvard University
Press.
Raz, Joseph, 1979, The Authority of Law: Essays on Law and Morality, Oxford: Oxford
University Press.
——, 1986, The Morality of Freedom, Oxford: Oxford University Press.
Riker, William H., 1988[1982], Liberalism Against Populism: A Confrontation Between the
Theory of Democracy and the Theory of Social Choice, Prospect Heights, Ill.: Waveland
Press.
Rummel, R. J., 1994, Death by Government, New Brunswick, N.J.: Transaction.
Russett, Bruce, 1993, Grasping the Democratic Peace: Principles for a Post-Cold War World,
Princeton: Princeton University Press.
Steiner, Hillel, 1998, “Working Rights,” in Matthew H. Kramer, N. E. Simmonds, and Hillel
Steiner, A Debate over Rights: Philosophical Enquiries, Oxford: Oxford University Press,
pp. 233–301.
Tamanaha, Brian Z., 2006, Law as a Means to an End: Threat to the Rule of Law, New York:
Cambridge University Press.
Usami, Makoto, 1993, Law as Public Decision: Interpreting the Practice of Law, Tokyo:
Bokutakusha (in Japanese).
——, 2000, Collective Decision Making, Tokyo: University of Tokyo Press (in Japanese).
25
Wellman, Carl, 1985, A Theory of Rights: Persons Under Laws, Institutions, and Morals,
Totowa, N.J.: Rowman & Allanheld.
26
* Earlier versions of this paper were presented in 2007 at the Special Workshop on Politics of
Law and Legal Policy in the Twenty-third World Congress of Philosophy of Law and Social
Philosophy (IVR-2007), Jagiellonian University, a meeting of the Society for Jurisprudence,
Doshisha University, and a meeting of the Research Group for Philosophy of Law and
Economic Theory, Tokyo Institute of Technology. I am grateful to Yuki Asano, Tadeusz
Biernat, Reiko Goto, Hitohiko Hirano, Kosuke Nasu, Akiko Nozaki, Krzysztof Pałecki, Itaru
Shimazu, Hirohide Takikawa, Atsushi Tsuneki, and Naoki Yoshihara for their helpful
comments. The research group’s project is sponsored by the Grand-in-Aid for Scientific
Research (B) (#19330005). A slightly different version of this paper will be published as “Law
as Public Policy: Combining Justice and Interest” in Tadeusz Biernat and Marek ZirkSadowski (eds.), Politics of Law and Legal Policy, Warsaw: Wolters Kluwer Polska, in press.
1
The understanding of law as a value-neutral tool is found, for example, in Joseph Raz’s
(1979: 226) description: “A knife is not a knife unless it has some ability to cut. The law to be
law must be capable of guiding behaviour, however inefficiently. Like other instruments, the
law has a specific virtue which is morally neutral in being neutral as to the end to which the
instrument is put. It is the virtue of efficiency; the virtue of the instrument as an instrument.”
2
Some might say that my project for developing the law-as-policy theory based on justice and
interest appears foundationalist. This appearance is incorrect. In my view, an appropriate
conception of justice, for instance, serves cogent conceptions of the other values, including
liberty and equality, each of which in turn reinforces the conception of justice. The project for
constructing such inclusive system of values is not foundationalist in nature.
3
The foundations of criminal law and laws governing democratic participation are taken up
because these legal domains are among the topics mentioned in the organizers’ description of
the special workshop in which an earlier version of this paper was presented.
4
I owe this example to Tatsuo Inoue.
5
Other theories than retributivism and deterrence theory include the expressive theory
(Feinberg, 1970: 95–118), the consensual theory (Nino, 1983), and contractarianism
(Finkelstein, 2005), none of which is examined here.
6
William Riker (1988[1982]: 1–19, 233–253) first points out the implications of social choice
theory for theories of democracy. For further discussion, see Usami, 1993: 237–242; Usami,
2000: 130–136.
7
I note, in a different context, the implications that observations in social choice theory have
for the idea of political responsibility (Usami, 2000: 150–152).
8
General jurisprudence in a full sense refers to the academic field in which each theory claims
to be valid for any legal system over time and place, but I am one of those who suspect that
there may be nothing interesting to say in such a field.
27