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Neil MacCormick, On Legal Decisions and Their
Consequences: From Dewey to Dworkin, 58 N.Y.U. L. Rev.
239, 258 (1983)
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NEIL MACGORMICK**
* This paper is the text of the first Dewey Lecture in Jurisprudence, delivered before the
New York University School of Law on October 5, 1982.
" Regius Professor of Public Law and the Law of Nature and Nations, former Dean of the
Faculty of Law, Edinburgh University. M.A., Glasgow University; M.A., Oxford University;
L.L.D., Edinburgh University.
239
one ignores two crucial things. It ignores both the extent to which the
nature and quality of decisions and acts is itself constituted by the
consequences the decider intends, foresees, or hopes to bring about,
and also, more seriously, the extent to which both prudence and
responsibility to one's fellows require that one give serious thought to
the foreseeable outcomes of one's acts and decisions before finally
acting or deciding, the more so the more momentous the act or
decision in view.
So I reject both extremes and entertain only the middle view that
some kinds and some ranges of consequences must be relevant to the
justification of decisions. While not accepting out-and-out consequen-
tialism as a sufficient or acceptable practical philosophy in itself, I
conclude that some element of consequentialist reasoning must be
present in any sound decisionmaking process, in any satisfactory mode
of practical deliberation.
The decisions to which I here address myself are legal, that is,
judicial, decisions. Judges are an important class of decisionmakers,
and their decisions are characterized by a unique process of delibera-
tion aided by the adversarial arguments of counsel. If in general it is
salutary to hold the makers of momentous decisions accountable both
for what they bring about and for at least the intended, the foreseen,
and even the foreseeable consequences and outcomes thereof, the
more so the more thoroughly deliberated the decisions, then it must be
salutary to hold judges so accountable. Conversely, we should expect
the deliberations of such decisionmakers and the justifications they
give for the decisions they make to take account of the consequences
and outcomes of their decisions.
On the face of it, this expectation is actually and amply fulfilled.
Let me cite as but one obvious example the case of Marbury v.
Madison.' There, Chief Justice Marshall backed his ruling that the
Supreme Court has power to decline to implement unconstitutional
acts of Congress by explicit reference to the unacceptable conse-
quences of the alternative ruling:
Those ... who controvert the principle that the constitution is to
be considered, in court, as a permanent law, are reduced to the
necessity of maintaining that courts must close their eyes to the
constitution, and see only the law.
This doctrine would subvert the very foundation of all written
constitutions. It would declare that an act which, according to the
principles and theory of our government,
2
is entirely void, is yet, in
practice completely obligatory.
This term was introduced by G.E.M. Anscombe in Modern Moral Philosophy, 33 Phil. 1
(1958), and is usefully (and critically) discussed in A. Donagan, The Theory of Morality 172-209
(1977), and J. Finnis, Natural Law and Natural Rights 111-18, 131-32 (1980). See also N.
MacCormick, Legal Reasoning and Legal Theory 109-19, 129-51 (1978). Since "consequences" is
an ambiguous term, "consequentialism" is necessarily also ambiguous. I hope that the present
essay helps in clarifying this confusion. I am now inclined to suggest that the intuitive prima
facie appeal of utilitarian consequentialism derives from the proper resort we all have to
"consequences-as-implications" in our practical deliberations, consequences of this sort being
regularly mistaken in moral theorizing for consequences of another kind.
Dewey, Logical Method and Law, 10 Cornell L.Q. 17 (1924-25).
Id. at 26.
0 Id. (emphasis in original).
Summers, Pragmatic Instrumentalism in Twentieth Century American Legal Thought-
A Synthesis and Critique of our Dominant General Theory About Law and its Use, 66 Cornell L.
Rev. 861 (1981); see also R. Summers, Instrumentalism and American Legal Theory (1982).
1 K. Llewellyn, The Common Law Tradition: Deciding Appeals (1960).
the "Grand Style" over the "Formal Style" in judicial method was to
quell the crisis of confidence in the legal system by demonstrating the
greater calculability or reckonability of decisions in the Grand Style.,
The Grand Style being a consequentialist style, we are still on the trail
blazed out by Dewey.
Be that as it may, the belief that formalism versus consequential-
ism is an exclusive disjunction has provoked more recent criticism.
Robert Summers himself has argued 0 that, over and above the appeal
to formally established authorities in law, there may be not one but
twol1 types of substantive reason advanced in justification of judicial
decisions. On the one hand, there may indeed be "goal reasons" for
giving decision D. D is good because by so deciding we will secure or
promote state of affairs S, and S is a good goal to pursue. Here we
could imagine a case where a court holds that, since busing will
promote educational equality, there must be busing. But on the other
hand, there may be "rightness reasons" for D, reasons which are
backward-looking rather than forward-looking, in contradistinction
to "goal reasons." Given all that has occurred between the parties,
and having regard to some standing "sociomoral norm" about right
conduct in such cases, the right decision as between these parties, in
the relationship which has come about between them, is D. Here we
could imagine a case where defendant has acted in breach of good
faith to plaintiff, and simply on account of that ought to be held
liable.
If Summers is correct about this bifurcation of types of substan-
tive reason-and he has at the very least offered a veritable barrage of
evidence supporting his case-he can raise a dilemma for the thesis
that consequentialist arguments are the most fundamental justifica-
tory reasons available for judicial decisions. The dilemma is this:
either we interpret consequentialist reasoning as coextensive with the
advancing of goal reasons for decisions, in which case the possibility of
rightness reasons as equally fundamental is overlooked; or alterna-
tively we interpret consequentialist reasoning as including both ap-
peal-to-goal reasons and appeal-to-rightness reasons, in which case the
'2 See R. Dworkin, Taking Rights Seriously (rev. ed. 1978) (Chapters 2-4 and the Appendix
are especially useful.).
13 Id. at 90. For criticism of the stipulation, see N. MacCormick, supra note 3, at 259-64.
rights secured both to individuals at large and thus to each and every
qualifying individual. The proper task of the distinctively legal agen-
cies of government and in particular of courts of law is to ascertain
and vindicate rights. The rights to be vindicated are not every back-
ground right we might think of, but those rights which are grounded
in the political principles best geared to justifying the community's
institutions, whether or not these principles happen to be at any given
moment concretized in explicitly formulated rules of statute or case
law. It is not a proper task of courts to pursue or implement policies,
except where decisions of policy have been duly enacted into legisla-
tion by authorized legislators in a manner consistent with fundamen-
tal constitutional principles of individual right.
One criticism of Dworkin's thesis, offered by Professor Kent
Greenawalt, 14 has been that Dworkin's insistence on a radical differ-
entiation between questions of policy and matters of right is refuted
by the prevalence of consequentialist arguments in justifications of
legal decisions. If consequentialist reasons for decisions are good rea-
sons, policy must have a fundamental role in legal decisionmaking;
and hence the rights thesis fails as a description of the legal system we
actually have.
To this, of course, Dworkin's reply 15 has been that it all depends
on the kinds of consequences and the grounds of their evaluation. The
securing of rights is one kind of aim of a political community; hence
the argument that D ought to be the decision in this case in order to
secure or promote aim A may just as likely be an argument of princi-
ple as an argument of policy. In fact, he claims, legal consequentialist
arguments are characteristically, and ought characteristically to be,
arguments which test decisions and their consequences against princi-
ples rather than against pure policies.
So in the debate between Dworkin and Greenawalt, we are again
alerted to the possibility of some hidden ambiguities in the very notion
of a consequentialist argument. Everybody seems sure that some kind
of consequentialism has some part to play. But it's much less clear
what kind, and what part.
It does, therefore, seem that even a short conspectus of American
juristic debate from Dewey to Dworkin reveals a need for unhesitating
acceptance of Dewey's invitation to us all to get into a "logic relative
to consequences" and see what we come up with. Thus, the conse-
quence of this first part of my lecture is, if nothing else, a vindication
of the title "Legal Decisions and their Consequences: From Dewey to
14 Greenawalt, Policy, Rights and Judicial Decision, 11 Ga. L. Rev. 991 (1977).
' See R. Dworkin, supra note 12, at 294-330.
Dworkin," a vindication that I hope you have not found too inconse-
quential.
II
A. Kinds of Consequences
We have detected signs of ambiguity in the very notion of a
consequentialist argument. This suggests that our very idea of conse-
quences may be a somewhat vague and woolly one. To search out help
in curing vagueness, and even at the risk of merely going a-woolgath-
ering, I suggest that we scrutinize some ways of clarifying our confu-
sion by adopting or making some distinctions of terminology. I will
first examine a possible distinction between "results" and "conse-
quences;" then I will examine a distinction within the latter category
as between causal consequences and ulterior outcomes; finally I will
further complicate matters by reflecting on logical consequences, or
"consequences-as-implications." I aim to show that it is the last
named, consequences-as-implications, which are of the greatest mo-
ment in respect of today's topic.
18 H.L.A. Hart & A.M. Honor6, Causation in the Law 69-70, 94 (1959).
10A. Donagan, supra note 3, at 42-46.
20 Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928).
21 Stansbie v. Troman, [1948] 2 K.B. 48.
22 It should be noticed that although, as in Stansbie, id., (noncausal) outcomes of incautious
acts often are quite foreseeable, outcomes of outcomes are not commonly so, since at each stave
some human agent is choosing how to respond to a new situation created by another. Hence,
there are not "chains of outcomes" in the same way as there can be "chains of consequences" in
the causal sense. Even though some causal consequences are unforeseeable at the moment of an
act, given the agent's knowledge, the problems of foresight are different in the two cases.
3. Consequences-as-Implications,Alias "JuridicalConsequences"
If we are to find how consequences may be relevant to justifying
decisions, we must then look beyond and away from particular causal
consequences and outcomes. In fact, the very activity of justifying
decisions by giving reasons for them will prove to be the source of the
kinds of consequences that count. To justify a decision in law is to
present in its support universalized or universalizable reasons. Good
reasons for a decision cannot be ad hoc and for-this-case-only. Where
we are not dealing with a decision which is an open-and-shut applica-
11See D. Hume, A Treatise of Human Nature 497 (L.A. Selby-Bigge & P.H. Nidditch, 2d
ed. 1978) (lst ed. London 1739-40). ("A single act of justice is frequently contrary to public
interest .... Nor is every single act of justice, consider'd apart, more conducive to private
interest, than to public.") The proper extent to which individualizedcircumstances, objectives or
goals may affect, for example, sentencing decisions or decisions about discretionary remedies is
overlooked by Hume.
" See Hughes, Rules, Policy and Decision Making, 77 Yale L.J. 411 (1967-68) (also published
as chapter 4 of Law, Reason and Justice (G. Hughes ed. New York & London, 1969)).
" Hughes, Law, Reason and Justice, supra note 24, at 117.
32 Rudden, Consequences, 24 Jurid. Rev. 193, 197-99 (1979). It seems to me that what
Rudden distinguishes as "inbuilt consequences," id. at 199-201, are simply a special case of
"consequences-as-implications."
33 Id. at 194-97.
3 See, e.g., David Nelken's forthcoming book, The Limits of the Legal Process: A Study of
Landlords, Law and Crime (1983). At pages 36-37, there is a brief discussion of the unresol%ed
controversy over the question whether exploitation of tenants by landlords was a consequence of
the Rent Act of 1957 (enacted under a Conservative government), or was a consequence not of
the 1957 Act but of a housing shortage. On this topic, see also M.J. Barnett, the Politics of
Legislation (1969). The main burden of Nelken's book is an attempt to establish what have been
the consequences and outcomes of the enactment of the Rent Act of 1965, from which may be
gathered how difficult it is to answer such questions with reasonable certainty at any point in
time, much less through a continuity of changing times and circumstances. Moreover, the study
certainly shows that, as is now officially admitted, the Act has not brought about the conse-
quences that were predicted at the time of legislation as being likely to flow from it. By contrast
with the case of the 1957 Act, this failure of prediction cannot be ascribed to a lack of care in
investigating the problem and in attempting to make well-grounded predictions. The 1965 Act
was preceded by the Milner Holland Report (Report of the Committee on Housing in Greater
London, Cmnd. 2605 (1964-65)), a report that might be considered perhaps the most thorough-
going British social policy report of this century. It appears that retrodiction and prediction of
consequences-as-outcomes is sandy ground on which to build the House of Justification.
I am deeply indebted to Dr. Nelken for permission to cite his book before publication, and
for the evidence he has afforded me from it, all the more so since he does not fully agree with the
case I attempt to build from this evidence.
B. Evaluation of Consequences
And surely it is in this very way that behavioral consequences and
outcomes matter to us. This follows from the point that responsibility
attaches for the foreseen and foreseeable consequences and outcomes
of one's actions. We cannot conceivably speculate on all the things
that will or might possibly happen if people react in some way or
another to a new ruling in law, but we can at least realize that they
are entitled to take the law to be as a court has ruled it to be. People
are supposed to act conformably to the law, and when they do act on
the law as the court has ruled, the judges at least would be debarred
from saying that they hoped it would not be so. This is really just to
come back yet again in another way to the kind of thing that Chief
Justice Coleridge meant when he spoke about not creating a cloak for
unbridled passions or atrocious crimes, or when Chief Justice Marshall
apprehended the subversion of the written Constitution as an outcome
of holding acts of Congress to be above judicial review.
But to see this is to see how we proceed from scrutiny of juridical
consequences to their evaluation. What is at issue is whether the
conduct that the law would tolerate or permit is acceptable when or
' See N. MacCormick, supra note 3, at 105, 111-12, 149-50. The following discussion in the
present paper deals with "justice" only, and seeks to explicate the internal complexities of such
judgments of justice. Insofar as "public policy" is a distinct head of evaluation, contrasted with
justice, it appears to bear more upon the "behavioral" aspects of consequences-as-implications.
That is, it returns to the question whether it would be on some ground desirable or undesirable
that the law tend to promote or encourage or give some motive or ground for a certain sort of
conduct, supposing the law to have a certain influence on conduct. Arguments of "convenience"
or "expediency" are a special version of this sort of argument, dealing with such possible
behavioral outcomes in their bearing on legal processes themselves (of. cases of resort to "flood-
gates" arguments). As for "common sense," I have nothing for the moment to add to the brief
discussions in N. MacCormick, supra.
41 12 N.J. 426, 97 A.2d 390 (1953) (Vanderbilt, C.J.).
[A]ny such artificial basis for a fundamental doctrine as "inferences from slight evidence"
is not only unsound in principle but ineffective in operation, because it does not reach the
cases where no express promise exists and where there is no "slight evidence" from which to
infer a promise, and the cases not so reached are the ones where in simple justice a legal
right and an adequate remedy are most needed.
Id. at 432, 97 A.2d at 392.
425 U.S. (1 Cranch) 137 (1803); see text accompanying notes 1-2 supra.
[1884] 14 Q.B.D. 273; see text accompanying notes 30-31, 35 supra.
44 See text accompanying notes 36-38 supra.
4 12 N.J. 426, 97 A.2d 390 (1953); see text accompanying note 40 supra.
4, See text accompanying notes 11-12 supra.
17 But this should not obscure the possible differences of evaluation of consequences as
between "'public policy" evaluations and "justice" evaluations, where these are conceived to be in
conflict.
41 See text accompanying notes 12-13 supra. The confusion again arises between the general
policies of the law, which include the policy of promoting justice, and "public policy" as a
ground of evaluation of relevant consequences, in those situations in which "public policy" is
properly to be contrastedwith justice.
4' In addition to those thanks, I am deeply grateful to Michael J. Machan for telling and
helpful criticisms of an early draft of this lecture, and to Robert Summers and David Lyons for
observations on the relevance of goal reasons and policy.