Editorial Committee of the Cambridge Law Journal

Basic Concepts of Legal Thought by George P. FletcherReview by: Matthew H. KramerThe Cambridge Law Journal, Vol. 56, No. 1 (Mar., 1997), pp. 213-216Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508315 .

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Book Reviews Book Reviews

has noted a change of attitude in the UK, at least in relation to the gay ban in the military: "The tide of history is against the ministry. Prejudices are breaking down; old barriers are being removed." (R. v. Ministry of Defence, ex parte Smith [1995] 4 All ER 427, at p. 440). As that time approaches, Wintemute's impressive comparative scholarship will prove invaluable.

STEPHANIE PALMER

Basic Concepts of Legal Thought. By GEORGE P. FLETCHER. [New York, Oxford: Oxford University Press. 1996. ix, 205 and (Index) 7pp. Paperback. ISBN 0-19-508336-9.]

GEORGE FLETCHER'S interesting but uneven book aspires to present an overview of the basic concepts and values that inform legal thought. Fletcher aims to introduce students (and other nonspecialists) to some central problems of jurisprudence and to the structure of legal argumentation. His book's 12 chapters are divided into three main parts, the first of which explores the general nature of law and legal reasoning. The next part of the book examines some of the fundamental values (such as justice and equality) that are typically at issue in the fashioning of legal institutions and in the adjudication of competing claims. A final part considers the relationship between law and morality, and devotes particular attention to the role of consequentialist theories-i.e., theories that condemn or commend decisions by reference to the desirability of their consequences-within the law.

Fletcher covers many interesting issues in his rather short book, and he provides a number of perceptive observations and analyses. His arguments are often thought-provoking even when they are dubious. Although his prose is somewhat flat, it is almost always lucid. (Sometimes, indeed, Fletcher goes too far in his striving for accessibility. He feels a need to inform his readers of the correct pronunciation of Edward Coke's surname (p. 34), and he similarly takes it upon himself to supply his readers with a definition of the word "corroborate" (p. 116)). Jurisprudential novices can gain from Fletcher's book a pretty rich sense of the deep philosophical problems that pertain to the law and its workings.

Nonetheless, Fletcher's volume contains many objectionable features- only a few of which can receive attention in a brief review. Some of the shortcomings in the book, such as its numerous typographical errors and minor solecisms, are not of great importance. Likewise, a handful of minor errors of fact, such as an inaccurate quotation from Oliver Wendell Holmes (p. 192) and an erroneous assertion that John Locke "began to write seriously" only after he fled to Holland (p. 202), are forgivable if slightly annoying. Somewhat more serious is Fletcher's tendency to deliver controversial pro- nouncements without any efforts to support them. We are told, for example, that "[i]n the writings of Thomas Hobbes [and] John Locke, . .. the social contract is a purely hypothetical construct" (p. 110). Contrary to what Fletcher seems to believe, such a view of Hobbes and Locke is highly contestable and contested. Mildly irritating as well is Fletcher's intermittent exaggeration of the originality of his own arguments and insights. His first chapter maintains, for example, that the ambiguity between a higher sense and a lower sense of the word "law" has been "rarely perceived" (p. 11); his next chapter submits that "the relationship between legal and scientific positivism has received little attention" (p. 32); his final chapter startlingly

has noted a change of attitude in the UK, at least in relation to the gay ban in the military: "The tide of history is against the ministry. Prejudices are breaking down; old barriers are being removed." (R. v. Ministry of Defence, ex parte Smith [1995] 4 All ER 427, at p. 440). As that time approaches, Wintemute's impressive comparative scholarship will prove invaluable.

STEPHANIE PALMER

Basic Concepts of Legal Thought. By GEORGE P. FLETCHER. [New York, Oxford: Oxford University Press. 1996. ix, 205 and (Index) 7pp. Paperback. ISBN 0-19-508336-9.]

GEORGE FLETCHER'S interesting but uneven book aspires to present an overview of the basic concepts and values that inform legal thought. Fletcher aims to introduce students (and other nonspecialists) to some central problems of jurisprudence and to the structure of legal argumentation. His book's 12 chapters are divided into three main parts, the first of which explores the general nature of law and legal reasoning. The next part of the book examines some of the fundamental values (such as justice and equality) that are typically at issue in the fashioning of legal institutions and in the adjudication of competing claims. A final part considers the relationship between law and morality, and devotes particular attention to the role of consequentialist theories-i.e., theories that condemn or commend decisions by reference to the desirability of their consequences-within the law.

Fletcher covers many interesting issues in his rather short book, and he provides a number of perceptive observations and analyses. His arguments are often thought-provoking even when they are dubious. Although his prose is somewhat flat, it is almost always lucid. (Sometimes, indeed, Fletcher goes too far in his striving for accessibility. He feels a need to inform his readers of the correct pronunciation of Edward Coke's surname (p. 34), and he similarly takes it upon himself to supply his readers with a definition of the word "corroborate" (p. 116)). Jurisprudential novices can gain from Fletcher's book a pretty rich sense of the deep philosophical problems that pertain to the law and its workings.

Nonetheless, Fletcher's volume contains many objectionable features- only a few of which can receive attention in a brief review. Some of the shortcomings in the book, such as its numerous typographical errors and minor solecisms, are not of great importance. Likewise, a handful of minor errors of fact, such as an inaccurate quotation from Oliver Wendell Holmes (p. 192) and an erroneous assertion that John Locke "began to write seriously" only after he fled to Holland (p. 202), are forgivable if slightly annoying. Somewhat more serious is Fletcher's tendency to deliver controversial pro- nouncements without any efforts to support them. We are told, for example, that "[i]n the writings of Thomas Hobbes [and] John Locke, . .. the social contract is a purely hypothetical construct" (p. 110). Contrary to what Fletcher seems to believe, such a view of Hobbes and Locke is highly contestable and contested. Mildly irritating as well is Fletcher's intermittent exaggeration of the originality of his own arguments and insights. His first chapter maintains, for example, that the ambiguity between a higher sense and a lower sense of the word "law" has been "rarely perceived" (p. 11); his next chapter submits that "the relationship between legal and scientific positivism has received little attention" (p. 32); his final chapter startlingly

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The Cambridge Lawt Journal

declares that "[i]t is uncommon to argue, as I do in this concluding chapter, that modern legal cultures are torn in conflicting directions by irreconcilable premises" (p. 188).

Much more serious are the misleading characterisations and flawed arguments with which Fletcher combats some major jurisprudential positions. For example, his remarks on legal positivism-which occur chiefly though not exclusively in his second chapter-revive some tired criticisms that should long ago have been put to rest. People unfamiliar with jurisprudence are not well served by a writer who contends that "the positivist thesis on the gulf between law and morality fails to capture the role of values in legal thinking" (p. 139). Even more disconcerting, however, are Fletcher's unsound arguments against law-and-economics (L & E). Whereas antipositivist allegations similar to his have all been parried many times before, his attempts to expose the failings of L & E are more novel and may thus seem more impressive. This review will therefore close by looking at two of his chief attacks on L & E.

Fletcher observes that many L & E writers argue in favour of market- simulation as a guiding principle of judicial decision-making (pp. 167-168). He reconstructs their position as a five-step line of reasoning: (I) an ideal market produces efficient results; (2) efficiency is desirable; (3) imperfections in actual markets warrant judicial interventions; (4) any judicial interventions should seek to yield the results that would have been generated by an ideal market; and (5) this simulation of markets is desirable because efficiency is desirable. Now, given that the simulation of ideal markets is an actual task carried out by actual courts, there is always a chance that such simulation will go awry in any particular context. Fletcher notes the possibility of a gap between the ideal and the actual, and he thereby makes a sound though obvious point. But he opts additionally to maintain that the line of reasoning sketched above is guilty of an outright fallacy. Specifically, he affirms that the notion of efficiency in the second step is very different from the notion of efficiency in the fifth step. Whereas the former notion relates to the ability of people to get what they want, the latter relates to the maximising of benefits vis-a-vis costs.

Fletcher does not cite any writings that engage in the sort of illegitimate shift which he describes, and he doubtless would be exceedingly hard-pressed to find any. However that may be, such a shift is certainly not a necessary feature of the L & E writers' argument. After all, an ideal market not only enables people to get what they want (within a given distribution and a given set of constraints on productivity), but also enables the maximising of benefits vis-a-vis costs. Hence, the concept of efficiency in the second step of the L & E writers' reasoning can perfectly well match that concept in the fifth step; when the L & E theorists commend the operation of an ideal market, they can be commending it precisely for its yielding of the best possible cost/benefit result. In sum, the advocates of market-simulation can and do avoid the fallacy which Fletcher presumes to detect.

Another unsuccessful attack on L & E occurs in Fletcher's final chapter, which purports to ferret out some paradoxes that can arise when judges render their decisions on cost/benefit grounds (pp. 190-192). Fletcher presents two scenarios. In the first, a hotel declines to hire a lifeguard for its swimming pool. The expected costs of taking the risk are greater than the benefits by 10. However, if a court holds the hotel liable for negligence in the event of an accident, the court's decision will itself have a desirable distributional effect that is worth 20. We therefore seem to be caught in a double bind. If the court decides against the hotel, then the benefits of the hotel's inaction plus the

214 [1997]

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court's holding will exceed the expected costs thereof by 10. Thus, insofar as a cost/benefit standard determines what counts as negligence, the hotel's risk- taking appears to be non-negligent. In that case, the court should decline to hold the hotel liable. A decision against liability, however, will eliminate the benefit of 20 that would ensue from a contrary decision. Ergo, the expected costs of the hotel's risk-taking will exceed the benefits by 10-which means that the hotel should be held liable. And so on.

A largely similar crux turns up in Fletcher's second scenario, involving a person who drives his car through a red light. If the benefits of running the light are greater than the expected costs by 10, and if the undesirable carelessness-encouraging effect of a judicial decision in favour of the driver will amount to a cost of 20, and if we determine the justifiability of the driver's conduct purely by reference to cost/benefit considerations, then we seem to be caught in a double bind. A decision exonerating the driver, in combination with his own conduct, will yield overall expected costs that exceed the overall benefits by 10. Such a decision thus leads us to the conclusion that the driver's conduct was unjustifiable-which means that a decision against the driver is required. In turn, a decision against him will eliminate the cost of impaired deterrence and will accordingly bring about a situation in which the overall benefits of his conduct exceed the overall costs by 10. A decision exonerating the driver is therefore required. And so on.

Unfortunately for Fletcher, neither of these putative paradoxes is a genuine crux; each of them is straightforwardly resolvable. (Fletcher himself acknowledges that both of his conundrums can be finessed, but he does not recognise how simple the solutions are.) Before considering how the postulated situations should be addressed, we ought to take note of a key feature of any economic analysis. Economic judgments are always ceteris-paribus judgments, and economic criteria are always ceteris paribus criteria. When some L & E writers maintain that the courts should exonerate anyone who engages in risk- taking whereof the benefits outweigh the expected costs, they mean that such an exoneration should occur ceteris paribus. They do not mean that such an exoneration must occur willy-nilly without regard to other factors that should enter into an overall cost/benefit calculation.

In the first of Fletcher's scenarios, the appropriate outcome is particularly clear-cut. A court should decide that the failure to hire a lifeguard was inefficient and therefore negligent (under the Hand test for negligence), because the expected costs exceeded the gains. The distributional benefit engendered by the court's decision will enter into an overall cost/benefit calculation and will simply reinforce the original direction of the court's holding. Once we recognise that the distributional benefit of 20 is due not to the hotel's omission but to the court's way of handling that omission, we free ourselves of the paradoxical tangles which Fletcher delineates. Moreover, once we recognise that the availability of the distributional benefit lends further support to the holding which the court was inclined to render ceteris paribus, we see ever more plainly that such a holding is apposite.

The scenario involving the driver and the red light is only slightly more complicated. A court using the Hand test will be inclined to exonerate the driver, ceteris paribus, because the benefits directly attributable to his conduct surpass the expected costs. However, the ceteris-paribus condition is clearly not fulfilled. Although the cost/benefit balance produced directly by the running of the red light is one key element in the decisional focus of a court that pursues efficiency, it is here not the exclusive or determinative element. A court that truly seeks to promote efficiency must take account also of the

C.L.J. Book Reviews 215

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The Cambridge Law Journal The Cambridge Law Journal

effects that will flow from its own decision concerning the driver's conduct. Perceiving that the ceteris-paribus condition for a decision in favour of the driver is not met, the court will decide against him even though he acted correctly; cost/benefit criteria require that he be held guilty, even though those criteria also warrant his behaviour. If a court is intent on promoting efficiency, it must engage in an overall cost/benefit calculation that gives due weight to all relevant factors.

Of course, a decision against the driver might be deemed unacceptable because he himself has not been negligent (according to the Hand test). In that event, the court will exculpate the driver despite the inefficiency occasioned thereby. In other words, out of a concern for fairness to the non-negligent driver, the court can elect to forgo its strict focus on overall efficiency. Such a way of dealing with the matter will straightforwardly point toward a decision in favour of the driver; only if we fail to recognise that the deterrence-related cost of 20 is due not to the driver's conduct but to the court's way of handling that conduct, will we think that a decision in favour of the driver must run afoul of the paradox described by Fletcher. Alternatively, a court can retain a strict focus on overall efficiency and can decline to exonerate the driver. Once again there is no danger of a paradox, as the overall cost/benefit calculation is perfectly clear-cut.

In short, although Fletcher addresses many fascinating problems, he sometimes comes up with dubious arguments. His book can be recommended to anyone who is interested in the philosophy of law, but a healthy degree of wariness must be recommended as well.

MATTHEW H. KRAMER

The Letters of Frederic William Maitland, Volume II. Edited by P.N.R. ZUTSHI. [London: Selden Society. 1995. xxii, 273, (Appendix) 1, (List of Works Cited) 18 and (Index) 14pp. Hardback £32-00 net.]

MAITLAND, though not without his share of admirers, has in some ways been the least well-known of the Victorian masters of history. Through their letters and journals Macaulay and Carlyle have been their own best biographers, matching the hues of their public performance with private reflection which is just as colourful. Significant private materials from the pens of Freeman, Froude, Green, Lecky and Stubbs were printed soon after their deaths, whilst Acton has become the name of an industry. Leslie Stephen was memorialised by Maitland himself. Ermengard Maitland wrote about her father with unequalled charm, and there were other valuable reminiscences, besides small instalments of correspondence. Yet somehow a great opportunity has been missed. Though Herbert Fisher did sterling work in editing the Constitutional History and Collected Papers, his memoir of Maitland is inexplicably slight, especially beside his efforts for Bryce and Vinogradoff. There has been a modest monographic literature, some of which is illuminating, and some of which, like the late Sir Geoffrey Elton's study, is egregiously poor. Besides which, of course, there are the Letters of Frederic William Maitland, edited by the late C.H.S. Fifoot in 1965. The Letters, and to a lesser extent the biography Fifoot published in 1971, constituted the single most important addition to our knowledge of Maitland hitherto. Now we have a quiet event, but a notable one.

effects that will flow from its own decision concerning the driver's conduct. Perceiving that the ceteris-paribus condition for a decision in favour of the driver is not met, the court will decide against him even though he acted correctly; cost/benefit criteria require that he be held guilty, even though those criteria also warrant his behaviour. If a court is intent on promoting efficiency, it must engage in an overall cost/benefit calculation that gives due weight to all relevant factors.

Of course, a decision against the driver might be deemed unacceptable because he himself has not been negligent (according to the Hand test). In that event, the court will exculpate the driver despite the inefficiency occasioned thereby. In other words, out of a concern for fairness to the non-negligent driver, the court can elect to forgo its strict focus on overall efficiency. Such a way of dealing with the matter will straightforwardly point toward a decision in favour of the driver; only if we fail to recognise that the deterrence-related cost of 20 is due not to the driver's conduct but to the court's way of handling that conduct, will we think that a decision in favour of the driver must run afoul of the paradox described by Fletcher. Alternatively, a court can retain a strict focus on overall efficiency and can decline to exonerate the driver. Once again there is no danger of a paradox, as the overall cost/benefit calculation is perfectly clear-cut.

In short, although Fletcher addresses many fascinating problems, he sometimes comes up with dubious arguments. His book can be recommended to anyone who is interested in the philosophy of law, but a healthy degree of wariness must be recommended as well.

MATTHEW H. KRAMER

The Letters of Frederic William Maitland, Volume II. Edited by P.N.R. ZUTSHI. [London: Selden Society. 1995. xxii, 273, (Appendix) 1, (List of Works Cited) 18 and (Index) 14pp. Hardback £32-00 net.]

MAITLAND, though not without his share of admirers, has in some ways been the least well-known of the Victorian masters of history. Through their letters and journals Macaulay and Carlyle have been their own best biographers, matching the hues of their public performance with private reflection which is just as colourful. Significant private materials from the pens of Freeman, Froude, Green, Lecky and Stubbs were printed soon after their deaths, whilst Acton has become the name of an industry. Leslie Stephen was memorialised by Maitland himself. Ermengard Maitland wrote about her father with unequalled charm, and there were other valuable reminiscences, besides small instalments of correspondence. Yet somehow a great opportunity has been missed. Though Herbert Fisher did sterling work in editing the Constitutional History and Collected Papers, his memoir of Maitland is inexplicably slight, especially beside his efforts for Bryce and Vinogradoff. There has been a modest monographic literature, some of which is illuminating, and some of which, like the late Sir Geoffrey Elton's study, is egregiously poor. Besides which, of course, there are the Letters of Frederic William Maitland, edited by the late C.H.S. Fifoot in 1965. The Letters, and to a lesser extent the biography Fifoot published in 1971, constituted the single most important addition to our knowledge of Maitland hitherto. Now we have a quiet event, but a notable one.

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