Normative Methods for Lawyers


Normative arguments are crucial for the rule of law, and lawyers need to know how to make and defend claims of morality and justice. In recent years, however, cost-benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare, which can be best accomplished by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results for which the social benefits outweigh their social costs. Such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that framework. Such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims, and the methods they use should be of interest to moral and political theorists. This Article explains four basic tasks of normative argumentation and outlines several ways lawyers accomplish these tasks. Highlighting these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.

About the Author

Bussey Professor of Law, Harvard Law School

By uclalaw