On Avoiding Foundational Questions

Abstract

In both legal practice and legal scholarship, it is sometimes best to proceed without attempting to answer the foundational questions. Originalists can inquire into the original public meaning of the Equal Protection Clause without defending originalism. Economic analysts of law can ask how to promote efficiency without defending the view that the law should aim at efficiency. It would be useful to know how utilitarians and retributivists would approach punitive damage awards, without resolving the question whether we should be utilitarians or retributivists. Here, as elsewhere, a division of labor makes good sense. Some people (or some works) take certain judgments for granted and proceed from there; other people (or other works) try to resolve the deepest questions.