The Importance of the Fact-Value Distinction: A Reply to Kleinfeld

In my prior post, I argued that scholars should better distinguish the descriptive and normative parts of their arguments. But what if there’s really no good distinction between the two? More broadly, what if there’s no such thing as moral normativity?

Joshua Kleinfeld takes such considerations to show that the fact-value distinction is not a sharp one. He bemoans “the rigidity with which contemporary academic legal culture invokes the fact-value distinction”[1] and believes it quite fine to offer arguments that blend the descriptive and the normative. It’s not the case, he argues, that “every well-formed claim in the world could be set straightforwardly on one side of the ledger or the other like so many zeroes and ones.”[2] Indeed, he finds it ironic that law professors insist on a fact-value distinction but then regularly fail to honor it:

Is the corrective justice view of tort law, which holds that the doctrinal structure of tort law reflects ideals of corrective justice, normative or descriptive? Well, both; it is a sort of idealizing interpretation. What about the economic view that regards tort law as an instrument for efficient resource allocation? Again, the view is at once normative and descriptive: it is an interpretation of the existing legal system with critical force to the extent the system diverges from it. What about a view of contract law as the legal effectuation of promise-keeping values? The interpenetration of normative and descriptive ideas in that view is impossible to unravel — either in principle (because the two categories are not truly separate) or in practice (because the two categories get so entwined in the course of argument) or both. When a lawyer argues that the Establishment Clause prohibits school-sponsored prayer in public schools, is that a descriptive claim about what the Constitution does mean or a normative one about what it should mean? What about when a lawyer argues that a contract’s reference to “reasonable efforts” means whatever efforts are standard in the industry rather than all cost-justified efforts? Entanglement is a normal feature of human understanding in general, but it is, if anything, particularly pronounced in law. Law is interpretive, and interpretive enterprises exhibit entanglement in extreme form.[3]

I have three responses. First, even if there are borderline claims that blur facts and values, they do not defeat the distinction altogether. Many statements appear to fall quite squarely on one side or the other. Many others, even if initially ambiguous, can be clarified or broken down into easily distinguished components. The person who reports seeing a parent hit a child “cruelly” can likely describe what she observed in factual terms (for example, the parent hit the child three times across the face) and separately describe her moral evaluation (for example, it grossly exceeded the bounds of appropriate parental discipline). Indeed, when confronted by sometimes vague distinctions, it becomes especially important to be clear and precise about their contours.

We face a similar challenge when distinguishing statements of fact not from morally normative statements but from prudentially normative statements. Surely one could make arguments similar to Kleinfeld’s: can we really draw a bright line between our observations of events and our own self-serving biases and best interests? Aren’t claims about how things are often entangled with views about how we would personally like them to be? As a matter of human psychology, we may indeed entangle beliefs about facts and beliefs about our best interests. Still, the standard scholarly response is to do what we can to loosen the entanglement or at least disclose matters that interfere with the clarity and objectivity of scholarly claims. In other words, entanglement risks are real; the solution is to disentangle all the more vigorously.

An examination of Kleinfeld’s legal examples reinforces my claims that legal scholars are too ambiguous. If a scholar states that “tort law in X jurisdiction follows principles of corrective justice,” we should expect the scholar to explain whether she is simply describing current doctrine, asserting what doctrine ought to do, or making both claims. There are some rather easy test questions to ask, for example: “If the jurisdiction made major statutory changes that explicitly make economic efficiency the goal of tort law, would you still claim that tort law in this jurisdiction follows principles of corrective justice?”

Kleinfeld also claims that it is “impossible to unravel” the descriptive and normative components of the view that contracts effectuate promise-keeping values.[4] In fact, we can simply ask scholars what they mean and they can usually explain. Or consider his rhetorical question, “What about when a lawyer argues that a contract’s reference to ‘reasonable efforts’ means whatever efforts are standard in the industry rather than all cost-justified efforts?” This is precisely the sort of question where the distinction between facts and values is easy to make: are we supposed to resolve what “reasonable efforts” are by observing what people actually do in some industry or are we supposed to include value considerations in determining what is cost justified? None of these issues seem impossible to unravel. Sure, there may be ambiguities at the margins. Indeed, we always have some uncertainty when interpreting what others mean. But the solution is to make our claims clearer, not to give up on precision.

Second, if it turns out that the fact-value distinction isn’t just a little vague but is fundamentally incoherent, then all of normative scholarship is in jeopardy. If people believe that there is no general distinction between descriptive and normative claims, then what do they mean when they tell us we ought to do something? There surely are deep and important questions about what this whole “morality” thing is and whether we can make sense of it. But once you’ve gone down the road of writing morally normative scholarship, you will generally be interpreted as accepting the existence of moral normativity. Put differently, if you are making morally normative claims while denying the fact-value distinction, tell us why your claims should be treated as anything more than glowing pixels or toner on paper that have no purchase on how we ought to behave. 

Third, while I’ve dipped a toe into the debate about the fact-value distinction, my overarching claim aims to be largely agnostic about substantive debates in law and philosophy. What matters is not so much whether there is a good distinction between descriptive and normative claims but rather how we are to understand the claims that scholars actually make. In our efforts to interpret scholarship, we must recognize that scholars sometimes intend to make factual assertions, sometimes intend to make value assertions, and sometimes simply write ambiguously because they aren’t carefully attending to the differences. We can, however, seek to clarify what scholars mean, even if we are all mistaken in believing that there is a fact-value distinction. If a scholar writes about unicorns, we can still query their beliefs about unicorns. Failing to do so would fail to understand their meaning.

Returning to the real world, when scholars say that the failure to obtain affirmative consent to sex constitutes rape, they may mean that a judge will find that to be the case or that a judge should find that to be the case. Even those who doubt the existence of moral normativity can still admit that scholars mean different things when they speak normatively as opposed to descriptively. If we aim to understand each other, we ought to bring such meanings to the surface no matter what we ultimately take to be true.

Kleinfeld and I agree on several points. We both believe there is a fact-value distinction and that it addresses something important,[5] though we likely disagree over just how fuzzy the distinction is. We also agree that scholars regularly mush together claims about facts and values. Kleinfeld believes that legal scholars rigidly insist on a fact-value distinction that they regularly refuse to honor, while I believe that legal scholars neither insist on the distinction nor honor it.

Our central difference, though, is about how scholars ought to behave in light of the imperfection of the fact-value distinction. Kleinfeld seems quite comfortable with the ambiguity, while I argue that even if there are tough cases along the fact-value continuum, scholars should be as clear as reasonably possible about their meaning. And I believe there can be real benefits when scholars make their claims more precise.

       [1].   Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life, 129 Harv. L. Rev. 1485, 1534 (2016).

       [2].   Id.

       [3].   Id. at 1535–36 (footnotes omitted).

       [4].   Id. at 1536.

       [5].   Id. at 1536 (footnote omitted) (“My point is not that the normative/descriptive distinction is altogether confused or meaningless (though some distinguished philosophers think it is). I actually think the distinction gets at something important and there are deep reasons why contemporary intellectual culture is fixated on it. My point is that the nature and scope of the distinction is much more disputed and complex than one would think from the way it is often treated in the legal academy.”).

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.