The Brief: Law School News and Events

Finkelstein Touts the Benefits of ‘Practical Reflection' Through Alliance of Law and Philosophy
By Julia Harte

Claire FinkelsteinIn 2000, Claire Finkelstein joined the faculty at Penn after teaching law at the University of California, Berkeley for five years. At Berkeley, where dissent against the administration is customary, she had grown used to an antagonistic dynamic between students and faculty. So when she saw a group of students coming up to her desk after one of her first classes at Penn, she immediately wondered what she might have said to offend them. As it turned out, the students simply wanted to invite Finkelstein to lunch. "That was an absolutely lovely realization, that Penn students are so willing to have close relationships with faculty," she says. "It made the teaching much more enjoyable."

After receiving a doctorate degree in philosophy and a J.D. in law, Finkelstein, who was recently appointedthe Algernon Biddle Professor of Law and Professor of Philosophy, deliberated long over which field she should enter. She eventually settled on law, partly out of a belief that philosophers not only "can improve their own work by grappling with the real-world consequences of their ideas," but also have an "obligation to engage in practical reflection."

Much of Finkelstein's work focuses on the nature of human rationality and its implications for substantive areas of law. But she thinks philosophy can benefit a lot from examining certain age-old legal practices.

"The practices of the common law, that go back many hundreds of years, often have a deep and intelligent logic buried within them, despite the fact that they do not always present the correct rationale for that logic," she says. "So in many instances, the practice is actually wiser than the theory."

Finkelstein is working on a book that examines law through a theory she calls "rational contractarianism." According to a contractarian view of society, a particular social institution should only exist because members of society would rationally seek that institution if designing their society from an initial, pre-societal position, rather than because of abstract arguments about the fairness or justice of that institution.

While legal theory has been perennially divided between utilitarian and ethical approaches to substantive legal questions, rational contractarianism frequently offers a "middle ground" alternative to the dominant views on a given law, according to Finkelstein.

An example is the death penalty. In a rational contractarian system, the moral and practical benefits that a society might accrue from having the death penalty are likely to be outweighed for an individual member of society by the cost of potentially facing execution, Finkelstein argues. So rational contractarianism, unlike utilitarianism or ethics, is likely to conclude that the death penalty would not be adopted by rational agents establishing the major institutions of their society.

Contractarianism "gives you normative results, a way of normatively resisting legal and economic impulses, without having to reject law and economics entirely," Finkelstein says.

Finkelstein is also currently interested in the legal philosophy of warfare and human rights, and has been writing about the torture memos issued by the Department of Justice in the Bush administration in particular.

Even at home, she can't resist theorizing. While watching her younger daughter studying violin and piano, Finkelstein says, she became interested in education theory and child psychology. Now an avid reader in these fields, she says, "I might do some work in educational philosophy or law one of these days."