Which of these rules would you choose if you were behind a veil of ignorance and didn`t know if you were plaintiff or defendant, rich or poor? Of course, one would have to know a lot about the consequences to answer this question, but already, dear reader, you are ahead of me and drawing certain conclusions. For example, you might think that behind the veil of ignorance, you might reject the rule that makes the defendant pay if the plaintiff wins, but doesn`t make the plaintiff pay if the defendant wins. “Why should I accept this rule?” you might think, “If I can, could I end up as a defendant?” Sure, it`s not that simple, but you get the idea. So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to this question (in the first part), then we will introduce some objections and clarifications and give a more complicated answer (n second part). So here we go. The test design is as follows. Part I defines the concepts, distinguishes the rules of the veil from the separation of powers and other types of constitutional provisions that restrict self-serving decisions, and sets out certain methodological premises. The second part examines the rules of constitutional obfuscation by examining the “act of the veil”: characteristics of constitutional provisions and doctrines that produce effects similar to those of the veil. These may include, for example, constitutional requirements that formal decisions be forward-looking and general, such as ex post facto and bill of attainder clauses, and constitutional provisions that increase the durability of decisions or delay their entry into force, such as the doctrine of constitutional precedent, the Twenty-seventh Amendment, and the remuneration clause. I also discuss the (rare) use of randomization in constitutional law.
The third part examines the direct impact of veil rules on informing decision-makers and their indirect effects on decision-makers` motivation, highlighting that the unnerving effect of veil rules helps us to examine or rationalize the distribution of veil rules between institutions. Part IV is a brief conclusion. So, if you are a first-year student of theoretical law, how can you use the veil of ignorance? Here is my suggestion. At least sometimes, when you read and think about a morally interesting case — a case in which you say that the case raises questions of fairness — ask yourself the following three questions: (1) ex post, what rule is a fair resolution of this controversy; (2) ex ante, which rule would have the best consequences if applied to similar cases in the future, and (3) behind the veil of ignorance, which rule would I choose if I did not know whether I was the plaintiff or the defendant? Sometimes when you start answering this third question, you will be interested in the questions of who is behind the veil of ignorance, what they know, when they decide, and how they advise. Spend a few minutes thinking about these issues and you will find that you have a deeper understanding of the concerns about principles or fairness that are relevant to the case. Uses case studies from around the world to analyse the impact of uncertainty on constitutional design However, there is another important perspective on legal rules that is not taken into account by the distinction between ex post and ex ante perspectives. This alternative perspective is often associated with the most important political philosopher of the twentieth century, the late John Rawls. Rawls is famous for his book A Theory of Justice, which argued for two principles of justice (the principle of liberty and the principle of difference) using an impressive thought experiment called “the original position.” The basic idea is that the principles of justice for the fundamental structure of society should be chosen by the representative parties behind a veil of ignorance. That is, representatives are deprived of information about the talents, abilities and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the “state of nature” that Hobbes, Rousseau, and Locke used as a choice to accept a social contract.
Rawls` basic intuition was that the state of nature allows morally irrelevant factors—for example, the strategic advantages of the strong and the cunning—to determine the content of the social contract. The purpose of the veil of ignorance is to filter these factors and create a fair electoral situation. While the classical theory of the social contract asks, “What would be chosen in a state of nature?” asks Rawls, “What would be chosen in the original position behind the veil of ignorance?” Law students quickly learn that law school is focusing more on the normative (“Is this a good rule?”) than on the description (“What`s the rule?”). (“Just give me the law of the black letter!” is a cry in the wilderness.) Once you learn this lesson, another one quickly follows. (Either it sneaks over you, or maybe it hits just in one of those glorious moments aha!) The Law Academy (and, hopefully, your section) is full of diverse (radically different) perspectives on normative legal issues. The ex-ante/ex-post distinction concerns the normative perspective. We can look at the legal rules ex post (backwards from the present) and ask, “Does this rule provide a fair solution to this particular controversy?” We can look at legal regulations ex ante (from present to front) and ask: “Will the adoption of this rule have good consequences if it is applied to similar situations in the future?” The transition to the ex ante perspective is the decisive step in consequentialist legal theories – and in particular normative law and economics. When I speak of obfuscation rules in constitutions, I mean asking a very different question from that pursued in the usual discussions about the veil of ignorance. The constitutional electoral literature of James Buchanan, Gordon Tullock and their successors understands the uncertainty created by the veil of ignorance as a mechanism for getting hypothetical constitutional designers to approach the choice of constitutional rules themselves impartially. (4) Decision-making by legislators and other officials within the framework of constitutional rules, on the other hand, falls within the realm of “ordinary politics”, where interested individuals and factions fight for advantages.
The self-interest of constitutional experts is limited by uncertainty; That of ordinary decision-makers is limited by voting rules (e.g. majority requirements), by substantial constitutional prohibitions of ineffective legislation, and by institutional competition due to the separation of powers. I erase this distinction by asking whether and how the constitutional provisions could expose the system`s decision-makers to the same constraint of uncertainty that determines the hypothetical phase of the constitutional election, for similar reasons. I also mention an important particular case, the proposal for constitutional amendments, which has characteristics of both constitutional elections and ordinary politics. So if we put these two types of knowledge behind the veil of ignorance, the question arises, “What system of procedural rules would I want if I knew I was a litigant in a civil action, but I don`t know if I`m a plaintiff or a defendant, and I don`t know if I`m rich or poor? Let`s be really, really simple. Suppose I have to choose between four jurisdictions in terms of legal assistance: “Behind the veil of ignorance” means conducting a thought experiment. They ask themselves, “What rule of law would I choose if I didn`t have this or that piece of information?” You can see immediately that we need to fill the void! What information is placed behind the veil of ignorance? Let me give you a few examples: I insist on a third, somewhat different explanation, which does not point to the direct effects of the veil rules, but to their secondary or indirect consequences. The indirect trade-off, in my view, is not between information and neutrality, but between information and motivation, or (as the drafters would have said) institutional “energy.” The rules of the veil not only mitigate information and prejudice; They also crack down on the activities of decision-makers. Removing the impulse of self-interest threatens to reduce policymakers` activity below acceptable levels, to the point where constitutional designers might presumably prefer to lift the veil and stimulate more activity, even if the price is that some of this increased activity is self-centered.