One of the puzzles that has long captivated me is this: how should we measure “progress” in such normative or value-laden fields as law, art, and ethics? Aren’t such first-order values as justice, beauty, and right vs. wrong supposed to be timeless and universal? Along come Tyler Cowen and Patrick Collison, who propose a new interdisciplinary field of progress studies. (See Cowen & Collison, “We need a new science of progress.”) To this end, I recently conducted a preliminary literature review on the subject of “legal progress” in Google Scholar. (Along with business ethics, my professional training and scholarly area of expertise is the philosophy of law, with a special interest in natural law.) Here is a small sampling of what I found in reverse chronological order:
- “How is progress constructed in international legal scholarship” by Tilmann Altwicker & Oliver Diggelmann (2014). This excellent paper shows how the ideal of progress is “socially constructed” in the area of human rights and international law.
- “Legal progress through pragma-dialectics?” by Hendrik Kaptein (2006). This technical paper explores the meaning of progress in the domains of logic and legal reasoning.
- “Legal transitions, rational expectations, and legal progress” by Kyle D. Logue (2003). This excellent paper examines legal progress (as well as legal regress) from a law-and-economics perspective.
- “Tradition, change, and the idea of progress in feminist legal thought” by Katharine T. Bartlett (1995). This fascinating paper explores “feminists concepts of progress” and the tension between tradition and change in law.
- “Margarine: 100 years of technological and legal progress” by Stanley C. Miksta (1971). This technical paper equates legal progress with the enactment and subsequent repeal or modification of laws regulating the margarine industry.
In other words, there are multiple perspectives and many different ways of studying legal progress: progress in how an industry is regulated by law, progress in women’s rights, progress in the protection of property rights, progress in how lawyers and judges reason about law, etc. These multiple conceptions of legal progress thus pose a larger question: how should legal progress be defined or measured? Stay tuned: I will explore that question in my next few posts …