Legal Transitions without Legitimate Expectations*

Should slave-owners have been compensated when slavery was abolished? Should the current owners of gas-guzzling SUVs be exempt from new climate regulations? Should workers in protected industries receive subsidized retraining when trade protections are liberalized? These questions, which pit the value of legal stability against the value of legal change, are but a few tokens of a general normative question that has been dubbed the ‘problem of legal transitions’:11 Barbara H. Fried, ‘Ex ante/ex post’, Journal of Contemporary Legal Issues, 13 (2003), 123–60, at p. 123. under what conditions (if any) should governments offset changes in value caused by changes in the law?22 I have slightly broadened Fried’s definition of the problem. For discussion of the scope of the problem and comparison of Fried’s and my definitions, see Fergus Green, ‘Who should get what when governments change the rules? A normative theory of legal transitions’ (LSE, 2019), <http://etheses.lse.ac.uk/3980/>, pp. 24–9. In a world where laws change frequently—and many of our biggest contemporary challenges demand large-scale legal reform—the question is a vitally important, yet surprisingly under-theorized one. Recently, this neglect has begun to be redressed by liberal-egalitarian political philosophers who have explored the concept of ‘legitimate expectations’ (hereafter LE) as the basis for a principled solution to problems of legal transition.33 Alexander Brown, ‘A theory of legitimate expectations’, Journal of Political Philosophy, 25 (2017), 435–60; Alexander Brown, A Theory of Legitimate Expectations for Public Administration (Oxford: Oxford University Press, 2017); Alexander Brown, ‘Justifying compensation for frustrated legitimate expectations’, Law and Philosophy, 30 (2011), 699–728; Alexander Brown, ‘Rawls, Buchanan, and the legal doctrine of legitimate expectations’, Social Theory and Practice, 38 (2012), 617–45; Fergus Green, ‘Legitimate expectations, legal transitions, and wide reflective equilibrium’, Moral Philosophy and Politics, 4 (2017), 177–205; Matt Matravers, ‘Legitimate expectations in theory, practice, and punishment’, Moral Philosophy and Politics, 4 (2017), 307–23; Lukas Meyer and Pranay Sanklecha, ‘Individual expectations and climate justice’, Analyse und Kritik, 33 (2011), 449–71; Lukas Meyer and Pranay Sanklecha, ‘How legitimate expectations matter in climate justice’, Politics, Philosophy and Economics, 13 (2014), 369–93; Lukas Meyer, Thomas Pölzer, and Pranay Sanklecha, ‘Introduction to the special issue on legitimate expectations’, Moral Philosophy and Politics, 4 (2017), 173–5; Margaret Moore, ‘Legitimate expectations and land’, Moral Philosophy and Politics, 4 (2017), 229–55. In this article, I seek to dampen the enthusiasm about the viability of LE for this purpose. Before previewing my argument, it will help to provide a sympathetic reconstruction of the theoretical motivation for resolving legal transitions by reference to LE. To do so, it is necessary to first consider the role that expectations play in individuals’ prudential good, and in the domains of interpersonal morality and private in which the of LE in my at as as of under the of of the at p. political philosophers have the of expectations in expectations about the have been to prudential to which is to be to and Brown, ‘Justifying compensation for frustrated legitimate expectations’, at pp. and University Press, Brown, A Theory of Legitimate Expectations for Public pp. Buchanan, and legitimate expectations’, at pp. as a Public Philosophy University Press, Meyer and Sanklecha, ‘How legitimate expectations p. A Theory of University Press, pp. of Law (Oxford: Press, pp. of p. in Law and and p. are a to the and of a of the p. is to provide for our and and A Theory of pp. in to A Theory of pp. the to expectations about the our to our to be and legal philosophers of are in expectations the the laws of for in expectations about the of that are in For Meyer and is ‘How legitimate expectations p. Brown, who is a of expectations, that are about what will do and about what that to A Theory of Legitimate Expectations for Public pp. for this of expectations the that when expectations are frustrated be to a on the of the that to the to the when the is is this of expectations that in be as legitimate expectations in the In the of to LE be to for a the issue of legal transitions and about expectations about the of in the domains of interpersonal morality and legal private and legal which to and in Brown, A Theory of Legitimate Expectations for Public p. Meyer and Sanklecha, ‘How legitimate expectations p. have on what the of and of of p. of this expectations by which are the the expectations about on the that it will to to a which are frustrated in a world in which and change, but which are protected is by pp. that by which from and from p. is the of a of LE to a principled basis for from the and it is the normative of a that I to as the I the from the on the and legitimate expectations in the Journal of Political Philosophy, at p. In the of and the of the basis is by the is the of that the of what has this to do legal is that the a of role in expectations, and to of p. Brown, A Theory of Legitimate Expectations for Public pp. Buchanan, and legitimate expectations’, p. Meyer and Sanklecha, ‘How legitimate expectations p. in p. the to who on the that the will in current that of in political to the of expectations on in interpersonal of pp. have has legal changes to the in the of the and in the Journal of Philosophy, at p. to from by and Philosophy and Public 38 at pp. of about LE in the of legal change, as be from my has a to in the of at the that many of the expectations of legal stability that are For Meyer and consider climate change laws that LE about the of will be to for the value of on which have Meyer and Sanklecha, ‘How legitimate expectations Meyer and Sanklecha, ‘Individual expectations and climate is that legitimate expectations of legal stability frustrated by a change in the a normative to of from the as compensation for which of is is a and compensation is but for who on the legal and see Green, ‘Who should get what when governments change the of this on the question about the conditions under which has a LE of legal I that a LE a normative to conditions be in the domains of interpersonal morality and private be in of the and of legal transitions, to in the and of it to a that the of expectations of legal to in the that is of that to of expectations, and that the to of in to by reference to LE. I that of LE that the basis in a and that are that be to and of my is that to the concept of LE to I will the and new a from the legal a of I in that the of to the problem of legal transitions should be and that are to the of to be in of LE is the I by to the domains of interpersonal morality and private to the of a of which I is the for the as it is and I and a of LE on this Fergus Green, the of a of legitimate expectations’, For I to is that the is the of LE. A and and for a have on in and A this it was A has of that will have Meyer and Sanklecha, ‘How legitimate expectations p. this to the when ‘A be to be to of the of and be to have which is by the of frustrated legitimate is from on a of in the the that will be to by to to political at p. this to the this the it on In the expectations matter for the to and to the prudential of in many will I that the are to in the in to on of that was legitimate in the but the expectations of the question of what is the the of expectations but the I that the in the that in the the of the from of but from the that that of the to a in which the at the of that to as of a in and a to to and the in as is a of Philosophy at p. the in this definition in as and to that have a be it p. For our that this are at for be to be the frustrated expectations caused by legal the is by have what a p. what be from the to p. from the and that to as which expectations about the for to in a and pp. In this the for and it by to to and and to pp. In as a matter of theory, our expectations of are by reference to the of For the of interpersonal I see the of should the basis for of and for and legal will the In in the of the should be the of the by and legal in is which normative and normative is of and the to and and A that and in has to value and to the of of is under the of special and H. at pp. and are by which special special that normative A of our of and is to provide normative of the that to of and Law In a of I that LE be in as a of special special in to the special that from a but which and the of that of of that from of that of the doctrine of a basis for our A that will on are in a in which it is by that this is what should where the of the to the normative the the be in to normative and the on the by Meyer and Sanklecha, it to be a in which was that In the of the to by on the in and on the that is the by that should in at this is from which to normative on to at the expectations be legitimate in the Meyer and a and the that will get the legitimate expectations p. to a is the and the the and the that a LE. Before this in transitions, a question of a that to the a be where the is is of interpersonal morality and private are to what to be to do to and for in private A for is that private are will have for as of political and is to for by when are to the of private of this is on of from is on of the of and private in the the normative is is that are as on the by of normative to is and legal the of private for the the matter of which is the of a should of the seek to a in a of it will be and it on private to the normative that be to as the of the private and in and the of I will to consider the of of LE is to domains in which it is to of the and the change of the as in a is this that my first of for of that the of the expectations is by reference to the of a in which the this I LE in of my be to of and Green, the of is a that and to in the the of a laws a the expectations, and of a of and the is but the by the of and to domains and in p. In it is to in of a change, of and the as in by a that a will on the where the is from the the and of and the that the the to LE in the to the and the when consider what a the for the of this is the that will that will on the this is is in the of a that it and change, the that changes as a of this the of a and that will Social in p. see of legal Law at p. and justice’, (2017), at pp. for the and be the that laws will be the that this the of a a be of a in of a on a for a at a in the in of a normative of a a for normative the the has normative to to when it I that it should of the to in this the of it is to see what normative is for the concept of LE to In this I will provide for my about the of LE to transitions by that of of which have been in the and in the of this I will to the of to of from legal transitions in in the of I it that a theory of legal transitions the to the of legal change in is the of this article, which is that LE is the concept for this that this role should be by and that are to the of discussion of what and should be is my scope the of this I will in to the that LE the I a theory of legal transitions in Green, ‘Who should get what when governments change the a of the basis has to do the of a the basis in that in of frustrated Brown, A Theory of Legitimate Expectations for Public p. first consider of the LE I it is Meyer and by Meyer and the Meyer and Sanklecha, ‘Individual expectations and climate Meyer and Sanklecha, ‘How legitimate expectations pp. this the political in of the and of is are the expectations by and that Meyer and Sanklecha, ‘How legitimate expectations p. see Meyer and Sanklecha, ‘Individual expectations and climate of legal stability is on the the theory of legitimate first to about this is theoretical should the of the that the the of expectations that the will the Meyer and to this question is as a role in the of it the of and the question of legitimate is the question of the conditions under which is that is the of that are in expectations on the legitimate of the Meyer and Sanklecha, ‘How legitimate expectations p. this of the that the will the the a of the is to and expectations about the to of the that the the is and Meyer and in to the that the will that to change the is in of the it when to it from what I the the basis is in of the that the this the of the the it about the of expectations are that to by a legal change who the of legal the theory is to of and that to when are by the legal To this consider Meyer and of To the of A the of the the of in the consider of a to be to at who in that the to will the Meyer and Sanklecha, ‘How legitimate expectations pp. on the the that the is to be legitimate of legitimate when to the a be to be and this is the the expectations of and on the the the is to be legitimate be to be the expectations of of the that will a of in of the of expectations and the of to as compensation For I that many will my at the on the of and that the laws will the be on the expectations in be as to this on legitimate is and to the in the was the that this is a on the against that the for legitimate that the the was as be that who in the to the be as legitimate expectations, and have a normative to a the in the of the and what about the workers in and who and in to who under a that at of have at of normative on the for I do be on I the of this In the of legitimate is the will a of when to legal of for the basis that has discussion in the LE to the of the be in and I consider of the in will for to consider Meyer and and and the of and the pp. the and of on the of the to which it that will will be but as the legal is it to pp. is that to be by to the theory of the theory of problem is that a of LE in many of the that in the of the from changes to In the of the legal change will be from about the of the laws in question are to be and is in which a basis a theory of LE to do normative is that a basis for LE to in where is at is a in the value of do of the normative for to LE be to this problem is to the of a to LE to the of is the by and Moore, who the the first of of LE. that laws of and and a of on to legitimate expectations that laws will Matravers, ‘Legitimate expectations in theory, practice, and punishment’, p. to first expectations be legitimate are to justice’, by which that are that of Moore, ‘Legitimate expectations and land’, p. on a general theory of and in for about from legal change should be For the of at in is a that the of to the in where laws the who be by the of laws will have of for the and of the and this to the of change is a as consider the of climate change on to and a of to climate change be by and as the that expectations of to are the laws to the of a wide of from and to the workers on as have by reference to LE that on a general of the of the will a on the of of problems the Meyer and to the which is to interpersonal by the legal Meyer and Sanklecha, ‘How legitimate expectations pp. a of A Theory of pp. to of to the of expectations that Meyer and Sanklecha, ‘How legitimate expectations pp. is it the of expectations the of that are and and of that the has is that a I provide for the problem this of is that it the of expectations the of by reference to of the the to provide the the a for the should the of the the of expectations that this basis from my that it is the to the the a and be to my consider the of and of These play when the expectations in question do to of first For Matravers, that are to the of the of the the and the to have that that which is by the legal was and to be by a legal Matravers, ‘Legitimate expectations in theory, practice, and punishment’, pp. For Moore, the of expectations the is a matter of the of the Moore, ‘Legitimate expectations and land’, pp. a of but in the of the a on that a the to have the change to a the of the the a as a of the and as the to pp. is my for about is that the of that to in private and interpersonal that to for a of LE. as I it is to about as in interpersonal the to of changes in the as that laws the For what to in to it that the change the in the it Barbara has changes have a political it to the of expectations about the at from Fried, ‘Ex ante/ex post’, pp. In as and I are on the of for a concept of but to the of legal as and as to the the that the of should see that the of LE to the of and as are to the of who should receive when laws what do have to do of LE that to the of a for theoretical and In the that have been in the LE to transitions are to are general and are on and These the of LE to problems from and to the of transitions, are this that my in this has been at of the that I have that of LE this role at the of theory of legal have a of LE for interpersonal and a for I for to to this of In the concept of LE to this of LE domains of should be about the in a for when it to the concept a it to that this of of of should be in normative political and of political p. be the to of legal at the in this the of LE for the domains be a for a concept that do the normative of who should get in of when laws it is the that that this For I have that the of and are to the normative of legal Green, ‘Who should get what when governments change the the of a legal change on the should be to be is a normative about the for the of the of legal change the was which on about the of and about the and of in a I be by the and is the scope of the to and and and the of in For and of see Green, ‘Who should get what when governments change the For the of the it will for to that on the of of in first the I have is that of I have the to normative have the of legal on a is in where legal is by as to be it is to for that the when laws change in that and the in the of to where For of this argument, see Green, ‘Who should get what when governments change the pp. it to workers in industries and to it in a that for to from legal For and the from a be a is for of have been by the legal change, and for from the of a is to be For the of and the of a and a in the of to to a are In of the do to a of LE to do the normative A that have to and on the basis of and has are and but it for to have for this of and to that is by a where a of A and and are as to get are that is a problem the that will be to on who under and at a when of and Moore, ‘Legitimate expectations and land’, p. for my that the change was by a change in of is the problem the change is that it of who be to this change in the by which and have the to a that has are for the to change, it that the in this should be protected a of but a of pp. to the where my of my to legal of and to the who be on the basis of the a that this is a in which the are to the of legal change on and are when it to and is to be at are for at by the a in which that for the of this of legal change should be by the and a as the of for and I is for Moore, of are in the of about legitimate the a of but a of in as the expectations that the as a to get p. I have of LE in general on the that it many normative a and interpersonal a this in the of a it is in this that the in question that be for and in the this the of is necessary for normative of the I problems the of LE in the In the of legal transitions in of LE is the in I about of LE for interpersonal but to transitions, and about the of a of LE for the the of and for that should be explored a of LE in the of legal Political on LE to that what expectations are in the of in which of the is and the world of and legal for which LE are to provide normative are the that a concept of LE in expectations, the have to about the expectations of expectations to be about be from of the and and the and as a will of from the necessary and the is this the of expectations that my of for the concept of that the expectations be by the In the of transitions, it is the that which are to when laws are theory of legal transitions, it is the that the expectations and of to have been in the LE the have to to the necessary the have in the of on by the be by the is A of have the in by the in to A of is that the and of is the of at pp. and the basis of (2011), at pp. and the Philosophy and Public at pp. expectations about the do I to the and the as the Moral In transitions, the of the Moral is is of expectations, and the of is but wide that to be the of A and for and the of the to the expectations about the legal of for Meyer and Sanklecha, ‘Individual expectations and climate Meyer and Sanklecha, ‘How legitimate expectations should get a of the of the Moral To the of the and the to and by reference to is that legal changes are and that in of Moral is in the that are by a legal and the expectations and the it will be for the to the to about are to be on LE. be in of it is the of change that have the in which the for of legal transitions is and yet it is in that LE be the consider to this of I have been a of LE that is the of expectations this of that this is to this the ‘legitimate expectations’ should be as a of for a normative that of a this of is surprisingly in and legal of the Brown, A Theory of Legitimate Expectations for Public general the as to a theory of legal transitions, I is to has a LE is to that the is to the of legal at to a in to as a of the the the the to the concept of when in this in of legal transitions to the concept of in of and Political should of LE. that what LE is that expectations the that is to be to and is about expectations against changes in the laws is the that expectations of of the expectations to be legitimate in to be protected this is the of the it is the of to the that the to expectations in the first Brown, ‘Justifying compensation for frustrated legitimate Brown, ‘Rawls, Buchanan, and the legal doctrine of legitimate Buchanan, and legitimate Meyer and Sanklecha, ‘How legitimate expectations pp. is a necessary of a it is what the concept the of expectations is at motivation from and are of what that is that is about of it the of frustrated expectations, in the that of are in the of but on it in to normative from have been by legal the of for the of the doctrine of LE that is in have the by that be to have a legitimate about the is that the doctrine ‘Legitimate expectations (2011), at p. of the of the doctrine of legitimate to about which the has the be a of for and is for the the Moral is to the of it to normative from be I about LE be to domains in which the Moral be In the domains of interpersonal morality and private the of private that the of in be in by the in the of a legal the and the are Moral be in the for the special of LE to be to domains it is in the of interpersonal and private that the of normative of and as in the on the in which the have to normative should a of LE that is for the of a as the is that it is that that to discussion of legitimate expectations in legal transitions a to in normative I have that should be at as as transitions are of I is that is and on expectations and the concept as a of problems of interpersonal morality and private the of expectations on this of LE are to the it be to the concept to of it be to the of I have that to of LE that the basis in and that the LE are and have when to of that the of a theoretical solution to the problem of legal transitions to normative and which are to the that the problem I in These be explored in on from my is is this should legitimate