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 law (domains in which the application of LE is, in my view, entirely appropriate). Since at least as far back as Bentham,44 Jeremy Bentham, The Works of Jeremy Bentham, Published under the Superintendence of His Executor, John Bowring (Edinburgh: William Tait, 1838–43), vol. 1, ‘Principles of the civil code’, at p. 308. political philosophers have remarked upon the significance of expectations in how well people’s lives go. Specifically, an agent’s predictive expectations about the future have been linked to their prudential ability to undertake long-term planning, which is widely thought to be important to practical agency, autonomy, and wellbeing.55 Ibid.; Brown, ‘Justifying compensation for frustrated legitimate expectations’, at pp. 713, 725; Michael E. Bratman, Intention, Plans and Practical Reason (Cambridge, MA: Harvard University Press, 1987); Brown, A Theory of Legitimate Expectations for Public Administration, pp. 1, 107; Allen Buchanan, ‘Distributive justice and legitimate expectations’, Philosophical Studies, 28 (1975), 419–25, at pp. 419–22; Robert E. Goodin, Utilitarianism as a Public Philosophy (Cambridge: Cambridge University Press, 1995); Meyer and Sanklecha, ‘How legitimate expectations matter’, p. 375; John Rawls, A Theory of Justice, rev. edn (Cambridge, MA: Harvard University Press, 1999), pp. 79–80, 358–61; Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), pp. 220–2; Henry Sidgwick, The Methods of Ethics, 7th edn (London: Macmillan, [1874] 1962), p. 271; Nigel Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights, 4th edn (London: Sweet and Maxwell, 2013), p. 39. As Bentham noted, humans are temporally extended beings, with a characteristic desire to connect the past, present, and future elements of their lives into a coherent whole.66 Bentham, ‘Principles of the civil code’, p. 308. Having long-term plans is thus thought to provide us with present reasons for action, facilitating our day-to-day practical agency and rendering us autonomous, self-governing agents.77 Bratman, Intention, Plans and Practical Reason; Rawls, A Theory of Justice, pp. 360–1. Some theorists, moreover, take living autonomously in accordance with one’s life plans to constitute wellbeing, or one’s personal good.88 E.g. Rawls, A Theory of Justice, pp. 79–80, 358–9. Without the capacity to form expectations about the future, our ability to plan—and, thereby, our ability to realize these various goods—would be drastically impaired. Moral, political, and legal philosophers of LE, however, are not interested in predictive expectations writ large—encompassing the weather, or the laws of gravity, for instance—but, rather, in predictive expectations about the behaviour of other agents that are in some way normatively justified.99 For example, Meyer and Sanklecha’s work is concerned with predictive expectations; ‘How legitimate expectations matter’, p. 370. Compare Brown, who is concerned with a still narrower subset of expectations, namely those that are both predictions about what some other agent will do and beliefs about what that agent ought to do; A Theory of Legitimate Expectations for Public Administration, pp. 3–6. Only for this subset of expectations can the losses that occur when such expectations are frustrated be tied to a (moral, political, or legal) obligation on the part of the other agent: that is, an obligation to avoid frustrating the expectation, or to remedy the loss when the expectation is frustrated. It is only this subset of expectations that can, in other words, be classified as legitimate expectations in the relevant sense. In fact, the domain of interest to LE scholars can be refined further still. Let us continue to leave aside for a moment the issue of legal transitions and think about normatively justified predictive expectations about the behaviour of agents in the domains of interpersonal morality and its legal cousin, private law. The moral and legal toolbox already contains numerous conceptual devices which function to render others’ behaviour predictable—most notably promises and contracts. Accordingly, moral theorists interested in LE1010 See, e.g., Brown, A Theory of Legitimate Expectations for Public Administration, p. 6; Meyer and Sanklecha, ‘How legitimate expectations matter’, p. 371. have focused more narrowly on what Sidgwick called the ‘dim borderland’ of ‘tacit understandings’ and ‘implied contracts’ arising out of past behaviour.1111 Sidgwick, The Methods of Ethics, p. 270 (emphases added). On one side of this uncertain moral territory lie expectations generated by explicit promises or contracts, which are clearly normatively protected. On the other side lie the myriad expectations we develop about others’ behaviour, on the assumption that it will continue to conform to a past regularity, which are simply frustrated in a world in which people and things inevitably change, but which are not protected because there is no normatively significant fault by another agent.1212 Cf. ibid., pp. 271–2. Sidgwick admitted that ‘I know no intuitive principle by which we could separate valid claims from invalid, and distinguish injustice from simple hardship’.1313 Ibid., p. 272. It is the job of a conception of LE to furnish such a principled basis for dividing one from the other, and it is the normative core of such a conception that I shall refer to as the ‘legitimacy basis’.1414 I am adopting the equivalent language from the literature on desert concerned with the ‘desert basis’; see, e.g., Nien-hê Hsieh, ‘Moral desert, fairness and legitimate expectations in the market’, Journal of Political Philosophy, 8 (2000), 91–114, at p. 92. In the cases of promise and contract, the equivalent work of the legitimacy basis is done by the promise- or contract-constitutive speech act. It is the absence of any such explicit beacon that makes the borderland of tacit understandings so dim. So what has all this got to do with legal transitions? The thought is that the law, being a pervasive set of rules regulating social interaction, plays an especially important role in shaping people’s expectations, and hence enabling them to make plans.1515 Bentham, The Works of Jeremy Bentham, vol. 2, ‘Supply without burden’, p. 589; Brown, A Theory of Legitimate Expectations for Public Administration, pp. 437–8; Buchanan, ‘Distributive justice and legitimate expectations’, p. 422; Meyer and Sanklecha, ‘How legitimate expectations matter’, p. 374; Simmonds, Central Issues in Jurisprudence, p. 39. Changing the law can therefore cause normatively significant losses to those who based their plans on the expectation that the relevant law will continue in its current form. Sidgwick thought that these kinds of losses occupied an uncertain terrain in political philosophy similar to the ‘dim borderland’ of expectations based on regularities in interpersonal conduct.1616 Sidgwick, The Methods of Ethics, pp. 270–4. Others have gone further. Feinberg has likened legal changes to ‘chang[ing] the rules in the middle of the game’,1717 Joel Feinberg, ‘Duty and obligation in the non-ideal world’, Journal of Philosophy, 70 (1973), 263–75, at p. 268. while Simmons refers to people having ‘the rug pulled from beneath them by sudden institutional change’.1818 A. John Simmons, ‘Ideal and nonideal theory’, Philosophy and Public Affairs, 38 (2010), 5–36, at pp. 20–1. The recent crop of theorizing about LE in the realm of legal change, as shall be clear from my subsequent analysis (especially Section IIB), has a similar flavour to it, in the sense of at least starting with the presumption that many of the expectations of legal stability that people hold are legitimate. For example, Meyer and Sanklecha consider whether climate change laws that reduce agents’ legally permissible greenhouse gas emissions violate those agents’ LE about the level of greenhouse gases they will be able to emit (with adverse implications for the value of emissions-intensive projects on which they have already embarked).1919 Meyer and Sanklecha, ‘How legitimate expectations matter’; Meyer and Sanklecha, ‘Individual expectations and climate justice’. The implication is that having one’s legitimate expectations of legal stability frustrated by a change in the law gives one a normative entitlement to some kind of remedy from the state, such as compensation for resultant losses.2020 Precisely which kind of remedy is required is a separate question, and compensation is but one possibility among others, including grandfathering (exemptions for those who had relied on the legal status quo) and adaptive assistance; see Green, ‘Who should get what when governments change the rules?’, ch. 9. The focus of this article is, however, on the prior question about the conditions under which an agent has a LE of legal stability. I assume that having a LE grounds a normative claim to some state remedy. Thirdly, while these conditions can be met in the domains of interpersonal morality and private law, they cannot be met in respect of the most common and consequential kind of legal transitions, namely characteristic legislative enactments. With respect to condition (1), discussed in Section II, the characteristically general, institutional, and impersonal character of legislation makes it impossible to identify a practice-governed interaction that could ground the legitimacy of agents’ expectations of legal stability. With respect to condition (2), discussed in Section III, the fact that legislation is an act of state that characteristically applies to large numbers of persons with heterogeneous expectations, plans, and projects means that the state would need to undertake intrusive, morally costly investigations of people’s lives, including their mental states, in order to determine their transitional entitlements by reference to LE. I show that models of LE that define the legitimacy basis in a practice-independent way and that are not concerned with agents’ actual expectations—models that thereby could be applied to legislative transitions—are poorly theoretically motivated and produce counterintuitive results. The upshot of my argument is that attempts to apply the concept of LE to characteristic legislative transitions2323 I will use the terms ‘characteristic legislative enactment’ and ‘characteristic legislative transition’ interchangeably, since any new enactment entails a transition from the legal status quo. involve a kind of category error. I conclude, in Section IV, that the development of satisfactory solutions to the problem of legal transitions should be addressed through other concepts, principles, and theories—ones that are better suited to the unique features of characteristic legislative transitions. The central feature to be specified in any conception of LE is the legitimacy basis. I begin by returning to the domains of interpersonal morality and private law to sketch the contours of a practice-dependent model of LE, which I argue is the best model for the legitimacy basis, insofar as it is theoretically well motivated and produces intuitively correct results.2424 Elsewhere, I specify and defend a particular conception of LE based on this practice-dependent model; Fergus Green, ‘Illuminating the “dim borderland” of tacit understandings: a unified conception of legitimate expectations’, MS. For present purposes, however, all I need to claim is that the practice-dependent model is the right model of LE. Two housemates A and B enjoy having dinner together and for a long time have had dinner together on Fridays. They take turns in preparing dinner, and if A prepares dinner this Friday because it was her turn, then A has acted thus because of her expectation that she will have dinner with B … [One Friday evening] B does not turn up …2525 Meyer and Sanklecha, ‘How legitimate expectations matter’, p. 370. The authors use this example to pump the intuition that, when B does not turn up, ‘A can be said to be harmed to some extent because of the frustration of her expectation’, and B can be said to have done something prima facie morally wrong (and which is aptly captured by the notion of B’s having frustrated A’s legitimate expectation).2626 Ibid. The second example is from A. John Simmons (writing on a different topic): ‘a year of Kant’s daily walks through town creates in the Konigsberg housewives the reasonable expectation that they will be able to set their clocks by his passing’. One day Kant decides to stay home to read Rousseau.2727 A. John Simmons, ‘Associative political obligations’, Ethics, 106 (1996), 247–73, at p. 258. Simmons uses this example to pump the contrary intuition: whatever disruption this may cause the ‘housewives’, it involves no moral failing on Kant’s part.2828 Ibid. In both cases the expectations matter (albeit fairly trivially so) for the relevant agents’ ability to plan, and therefore to realize the associated prudential goods of planning discussed in Section I. However, many readers will likely share—as I do—the divergent intuitions that the respective authors are trying to pump in each case. Wherever the borderline lies in Sidgwick’s ‘dim borderland’, these two examples seem to fall squarely on opposite sides of it. We may safely surmise, then, that Housemate A’s expectation was legitimate in the relevant sense, but the expectations of the Konigsberg women were not. The question of interest is: what is the normatively relevant distinction between the two cases? What makes one set of expectations legitimate, but not the other? I propose that the distinction lies in the fact that in the housemate dinner case, the legitimacy of the expectation arises not merely from some past state of affairs or behavioural regularity per se, but from the fact that that state of affairs or behavioural regularity accords with the norms internal to a social practice in which the relevant agents were mutual participants at the relevant times. patterns of learned behavior that enable us … to coordinate as members of a group in creating, distributing, managing, maintaining, and eliminating a resource (or multiple resources), due to mutual responsiveness to each other’s behavior and the resource(s) in question, as interpreted through shared meanings/cultural schemas.2929 Sally Haslanger, ‘What is a social practice?’, Royal Institute of Philosophy Supplement, 82 (2018), 231–47, at p. 245 (all emphases added). Among the elements emphasized in this definition (and in Haslanger’s surrounding discussion), two stand out as central: resources and social coordination. Haslanger defines resources very broadly to mean things that have a positively (or negatively) valenced social (dis)value, be it economic, aesthetic, moral, prudential, or spiritual.3030 Ibid., p. 243. For our purposes, we can assume that resources (in this very broad sense) are at stake, for otherwise there would be little reason to be concerned with the frustrated expectations caused by legal transitions; the more important definitional element is ‘social coordination’. Practices coordinate human action by encouraging or enforcing some behavioural regularity; they have what Haslanger calls a ‘descriptive normativity’,3131 Ibid., p. 237. or what might also be called an internal normativity (as distinct from the ‘evaluative’, or external, normativity more familiar to philosophers).3232 Ibid., p. 244. This internal normativity arises from the semiotic concepts, scripts, and meanings that comprise culture (also referred to as ‘cultural schemas’ or ‘social meanings’), which set expectations about the right way for people to behave in a given context and evoke mutual responsiveness among practitioners.3333 Ibid., pp. 238–40. In this way, practices ‘set the stage’ for human agency, enabling and constraining it by providing social roles to perform, reasons to perform them, and scripts and tools to perform with.3434 Ibid., pp. 233–6, 240–2. In short, we may say that, as a matter of social theory, our predictive expectations of other agents are (internally) justified by reference to the descriptive norms of social practices. For the purposes of interpersonal interactions, assuming no problematic externalities, I see no good reason why the descriptive, internal normativity of practices should not constitute the legitimacy basis for conceptions of LE, and thus for LE-based moral and legal principles (I will address the ‘no problematic externalities’ assumption shortly). In other words, in these domains, the internal, descriptive normativity of the practice should be the source of the evaluative, external normativity ascribed by moral and legal theory. Why? Because participating in social practices is an important means through which agents intersubjectively shape their normative environment, and such normative shaping is an important feature of individual autonomy and wellbeing, including the capacity to form and sustain social relationships.3535 Seana Shiffrin, ‘Promising, intimate relationships, and conventionalism’, Philosophical Review, 117 (2008), 481–524. A society that values autonomy and wellbeing—and, in particular, its social-relational aspects—therefore has reason to accord (external) value and protection to the (internal) normativity of social practices. This kind of normativity is often characterized under the rubric of special rights and obligations.3636 H. L. A. Hart, ‘Are there any natural rights?’, Philosophical Review, 64 (1955), 175–91, at pp. 183–4. Analogously, promises and contracts are conceptual devices by which individuals create special rights (with corresponding special obligations) that shape their normative environment. A function of our public doctrines of promise (moral) and contract (legal) is to provide external normative validation of the particular, explicit commitments that agents make to one another using these devices.3737 Seana Shiffrin, ‘The divergence of contract and promise’, Harvard Law Review, 120 (2007), 708–53. In advocating a practice-dependent model of LE, I am merely proposing that LE be understood in similar terms, as a species of special rights (with corresponding special obligations), similar in nature to the special rights that arise from a promise or contract, but which occupy and illuminate the ‘dim borderland’ of tacit understandings that lies beside these more familiar conceptual devices.3838 The common law of equity also recognizes quasi-legal obligations of transactional consistency that stem from certain kinds of behavioural interactions between agents that fall short of contracts—e.g., via the doctrine of estoppel. The practice-dependent model provides a compelling basis for distinguishing our two example cases. Housemate A can legitimately expect (predictively) that Housemate B will cook dinner on Friday, because they are involved in a social practice in which it is (tacitly) understood by both parties that this is what B should (normatively) do, where the normativity of the ‘should’ refers to the internal normative standards governing the practice itself.3939 Of course, the practice must be interpreted in order to divine its internal normative standards and determine whether the expectation actually accorded with those standards. But on the facts provided by Meyer and Sanklecha, it seems to be a clear-cut case in which there was an established practice that Housemate B violated. In the case of Kant’s walks, the housewives predictively expect Kant to walk by their houses on the day in question, and so they organize their affairs accordingly (to their detriment, on the occasion that Kant stays home). But there is (on the facts available) no intersubjective understanding shared by Kant that he should partake in his daily walk at this time every day; there is simply no social practice from which to generate any normative obligation on Kant to arrange his walks at the relevant time. The housewives’ expectations therefore simply cannot be legitimate in the relevant sense.4040 Meyer and Sanklecha’s second example—‘a thief steals a car and forms the expectation that he will get away with the theft’ (‘How legitimate expectations matter’, p. 370)—is amenable to a similar analysis: there is no shared social practice among the thief and the victim (or the thief and the state) that could ground a LE. Before considering how this practice-dependent model fares in legislative transitions, let me address a sceptical question of a kind that practice-dependent approaches to normativity must always confront: how can the internal norms governing a social practice be externally validated where the practice itself is morally problematic? The answer is straightforward. As with other areas of interpersonal morality and private law, there are external, public-interest-based limits to what individuals ought to be able to do to and for one another in their private interactions. A key reason for setting such limits is that private interactions are rarely, if ever, fully ‘private’, since they will have implications for third parties, also known as ‘externalities’. One purpose of political philosophy and public law is to set those limits, for example by determining when externalities are sufficiently problematic to warrant the curtailment or reconfiguration of private activity.4141 The soundness of this response is not premised on acceptance of any metaphysical bright line separating public from private. It is simply premised on acceptance of the utility of distinguishing between public and private in the way the normative landscape is carved up. My point is that these limits are best understood as side-constraints on the otherwise permissible shaping by individuals of their normative environments. This side-constraint approach to problematic externalities is how lawyers and legal theorists typically approach the public limits of private law. Consider, for example, how the common law deals with contracts the subject matter of which is the commission of a crime: should one of the parties seek to enforce such a contract in a court of law, it will be deemed null and void because it exceeds public interest limits on private attempts to shape the normative environment. This view acknowledges that there may be distinctive reasons to override particular contracts, such as the protection of important third-party interests, while preserving the distinctively private (or ‘special’) function of, and justification for, contracts in general. Having sketched and defended the practice-dependent model of LE, I will proceed to consider the limits of its applicability. The practice-dependent model of LE is inherently limited to domains in which it is sensible to speak of the relevant agents (the expecting-agent and the agent whose change of position violates the expecting-agent’s expectation) as mutual participants in a social practice. It is this consideration that motivates my first condition of application for conceptions of LE, viz. that the legitimacy of the relevant expectations is determinable by reference to the internal norms of a social practice in which the agents were mutual participants. Characteristic legislative enactments cannot meet this condition.4242 I explore elsewhere whether LE can, in light of my proposed conditions, be scaled up to certain other forms of public decision making, including administrative decisions and even non-characteristic legislative transitions; Green, ‘Illuminating the “dim borderland” of tacit understandings’. Legislation is a public institution that characteristically applies generally and impersonally to all agents in the relevant jurisdiction. Accordingly, the entire corpus of a jurisdiction’s laws exerts a pervasive influence over the expectations, preferences, and actions of a large, open set of individuals. The relationship between individuals and the state qua legislator is therefore not ‘one-shot’ or even ‘repeat-play’, but rather ‘continuous-play’, entailing the ubiquitous conferral by the state of costs and benefits to individuals across multiple domains and over their entire lifetimes.4343 Levinson, ‘Framing transactions in constitutional law’, p. 1333. In these circumstances, it is erroneous to speak, in each instance of a legislative change, of individuals and the state qua legislature as participants in an interaction governed by a social practice. Of course, individual citizens may expect that a particular law will remain on the books, and, where the expectation is frustrated, losses may result (absent transitional assistance from the state). However, the generality and impersonal nature of characteristic legislative enactments precludes any intersubjective understanding—any tacit agreement—between particular citizens and the legislature that could normatively underwrite those expectations. At the very least, the onus lies with those appealing to LE in the legislative context to substantiate the relevant practice and pinpoint the shared understanding. But when we consider what such a shared understanding could amount to, the possibilities don’t seem promising. One potential candidate for the content of this supposed shared understanding is the notion that laws, once made, will never change; that they will remain on the books indefinitely. But this is implausible. It is in the nature of a legislature that it make, and hence change, laws—all the more so given that its composition changes as a result of regular elections or otherwise—and this renders untenable the idea of a tacit agreement between state and citizen that any particular law will never change.4444 Juha Räikkä, Social Justice in Practice (Dordrecht: Springer, 2014), p. 25; see also Louis Kaplow, ‘An economic analysis of legal transitions’, Harvard Law Review, 99 (1986), 509–617, at p. 522; Govind Persad, ‘Downward mobility and Rawlsian justice’, Philosophical Studies, 175 (2017), 277–300, at pp. 294–5. An alternative candidate for the putative shared understanding between citizen and legislature might be something like the notion that laws will not be changed unfairly, unreasonably, unjustly, without due procedure, or the like. But notice that this move would moralize the notion of a shared understanding (and hence a practice). We would no longer be speaking of a practice in terms of a thick behavioural pattern—like cooking dinner on a Friday, or going for a walk at a certain time in the afternoon—but rather in terms of a thin, abstract normative standard. The notion of a social practice would thus become a mere vessel for an objective normative requirement binding the legislature. But if the legislature has normative obligations to act fairly, justly, and/or reasonably (and so on) with respect to transitional issues when it passes laws—and I t