Essays in Jurisprudence and Philosophy

ESSAYS IN

JURISPRUDENCE

AND PHILOSOPHY by H.L.A.HART

CLARENDON PRESS 1983

· OXFORD

Oxford University Press, Walton Street, Oxford OX2 6DP London Glasgow New York Toronto Delhi Bombay Calcutta Madras Karachi Kuala Lumpur Singapore Hong Kong Tokyo Nairobi Dar es Salaam Cape Town Melbourne Auckland and associated companies in Beirut Berlin Ibadan Mexico City Nicosia Oxford is a trade mark of Oxford University Press Published in the United States by Oxford University Press, New York Except where otherwise indicated, ©H. L. A. Hart 1983 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed o� the subsequent purchaser British Library Cataloguing in Publication Data Hart, H. L. A. Essays in jurisprudence and philosophy. 1. Jurisprudence

I. Title K 230

340'.1

ISBN 0-19-825387-7 ISBN 0-19-825388-5 Pbk Library of Congress Cataloging in Publication Data . Hart, H. L. A. (Herbert Lionel Adolphus), 1907Essays in jurisprudence and philosophy. Includes index. 1. Jurisprudence 2. Law

Philosophy

Addresses, essays, lectures. Addresses, essays, lectures. I. Title.

K230.H365A'2t'1983

340'.1

ISBN 0-19-8 25387-7 ISBN 0-19-8 25388 5 (pbk.) Set by Hope Services, Abingdon Printed in Great Britain at the University Press, Oxford by Eric Buckley, Printer to the University

83-4197

Contents Acknowledgemen ts Introduction PART I GENERAL THEORY

�

1

Definition and Theory in Jurisprudence

2

Positivism and the Separation of Law and Morals (first published 1958) Problems of the Philosophy of Law (first

3

published 1967)

4

II AME RI CAN JURISPRUDENCE American Jurisprudence through English Eyes: The Nigh tmare and the No ble Dream (first

5

1776-1976:

PART

�

(first published 1953)

published 1977)

Law in the Perspective of Philosophy (first published 1976)

PART III SCANDINAVIAN JURISPRUDENCE

6 7

Scandinavian R ealism (first published 1959) Self-referring Laws (first published 1964)

PART IV LIBERTY, UTILITY, AND RIGHTS

8

Utilitarianism and Natura l Rights (first

9

Between Utility and Rights (first published

VB

1 19 21 49 88 121

123 145 159

161

170 179

published 1978)

181

1973)

198

1973)

223

10

R awls on Liberty and Its Priority (first published

11

Social Solidarity and the Enforcement of Morality (fin;t published 1967)

PART V FOUR LEGAL THEORISTS

12

Jhering's Heaven of Concepts and Modern A nalytical Jurisprudence (first published

13

Diamonds and S tring: Holmes on the Common Law (first published 1963)

1970)

248 263

265 278

vi

14 15 16

CONTENTS

Kelsen Visited (first published 1963) Kelsen's Doctrine of the Unity of Law (first published 1968) Lon L. Fuller: The Morality of Law (first published 1965)

PART VI 17

The House of Lords on A ttempting the Impossible (first published 1981)

286 309 343 365 367

Index of Names

393

Index of Subjects

395

Acknowledgemen ts

Essay 1. Reprinted from Law Quarterly Review, vol. 70 Oan. 1 954), by permission of Sweet & Maxwell Ltd. Essay 2. Reprinted with permission from Harvard Law Review, vol. 71 (Feb. 1 95 8 ) . Copyright © 1958 Harvard Law Review Association, Cambridge, Mass. Essay 3. Reprinted by permission of the publisher from the Encyclopedia of Philosophy, Paul Edwards, Editor in Chief, vol. 6, pp. 264-76. Copyright ©19 67 by Macmillan, Inc. Essay 4. This article was originally published in 1 1 Georgia Law Revie w, No.5 and is reprinted by permission. Essay 5. Reprinted by permission from 1776- 1976, 5 1 New York Law Review 538 ( 1 976). Essay 6. Reprinted by permission of Cambridge University Press from Cambridge Law Journal, vol. 1 7 ( 1 959 ), pp. 233-40.

Essay 7. Reprinted by permission of Norstedts, Stockholm, Sweden from Festskrift till Karl Olivecrona, pp. 307- 1 6 ( 1 9 64). Essay 8. Reprinted by permission of the Tulane Law Review Association from Tulane Law Review, vol. 53 , No.3 (April 1 9 79 ).

Essay 9. Copyright © 19 83 by the Directors of the Columbia Law Review Association, Inc, all rights reserved. This article originally appeared at 79 Col. L. Rev. 828- 46 ( 1 979). Reprinted by permission. Essay 10. Copyright © 1 9 73 The Universi ty of Chicago Law Review. Reprinted with permission from 40 U. Chi. L. Rev. 534-55 ( 1 97 3) . Essay 11. Copyright © 1 9 67 The University of Chicago Law Review. Reprinted with permission from 35 U. Chi. L. Rev. 1- 1 3 ( 1 967).

viii

ACKNOWLEDGEMENTS

Essay 12 . Rep rinte d by permission of Vandenh oeck & Ruprecht Verlag. from Jherings Erbe, Gottinger Sym­

posium zur 1 5 0 Wiederkehr des Geburtstags von Rudolph von Ihering, e d. F. Wieacker and Chr. Wollschlager (1970). Essay 13. Reprinted with permission from The New Review of Books. Copyright © 1963 Nyrev, Inc. .

York

Essay 14. Reprinte d with permission from UCLA Law Re­ view, vol. 10 (1963), pp. 709-28. © 1963 The Regents of the University of Calif ornia.

Essay

15. Reprinted from Ethics and Social Justice, edited by Howard E. Kiefer arid Milton K. Munitz, by permission of the publisher. © 1968 , 1970, State University of New York Press, Alb any, New York. All rights reserved.

Essay 16. Reprinte d with Review, vol . 78 (1965), Harvard

Law

permis sion from Harvard Law pp. 1281-96. Copyright © 1965 Review Association, C ambridge , Mass.

Essay 17 . Reprinted by permis sion of the publisher from Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross, edite d by Colin Tapper (Butterworth, 1981).

Introduction I

The seventeen ess ays collected here were written over a period of twenty-eight years (1 953-8 1 ) and cover a wide range of topics. I have arranged sixteen o f them in more or less distinct groups , roughly labelled , as follows: I, General Theory; II, American Jurisprudence; III, Scandinavian Jurisprudence ; IV, Liberty , Utility , and Rights ; V, Four Legal Theorists . The last essay included here (Essay 1 7 : The House of Lords on Attempting the Impossible) s tands apart from the rest, since it deals not with any recognized philo ­ sophical or jurisprudential issue but with what was , until its elimination by statute in 1 981 , a particular doctrine of English Criminal Law. My justification for including it here is that it brings a distinction established in modem philo­ sophical sem antics to the solution or dissolution - of a perplexity concerning the notion of an attempt which has long plagued lawyers on both sides of the Atlantic . I hope that my use of philosophy in this last essay supports the belief on which I have acted in most of my work, that if there is some philosophical point which can clarify or settle issues which non·philosophers have found problematic , it is always possible simultaneously to expound for them the philosophical point and to use it for that purpose . In the course of the years during which these e ssays were written some of my views have changed. Though I still adhere to the central themes for which I argue in these essays , there are certainly points where I now think I was mistaken, o thers which I failed to relate to important wider issues or presented in an oversimplified or confused form. I have learned much during this period fro m my many critics, some of whom, including Professor Dworkin , Dr Raz and Dr Finnis, and the late Pro fessor Lon Fuller , l have produced theories o f their own in which my works are taken as a principal target. I have als o learnt much during the period covered by these -

1

See references to their works added to several of these essays.

2

INTRODUCTION

essays from later developments in philosophy. Thus, to take one example , which I discuss further below, had I commanded at the time of writing Essay Un 1953 the seminal distinction between the 'meaning' and the 'force' of utterances , and the theory of 'speech acts ' the foundations of which were laid by J . L. Austin, I should not have claimed that statements of legal rights and duties were not 'descriptive' , or have suggested, as I did by calling them 'conclusions of law' and 'the tail ends o f legal calculations' , that such statements were always put forward as inferences drawn by their authors . I have , however, notwithstanding recognition of errors in these ess ays , left the text untouched while adding to most of them a postscript re ferring the reader to the most important criti­ cisms which they have attracted , or to opposed views . Perhaps the following observations ( which I hope are not excessively autobiographical) will sufficiently indicate and explain the character and degree of error as I now retrospec­ tively see it in these essays. In 1953 when I was elected to the Olair of Jurisprudence at Oxford my qualifications were unorthodox. I had no law degree, but for eight years before the war I had practised as a Olancery Barrister and for seven years after the war I had taught philosophy at Oxford. Those seven years fell within the period when the approach to philosophy which became known as 'linguistic philosophy ' was at its most influential both in Oxford and Cambridge . There were important differences of emphasis and aim between the Oxford variant of this form of philoso p hy , where J. L. Austin was its leading exponent, and the Cambridge variant which flourished under Wittgenstein . None the less b o th were inspired by the recognition of the great variety of types of human discourse and meaningful communication, and with this recognition there went a conviction that longstanding philosophical perplexities could often b e resolved not by the deployment of some general theory but by sensitive piecemeal discrimination and characterization of the different ways , some reflecting different forms o f human life , in which human language is used . According to this conception o f philoso phy it had been a blinding error o f much philosophy in the past, and mo st recently and notably of the Logical Positivism o f the pre-war years , to assume that there are only a few forms of discourse (empirical ' fact-stating' discourse

INTRODUCTION

3

or statements of definitional or logically necessary truths) which are me aningful , and to dismiss as meaningless or as mere expressions o f feeling all other uses o f language which, as in the case o f some metaphysical statements or moral judgements, could not be shown to be disguised o r complex forms of the few favoured types of discourse. Linguistic philosophy thus conceived as an elucidation of the multiple forms and diverse functions o f language knew no boundaries of subject-matter : its insights and illumination were available for the clarification not only of the discourse of everyday life but of any discipline at the points where there were reasons for thinking that a failure to grasp the differences between one form of discourse and another, which were often concealed by identical grammatical forms, have produced perplexity or confusion. So in Essay 1, written under the p owerful and exciting influence of these ideas, I attempted to demo nstrate the relevance of this, form of linguistic philosophy to the philosophy o f law and jurispru. dence. For it seemed to me (and still seems) that attention to the diverse and complex ways in which words work in conjunction with legal rules of different types would serve to dispel confusion, such as that which had helped to generate vague inconclusive and conflicting theories of the nature of corporate bodies and corporate personality, which had long haunted jurisprudence , or had led serious jurists to claim that statements of legal rights referred to imaginary or fictitious entities 'having nothing to do with reality ', or, alternatively, were predictions of juridical action. It is true that legal nouns like 'right', 'duty', or the name o f a limited company seem not to have obvious counterparts in the world for which they stand or which they mean, and this has b een one persisting source of perplexity. As Bentham had seen , attempts to define such expressions per genus and species in abstraction from the sentences and context in which they normally function had proved fruitless. But, as I argued here, what was needed was a close examination o f the way in which state· ments e.g. o f legal rights or of the duties o f a limited company relate to the world in conjunction with legal rules, an d the important first. step to take was to ask under what conditions statements of this kind have a truth value and are true. In other essays (Essays 3 and 12) I draw attention to some

4

INTRODUCTION

other specific themes of linguistic philosophy which are of particular relevance to jurisprudence. These include the

identification of a 'performative' use of language, where words are used in conjunction with a backgr ound of rules or conventions to change the normative situation of individuals and so have normative consequences and not merely causal effects. Thus, as I briefly show, this use of language is involved not only in the enactment of legislation (too often mis­ assimilated to the simpler notion of a command), but in various legal transactions or so-called acts-in-the-Iaw. Attention to the various modalities of the performative use of language serves to clarify among other things the idea of legal powers, contracts, and conveyances, and serves to disentangle what is true in the longstanding, competing will-theories and objective theories of contract. It also makes evident the interesting connections between such important legal phenomena and less formal ways 'of doing things with words' such as a christening ceremony, vows, and (though this is still contro­ versial) the making of a promise. So too, as I attempt to show in Essays 3 and 12, philos­ ophers' discussions of the 'open texture' of language and generally of the ways in which the classificatory terms of a natural language may prove indeterminate is relevant to the study of adjudication and legal reasoning. Similarly, their insistence that there is not just one form of justification (the possession of common qualities) for classifying particulars under the same general term serves to free speculation from a cramping prejudice which has complicated both general accounts of the nature of law and the exposition of particular legal concepts such as that of possession. II

These and other insights of modem linguistic philosophy are I think .of permanent value, and the analytical study of the law has been advanced by them, but I certain ly see a number of defects in my deployment of these ideas in my early essays. Thus the concept of different 'uses of language' is not as simple as I suggested; it is itself in need of clarification, there being a number of different senses of 'use'. Hence, in Essay 1 I fail to allow for the important distinction between the

INTRODUCTION

5

relatively constant me aning or sense of a sentence fixed by the conventions of language and the varying 'force' or way in which it is put forward by th e writer or sp e aker on different occasions. 'There is a bull in the field' has the same meaning or content whether it is intended by the author as an answer to requests for information or as a warning or hypothe sis. Neglect of this distinction, to which I later drew attention in Es say 3, vitiates part of my account in E ssay 1 of the meaning of statements of legal rights or statements about corporations. It was just wrong to say that such statements are the conclu­ sions of inferences from legal rule s, for su ch sentences h ave the same meaning on different occasions of u se whether or not the speaker or writer puts them forward as inferences which he has drawn. If he does put such a statement forward as an inference , that is the force of the utterance on that occasion, not part of th e meaning of th e sentence . What comp ounds my error is that though I sp eak of such sentences as cap able of being true or false I deny that they are 'descrip­ tive' as if this were excluded by the status which I wrongly assign to them as conclusions of law, and my denial that such sentences are 'descriptive' obscured the truth that for a full understanding of them we must understand what it is for a rule of conduct to require, prohib it, or p ermit an act . A more general defect in my early invo cation in juris­ prudence of linguistic philosophy was a failure to make clear that an understanding, however sophisticated or profound, of the workings of language could only yield signifi cant results for jurisp rudence where difficulties had arisen from a failure to identify the way in which some p articular use of language deviated from some tacitly accep ted paradigm, or where radically different forms of expression were mistakenly assimilated to some familiar form. Misleading j urisprudential the orie s such as those designed to exp lain the concepts of a corporate body or legal rights or legal transactions such as contract had arisen in p art in these ways, but I should h ave emphasized that it i s an important feature of those legal concepts, which linguistic philosophy could help most to free from misunderstanding or confusion, that they constituted sources of p erplexity even when their app lications to particular cases were un controversial, and even for those who h ad a perfect mastery of these concepts within the field of their

6

INTRODUCTION

day-to-day use. The methods of linguistic philosophy which are neutral between moral and political principles and silent about different points of view which might endow one feature rather than another of legal phenomena with significance were suitable for such cases. Hence they are not suitable for resolving or clarifying those controversies which arise, as many of the central problems of legal philosophy do, from the divergence between partly overlapping concepts reflecting a divergence of basic point of view or values or background theory, or which arise from conflict or incompleteness of legal rules. For such cases what is needed is first, the identi­ fication of the latent conflicting points of view which led to the choice or formation of divergent concepts, and secondly, reasoned argument directed to establishing the merits of conflicting theories, divergent concepts or rules, or to showing how these could be made compatible by some suitable restriction of their scope. III

Essay 2, given as the Holmes Lecture at Harvard, contains the germ of many of the arguments which I used in defence of a form of legal positivism in the Con cep t of Law, published five years later. This has provoked a very large subsidiary literature, much of it critical of the two main themes of this essay: first, my denial that there are any important necessary connections between law and morality, and secondly, my insistence that in any modern legal system there must be many occasions where the settled law fails to dictate a decision either way, so that if courts }lave to decide such cases they must exercise a limited 'interstitial ' law-making power, or 'discretion'. I hope that I am not simply blinded by natural obstinacy or by age in still adhering to these now much criticized positions. But I certainly recognize that my treatment in this essay of both these issues is at some points over-simple and at others obscure.Thus in connection with the second of these issues it may seem from what I wrote in Essay 2 that I though t that judges, when they reach a point at which the existing settled law fails to determine a decision either way, simply push aside their law-books and start to legislate de novo for the case in

INTRODUCTIO N

7

hand without further reference to the law. In fact this has never been my view, and at various points in Es says 3 and 4 I show that among the features which distinguish the judicial from legislative law-making is the importance characteristically attached by courts, when deciding cases left unregulated by the existing law, to proceeding by analogy so as to ensure that the new law they make is in accordance with principles or under-pinning reasons which can be recognized as already having a footing in existin g law. Very often in deciding such cases courts cite some general principle or general aim or purpose which a considerable area of the exist ing law can be understood as exemplifying or advancing, and which points towards a determinate answer for the instant case. But to admit this is not to admit the correctness of a general holistic theory of law as a gapless system of entitlements, such as Dworkin has advanced and which I ar gue in Essay 4 is 'a noble dream' as remote from the truth as the 'nightmare' belief that judges never find but always make the law which they apply in particular cases. For though the search for and us e of p rin c iples underlying the law defers the moment, it cannot eliminate the need for judicial law-making, since in any har d case different principles supporting competing a nalogie s may present themselves and the judge will have to choose between them, relying like a conscientious legislator on his sense of what is best and not on any already established order of priorities among principles already pre scribed for him by the law. Only if for all s u ch cases there was always to be found, as Dworkin's theory implies, implicit in the e xisting law some unique set of higher order principles assigning relative wei ghts or p riorit ies to competing lower order principles would the moment for judicial l aw- ma k ing be not merely deferred but eliminated. But there is a more serious defect in my argument on this point, since it is one of substance, not merely of exposition. Essay 3 treats the indeterminacy of legal rules as if this was always a purely linguistic matter, that is, solely a function of the indeterminacy of the constituent words used in the fonnulation of a particular rule. In fact , as I came later to see and to say in Essay 4, the question whether a rule app lies or does not apply to some particular situation of fact is not the same as the question whether according to the settled

8

INTRODUCTION

conventions of language this is determined or left open by the words of that rule. For a legal system often has other resources besides the words used in the formulations of its rules which serve to determine their content or meaning in particular cases. Thus, as I say in Essay 3, the obvious or agreed purpose of a rule may be used to render determinate a rule whose application may be left open by the conventions of language, and may serve to show that words in the context of a legal rule may have a meaning different from that which they have in other contexts. My failure to make this clear amounts, as Fuller argued in his reply to Essay 2, to a defec­ tive theory of statutory interpretation, which I do something to correct in my later discussion, in Essay 3, of what it is that makes clear cases clear. Certainly my arguments need to be both amplified and corrected on this point. But their correction does nothing to support the claim that the law is a gapless system never incomplete and containing within it an answer to every question of law even in the hardest of hard cases, so that judges never have to exercise a law-making power in choosing between alternatives left open by the existing law. IV

My main concern however in Essay 3 was to defend the wisdom of insisting, as Bentham and Austin had, on the distinction between law as it is and law as morally it ought to be, against various forms of the claim that there are conceptual necessary connections, not merely contingent ones, between law and morality. Though Bentham's and Austin's general theory of law is unsatisfactory in other respects, which I indicated in this essay, the attempt to show that the distinc­ tion that they continually stress between what the law is and what it ought to be is misleading, itself rests on a confusion of issues which I attempt to disentangle and in particular on the misidentification of the 'purpose' or function which laws may have with a moral aim or value. However, I certainly failed to discuss adequately different forms of the claim that there is a conceptual connection between law and morality which are compatible with the distinction between law as it is and law as it ought to be. These include theories such as that

INTROD UCTION advanced by Fuller

9

(which I criticize in Essay 16), that

standards for the moral evaluation of law are implicit in the concept of law itself ('the inner morality of law'), even if laws often fail to satisfy such standards. Again, there need

to be considered theories asserting that even if the law falls so far short of what morally it ought to be that there is no moral obligation, all things considered , to conform to it, there is none the less always a prima facie moral reason for conforming to the law, even if this may be outweighed by the moral badness of a particular law. There is also to be considered the theory that the law always claims moral

authority, so that when courts hold that individuals have legal obligations to act contrary to their interest such holdings necessarily constitute a form of moral judgment, even if it is mistaken or insincere. (Theories of this latter sort do not strictly assert a conceptual connection between law and morality,

but

rather

between

law and certain professed

moral beliefs.) Since some important varieties of such theories form part of new comprehensive theories of law which have been elaborated since I wrote Essay 2, they certainly deserve consideration at length, but here I can only briefly indicate my objections to them. Thus, Dworkin has argued for the

superior adequacy of a concept of law which includes, besides

the explicit settled law of a system, a set of implicit principles hierarchically structured ('the soundest theory of the law') which both explains the settled law and .exhibits its best moral justification, and which will yield a determinate answer

when the explicit law fails to provide one. In addition to other difficulties (some of which I briefly note in Essays

4

and 5) this theory of law, though claiming to be distinct from 'orthodox natural law theory', seems to me to run into insuperable difficulties in its attempt to explain how there can be, as Dworkin admits, morally wicked legal systems in which what is legally right so far diverges from what is

morally right that a judge would have a moral duty to lie rather than say what the law really is. Raz, on the other hand, whose theory is generally of a severely positivist cast (since it requires that the law in any system be identified without reference to any moral criterion or argument and rejects any general moral obligation to

10

INTRODUCTION

conform to law), none the less holds out an olive branch to those who

claim

that there is

an

important conceptual

connection between law and morality. For he rejects what he terms the positivist semantic theory which claims that statements of rights, obligations, or duty have a different meaning in legal and moral contexts; his rejection, however, of this semantic thesis does not entail that statements of legal rights and duties etc. always constitute a moral judgment or moral endorsement of the law to which its author is com­ mitted.

For such statements,

according to Raz, may be

'detached', that is, made as if from the point of view of one who holds that there is a moral obligation to do what the law requires, yet made by one who does not share that point of view.

Such

detached

statements

explain

the

normative

language used by lawyers and others to describe the content of law without committi:o)g them in any way to its moral endorsement. On this view the main conceptual connection between law and morality reduces to the fact that where a legal system is in force its judges claim moral authority for the law and make committed statements of legal rights and duties, and so must believe or at least pretend to believe that there is a moral obligation to conform to law. But since according to this theory there is no general moral obligation to conform to the law, this may seem to be a minimal form of conceptual connection between law and morality, and certainly offers no ground for denying the distinction between law as it is and law as it ought to be. Yet, minimal as it is, it seems to me to be unrealistic to suppose that judges in making statements of legal obligation

must

always either believe or pretend to

believe in the false theory that there is always a moral obli­ gation to conform to the law. It seems to me that such statements may be better construed as stating what may be properly demanded of their subjects by way of action accord­ ing to the law which the judges accept as setting the correct standard of legal adjudication and law enforcement. Finnis's flexible interpretation of natural law is in many respects complementary to rather than a rival of positivist legal theory. For it is mainly concerned to elaborate a con­ ception of natural law as consisting of certain principles of 'practical reason' for the ordering of human life and society directed to the realization of certain allegedly self-evident

INTROD UCTION

11

objective values or forms of good, and then to show that for their realization an authoritative human law and respect for such authority are required. Failure on the part of human law to conform to such principles of practical reason render it defective or perverse in various degrees, but will not, as in some versions of natural law (which Finnis considers a distortion), deprive such laws of their legal status, though they may be considered 'less legal' on that account. On this view, which recognizes the distinction between law as it is and law as it ought to be, the chief conceptual tie between law and morality is that the conception of a system of law orientated to an objective common good and fully conforming to the requirements of practical reason not only furnishes the basic forms of criticism of actual legal systems but constitutes the most illuminating perspective for understand­ ing their actual working, the forms of legal reasoning, and the normative force of descriptions of the law in terms of rights, duties, and obligations. This conception is said to be the 'focal' meaning and central case of law. None the less positive law has a relative autonomy or independence of this ideal conception, so that lawyers for the internal purposes of the legal system properly speak of law and its obligations as if these were insulated from the moral merits of the law with which the 'flow' of practical reason is concerned. The chief and very great merit of this natural law approach is that it shows the need to study law in the context of other disciplines and fosters awareness of the way in which un­ spoken assumptions, common sense, and moral aims influence the law and enter into adjudication. But these valuable lessons can be taught in other ways, and my objection to their presentation in a revived form of natural law theory (apart from my disagreement with its underlying philosophy of self-evident objective values) is that its stress on an ideal form of law which satisfies the requirements of practical reason as the 'central case' or 'focal meaning' of law, and the treatment of morally bad law as 'less legal', will revive" old confusions between law and the standards appropriate for the criticism of law. Thus, in order to defend classical natural law theories from th e distortions of which Finnis considers positivist critics (including myself) have been guilty, it has to be elaborately explained how it is that famous phrases such

INTRODUCTION

12

as Aquinas's statement that 'law is nothing else than an ordinance of reason for the common

good?

is quite com­

patible with his statement that 'laws framed by men are either just or unjust'.3 It is so because while 'law' in the last

of

these two statements refers to positive law', in the first statement it refers to law satisfying all the requirements of practical reason and so morally binding. The identification of the 'central case' of law with law in its ideal form will, I

fear, invite a return to these obfuscating complexities. The contrary positivist stress on the elucidation of the concept of law, without reference to the moral values which it may be used to promote, seems to me to offer better guarantees of clear thought. But apart from this, the identification of the central meaning of law with what is morally legitimate, because orientated towards the common good, seems to me in view of the hideous record of the evil use of law for oppression to be an unbalanced perspective, and as great a distortion

as

the

opposite

Marxist identification of the

central case of law with the pursuit of the interests of a dominant economic class.

v

In Essay 6 I focus attention on some themes of modern Scandinavian jurisprudence descended from the work of Axel Hagerstrom. These are instructive and somewhat startling examples in the field of jurisprudence of the same failure on the part of philosophers of considerable power to appreciate the wide variety of forms of intelligible human discourse that led Logical Positivists to stigmatize as meaningless meta­ physical

statements

and

moral

judgments.

Hagerstrom

himself had understood more clearly than his predecessors that certain uses of language within the law were anomalous compared with what was commonly assumed to be its normal function. For he saw that the verbal forms used both in ancient and modern legal systems to effect such legal trans­ actions as the alienation of property, or the making of an 2 Summa TheoL I-II, Q. 90, art. 4. 'Definitio legis nihil est aliud quam quaedam rationis ordinatio ad bonum commune ab eo qui curam communitatis habet promulgata.' 3 Ibid., Q. 9 6 , art. 5. 'Leges positae hu manitus ,sunt vel justae vel injustae.'

13

INTRODUCTION

offer, a will, or a contract, were not, as their indicative grammatical

form

often suggested,

mere

reports

of the

intention or the will of those entering into such transactions, and

the conventional ju ri stic classification o f s uch verbal

forms as 'declarations of intention' left unexplained their dynamic role in changing the legal situation o f the p ar t i es . 4 But Hagerstrom's explanation of this phenomenon in temis

of beliefs in 'mystical bonds' and 'the magical' powers of

language to produce changes in a supernatural world of rights and duties simply abandoned the task of serious analysis of an important dimension of language, the use of which is not confined to legal contexts, and led his followers into a blind alley. Thus in

Alf

Ross,

the most acute and best-equipped

philosopher of this school, a narrow empiricist conception of rational meaningful discourse had bred a readiness to s e e

'superstition', 'fiction', o r 'meaningless metaphysics' 'raising

the law above the world of facts' as embodied in the norma­ tive concepts and modes of description customarily used by lawyers in representing the law. So he claimed that the only method of representation of the law fit to figure in a modern rational science of law was one which shared the structure and logic of statements of empirical science. In effect this involves an interpretation of propositions of law such

as

statements of legal validity or legal obligation or legal rights as essentially predictions of judicial behaviour accompanied by feelings of being bound by legal directives. My main objection to this reduction of propositions of law which suppresses their normative aspect is that it fails to mark and explain the crucial distinction that there is between mere regularities of human behaviour and rule-governed behaviour. It thus jettisons something vital to the understanding not only

of law but of any form of normative social structure. For the understanding

of this the methodology of the empirical

sciences is useless; what is needed is a 'hermeneutic' method which involves portraying rule-governed behaviour as it appears to its participants, who see it as conforming or failing to conform to certain shared standards. My explanation of the distinction which I have here called crucial is in terms 4 An Inquiry into the Nature of Law and Morals (Uppsala 1 953), pp. 5 ff. and

ch. 5.

INTROD UCTION

14

of the idea of the 'acceptance' of preferred patterns of conduct as guides and standards of criticism, and so of an attitude to conduct which I call an 'internal point of view'.

In the Concept of Law these ideas are elaborated further, though not wholly to my own satisfaction or that of those

of my critics who, while complaining of various detailed aspects of my exposition, have generally welcomed my introduction of these ideas into jurisprudence as constituting

an appropriate hermeneutic approach. However, in Essay 6, in explaining the important difference

between 'mere feelings of being bound' which Ross includes in his analysis, and the internal point of view of one who accepts a rule, I said something misleading. I drew a distinction between internal statements which manifest their authors' acceptance of a rule and external statements which simply state or predict certain regularities of behaviour whether it is rule-governed or not. But I wrongly wrote as if the normative vocabulary of 'ought', 'must', 'obligation', 'duty' were only properly used in such internal statements. This is a mistake, because, of course, such terms are quite properly used in other forms of statement, and particularly in lawyers' statements

of

legal

obligations

or

duties

describing

the

contents of a legal system (whether it be their own or an alien system) whose rules they themselves in no way endorse or accept as standards of behaviour. In so doing, lawyers report in normative form the contents of a law from the point of view of those who do accept its rules without them­ selves sharing that point of view. In terms of Raz's distinction, already mentioned, such statements of legal obligation: or 'detached', whereas the same statements made

duties are

by those who accept the relevant rule are 'committed'. Of course those who make such 'detached' statements must understand the point of view of one who accepts the rule, and so their point of view might well be called 'hermeneutic'. Such detached stateJ;Ilents constitute a third kind of statement to add to the two (internal and external statements) which I distinguish. To have made all this clear I should have empha­

sized that as well as the distinction between mere regularities of behaviour and rule-governed behaviour we need a distinc­ tion between the acceptance of rules and the recognition of their acceptance by others.

15

INTRODUCTION

The distinction between committed and detached norma­ tive statements and the clarification of the hermeneutic point of view throws light on what for many has been an obscurity in Kelsen's characterization of propositions of law made by legal theorists in expounding the law as 'rules in a

descriptive sense'. I discuss in Essay 1 4 Kelsen's account of 'ought-statements', in which the theorist of law represents the

norms,

as 'having merely a descriptive import',

but

though I had some glimmer then of important distinctions between committed and detached statements I did not see clearly that it was this distinction which Kelsen in effect was making.

In Essay 7 I confront another quite different case, where Ross claims to discover in lawyers' thinking a belief in the 'magical'_ He finds this in their recognition of provisions made by certain constitutional laws

'self-referring' for their own

repeal or amendment as legally valid and effective. English constitutional lawyers are familiar with

such

provjsions when

used to 'entrench' basic constitutional laws against change by ordinary methods. Ross, however, who apparently believed that no proposition (in which he included propositions of law) could logically or meaningfully refer to itself, claimed that if for exam.ple, Article 5 of the United States Consti­ tution, providing for the amendment of the Constitution,

were held by lawyers to apply to itself and be capable of being

amended by the procedure which it itself determined, this view was simply 'a social

psychological fact', and the belief

in

its legal validity was simply 'the expression of ideas which cannot be expressed rationally but only in magical terms'. In countering this extraordmary between

purely

claim

I drew a distinction

self-referring laws, which are indeed empty

for lack of other reference, and partly self-referring laws like

the constitutional provisions in question, which refer both to other laws and to themselves, and I endeavoured to show how these give rise not to a vicious infinite regress or any other logical vice, but to an, infinite series of possible appli­ cations. Since my competence as a formal logician

is very

limited I was glad to see this distinction accepted and formal­

ized by Mr John Mackie in his illuminating treatment of logical paradoxes_s While I think my arguments successfully 5 In Truth, Pro bability, and Paradox (Oxford, 1 9 73), ch. vi, pp. 285 ff.

16

INTRODUCTION

dispose of Ross's scepticism (and also of Kelsen's argument that Austin's claim that all laws must have a sanction provided by law commits him to a vicious infinite regress), there is one argument advanced by Ross which though mistaken does, as I now see, show that there was something to be explained

in what

Ross took to be problematic. He argued that where

one law authorizes the creation of other laws the c ontinuing validity of laws so created must logically depend on the continued existence of the parent law authorizing their creation. This is a mistake, though certainly in some juris­ dictions (including at one time English Common Law) the repeal of an enactment empowering rule-making has been taken to abrogate all rules made thereunder. But this is not a matter of logical necessity, and the contrary principle is widely accepted. However, what is true (and may have been confused by Ross with his mistaken claim) is that if courts affirm the continued validity of subordmate laws after the repeal of the parent law, without invoking any specific legal provision requiring this, they must tacitly accept the general prmciple that laws validly created according to the law at the time of creatio n remain valid until they expire accordmg to their terms, or are validly terminated according to the law at the date of purported termination. So the continuing validity of

subordinate

laws notwithstanding the repeal of their

parent laws depends on this principle and not, thought,

as Ross

on the continuing existence of the parent law.

Largely as the result of Finnis's discussion6 of this topic, I now see that

I

should have referred to this principle in my

answer in Essay 16 to Fuller's complaint that my theory of law left unexplained the sUIVival after a revolution of a great mass of laws made before the revolutionary break.

VI

In Essays

8- 1 1 I

consider different forms of liberal individual­

ism which have issued in theories of basic human rights or liberties, in assertions of the priority of liberty over other values, or in resistance to claims that the legal enforcement of a society's conventional morality may be required and 6 In 'Revoiutions and Continuity of Law', Oxford Essays in Jurisprudence, Second Series (1973),61-5.

INTRODUCTION

17

justified a s a means o f preserving society from 'disintegration'. My earlie st foray into this general field was an article 'Are there any Natural Rights? ' published in 1 9 55, and though it attracted some attention I have not included it here, since its main argument seems to me to be mistaken and my errors not sufficiently illuminating to justify re-printing now. The only part of that article which seems to me still to merit some consideration is my invocation of what has since b een called 'the principle of fair play' as one ground of political obligation. In Essay 3 I briefly summarize this principle and direct attention to the criticism which my original exposition of it has attracted. In Essays 8, 9, and 1 0 I consider three different attemp ts to provide a foundation for basic in dividual rights or liberties. In the first of these I discuss J ohn Stuart Mill's attempts to furnish such rights with a utilitarian foundation. I argue here (and more elaborately in a later essay on Bentham and Mill on natural rights)7 that in fact 'general utility ' plays no operative part in Mill's construction. Instead, his arguments point to the conclusion that a theory of basic individual rights must rest on a specific conception of the human person and of what is needed for the exercise and development of distinctive human p owers. I think, too, that the same lesson is to be learned from the attempts made by Nozick and Dworkin, which I examine in Essay 9, to base a theory of rights on the relatively uncontroversial ideas of the mere distinctness of individual p ersons or their claim to equal respect. I am confirmed in this belief by the fact that when Professor Rawls came to reply8 to my arguments in Essay 1 0, the modifications which he made in his original statement of his own theory to meet my objections app ear both to identify the basic liberties for which he argues and their priority over other values by reference to a conception of a human person and of what is necessary for the exercise and development of what he calls the moral p owers. In this version of his theory choice in the 'original position' seems to play a much dimin­ ished part in the determination of basic liberties. 7

In Essays on Bentham (Oxford 1 982), ch. IV. In 'The Basic Liberties and their Priority' in Tanner Lectures Values, iii ( 1 982), 1 . a

on

Human

18

INTRODUCTION VII

Two of the five essays ( 1 2- 1 6) devoted to individual legal theorists are concerned with Kelsen's work, which like others I have always found both fascinating and puzzling. I share with him the conviction that a central task of legal philo sophy is to explain the normative force of prop ositions of law which figure both in academic legal writing and in the discourse o f judges and lawyers. None the less the directions of our respective theories are quite different and my main effort in these two es says is to show that references to both psycho­ logical and social facts, which Kelsen's theory in its excessive purity would exclude, are in fact quite indispensable for the understanding o f many different asp ects of law. These include the concepts of legal wrong, legal obligation, legal sanctions, and legal system. No accep table accoun t of the e xistence of separate systems of law or the relations between municipal and international law can be given if such facts are exclu ded. I hop e that in what is a second exchange of friendly polemics between myself and Fuller ( Essay 1 6) I have not been unfair in my criticisms of his conception of an inner morality of law; but I see now largely as the result of Professor Lyon's essay on F ormal Justice9 that an argument similar to mine against Fuller might be used to show that my claim made in Essay 2 and rep eated in my Co ncep t of Law that a mipimal form of justice is inherent in the very notion of a general legal rule applied according to its tenor to all its ' instances is similarly mistaken. I am not sure that it is so, but I am clear that my claim requires considerable modification. 9 58 Cornell L. R. 8 7 3 ( 1 9 73 ) .

PART I GENE RAL THEORY

Essay 1

Definition and Theory in J u rispruden ce I

In law as elsewhere, we can know and yet not understand. Shadows often obscure our knowledge, which not only vary in intensity but are c ast by different obstacles to light. These cannot all be removed by the same methods, and till the precise character o f our p erplexity is determined we cannot tell what tools we shall need. The perplexities I propose to discuss are voiced in those questions of analytical j urisprudence which are usually characterized as requests for definitions: What is law? What is a State ? What is a right? What is possession? I choose this topic because it seems to me that the common mode of definition is ill adapted to the law and has complicated its exposition ; its use has, I think, led at certain points to a divorce between jurisprudence and the study of the law at work, and has helped to create the impression that there are certain fundamental concepts that the lawyer cannot hope to elucidate without entering a forbidding jungle of philosophi­ cal argument. I wish to suggest that this is not s o ; that legal notions however fundamental can be elucidated by methods properly adapted to their special character. Such methods were glimpsed by our predecessors but have only b een fully understood and developed in our own day . Questions such as those I have mentioned, 'What is a S tate ? ' , 'What is law?', 'What i s a right? ', have great ambiguity. The same form of words may be used to demand a definition or the cause or the purpose or the justification or the origin o f a legal or political institution. But if, in the effort to fre e them from this risk of confusion with other questions, we rephrase these requests for definitions as 'What is the meaning of the word "State " ? ', 'What is the meaning of the word "right" ? ' , those who ask are apt t o feel uneasy , a s i f this had trivialize d their question. For what they want cannot b e got ou t o f a dictionary, and this transfonnation of their question suggests

22

GENERAL THEORY

it can. This uneasiness is the expression of an instinct which deserves respect : it emphasizes the fact that those who ask these questions are not asking to be taught how to use these words in the correct way. This they know and yet are still puzzled. Hence it is no answer to this typ e of question merely to tender examples of what are correctly called rights, laws, or corporate bodies, and to tell the questioner if he is still puzzled that he is free to abandon the public convention and use words as he pleases } For the puzzle arises from the fact that though the common use of these words is known, it is not understood; and it is not understood b ecause com­ pared with mo st ordinary words these legal words are in different ways anomalous. Sometimes, as with the word 'law' itself, one anomaly is that the range of cases to which it is applied has a diversity which baffles the initial attempt to extract any principle behind the application, yet we have the conviction that even here there is some principle and not an arbitrary convention underlying the surface differences ; so that whereas it would be patently absurd to ask for elucidation of the principle in accordance with which different men are called Tom, it is not felt absurd to ask why, within municipal law, the immense variety o f different typ es of rules are called law, nor why municip al law and international law, in spite of striking differences, are so called. I Professor Glanville Williams in his beneficial article on 'International Law and the Controversy concerning the word Law' (British Year Bo ok of International Law, 1 945 , 1 48 ) advocates this short way with those who ask wheth er international law is law. B ut the way is really too short; for the puzzle is not generated always or only by the superstitions about words or e ssences, or the confusion of 'verbal' with factual questions which he attacks. Perplexity here arises from three factors: (i) the well founded belief that the word 'law' when used of municipal and international law is not a mere homonym ; (ii) the mistaken belief (false no t only of complex legal and political expressions like 'law', 'State', 'nation', but of humbler one s like 'a game') that if a word is not a mere homonym then all the instances to which it is applied must possess either a single quality or a single set of qualities in common ; (iii) an exaggeration of the difference between municipal and international law due to the failure to see that the ' command' of a sovereign is only one particular form of a general feature which is no doubt logically neces­ sary in a legal system, viz. some general test or criterion whereby the rules of the system are identified. Of course proper attention to these three factors will only show (by revealing the complexity of the issue and exposing some prejUdices) that to call international law ' law' in spite of its differences from municipal law is not arbitrary - just as to call patience a 'gam e' is not arb it rar y in spite of its differences from, say, polo. But there is no conclusive answer to give to those who are very impressed by the differences in either case.

DE FINITION AND THEORY IN JURISPRUDENCE

23

B u t in this and other cases, w e are puzzled by a different and more troubling anomaly. The first efforts to define words like ' c o rp o r at ion', ' r i gh t ' , or 'duty ' reveal that these do not have the straightforward connection with counterp arts in the world of fact which most ordinary words have and t o which we appeal in our definition o f ordinary words. There is nothing which simply 'corresponds' to these legal words, and when we try to define them we find that the e xpre s s io n s we tender in our definition specifying kinds of p ersons, things, qualitie s, events, and pro cesses, material or psychological, are never precisely the equivalent of these legal words, though o ften connected with th em in some way . This is most obvious in the case of expressions for corporate b o dies, and is commonly put by saying that a corporation is not a series or aggregate of persons. But it is true of other legal words. Though one who has a right usually has some expec­ tation or power, the expression 'a right' is not synonymous with words like 'expectation' or 'power' even if we add 'based on law' or 'guaranteed by law'. And so too, though we speak of men having duties to do or abstain from certain actions the word 'duty' does not stand for or describe any­ thing as o r dinary words do. It has an alt o ge ther different function which m akes the stock form of d e finit io n , 'a duty is a . . . ', seem quite inappropriate . These are genuine difficulties and in part account for something remarkable : that out of these innocent requests for definitions of fundamental legal notions there should have arisen vast and irreconcilable theories, so that not merely whole books but whole schools of juristic thought may b e characterize d by the typ e of answer t hey give to questions like 'What is a right?', or 'What is a corp orate b o dy ? ' . This alone, I th ink , suggests that something is wrong with the approach to definition ; can we really not elucidate the m e aning of words which every developed l e gal system handles smoothly and alike without assuming this incUbus of theory ? And the suspicion that something is amiss is con­ firmed by certain characteristics that many such th eorists have. In the first p lace they fall disquietingly o ften into a familiar t r i a d . 2 Thus the American Realists strivin g to give us 2 The general form of this recurrent triad may be summarily described as follows. Theories of one type tell us that a word stands for some unexpected

24

GENE RAL THE O RY

an answer in terms of plain fact tell us that a righ t is a term by which we d escribe the prophecies we make of the probable behaviour of courts or officials ; 3 the Scandinavian j urists, after dealing the Realist theory blows that might well be thought fatal (if these matters were strictly judged) , say that a right is nothing real at all but an ideal or fictitious or imaginary p ower,4 and then j o in with their opponents to denigrate the older type of theory that a right is an 'obj ective reality' - an invisible entity existing apart from the b ehaviour of me n. These theories are in form similar to the three great theories of co rp orate personality, each of which has dealt deadly blows to the o ther. There too we have been told by turn that the name of a cop orate body like a limited company or an organization like the State is really just a collective name or abbreviation for some complex but still plain facts about ordinary persons, or alternatively that it is the name of a fictitious person, or that on the contrary it is the name of a real person existing with a real will and life, but not a b ody o f its own. And this same triad of th eories has haunted the jurist even when concerned with relatively minor notions. Look for example at Austin's discussion of status S and you variant of the familiar a complex fact where we expect something unified and simple, a future fact where we expect something present, a psychological fact where we expect something external; theories of the second type tell us that a word stands for what is in some sense a fiction; theories of a third (now un· fashionable ) type tell us the word stands for something different from other things just in that we cannot touch it, hear it, see it, feel it. 3 W. W. Cook, The Logical and Legal Basis o/ the Co nflict of Laws ( Cambridge, MaSs., 1 949), 3 0 : ' '' Right'' "duty" are not names of objects or entities which have an existence apart from the behaviour of officials but terms by means of which we describe to each other the prophecies we make as to the probable the behaviour of officials we occurence of a certain sequence of events must therefore constantly resist the tendency to reify rights . 4 Karl Olivecrona, Law as Fa ct ( London, 1 9 39 ) , 9 0 : 'We hit the mark when we define a right as a power of some kind but this power does not exist in the real world it is not identical with the actual control . . . exercised by the owner nor with his actual ability to set the legal machinery in motion. It is a fictitious power, an ideal or imaginary power.' See also A. Hilgerstrom, Inquiries into the Na ture of Law and Morals (ed. Broad, Stockholm, 1 9 5 3), 4: 'The insuperable d ifficulty in finding the facts which correspond to our ideas of rights forces us to suppose that there are no such facts and that we are here concerned w ith ideas that have nothing to do with reality. ' On p. 6: 'Thus it is shown that the notions we question cannot be reduced to anything in reality. The reason is that they have their roots in traditional ideas of mystical forces or bonds. ' s Lectures on Jurisprudence ( 5 th edn., London, 1 8 8 1 ), ii. 609-700. . • .

. • •

.

• • •

.

•

. •

'

DEFIN ITION AND THEORY IN J URISPRUD E NCE

25

will find that the choice lies for him between saying that it is a mere collective name for a set of special rights and duties, or that it is an 'ideal' or 'fictitious' basis for these rights and duties, or

that it is an 'occult quality' in the p erson who has

the status, distinguishable both from the rights and dutie s and from the facts engendering them. Secondly, though these theories spring from the effort to define notions actually involved in the practice of a legal system, they rarely throw light on the precise work they do there. They seem to the lawyer to stand apart with their heads at least in the clouds; and hence it is that very often the use of such terms in a legal system is neutral between competing theories. For that use 'can be reconciled with any theory, but is authority for none ' . 6 Thirdly, i n many o f these theories there is often a n amalgam of issues that should be distinguished. It is of course clear that the assertion that corporate bodies are real p ersons and the counter-assertion that they are fictions of the law were often not the battIe-cries of analytical jurists. They were ways of asserting or denying the claims of organized groups to recognition by the State. But such claims have always been confused with the baffling analytical question, 'What is a corporate body?', so that the classification of such theories as Fi ction or Realist or Concessionist is a criss-cross between logical and political criteria. So too the American Realist theories have much to tell us of value about the j udicial process and how small a part deduction from predetermined premises may play in it, but the lesson is blurred when it is presented as a matter of definition of 'law' or 'a right' ; not only analytical jurisprudence b ut every sort of jurispru dence suffers by this confusion of aim. Hence, though theory is to be welcomed, the growth of theory on the back of definitio n is not. Theories so grown, indeed,

represent valuable

efforts

to

account

for many

puzzling things in law; and amo ng these is the great anomaly of legal language - our inability to define its crucial words in terms of ordinary factual counterparts. 7 But here I think 6 P. w. Duff, Personality in Roman Private Law (Cambridge, 1 9 38), 2 1 5. 7 See Olivecrona, op. cit. n. 4 supra, 88-9 . 'It is impossible to find any facts that correspond to the idea of a right. The right eludes every attempt to pin it d own and place it among the facts of social life. Though connected with the facts the righ t is in essence something different from all facts . ' •

.

.

26

GENERAL THEORY

they largely fail because their method of attack commits them al, in spite of their mutual hostility, to a form of answer that can only distort the distinctive characteristics of legal language. II

Long ago B entham issued a warning that legal words d emanded a special method of elucidation, and he enunciated a princip le that is the beginning of wisdom in this matter, though it is not the end. He said we must never take these words alone, but consider whole sentences in which th ey p lay their charac­ teristic role. We mu st take not the word 'right' but the sentence 'You have a right', not the word 'State', but the sentence 'He is a memb er or an official of the State . '8 His warning has largely b een disregarded and jurists have continued to hamme r away at single words. This may b e because he hid the produ ct o f his logical insight behind technical terms of his own invention 'Archetypation', 'Phraseoplerosis ', and the rest ; it may also be because his further suggestions were not well adapted to the peculiarities of legal language which as part of the works of 'J udge & Co .' was perhap s distasteful to him. But in fact the language involved in the enunciation and application of rule s constitutes a special segment of human discourse with special features which lead to con­ fusion if neglected. Of this type of discourse the law is one very complex example, and sometime s to see its features we need to look away from the law to simpler cases which in spite of many differences share these features . The economist or the scientist often uses a simple model with which to 8 See A Fragment o n Go vernment, ch. V, notes to section vi: § (5) 'For expounding the words duty, right, title, and those other terms of the same stamp that abound so much in e thics and jurisprudence either I am much deceived or the only method by which any instruction can be conveyed is that which is here exemplified. An exposition framed after this method I would term paraphrase. § (6) A word may be said to be expounded by paraphrases when not that word alone is translated into other words but some whole sentence of which it forms part is translated into another sentence. § ( 7 ) The common method of defining the method per genus et differentiam as logicians calls it, wil in many cases not at aU answer the purpose.' Cf. also Bentham, An Intro duction to the Principles of Morals and Legislation, ch. XVI, para 2 5 ; Of Laws in General, Appendix C, para. 1 7 ; Chresto mathia in Works, viii. 1 2 6 n. (Bowring edn., 1 838- 43) ; Essay on Logic in Works, viii. 246-8 1 .

D E F INITION AND THE O RY IN J URISP RUD ENCE

27

understand the comp lex ; and this can b e done for the law. So in what follows I shall use as a s imp le analogy the rules of a game which at many vital points have the same puzzling logical structure as ru les of law. And I shall describe four distinctive features which show, I think, the me th od of elucidation we should apply to the law and why the common mode of definition fails. 1 . First, let us take words like 'right' or 'duty ' or the names of corporations, not alone but in examples of typ ical contexts where these words are at work. Consider them when used in statements made on a p articular o ccasion by a judge or an ordinary lawyer. They will b e statements su ch as 'A has a right to be p aid £1 0 by B . '; 'A is under a duty to fence off his machinery. ' ; 'A & Comp any, Ltd. have a contract with B . ' I t i s obvious that the use o f these sentences silently assumes a special and very comp licated setting, namely the existence of a legal system with all that this implies by way of general obedience, the operation of the sanctions of the system, and the general likelihood that this will continue. But though this complex situation is assumed in the use of these statements of rights or duties they do not state that it exists. There is a parallel situation in a game. 'He is out' said in the course of a game of cricket has as its proper context the pla y in g of the game, with all that this imp lies by way of general compliance by both the players an d the officials of the game in the past, present, and future. Yet one who says 'He is out' d oes not state that a game is being played or that the players and officials will comply with the rules. 'He is out' is an expression used to appeal to rules, to make claims, or give decisions under them; it is not a statement ab out the rules to the e ffect that they will be enforced or acted on in a given case, nor any other kind of statement about them. The analysis of statements of rights and duties as predictions ignores this distinction, yet it is just as erroneous to say that 'A has a right' is a prediction that a court or official will treat A in a certain way as to say that 'He is out' is a prediction that the umpire is likely to order the batsman off the field or the scorer to mark him out. No doubt, when someone has a legal right a corresp onding prediction will normally be justified, but this should not lead us to identify two qu it e different forms of statement.

28

G E N E RA L THEORY

2 . If we take 'A has a right to be p aid £1 0 by B ' as an example, we can see what the distinctive function of this form of statement is. F o r it is clear that as well as presupp os­ ing the existence of a legal sy stem, the use of this statement has also a spe cial connection with a p articular rule o f the sy stem. This would be made explicit if we asked 'Why h as A this righ t ? ' F or the appropriate answer could only consist of two things : first, the statement of some rule or rules of law ( say those of Contract) , under which given certain facts certain legal consequences follow; and secondly , a statement that these facts were here the case. But again it is imp ortant to see that one who say s that 'A has a right' does not state the relevant rule of law; and that though, given certain facts, it i s correct to say 'A has a right', one who say s this does not state �r describe those facts. He has done something different from either of these two things : he has drawn a conclu sion from the relevant but unstated rule, and from the relevant but unstated facts of the case . 'A h as a right', like 'He is out', is therefore the tail-end o f a simple legal calculation : it records a re sult and may be well called a conclusion o f law. It is not therefore used to p re dic t the fu ture , as the American Realists say ; it re fers to the present, as their opp onents claim, but unlike ordinary statements does not do this by describ ing present or continuing facts. This it is - this matter of principle - and not the existence of stray excep tions for lunatics or

infants - that fru strate s the definition o f a righ t in factual term s such as expectations or p owers.

A p aralysed mart

watching the thie f's hand clo se over h is gold watch is p roperly said to have a righ t to retain it as against the thief, th ough he has neither e x p ectation nor power in any ordinary sense of these words. This is p o s sible just because the expre ssion 'a right' in this case does not describ e or stand for any exp ectation,

or p ower,

or indee d anything else,

but has

m e aning only as p art of a sentence th e function of which as a whole is to draw a conclusion of law from a specific kind of legal rule . 3 . A third pe culiarity is this : the assertion 'Smith has a

right to be p aid £ 1 0 ' said by a judge in deciding the case has a different statu s from th e utterance of it out of court, where it may be u sed to make a claim, or an admission and in many o ther ways . The ju dge 's u tterance is official, au thoritative ,

D E F INITION AND THEORY IN J URISPRUDENCE

29

and, let u s assume , final ; the o th er is none o f these things, yet in sp ite o f these differences the sentences are o f the same sort : they are both conclusio n s of law. We can comp are this similarity in sp ite of difference with 'He i s out' said b y th e

ump ire in giving his decision and said by a player to make a claim. Now of course the uno fficial u tterance may have to be

withdrawn in the ligh t o f a later official utterance , but this is not a sufficient reason for tre ating the first as a pr ophecy of the last, for plainly not all mi stakes are mistaken pre dictions.

Nor surely need the finality of a j u dge 's decision e ither be c onfused with infallib ility or temp t u s to define laws in terms

o f what courts do, even though there are m any laws which the courts mu st first in terpret b e fore they can ap ply them.

We can acknowledge that what the scorer say s is final ; yet we can still ab stain from defining the notion of a score as what the scorer says. And we can admit that the ump ire may be wrong in his decision th ough the rules give us n o remedy if he is and though there may b e doubtful cases which he has to decide with but little help from the rule s. 4 . In any system, legal or not, rule s may for excellent

practical reasons attach identical consequences t o any one of a set of very different facts. The rule o f cri cket attach e s the same con sequence to the b atsman's b e ing b owle d, stump ed,

or caught. And the word 'out' i s used in giving decisio n s or making claims under the rule , and in o ther verb al ap p lications o f it. It is e asy to see h ere that no one o f these different ways o f being out is more e ssentially what the word m e an s than the others, and that there need be nothing common to all the se way s of b e ing out other than their falling under the sam e rule , though there

may

be some similarity or analogy

b e tween them . 9 B u t it is less easy to see this in those imp ortant 9 Yet neglect of just these features of the language of rules has complicated the exposition of the concept of possession. Here the word is, of course, ambiguous as between (i) certain legal consequences attached to certain kinds of fact and (ii) those kinds of fact. But when we come to define the word in the second of these uses we are liable to assume that there is something which really or essentially is 'possession in fact' independent of any legal system, and that there is something illogica l in the terminology of a legal system if it does not confine its use of the word 'po ssession' to this (see Paton, Jurisprudence, 2nd e d n., 46 1 ) . But the only meaning of 'possession' which is independent of the rules of a legal system is the vague meaning in common non legal usage, and there is no logical vice in dis­ regarding this. Or aga in we may assume that there must be some single factor common to all the diverse cases which are treated alike by the rules. This will

30

GENERAL THEORY

case s where rules treat a se q uence of different actions or states of affairs in a way which unifies them. In a game a rule may simply attach a single consequence to the successive actions of a set of different men - as when a team is said to have won a game. A more comp lex rule may prescribe that what is to be done at one point in a sequence shall depend on what was done or occurred earlier; and it may be indifferent to the identity of the persons concerned in the sequence so long as they fall under certain defining conditions. An e xamp le of this is when a team permitted by the rules of a tournament to have a varying memb ership is penalized only in the third round - when the membership has changed - for what was done in the first round. In all such cases a sequence of action or states of affairs is unified simply by falling under certain rules ; they may be otherwise as different as you please. Here can be seen the essential elements of the language of legal corp orations. For in law, the lives of ten men that overlap but do not coincide may fall under separate rules under which they have separate rights and duties, and then they are a colleCtion of individuals for the law; but their actions may fall under rule s of a different kind which make what is to be done by any one or more of them depend in complex ways on what was done or occurre d earlier. And then we may speak in appropriately unified ways of the sequence so unified, using a terminology like that of corporation law which will show that it is this sort of rule we are applying to the facts. But here the unity of the rule may mislead us when we come to define this terminology. It may cast a shadow: we may look for an identical continuing thing or person or quality in the sequence. We may find it - in 'corporate spirit '. This is real enough ; but it is a secret of success not a criterion of identity . lead us either, as the classical theories do, to select one predominant case as a paradigm and to degrade the rest to the level of 'exceptions', or to obscure the real diversity of the facts with expository devices ( 'constructive' or 'fictitious' possession ) . Preo ccupation with the search for some common feature is apt in either case to divert us from the important inquiries, which are ( 1 ) what for any given legal system are the conditions under which possessory rights are acquired and lost; ( 2 ) what general features of the given system and what practical reasons lead to diverse cases being treated alike in this respect. Cf. Kocourek, Jural Relations ( Indianapolis, 1 9 2 7 ), ch. XX, passim , on 'continuing possession' and 'legal posse ssion'.

D E F INITION AND THEORY IN J URISPRUDENCE

31

III

These four general characteristics of legal language e x p lain bo th why definition of words like 'right', 'du ty ', and 'corp o r­ ation ' is baffled b y the ab sence of some counterp art to

'corre sp ond' to the se words, and also why the unobviou s

counterparts which have b e en so ingeniously contrived - th e future facts, the comp lex facts, or the psychological facts

�

tum out not to b e something in .terms of which we can define these words, although- to be connected with the m in co mplex or indirect way s. The fundamental point is that the primary

function of these words 1 o

is not to stand for or describe

anything but a distinct fun ction ; this makes it vital to att end to B en tham 's warning th at we should not, as does the tra­ ditional me thod o f definition, ab stract words like 'right! and 'duty ', 'State ', or 'c orp oration' from the sentences in which

alone their full fun ction can be seen, and then demand of them so ab stracte d their genus and differentia. Let us see wh at the use

of

this traditional meth o d of

definition presuppo ses and what the limits of its e fficacy are ,

and why it may be mi sleading. It is of course the simple st form

of definition, and also a peculiarly satisfying form

because it give s us a set of words which can always be substi­ tuted for the word d e fined whenever it is u s e d ; it giv e s us a comprehensible synonym or translation for the word which

puzzle s us. It is p eculiarly . ap propriate where the words have the straightforward function of standing for some kind of thing, or quality , p erson, process, or event, for here we are

not my stified or p uzzled ab out the general characteristics of our subj e ct-matter, but we ask for a definition simply to lo cate within this familiar general k,ind or class some special subordinate kind or clas s Y Thus since we are not puzzled 10

Lawyers m ight best understand the distinctive function

o f such expres sions has a right ' and o ther s which I discuss here , by co mpaIing them to the operative words of a conve y ance as distinct from th e descriptive w o rd s o f the re citals. The point of similarity i s that 'He has a righ t ', like 'X hereby c onvey s ', is u se d to operate w ith legal rules and not t o state or describe facts. Of course the re are gre at differehces: o ne who says 'He has a righ t ' o perate s with a ru le by drawing a conclusion fr o m it, where a s one who uses operative w ord s in a convey­ ance does sOlnething to which the rule a t t a c he s legal consequen ce s. I I B e nth am' s reason for rejecting the common method o f de fining legal w or ds was that 'among such abstract te rms we soon come to such as h ave no s upe r i or genus. A definition per genus et differentiam when app lie d to these it is manifest as 'He

GENE RAL THEORY

32

ab out the general notion s of furniture or animals we can take a word like 'ch air ' or ' cat ' and give the principle of its use by first sp ecifying the general class to which what it is used to

de scribe b elongs, and then going on to define the sp ecific

difference s that mark it o ff from o ther specie s o f the same general kind. And ' o f c ourse if we are not puzzled ab out the

general n o tion o f a corp o rate b ody, but only wish to know

how one sp ecies ( say a college) differs from ano ther ( say a limi ted comp any ) , we can use th is fonn o f de finition of single words p erfectly well. But j ust b ecause the method is

ap propriate at th is level o f inquiry, it cannot help u s when our p erp le xitie s are deeper. For if our question arises, as it

does with fundamental legal notions, b e cau se we are puzzle d ab out the gene ral category to which something belongs and ho w some gen eral typ e of expression relates to fact, an d not merely ab out the p lace within that category , then until the puzzle is cleared up this fonn of definition is at the b est un illuminating and at the worst profoundly misleading. It is unilluminating because a mode o f definition designed to lo cate some sub ordinate species within some familiar category canno t

e lucidate

the

characteristics

of

some

anomalou s

category ; and it is mi sleading because it will sugge st th at what is in fact an anomalo us category is after all s ome species of the familiar. Hence 'S tate ',

applie d to legal words like 'righ t ', 'duty ',

or

the common mode o f definition

suggests that the se words, like ordinary words, s tan d for or d e scrib e when

some

the

thing,

difficulty

p erson, of

quality ,

pro cess, or event ;

finding the se becomes apparent,

different contrivances varying with taste s are u se d to exp lain or exp lain away the anomaly. Some say the differen ce is that th e things for which these legal words stand are real but not sensory ; o thers that they are fictitious entitie s ; o th ers that th e se words stand for p lain fact but of a complex, future , or

p sychological variety. So this standard mo d e of definition force s our

familiar triad of theories into

existence as a

confused way of accounting for the anomalous character of legal words.

can make no advance As well in short were it to define in this manner a preposition or a conj unction a through is a a b ecause is a and so go on defining them.' A Fragment on Go vernment, ch. V, n. 6, § § 7-8. •

.

•

• • .

•

•

.

• • •

DEFINITION AND THEOR Y IN J URISPRUDENCE

33

How then shall we define such words? If definition is the provision of a synonym which will not equ ally puzzle us, these words cannot b e defined. But I think there i s a m ethod of elucidation of quite general app lication and which we can call definition, if we wish. B en tham and others p ractised it, though they did not pre ach it. But before applying it to the highly complex legal case s,

I

sh all illustrate it from the simple

case o f a game . Take the no tion of a trick in "a game of cards. Somebody says 'What is a trick ? ' , and you rep ly

will

'I

explain : when you have a game and among its rules is one providing that when each of our p layers has play ed a card then the p layer wh o has put down the highest card scores a p o int, in th ese circums tances that p lay er is said to have "taken a trick" . ' This natural explanation h as not taken the form of a definition of the single word 'trick ' : no synonym h as been o ffere d for it. Instead we h ave taken a sentence in which the word 'trick ' play s its characteristic role an d ex­ p lained it first b y specifying the conditions under which the whole sentence is true, and se condly by sh owing how it is used case.

in

drawing a conclusion from the rule s in

a p articular

Supp ose now that after such an exp lanation y our

questioner pre sse s on : "taking

a

trick " ; but

I

'That is al very well, that e xplains still want to know what the word

" trick " means just by itself. I want a definition of " trick " ;

I want someth ing which can b e sub stitu ted fo r i t whenever it is used. ' If we yield to this demand for a single·word de finition we might reply :

'The trick is j ust a collective

name for the four cards. ' But someone may obj e c t : 'The trick is not j ust a name for the four cards because these four cards will not always constitute a trick . It must th ere­ fore be some entity to which the four cards belong. '

A

th ird

might say : 'No , the trick is a fictitious entity which the players pre tend e xis ts and to which by a fic ti on which is p art of the game they ascrib e the card s. ' But in so s im p le

a

case

we would not tolerate the se theories , fraught as th ey are

with m y stery and empty .of any guidance as to the use made

of the word within the game : we would stand by the original two-fold explanation ; for this surely gave us all we needed

when it explained the conditions under which the statem ent 'He has taken a trick ' is true and showed us how it w a s u sed in drawing a conclusion from the rule s in a p articular case .

34

GENERAL THEORY

If we turn b ack to B e nth am we shall find that when his · explanation o f legal notions is illuminating, as it very oft e n is, it conforms t o th i s me th od , though only lo osely . Yet curiously what he tells us to do is something different : it is to t ak e a word like 'right' or 'duty ' or 'State ' ; to emb ody it in a se n te n ce su ch as 'you have a ri gh t ' where it plays a characteristic role, and then to find a translation o f it into what we sh ould call factual termsY Thi s he calle d the method of paraphrase - giving phrase · for p hrase , not word for word. Now this meth o d is applicable t o many cases and has shed much light; but it distorts many legal words like 'right ' or 'duty ' whose characteristic role is not played in statements of fact but in conclusions of law. A paraphrase o f these in factual terms is not possible , and wh en B entham pro ffers such a paraphrase it turns out not to be one at all. But more o ft e n and much to our profit he does not claim t o paraphrase : but he makes a different kind of remark, in order to elucidate these words - remarks such as these : 'What you hav e a right to have me made do, is that which I am liable according to law upon a requisition made on your behalf to be punished for not doing', 1 3 or 'To know how to expound a right carry your eye to the act which in the circu ms tances in question would be a violation of that righ t ; the law cre ates the right b y fo rb id din g that act , . 1 4 These, thou gh defective, are on the right lines. T h e y are not para­ phrases but they specify some of the conditions necessary for the truth of a sentence of the form 'You have a right'. B entham shows us how these conditions in clu d e the existence of a law imp o sing a duty on some o ther p erson ; and more­ over, that it must be a l aw which provides th at the bre ach of the duty shall be visited with a sanction if you or someone on y our behalf so choose . This has m any v ir t ue s. B y refUSing to i d e n ti fy the meaning o f the word 'right' with any p sycho­ logical or p h ysi c al fact it correctly leaves o p en the questi o n whe ther on any giv en o ccasion a person who h as a right has 12 A ctually

he

made the

more

stringent requirement that the translations

should be in terms calculated to raise images of 'sub stances ' or 'perceptions'. This was

in accord with Bentham's form of empiricism, but the utility o f the method with the modern ' definition in �') is indepen­

of paraphrase s ( which is identical dent of th is requirement.

1 3 A Fragm ent on Go vernment, ubi sup • • 4 Introdu ction to the Principles of Morals and Legislation, ch. XVI, para. 25.

35

D E F INITION AND THEORY IN J URISPRUDENCE

i n fact any expe ctation or p ower ; and s o i t leaves u s free to tre at men 's expectations or p owers as what in general men will have if there is a system o f rights, and as p art of wh at

a system the

of

r

i gh t s is generally intended

improvements

whi ch

Some o f

to secure.

should b e made o n B enth am 's

efforts are obvious. Instead o f characteriz ing a right

in

terms

of punishment many would do so in terms of the remedy.

But I would p re fer to show the sp ecial p o sition of one who

has

righ t by

a

me ntioning

not the remedy

but the choice

which is op en to one wh o has a right as to whether the corre sp onding

duty

think, characteristic

shall be p erform e d or not. of th o se

For

laws th at confer

it is , I

righ ts ( as

di stinguished from those that only imp ose obligation s ) that

the obligation to p erform th e corre sp onding

du ty

is made

by law to depend on the choice of the individual who is said to have the right or to a c t on h i s behalf.

the

ch o ice of some p erson authorized

I would, there fore , tender the following as an elu cidation of the expression 'a legal righ t ' : ( 1 ) A s tatement of the form

'X has a righ t ' is true if th e following conditions are satisfie d :

(a )

There i s i n existen ce a legal system.

( b ) Under a rule or rule s of the system some o ther p erson

Y i s , in the events whi ch have hap p ened, oblige d to do or ab stain from some action .

(c)

This obligation is made by law dep endent on the cho i ce

either of X or some other p erson auth orize d

to

act on his

behalf so that e ither Y is b ound to do or ab stain from some

action only if X ( or some auth orized p erson) so ch o o se s or alternatively only until X (or su ch p erson) cho o ses o therwise.

(2) A

s tatement o f the form 'X has a right' is used to draw

a conclusion of law in a p articular case which falls un der su ch rules . l s

1 5 This deals only with a right in the first sense (correlative to d uty) distinguished

by H ohfeld. B ut the same form of elucidation can b e

'power',

and ' i m m un i ty ' , and will

I

used fo r the cases of 'liberty', is usually left unexplained,

think show what

viz. why these four varieties in sp i t e of differences are referred to a s 'rights'. element seems to be this: in all four case s the law

The

specifically recognizes the choice of an individual e ither negatively by not im p ed ing or obstructing it (liberty and immunity) or affirmatively by giving legal e ffe ct to it ( claim and power ). In the negative cases th ere is no law to interfere if the individual cho o se s to do or abstain from s o m e action (lib er ty) or to retain h i s legal position unchanged (immunity) ; in the affirmative case s the law gives legal effect to the choice o f an unifying

individual that some other person shall do or shall

ab stain from some action

GENERAL THEORY

36

IV

It is said b y many that th� j uristic controversy over the n ature of c orporate p ersonality is dead. If so we have a c orp se , and the opportunity to le arn from its anatomy . Let us imagine

an intelligent lawyer inno cent of theories of

corporate p ersonality becau se h e w a s educate d in a legal Arcadia

wh ere

rights

and

duties

were

ascribed only to

individuals and all legal theory is b anned. He is th en intro­

duced to o ur

own

and

other sy stems

and

le arns how in

practice rights and duties are ascrib e d to bodies like the University o f O xford, to the S tate, to idols, to the

hereditas

jacens

and also to the one-man tax-d odging company. He would learn with us that forms of statement were in daily u se by which rights were ascribed to Smith & Co. Ltd. in circu ms tance s and with consequen ce s p artly similar and

partly

different from th o se

in

which they were ascribed

to S mith . H e would s e e that t h e analogy w as o ften thin, but that, given th e circumstances sp ecified in the Companies

Acts and the general law, 'Smith & Co. Ltd. owes White applie d a s directly t o the 'Smi th owes White

£10.'

£1 0 '

facts after its own fashion as

Gradually he would discover that

many ordinary words when u se d of a l imited company were use d in a sp ecial manner. For he would early learn that even if all the memb ers and servants o f the comp any are dead th ere are yet conditions under which it is true t o say that the comp any still exist s ; if he was here in

1 9 36

he would have

learnt that it can be corre ctly said o f a foreign corp oration th at though dissolved it s till exists ; and if he stayed till

1 944

he would have learned that given certain circumstances

it i s tru e that a comp any has intended to dece ive. On his return to Arcadia he would tell of the extension to corp orate bodies of rule s worked out for individuals and of the analogie s followed and the adjustment of ordinary words involved in

thi s exten sion. All this he would h av e to do and could do without mentioning fiction , colle ctive names, abbreviations, or that the legal position of some other person shall b e altered. Of course when we say in any of these four senses that a person has a right we are not referring to any actual choice that he has made, but either the relevant rules of law are such that if he chooses certain consequences follow, or there are no rules to impede his choice if he makes it. If there are legal rights which cannot be waived these would need special treatment.

D E FINITION AND THEORY IN J URISPRUDENCE

37

o r brackets, or the Gesammtperson and the Gesammtwille of Realist theory. Would he not have said all there was to say about the legal personality of corporation? At what point then would the need be felt for a theory ? Would it n ot b e when someone asked 'When it is true that Smith owes Black £1 0, here is the name "Smith " and there is the man Smith, but when Smith & Co . Ltd. owes £1 0 to Black what is there that corresponds to "Smith & Co. Ltd." as the man Smith corre sponds to the name "Smith " ? What is Smith & Co. L t d. ? What is it, which has the right? Surely it can only be a collection of individuals or a real individual or a fictitious individual.' In other words we could make the simple Arcadian feel the theorists' agonies only by inducing him to ask 'What is Smith & Co. Ltd. ?', and not to admit in answer a descrip­ tion o f how, and under what conditions, the names of corporate bodies are used in practice, but instead to start the search for what it is that the name taken alone describes, for what it stands, for what it means . l 6 That the presentation o f the question in this way has been crucial in the growth of theory could be proved from many famous passages in the literature. Let me take one example . Maitland in his greatness indeed sensed that the choice did not nec«: ssarily lie , as it seemed, between the traditional theories, · and that ultimately some mode of analysis might supply a different answer. I do not understand why he is called a Realis tl 7 o r thought to h ave accepted the doctrine of Gierke that he expounded, for though he was certain that fiction and collective-name theories 'denatured the facts', he left the matter with a final question to which he then saw no answer. But observe the significant form that question took: he imagined a sovereign State and, inventing the Latin for Never-never land, called it Nusquamia. O f this he said: Like many other sovereign States, it o w e s money, and I w ill suppose that you are one of its creditors . . . 1 6 'It is highly improbable that they [ early Roman lawyers ] ever asked or were asked the question.' Duff, op. cit. n. 6 supra , 1 34. But the question is mistaken with regard to the form of answer that it sugge sts, and it is important to see this. 1 7 Cf. Duff, op. cit., 209 and 2 1 6 n. 3. See, for a discussion of the precise point where Maitland diverged from Gierke's Genossenschafttheorie J . A. Mack, 'Group Personality : Footnote to Maitland', Philosophical Q;tarterly , ii ( 1 9 5 2 ) , 249.

38

GENERAL THEORY

Now the que stion that I want to raise is this : Who is it that really owes you mo ne y ? Nusquamia? Gr an t e d , but can you convert the propo sition that Nusquamia owes you money into a serie s of propositions imposing duties on certain human beings that are now in existence ? The t as k wil n o t be e asy . Clearly you do not think th at every Nus quamian owe s you some aliquot share of the debt. No one thinks in t h at way . The debt of Vene zuela is not owed by Fu l an o y Zutano and the re st o f them. Nor, I think , sh al we get much good out of the word ' colle ctively ' , which is the smudgiest word in the English language, for the largest 'co lle ction' of zeros is o nly zero . I do not wish to say that I have sugge st ed an impo ssible task, and that the right-and-duty-bearing group m ust be for the philosopher an ultimate and unanalysable moral unit Only if that task can be performed, I think that in the intere sts of jurisprudence and of moral philosophy it is eminently worthy of circumspe ct performance. is .

.

.

Such was Maitland's question: when Nusquamia owes you money who owes you this? How should it be answered? Surely only by ceasing to b atter our heads against the single word 'Nusquamia'. Pressing the que stion 'Who or what when Nusquamia owes you £1 ,000 is it which owes you this? ' is like demanding desperately : 'When you lost that game what was it that y ou lost?' To the question so pressed the only answer is to repeat 'a game ', as to the other the only answer is to repeat 'Nusquamia'. This, of course, tells us precisely nothing, but is at least neither mystifying nor false. T o elucidate i t w e must obey Bentham 's first injunction: we must take the whole statement 'Nusquamia owes you £ 1 , 0 0 0 ' and de scribe i t s u s e perhap s a s follows : 1 . Here · in the territory of Nusquamia there is a legal system in forc e ; under the laws of this system certain pers ons on comp lying with certain conditions are authorized for certain purpo ses to receive sums o f money and to do other actions analogous to those required to make a contract of loan between private individuals. 2. When such persons do such acts certain consequences, analogous to those attached to the similar action s of private individuals, follow, including the liability of p ersons defined by law t o repay the sums o f money out of funds defined by law. 3 . The expression 'Nusquamia owes you £ 1 ,000' does not state the existence of these rules nor o f these circumstances, 18 'Moral Personality and Legal Personality', Co llected Papers (Cambridge, 1 9 1 1 ), iii. 3 1 8 1 9 .

D E F INITION AND THEORY IN J URISPRUDENCE

39

but is true in a particular case when they exist, and is used in drawing a conclusion of law from these rules in a particular case. How mu ch detail should b e given dep ends on the degree to which the questioner is p u zzled. If all that he is p uzzle d by is his inability to say who or what Nusquamia is an d the inade­ quacies of theories to explain this, he may be content with what has been done. But of course he may b e puzzled by th e notion of one and the same legal system existing throughout the lives of different men in terms of which this elucidation of 'Nusquamia' has been offered. 1 9 If so, this in its turn must be elucidated, as it can be in the same manner. There is of course nothing in this method to prevent its application to the ephemeral technical one-man company which Realists regarded as a difficulty for their theory . 2 0 To explain what a limited company is we must refer to the relevant legal rules, which determine the c onditions under which a characteristic sentence like 'Smith & Co. owes White £ 1 0 ' is true. Then we must show how the name of a limited company functions as part of a conclusion of law which is used to apply both special c ompany rules and also rules such as those of contract which were originally worked out for individuals . It will, of course, be necessary to stress that under the special condi tions defined by the special rules, other rules are applied to the conduct of indi­ viduals in a manner radically different from though still analogous to that in which such rules apply to individuals apart from such special c onditions. This we could express by restating the familiar principle of our c ompany law, 'A comp any is a distinct entity from its members', as 'The name of a limited company is used in conclusions o f law which apply legal rules in special circumstances in a m ann e r distinct from though analogous to those in which such rules are applied to individuals apart from su ch circum stances. ' This restatement would show that w e have t o d o not with anomalous or fictiti o u s entities, but with a new and extended 19

elucidate t h e expression ' t h e same legal system' by showing tru t h of statemen ts on the form. 'The sam e legal system is in force in England n o w as i n 1 900'. The fundamental question That i s , we must

what are conditions sufficient for the

here is the elucidation o f the expression ' the same rule' • •• See

Wo lff, 'On the Nature of Legal Persons', 54 Law Quarterly Reuiew, 494

at 504 ; Duff,

o p . cit. n.

6 supra, 2 1 8.

40

G E N E RAL THE O RY

though analogous use of legal rules and of the expressions involved in them. v

If we look now at the type of theory so attractive to common sense which asserts that statements referring to corporations ar e 'abbreviations' and so can be reduced or translated into statements referring only to individuals, we can see now in precisely what way they failed. Their mistake was that of seeking a paraphrase or translation into other terms of statements referring to corp orations instead of specifying the conditions under which such statements are tru e and the manner in which they are used. But in assessing these common·sense theories it is important to notice one very general feature of the language involved in the application of le gal rules which the attempt to paraphrase always obscures. If we take a very simple legal statement like 'Smith has made a contract with Y', we must distinguish the meaning of this conclusion of law from two things : from ( 1 ) a statement of th e facts required for its truth, e.g. that the parties have signe d a written agreement, and also from ( 2) the statement of the legal consequences of it being true, e.g. that Y is b ound to do certain things under the agreement. There is here at first sight something puzzling; it seems as if there is something intermediate between th e facts, which make the conclusion of law true, and the legal consequences . But i f we refer t o the simple case of a game w e can see what this is. When 'He is out' is said of a batsman ( whether by a player, or by the umpire) this neither makes the factual statement that the ball has struck the wicket nor states that h e is bound to leave the wicket; it is an utterance the function o f which is to draw a conclusion from a sp ecific rule under which, in circumstances such as these, consequences of this sort arise, and we should obviou sly neglect something vital in its meaning if, in the attemp t to give a p araphrase, we said it meant the facts alone or the consequences alone or even the comb ination of these two. The combined statement 'The ball has struck the wicket and he must leave the wieket' fails to give the whole meaning of 'He is out' because it does not reproduce the distinctive manner in which the original

D E F INITION AND THEORY IN J URISP RUDENCE

41

statement is used t o draw a conclu sion from a specific but unstated rule under which su ch a consequence follows on such conditions. And no p araphrase can both elucidate th e original and repro duce this feature.

I dwell on this p oint becau se it is here that th e common­ sense theories of corporate personality fail . 2 1 The theory

that statements referring to corp o rations are disguised ab brevi­ ations for s tatements ab out th e rights and du tie s of individuals was usually expounded with su ch crudity as not to deserve consideratio n. It is easy to see th at a statement ab out th e rights of a limited comp any is not equivalent to th e statement that its memb ers h ave those same rights. A conveyance by Smith & C o . Ltd. to the sole shareholder Smith i s o f course not a conveyance by S mith to Smith .

But

a few theorist s ,

among them Hohfeld, have stated this typ e o f th eory with a requisite degree of subtlety. Hohfeld saw th at to say that

Smith & Co. Ltd. has a contract with Y was , of course, not to say the same thing about the members o f the co mp any :

he thought it was to say some thing different and v ery compli­ cated about the way in which the cap acitie s, righ ts, p owers , privileges , and liab ilities of the natural p ersons concerned in the comp any had b een affe cte d . Though m o re formidable in this guise , the th eory fails becau se , alth ough it give s us th e legal

c onse quences

upon

th e

individuals

of

the

original

statement, it does not give us th e force and meaning of that statement itse lf. The alleged p arap hrase is less than th e original statement 'S mith & C o . Ltd. h as a contract with Y'

b e cause it gives no hint of what th e original statement i s u sed to d o , namely , to draw a conclu sion o f law from special rules relating to comp anie s and from rules extended by analogy from th e case

of individuals. So the p araphrase ,

comp lex and ingenious as it is, gives us t o o little ; b u t it als o give s us too mu ch . It dissipates the unity o f th e simple statement 'Smith & Co. has a contract w ith Y' , an d sub sti­

g

tutes a statement of the myriad legal ri h ts, duties, p owers ,

etc. , of numerous individuals o f whom we never have though t

21 It is also the explanation of the sense of a tertium quid between the 'facts' and the 'legal consequences' which trouble s the analysis of many legal notions, e.g. status. The status of a slave is not (pace Austin ) just a collective name for his special rights and duties: there is a sense in which these are the 'consequences' of his status; it is the sense in which the obligation to leave the wicket is a conse quence of being 'out'.

42

GENERAL THEORY

n or could have thought in making the original statement . 22 Hence it is that those who are attracted to this common-sense form of analysis feel cheated when they look at it more closely. And they are cheated ; only they should not in despair clutch at the Realist or Fiction theories. For the elements which they miss in the translation, the analogy with individuals, the unity of the original statement, and its direct application to fact cannot be given them in these theories nor in any translation of the original ; it can only b e given i n a detailed description of the conditions under which a statement of this form is true and of the distinctive manner in which it is used to draw a conclusion from specific rules in a particular case. I have of course dealt only with the legal personality of corporations. I have argued that if we characterize adequately the distinctive manner in which expressions for corporate bodies are used in a legal system, then there is no residual ques tion of the form 'What is a corp oration? '. There only seems to be one if we insist on a form of definition or eluci­ dation which is inappropriate. Theories of the traditional form can only give a distorted account of the meaning of expressions for corporate bodies because they all, in spite of their mutual hostility, make the common assumption that these expressions must stand for or describe something, and then give separate and incomp atible accounts of its peculiarity as a complex or recondite or a fictitious entity ; whereas the pe culiarity lies not here but in the distinctive characteristics of expressions used in the enunciation and application of rules. But of course it is not the legal p ersonality but the 22 See Rohfeld, Fundamental Legal Conceptions (New Haven, 1 9 23), 1 98 200, 2 20 ff. Though Rohfeld writes at times as if his complex statements of rights, duties, capacities, etc., were synonymous with the original statement about companies ['we mean nothing more than what can be explained by describing the capacities etc of the natural persons concerned' ) I think he also saw that statements concerning companies cannot be 'reduced' to statements con­ cerning individuals, but are as he says ' sui generis' ( 1 98), and that this is why fictionist, realist, and collective name theories all distort the concept of a corporate b ody. What he does not see is that in using these special forms of expressions we are not (my italics) 'describing the peculiar process by which the burdens and benefits of the corp orate members are worked out' ( 1 99), but drawing a conclu sion of law fro m special rules. What is ignored here is the distinction (see 27, supra ) , between the statement about a legal rule an d a statement which applies a legal rule by drawing a conclusion from it. To ignore this obscures the analysis of the notion of a c orporate body as much as that of a right. .

•

• .

• . .

43

D E F IN ITION AND THEORY IN J URISPRUDEN CE '

mo r al ' pe rs o n ali ty o f o rgan iz ed gro up s

that p erple xe s mo st ;

these exist ap art from legal rules ( one confu sing sense o f

'not fiction' is just t o assert this fact) , and n o c olle c t ive -n ame

or abbreviation th eory seems to b e adequate ; so we are temp ted to ask, 'W h at zs a Ch u r ch , a N a ti o n , a School?' ; '

What is any ass ociation or organized group? ' . B u t h e re t o o

w e should sub stitute

for this ever-b affling form o f question23 the followi n g : 'Under what co nd it i ons do we refe r to numb ers

and sequences of men as aggregates of individuals and under what conditions do we a d o p t instead unifying phrases ex­

tended b y analo gy from individual s ? ' If we ask this and investigate the conditions of use of ch arac teri st ic sentence s ( 'The Nation suffered for fi fty years ', 'T h e Un ive rsi ty ex­ p re s se d its gratitude', 'The crowd was angry') we shall cease to talk about gro up pe rs onali ty ( and inde e d i n di v i du al pe r sonali ty) as i f it were a single quality or set o f q uali tie s . For we shall find that there are many v ar ie t i es of widely different conditions (p sych ological an d others) under which we talk in this un i fy in g p e rs onal way . Some of these co nditions will be shown to be s ignifi can t for legal or political purpose s ; others will not. I t was surely one of the sentim entalit ie s o f Genossenschafttheorie that unity just as unity was made to appear sign i fi c an t or worthy of r e sp e c t , as comp ar ed with th e vu lgar plurality of persons s tr o lling in th e st re e t . After al mere unity is not very much, th ough it is far more v ariou s than it appears to b e . VI

If

we

put

aside

the question

'Wh at is a c o rp o r ati o n ? ' ,

and ask

in ste ad 'Under what typ e s of conditions does the law ascrib e

this is likely t o clarify the actual s y ste m an d b r ing out th e pre cise issues at stake when j ud ges , who are s u pp ose d not to legislate , mak e some new extension to corporate b o dies of rules wo rk e d out for individuals. Take for example the recent extension to c orp or atio ns of liability for crimes inv olvin g knowledge and liabilities to c orp orations? ' ,

working o f a legal

23 Baffling, that is, so long as we are puzzled about fundamentals, though

not

if we are concerned only with some particular specie s of organized group and its differences from o thers. See

3 1 -2 supra.

44

GENE RAL THEORY

intention, or some other me ntal element24 which are su ch that a natural p erson would not be criminally respo nsible if his servant with the requisite knowledge and in te n ti o n commi tted the actus reus in the course o f his employment. There are two ways , one illuminating and th e other misleading, of representing the issues at stake here : two ways, that is, o f in terpr e ting the word 'can' in the question 'can a limi ted comp any commit a crime

invo lving knowle dge and intention? ' be to exhibit the ob s t ac le to such an e xtension as consisting in the typ e of analogy that has heen followed in fi t ting corporate b o dies into the general stru c ture of our law. It is, of course, p redo m i n an tly the analogy with the case of an ind ivi dual held liable for what his servan,t does in the course of employment. It is by u se of this analogy that the liabilities o f corp orations were extended from contract to ordinary torts and th en to torts involving malice ; and the whole v o cab ulary of th e law of princip al and agent has b een adap ted to the case of the limited comp anie s . Bu t for crime s of t h e typ e under consideration this analogy is usele ss and the fundamental question is: is this th e only analogy available to the courts? Is the law clo sed on this matter, or are there o ther criteria for the application to companies of rules originally applied to individuals? In fact Th e illuminating way would

j udge s have felt th at th ey were not re stricted in this way, and of course it has often b een in English law to find

the actions and carrying on its

p o i nted out that it is possible authority for imputing to a company

mental states of tho se wh o are substantially

wo rk . How far thi s alternative source of analogy can or should b e utilized is o f course a debatable legal issue, but the imp ortant thing

is

to see

that

this

legal

issue, and not some logical issue, is the character of the question. Here then is the force of th e word 'can ' in 'can a

comp any b e liable for a crime involving intention to By contrast, the con fusin g way of stating the

deceive ? '. 2 5

issue is to b r ing

in definitions

of what a comp any is and to

24 DPP v. Kent and Sussex Co ntractors Ltd. [ 1 944) K.B. 1 46 : ( 'with intent to deceive made use of a document which was false in a material particular' and 'made a statement which they knew to be false in a material particular' ) . Mo ore v. Bresler, Ltd. [ 1 944] K.B. 5 5 1 : ( 'with intent to deceive made use of a docu­ ment false in a material particular' ) . 2 5 And surely it is in this way also that the still-debated question ' can a company be liable for an ultra vires tort?' sh ould be considered.

D E F INITION AND THEORY IN J URISPRUD ENCE

45

deduce from them answers to the question in hand. 'A comp any is a mere ab straction, a fiction, a metaphysical entity. ' 'A comp any has no mind and there fore cannot intend. ' These statements confuse th e issue b ecau se they look like eternal truths ab out the nature of corp orations given us by definitions ; so it i s made to appear th at all legal statements ab out corp orations

must

square with these if

they are not to be logically inconsistent. It seems there fore that there is some thing over and ab ove the analogies which are actually used in the legal system for the app lication to

corp orations of rules worked out for individuals , and that this limit s or controls that application. And of course a Fiction theory taken seriously can impose irrelevant b arriers j u st as much as a Realist theory : for just as a Realist theory app e ars to tell us that a comp any 'cannot' be b ound by an agreement emp owering ano ther comp any to d ire ct its bu siness and appoint its p ersonnel b ecau se this would b e 'to degrade to the po sition of a tool ' a p erson with a re al will,26 so a Fiction theory appears to say that a company ' cannot' b e

guilty o f certain crimes b ecau se it has no mind. Indeed the

suggestio falsi

in the use of the notion o f

'fic tion' in. the exp osition of this branch of the law meri ts our consideration. Its p eculiar vice is to conceal th at when words used norm ally of in dividuals are ap plie d to companie s as well as the analogy involve d , there is also involved a radi cal differ­

ence in the mode in which such expre ssions are now used and

so a shift in me aning. Even in the simple st case of all when

we say 'X is a servant of Y & Comp any' the facts which

j ustify the use o f the words 'X is a servant' are n ot just the same as the facts which supp ort 'Smith is a servant of Brown. ' Hence any ordinary words or phrase s when c onj oined with

the n ames of c orp orations take on a special legal u s e , for the words are now correlate d with the facts, not solely by the rules of ordinary English, but also by the rules of English law, much as when we extend words like 'take ' or 'lo se ' b y using them of tricks i n a game they b e come correlated with facts by the rules of that gam e . Now if we talk here o f 'fiction' w e cannot do j u stice t o this radical difference in use o f ordinary e xpre ssions when conj o ined with th e nam e s

26 See Wolff, op. cit. n. 20 supra , 5 4 Law QJ.larterly Review at 5 0 1 , citing decision of the German Supreme Court.

a

46

GEN E RAL THEO RY

of corp orations ; we can only distort it. For when, for examp le , we say of a comp any that it resides in England even though

its me mbers and servants were kille d last nigh t by a bomb , th e meaning of th ese words is to be found only by ex amining the legal rule s which pre scribe in what conditions such a statement is correct. But if we talk of 'fiction' we suggest

that we are using words in th eir ordinary sense and are merely

p retending

that

some thing

exists

to which they

apply. In novels - re al fiction - we do preserve the ordinary m e anin g s of words and pretend that there are persons of

whom they are true in their ordinary sense . This is just what we do no t do when we talk of corp orations in law. Yet one

of the most curious pieces of logic that ever threatened to ob struct the p ath of legal development owes, I think, its

origin to the confusion of su ch a shift in meaning with fiction . 2 7 It was once said that a corporation has no real will but a fictitious will imputed by law, and that since su ch a will so imp uted could effect on iy lawful ends, we cannot, if we are logically consistent, say that it could commit a crime, or even p erhap s a tort. Of course this use o f the fiction theory does conj ure up an allegorical picture : Law breathing into the nostrils of a Limited Company a Will Fi ctitious but, like th at of its Creator, Good. But the p icture is more misleading than even an allegory should b e , because it conceals th e fact that

the

w ord 'will ' shifts its me aning when we use it o f

a comp any : t h e sense i n which a company has a will is not that it wants t o do legal or ilegal actions but that certain expressions used to describ e the voluntary actions of indi­ viduals may be used of it under condition s prescrib ed by legal rule s. And from the b are fact that the law does

p rescribe such that

conditions for a wide range of expressions (which is al

imputing a will

to a comp any can mean) it cannot b e deduced that these conditions do not include the commission of a

criminal or tortious act. Analo gy with a living person and shift of me aning are there fore of the e ssence of the mode of legal statement wh ich refers t o corp orate bodie s. But these are j ust what they are. Analogy is not identity , so though we can now ( as lawyers) say that a comp any has intended to 2 7 On account of the standing possibility of this confusion I would abandon the Use of the word 'fiction' in the exposition of this branch of the law, though Dr Wolff ( op. cit. 505) was prepared to retain it 'as a formula'.

47

D E F INITION AND THEORY IN J U R ISP RUDENCE

de ceive, this has no theoretical conse quences ; and shift in meaning is not fiction, so the need fo r logical consistency with an irrelevant notion of a law- cre ated pure Will need not have been added to the difficulties o f judge s who,

in a case­

law system, have to decide how far the analogie s latent

in

the law p ermit them to extend to corp orations rule s work e d o u t for individuals when j u stice seems to demand i t . This p o st-mortem h a s lasted long. I will a d d only this . I t

would o f co urse b e the merest provincialism t o think of the history of jurispru dence in this matter of definition as a record of errors - even o f illuminating errors. It is on the cohtrary full of invaluable hints as to what should b e done to cater for the idio syncrasies of legal language and th e elu cidation of its special concepts. B e side s the precep ts and practice of B enth am, there is the practice of Austin at his best; there i s Bryce's pregnant ob servation28 that fundamental legal notions could p erhap s not be define d, only describ ed, and mu ch in Pollock and Maitland2 9 to show h ow the inter­

play of remedy with righ t has generated a sp e c ial u se o f words. There is mu ch , too, o f value i n Ko courek and K e ls e n

.

I wonder, be folly to see in the Dige st title De acquirenda vel de amittenda possessione with i t s evasion o f Would it,

the fruitle ss que stion 'What i s possession?' a n in stinctive recognition of the cardinal p rinciple that legal words can only be

elucidate d by

considering the conditions under which

statements in which they have their ch aracteristic use are true? But though

the subj e ct of legal definition has this

history, it is only sin ce the b eneficial turn of philosophical attention toward s lan gu age that the general fe ature s have

emerged of that whole s tyle o f human th ought and d is course which is concerned with rule s and their app lication to con­ duct. I at least could not see how mu ch o f this was

v

isib le

in the work s of our predecessors until I was taught how to

look by my contemp orarie s. 28 Studies in History and Jurisprudence (Oxford, 1 9 0 1 ) , ii. 1 8 1 . 'He [Austin] did not perceive how deep some of the difficulties of legal theory lie nor that there are some conceptions which it is safer to describe than to attempt to define.' But cf. Austin Lectures on Jurisprudence, 5th edn. , ii. 1 07 6 : 'In truth some of these terms will not admit of definition in the formal or regular manner : And as to the rest to define them in that manner is utterly useless. ' 29 History of English Law ( Cambridge, 1 89 5 ), ii. 3 1 ff. . •

48

GENERAL THEORY POSTSC RIPT

See for criticisms and comments : 1 . L. J. Cohe n , 'Theory and Definition in J urisprudence ' Pro c. A risto t. So c. SuppL xxix ( 1 9 5 5 ) , 2 1 3 ; and my reply thereto , ib id., 2 3 8 . 2 . P . M . Hacker, 'Definition in J urisprudence' Ph ilo soph ical Quarterly ; xix ( 1 9 69 ) , 343. 3 . J . Horwitz, Law and L ogic (Springer Verlag 1 9 7 2 ) , 1 5 6 . 4 . J. Ross, Portray ing A na/ogy ( Cambridge 1 9 8 1 ) , 202-7 .

E s s ay 2

Posi tivism and the S e p aration of Law and Morals

In this article I shall discuss and attempt to defend a view which Mr Justice Holmes, among others , held, and for which he and they have been much criticized. But I wish first to say why I think that Holmes , whatever the vicissitudes of his American reputation may b e , will always remain for English­ men a heroic figure in jurisprudence . This will be so because he magically combined two qualities : one of them is imagin­ ative power, which English legal thinking has often lacked ; the other i s clarity , which English legal thinking usually possesses . The English lawyer who turns to read Holmes is made to see that what he had taken to be settle d and stable is really always on the move . To make this discovery with Holmes is to be with a guide whose words may leave you un­ convinced, sometimes even repelled , but never mystified. Like our own Austin, with whom Holmes shared many ideals and thoughts , Holmes was sometimes clearly wrong; but again like Austin , when this was so he was always wrong clearly. This surely is a sovereign virtue in j urisprudence . Clarity I know is said not to be enough ; this may b e true, but there are still questions in jurisprudence where the issues are confused because they are discussed in a style which Holmes would have spumed for its obscurity . Perhaps this is inevitable : juris­ prudence trembles so uncertainly on the margin of many subjects that there will always be a nee d for some one , in Bentham's phrase, 'to pluck the mask of Mystery ' fro m its face . 1 This is true , to a pre-eminent degree , of the subject of this article. Contemporary voices tell us we must recognize something obscured by the legal 'positivists ' whose day is now over : that there is a 'point of intersection between law and morals'/ or that what is and what ough t to be are somehow 1 Bentham, A Fragment on Government, in I Works 22 1 , 235 (B owring edn. 1 83 8-43) (preface, 4 1 st para.). All references hereafter to B en th am' s Works are to this edition. • D'Entreves, Natural Law 1 1 6 ( 2nd edn. 1 9 5 2 ) .

50

GENERAL THEO RY o r ins ep arab le , ) though the po s i ti vists do these phrases mean ? Or r ath e r which of

indissolub ly fused denied it. What

the of

many thi ngs that they could

mean ,

do they

mean ?

Which

them do 'p ositivists ' deny and why is it wrong to do s o ? I

of an idea. At c l o s e of the eighteenth c ent ur y and the beginning o f the nin eteenth the most e arn e st thinkers in England about legal and social pro b l e m s and the architects o f gre at re forms were the gr e at Utilitarians. Two of th e m , Bentham and Austin , constantly insisted o n the need to distinguish , firmly and with the maximum of clarity , law as it i s from law as it o u ght to b e . This the me haunts t h ei r work, and they condemned the natural-law thinkers p re c is e l y because they had blurred this ap par ent l y s im p le b ut vital distinction . By contrast , at th e present time in this country and to a lesser extent in England, thi s sep aration between law and mo r al s is held to b e super­ ficial and wrong. S o m e c ri ti c s h ave tho u gh t that it blinds men to the true nature of l aw and its roots in so ciiiI life .4 Others have thought i t not o nl y intelle ctually mi s lead in g but c o r ­ ru p ti ng in practice , at its worst apt to weaken resistance to s tate tyranny or ab s ol uti sm , s and at i ts best apt to b r ing l aw into disrespect. The now p ej orative name 'Legal Positivism', I

shall present the subj ect as p art of the his tory

the

3 Fuller, The Law in Quest of Itself 1 2 ( 1 940 ) ; Brech, 'The Myth o f I s and Ought', 54 Harv. L. Rev. 8 1 1 ( 1 94 1 ) , Fuller, 'Human Purpose and Natural Law', 5 3 J. Philos. 6 9 7 ( 1 953). 4 See Friedmann, Legal Theory 1 54, 294-95 (3rd edn. 1 953). Friedmann also sayS of Austin that 'by his sharp distinction between the science of legislation and the science of law', he 'inaugurated an era of legal positivism and self-sufficiency which enabled the rising national State to assert its authority undisturbed by jur­ istic doubts'. Ibid. at 4 1 6. Yet, 'the existence of a highly organised State which claimed sovereignty and unconditional obedience of the citizen ' is said to be 'the political condition which makes analytical positivism possible'. Ibid. at 1 63. There is therefore some difficulty in determining which, in this account, is to be hen and which egg (analytical positivism or political condition) . Apart from this there seems to be little evidence that any national State rising in or after 1 832 (when the Province of jurispnt d en c e Determined was first published) was enabled to assert its authority by Austin's work or 'the era of legal positivism' which he 'in­ augurated'. S Se e Radbruch, 'Die Emeuerung des Rechts', 2 Die Wa ndLUng 8 (Germany } 94 7) ; Radb ru ch , 'Gesetzliches Unrecht und 'Obergesetzliches Recht', I S uddeu tsche Juristen-Zeitung 1 0 5 (Germany 1 946) (reprinted in Radbruch, Rechtsphilosophie 34 7 ( 4th edn. 1 9 50» . Radbruch 's views are discussed at 7 2-8 below.

POSITIVISM, LAW, AND MO RALS

like

51

m o s t terms

which are used as missiles in intellectual come to stand for a baffling multitude o f di ffer­ ent sins . One of them is the sin , real or alleged, o f insisting, as Aus t i n and Bentham did , on the separation o f law as it is and law as it ought to be. How then has this reversal o f the wheel c o me ab out? What are the theoretical errors in this distinction? Have the practi­ c al consequences of s t re s sing the distinction, as Bentham and Austin did, been bad ? Should we now reject it or keep i t ? In considering these questions we should recall the social phil­ o s op hy which went along with the Utilitarians ' insistence on this distinction . They stood firmly but on their own utilitarian ground for all the principles o f lib e rali sm in law and govern­ ment. No one has ever combined , with such even 'minded sanity as the Utilitarians, the pas sion for re form with respect fo r law together with due recognition of the need to c ontrol the abuse of power even when power is in the hands of re­ formers. One by one in Bentham 's works you can id e n ti fy the elements of the Rech tsstaat and all the princ ipl es for the defence o f which the t e rmi nology of natural law has in our day been received. Here are liberty of speech, and of p ress , the ri ght o f association ,6 the need that laws should be pub ­ lished and made widely known before they are enfo rce d , 7 the need to control administrative agencies,S the insistence that there should. be n o criminal li ability without fault ,9 and the importance of the principle of legality, nulla poena sine lege. 1 0 Some, I know, find the political and mral insight o f the Utilitarians a very simple one, but we should not mistake this simplicity for superficiality , nor forget how favourably their simplicities compare with the profundities of other thinkers . Take only one example : Bentham on slavery . He says the question at issue is not whether those who are he ld

b attles, has

6 Bentham, A Fragment on Government, in I Works 2 2 1 , 230 (preface, 1 6th para. ) ; Bentham, Principles of Penal Law , in I Works 3 65 , 5 74-5, 5 16-8 (pt. III, e. XXI, 8th para. , 1 2th para.). 7 Bentham, Of Promulgation of the Laws, in I Works 155 ; Bentham, Principles of the Civil Code , in I Works 297 , 323 (pt. I, c. XVII, 2nd para.) ; Bentham, A Fragment on Government, in I Works 22 1 , 233 n . [m] (preface, 35th para.) . • Bentham, Principles of Penal Laws, i n I Works 3 65, 5 1 6 (pt. III, c. XX I, 1 0th para. , 1 1 th para. ). • Bentham, Principles of Morals and Legislation, in I Works I, 84 (c. XIII). 1 0 Bentham, Anarchical Fallacies, in 2 Works 489, 5 1 1 - 1 2 (art. VIII) ; Bentham, Principles of Morals and Legislation, in I Works I, 1 44 (c. XIX, 1 1 th para.).

52

GENERAL THEORY

as slaves c an reason , but simply wh � ther they suffer. l l Does this not compare well with the discussion of the question in terms of whether or not there are some men whom Nature has fitted only to be the living instruments o f others ? We owe it to Bentham more than anyone else that we have stopped dis cussing this and similar questions of social policy in that form. So Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws . Why then did they insist on the separation o f law as it is and law as it ought to b e ? What did they mean ? Let us first see what they said. Austin formulated the doctrine :

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry ; whether it be or be not con­ formable to an assumed standard, is a different enquiry. A law, which actually exists, is a law , though we happen to dislike it, or though it vary from the text , by which we regulate our approbation and disappro­ bation. This truth , when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it. But simple and glaring as it is, when enunciated in abstract expressions the enu­ meration of the instances in which it has been forgotten would fill a volume. Sir William Blackstone, for example , says in his 'Commentaries', that the laws of God are superior in obligation to all other laws ; that no human laws should be suffered to contradict them; that human laws are of no validity if contrary to them ; and that all valid laws derive their force from that Divine original. Now, he may mean that all human laws ought to conform to the Divine laws. If this be his meaning, I assent to it without hesitation . . . . Perhaps, again, he means that human lawgivers are themselves obliged by the Divine laws to fashion the laws which they impose by that ulti­ mate standard, b ecause if they do not, God will punish them. To this also I entirely assent . . . . But the meaning of this passage of Blackstone, if it has a meaning, seems rather to be this : that no human law which conflicts with the Divine law is obligatory or binding; in o ther words, that no human law which conflicts with the Divine law is a la w . . . . 12

Austin 's protest against blurring the distinction between what law is and what it ought to be is quite general : it is a 11

12

edn.

Ibid. at

Aus tin,

1 954).

1 4 2 n. § ( c. XIX, 4th para. n. § ) . The Province of Jurisprudence Determined 1 84-5

( Library of Ideas

POSITIVISM, LAW, AND MORALS

53

mistake , whatever our standard o f what ought t o b e , what­ ever 'the text by which we regulate our approbation or dis­ approbation'. His examples , however, are always a con fusion between law as it is and law as morality would require it to be. For him, it must he remembered, the fundamental pri n ­ ciples of morality were God's commands , to which utility was an 'index ' : besides this there was the actual accepted morality of a social group or 'positive ' morality. Bentham insisted on this distinction without characterizing morality by reference to God b ut only, of course , by re fer­ ence to the principles o f utility . Both thinkers' prime reason for this insistence was to enable men to see steadily the pre­ cise issues posed by the existence of morally bad laws , and to understand the specific character o f the authority of a legal order. Bentham 's general recipe for life under the government of laws was simple : it was 'to obey punctually ; to censure freely 'P But Bentham was especially aware , as an an xious spectator o f the French revolution, that this was not enough : the time might come in any society when the law's commands were so evil that the question of resistance had to be faced , and it was then essential that the issues at stake at this point should neither be oversimplified nor obscured. 1 4 Yet this was precisely what the confusion between law and m orals had done , and Bentham found that the confusion had spread symmetrically in two different directions . On the one hand Bentham had in mind the anarchist who argues thus : 'This ought not to be the law, therefore it is not and I am free not merely to censure but to disregard it . ' On the other hand he thought o f the reactionary who argues : 'This is the law, there­ fore it is what it ought to b e ' , and thus stifles criticism at its birth. Both errors , Bentham th ou ght, were to be found in Blackstone : there was his incautious statement that human laws were invalid if contrary to the law o f God, 1 5 and 'that 13

Bentham, A Fragment on Governm ent, in I Works 2 2 1 , 230 (preface, 1 6th

para. ).

1 4 See Bentham, 'Principles of Legislation', in The Theory of Legislatio n I, 6 5 n. * (Ogden edn. 1 9 3 1 ) (c. XII, 2d para. n. * ) . 'Here we touch upon the m ost dif­ ficult of questions. If the law is not what it ought to be ; if it openly combats the principle of utility ; ought we to obey it? Ought we ' .. · · i olate it? Ought we to re­ main neuter between the law which commands an evil, and morality which forbids it?' See also Bentham, A Fragment on Go vernment, in I Works 22 1 , 2 8 7 - 8 (c. IV, 20th-25th paras. ). 1 5 I Blackstone, Commentaries * 4 1 . Bentham criticized 'this dangerous

54

GENE RAL THEORY

spirit of obsequious quietism that s eems constitutional in o ur Author' which 'will scarce ever let him recognise a difference ' between what is and what ought to be . ' 6 This indeed was for Bentham the occupational disease of lawyers : ' [I ] n the eyes of lawyers - not to speak of their dupes - that is to say, as yet, the generality of non-lawyers - the is and the ought to be . . were one and indivisible. ' 1 7 There are therefore two dangers between which insistence on this distinction will help us to steer : the danger that law and its authority may be dis­ solved in man 's conceptions of what law ought to be and the danger that the existing law may supplant morality as a final test of conduct and so escape criticism. In view of later criticisms it is also imp ortant to distinguish several things that the Utilitarians did not mean by insisting on their separation of law and morals . They certainly accepted many of the things that might b e called 'the intersection of law and morals'. First , they never denied that, as a matter of historical fact, the development o f legal systems had been powerfully influenced by moral opinion, and, conversely , that moral standards had b een profoundly influenced by law, so that the content of many legal rules mirrored moral rules or principles . It is not in fact always easy to trace this historical causal connection, but Bentham was certainly ready to admit its existence ; so too Austin spoke of the 'frequent coinci­ dence " s of positive law and morality and attributed the con­ fusion of what law is with what law ought to be t o this very fact. Secondly , neither Bentham nor his followers denied that by explicit legal provisions moral principles might at differ­ ent points be brought into a legal system and form p art of its rules , or that courts might be legally b ound to decide .in .

maxim', saying 'the natural tendency of such a doctrine is to impel a man, by the force of conscience, to rise up in arms against any law whatever that he happens not to like '. Bentham, A Fragmen t on Go vernment, in I Works 22 1 , 287 (c. IV, 1 9th para. ). See also Bentham, A Co mmen t on the Co mmentaries 49 ( 1 928) (c. III). For an expression of a fear lest anarchy result from such a doctrine, combined with a recognition that resistance may be justified on grounds of utility, see Austin, op. cit. n. 1 2 supra , at 1 86. . 16 Bentham, A Fragment on Governmen t , in I Works 221 , 294 (c. V, 1 0th para. ). 1 7 Bentham, A Co mmentary on Humphreys' R eal Property Code, in 5 Works 3 89. II Austin, op. cit. n. 1 2 supra, at 1 62.

55

POSITIVISM, LAW, AND MORALS

accordance with what they thought just or b est. Bentham in­ deed recognized, as Austin did not, that even the supreme legislative power might be subjected to legal restraints by a constitution 1 9 and would not have denied that moral prin­ ciples, like those of the Fifth Amendment, might form the content of such legal constitutional restraints . Austin differed in thinking that restraints on the supreme legislative power could not have the force o f law, but would remain merely political or moral checks ;20 but of course he would have rec­ ognized that a statute , for example , might confer a delegated legislative power and restrict the area of its exercise by re fer· ence to moral principles . What both Bentham and Austin were anxious to assert were the following two simple things : first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law ; and, conversely , it could not follow from the mere fact that a rule was morally desir­ able that it was a rule of law. The history of this simple doctrine in the nineteenth cen­ tury is too long and too intricate to trace here . Let me sum­ marize it by saying that after it was propounded to the world by Austin it dominated English jurisprudence and constitutes p art of the framework of most of those curiously English and perhaps unsatisfactory productions - the omnib us surveys o f the whole field of jurisprudence. A succession of these were published after a full text of Austin's lectures finally appeared in 1 8 63 . In each of them the utilitarian separation of law and morals is treated as something that enables lawyers to att ai n a new clarity . Austin was said by one o f pis English successors , Amos, 'to have delivered the law from the dead b ody of morality that still clung t o it ' ;2 1 and even Maine, who was I ' Bentham, A Fragment on Go vernment , in I Works 22 1 , 289-90 (c. IV, 33rd-34th paras.). 2G See Austin, op. cit. rio 1 2 supra, at 2 3 l . 2 1 Amos, The Science of Law 4 (5th edn. 1 88 1 ) . See also Markby , Elements of Law 4-5 ( 5 th edn. 1 896): 'Austin, by establishing the distinction between posi· tive law and morals, not only laid the foundation for a science of law, but cleared the conception of law of a number of pernicious consequences to which it had been supposed to lead. Positive laws, as Austin has shown, must be legally binding, and yet a law may be unjust He has admitted that law itself may be immoral, in which case it may be our moral duty to disobey it Cf. Holland, Jurisprudence 1 -20 ( 1 880). • . .

• . •

.

•

.

•

• • • . '

56

GENERAL THEORY

critical of Austin at many points , did not question this part of his doctrine. In the United States men like N. St. John Green ,2 2 Gray , and Holmes considered that insistence on this distinction had enabled the understanding o f law as a means of social control to get o ff to a fruitful new start ; they wel­ comed it both as self-evident and as illuminating - as a revealing tautology . This distinction is, o f course, one o f the main themes of Holmes 's most famous essay 'The Path of the Law' ,23 b ut the place it had in the estimation of these American writers is best seen in what Gray wrote at the tum of the century in The Nature and Sources o/ the Law. He said : The great gain in its fundamental conceptions which Jurisprudence made during the last century was the recognition of the truth that the Law of a State . . . is not an ideal , but something which actually exists . . . . [I] t is not that which ought to be , but that which is. To fix this definitely in the J urisprudence of the Common Law, is the feat that Austin accomplished. 24 II

So much for the doctrine in the heyday o f its success. Let us tum now to some of the criticisms . Undoubtedly , when Bentham and Austin insisted on the distinction between law as it is and as it ought to be, they had in mind particular laws , the meanings o f which were clear and so not in dispute, and they were concerned to argue that such laws , even if morally outrageous , were still laws. It is, however, necessary , in con­ sidering the criticisms which later developed, to consider m o re than those criticisms which were directed to this particular point if we are to get at the root o f the dissatisfaction felt ; we must also take account of the objection that, even if what the Utilitarians said on this particular point were true, their insistence on it, in a terminology suggesting a general cleavage between what is and ought to be law, obscured the fact that at other points there is an essential point o f contact b etween the two . S o in what follows I c onsider not only criticisms of the particular point which the Utilitarians had in mind, but also the claim that an essential connection b etween law and 2 2 See Green, Book Review, 6 Am. L. Rev. 5 7 , 6 1 ( 1 8 7 1 ) (reprinted in Green, Essays and No tes on the Law of Tort and Crime 3 1 , 35 ( 1 93 3 » . 2 3 1 0 Harv. L . Rev. 45 7 ( 1 89 7 ) . 2 4 Gray , The Nature and Sources of t h e Law 9 4 ( 1 st e dn. 1 909) ( § 2 1 3 ) .

57

POSITIVI S M , LAW , AND MO RALS

morals emerges i f we examine how laws , the m e anings of which are in dispute , are interprete d and applied in con crete cases ; and that this connection emerges again if we widen our p o in t o f view and as k , n o t whether every p articular rule of law must satisfy a moral minimum in order to b e a law, but whe ther a system of rules which alt o gether

failed

t o d o this

could be a legal syste m . There is , howeve r , o n e maj o r initial complexity by which criticism has been much confuse d . We must remember th at the Utilitarians combined with their insistence on the s e p ar­ ation of law and morals two other e qually famous b u t di stinct do ctrines . One was the important truth that a p urely analyti­ cal study o f legal con cepts , a study o f the meaning of the dis tin ctive vocab ulary of the l aw, was as vital to o ur und er­ stan ding o f the nature of law as histori c al or s o cio l o gical studies , though of co urs e it c o uld not supplant the m . The other doctrine was the famous imperative theory

of

law -

that l aw is essentially a command.

These

three d o ctrines constitute the utilitarian tradition in

jurisp rudence ; yet they are distinct do ctrines . It is possible to endors e the separati on between law and m orals and to value an alytical inquiries into the meaning of legal concep t s

and

y et

think it wrong to conceive o f law as essentially a command. One source o f gre at confusion in the criticism o f the s e p ara­ tion of law and morals was the belie f that the falsity of any one of these three do ctrines in the u tilitarian traditio n sh owed the o ther two t o be fals e ; what was worse was the failure to s e e that there were three quite sep arate do ctrines i n th i s tra­ dition . The indi s criminate use of the lab el 'positivi s m ' to des­ ign ate ambiguously each one o f the s e three sep arate d o ctrines

( toge ther

with s o me o thers which the Utilitarians never pro­

fes s e d ) has perhaps confused the issue more than any other

single factor.25 Some o f the early Ameri can cri tics of the

2 5 It may help to identify five ( there may be more) meanings of 'positivism ' bandied about in contemporary jurisprudence : ( 1 ) the contention that laws are c·ommands of human beings ; see 5 8-6 2 infra ; ( 2 ) the contention that there i� no necessary connection between law and m orals or law as it is and ough t to b e ; see 50 6 supra ; ( 3 ) the contention that the analysis (or study of the meaning) of legal concepts is (a) w�rth pursuing and (b) to be distinguished from historical inquiries into the causes oi: origins of laws, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, 'functions', or otherwise ; see 64-6 infra ;

58

GENERAL THEORY

Austinian doctrine were , however, admirably clear on just this matter. Gray , for example , added at the end of the tribute to Austin , which I have already quoted, the words : 'He may have been wrong in treating the Law of the State as b eing the com­ mand of the sovereign ' /6 and he touched shrewdly on many points where the command theory is defective. But other critics have been less clearheaded, and have thought that the inadequacies o f the command theory which gradually came to light were sufficient to demonstrate the falsity of the sep­ aration of law and morals. This was a mistake, but a natural one. To s ee how natural it was we must look a little more closely at the command idea. The famous theory that law is a command was a p art of a wider and more ambitious claim. Austin said that the notion of a command was 'the k ey to the sciences of jurisprudence and morals ', 2 7 and contemporary attemp ts to elucidate moral judgments in terms of 'imperative ' or 'prescriptive' utterances echo this ambitious claim. But the command theory, viewed as an e ffort to identify even the quintessence of law, let alone the quintessence of morals , seems breathtaking in its simplicity and quite inadequate. There is much, even in the simplest legal system, that is distorted if p resented as a command. Yet the Utilitarians thought that the essence of a legal system could be conveyed if the notion of a command were sup­ plemented by that of a habit of obedience. The simple scheme was this : What is a command? It is simply an expression by one person of the desire that another person should do pr abstain from some action, accompanied by a threat of punish­ ment which is likely to follow disobedience. Commands are laws if two conditions are satisfied : first , they must b e gen­ eral ; second they must be commanded by what (as both (4) the contention that a legal system is a 'closed logical system ' in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, p olicies, moral standards ; see 64-6 infra, and (5) the contention that moral judgments cannot be established or defended, as statements of facts can, by rational argument, evidence, or proof ( 'noncognitivism' in ethics ) ; see 82-3 infra. . Bentham and Aus tin held the views described in ( I ) , ( 2) , and ( 3 ) , but not those in (4) and ( 5 ) . Opinion ( 4) is often ascribed to analytical jurists ; see 64-6 infra , but I know of no 'analyst' who held this view. 26 Gray, The Nature and Sources of the Law 9 4 5 ( 2nd edn. 1 9 2 1 ) . 2 7 Austin, op. cit. n . 1 2 supra , a t 1 3. -

POSITIVISM, LAW, AND MO RALS

59

Bentham and Austin claimed) exists i n every p o litical s o ciety whatever its constitu tional form , namely, a p ers on or a group of p ersons who are in receipt of hab itual obedience from most of the society but p ay no such obedience to o thers . These p ersons are its sovereign. Thus law is the command of the un­ commanded commanders of society - the cre ation of the legally untrammelled will of the sovereign who is b y definition outside the law. It is easy to see that this account of a legal system is thread­ b are . One can als o see why it might seem that its inadequacy is due to the omission of some essential connection with mor­ ality. The situation which th e simple trilogy of comm and , sanc tion , and sovereign avails to describ e, if y o u tak e these notions at all p recisely , is like that of a gunman saying to his vic tim, 'Give me y our money or y our life . ' The only difference is that in the · c as e o f a legal system the gunman says it to a large number of people who are accustomed to the racket and habitually surrender to it. Law surely is n o t the gunman situation writ large , and legal order is surely n o t to be thus simply identified with compulsion. This sche m e , despite the p oints o f obvious analogy b e tween a s t atute and a command, omits some of the m o s t character­ is tic elements of law. Le t me cite a few. It is wrong to think o f a legislature ( an�

a fortiori

an electorat e ) with a changing

membership as a group of p ersons habitually ob eyed : this sim ple idea is suited only to a monarch su fficiently long-live d for a 'habit' to grow up. Even if we waive this p oint , n o thing which legislators do m akes law unless they comply with fun­ damental accepted rule s specifying the essential law-m aking procedure s . This is tru e even in a system h aving a simple uni· tary constitution like the B ritish. Th ese fundamental accepted rules specifying what the legislature must do to legislate are not comm an ds habitu ally obeyed, nor can th ey be expressed as habits o f obedience to persons. They lie at the ro ot o f a legal system ,

and what is most missing in the utilitarian

scheme is an analysis of what it is for a social group and its officials to accept such rules. Thi s notion, not that of a com­ m an d as Austin claimed, is the 'key to the science o f juris· prudenc e ' , or at least one o f th e keys. Again , Austin , in the case o f a dem ocracy , looked past the legislators to the electorate as 'the sovereign ' ( o r in Englan d

60

GENE RAL THE O RY

as part of it}. He thought that in the United States the mass of the electors to the state and federal legislatures were the sovereign whose commands, given by their 'agents ' in the legislatures, were law. But on this footing the whole notion of the sovereign outside the law being 'habitually obeyed' by the 'bulk' of the p opulation must go : for in this case the 'bulk' obeys the bulk , that is, it obeys itself. Plainly the gen­ eral acceptance of the authority of a law-making procedure, irrespective of the changing individuals who op erate it from time to time, can be only distorted by an analysis in terms of mass habitual obedience to certain pers ons who are by defi­ nition outside the law, just as the cognate but much simpler phenomenon of the general social acceptance of a rule, say of · taking off the hat when entering a church, would be distorted if represented as habitual obedience by the mass to specific persons. Other critics dimly sensed a further and more important defect in the command theory, yet blurred the edge of an im­ portant criticism by assuming that the defect was due to the failure to insist upon some important connection between law and morals. This more radical defect is as follows. The picture that the command theory draws of life under law is essentially a simple relationship of the c ommander to the commanded, of sup erior to inferior, of top to bottom ; the relationship is vertical between the commanders or authors of the law conceived of as essentially outside the law and those who are commanded and subject to the law. In this picture no place, or only an accidental or subordinate place, is afforded for a distinction between types of legal rules which are in fact radically different. Some laws require men to act in certain ways or to abstain from acting whether they wish to or not. The criminal law consists largely of rules of this sort : like commands they are simply 'obeyed' or 'disobeyed'. But other legal rules are presented to society in quite differ­ ent ways and have quite different functions. They provide facilities more or less elaborate for individuals to create struc­ tures of rights and duties for the conduct of life within the coercive framework of the law. Such are the rules enabling individuals to make contracts, wills , and trusts, and generally to mould their legal relations with others. Such rules, unlike the criminal law, are not factors designed to obstruct wishes

POSITIVIS M , LAW , AND MO RALS

61

and choices o f an antisocial sort. On the contrary , these rules provide facilities for the realization of wishes and choic es . They do not say (like commands ) 'do this whether you wish it or n o t ', but rathe r 'if you wish to do this, here is the way to do i t '. Under these rules we exercise p owers , make claim s , an d assert rights. These phras es m ark o ff ch aracteris tic fea­ tures of laws that confer rights and powers ; they are laws which are , so to sp eak, put at the disp osition of individuals in a way in which the criminal law is not. Much ingen uity has gone into the task of 'reducing' laws of this second s ort t o some c omplex variant o f laws o f t h e first sort. The e ffo rt t o sh ow that laws conferring rights are 'really ' only conditional stipulations of sanctions to be e x acted from the person ulti­

mately under a legal duty characterizes much o f Kelsen ' s work . 2 8 Y e t to urge this i s really just t o exhibit d o gmatic determination to suppress one asp ect of the legal system in

order to m aintain the theory th at the s tipulation o f a sanc­ tion, like Austin 's c ommand, represents the quintessence o f law. One might as well urge that the rules o f baseb all were 'really ' only complex c onditional directions to the s corer and that this showed their real or 'ess ential ' nature. One of the first j u rists in England to b reak with the Aus tin­ ian tradition, Salm ond, c omplained that the analysis in terms

of commands left the notion o f a right unprovide d with a

place. 29 But he con fused the point. He argued firs t, and cor­ rectly , that if laws are merely commands it is inexplicable that we should h ave come to speak of legal rights and p ow ers as conferred or arising under them , but then wrongly concluded

that the rules of a l e gal system must necessarily be c onnected with moral rules or p rinciples o f ju stice and that only on this fo oting could the phenomenon of legal rights be e xp laine d. Otherwise , S almond thought, we would have to s ay that a mere 'verbal coincidence ' connects the concepts of l egal and

moral right. Similarly , c ontinental critics of the Utilitarians , always alive to the c omplexity o f the n o tion of a subjec tive

.1 S ee, e.g. , Kelsen, General Theory of Law and State 58-6 1 , 1 43 - 4 ( 1 945 ) . According t o Kelsen, all laws, not only those conferring rights and powers, are reducible to such 'primary norms' conditionally stipulating sanctions • 9 Salmond, Th e First Principles of jurisprudence 9 7 - 8 ( 1 89 3 ) . He protested against 'the creed of what is termed the English school of juris p rudence', because it 'attempted to de prive the idea of law of that ethical significance which is one of its mos t essential elements'. Ibid. at 9, 1 0. •

62

GENERAL THEORY

right , insis ted that the command theory gave it no place. Hagerstrom insi s t e d th at i f laws were m e rely commands the notion of an individual 's right was re ally inexplicable, for commands are , as he s aid , s o m e thing which we either obey or we do not obey ; they do not confer rights. 3 0 But he, t o o , con­ clu d e d that moral , or, as he put it, comm on-sense, n o tions of justi c e must therefore b e necessarily involved in the analysis of any legal structure elaborate enough t o confer rights. 3 1 Yet, surely these arguments are confused. Rules that c onfer rights, though dis tinct from c ommands, need not b e moral rules or coincide with th em . Rights, after all, exist under the rules o f ceremonie s , gam e s , and in many other spheres regu­ lat e d by rules which are irrelevant to th e question of justice or what the law ought to b e . Nor need rules which c onfer rights b e just or m orally goo d rules. The rights of a master over his slaves s h o w u s th at. 'Their merit o r demeri t ' , as Austin termed it, depends on how righ ts are distribute d in society and over whom o r what they are exercised. These critics in­ deed revealed the in adequacy of the simple notions of com­ mand and habit for th e analysis of law ; at many p oints i t is app arent that the s ocial acceptance o f a rule or standard of auth ority (even if it is motivated only b y fear or superstition or rests on in ertia) must be brought into the analysis an d c an­ not itself b e r e d u c e d to t h e t w o simple term s . Y et nothing in this showed the u tilitarian insistence on the distinction b e­ tween the exis t ence o f law an d its 'm erit s ' to be wrong.

III

I

now tum to a distinctively American criticism of the separa­

tion of the law that is fro m the the law that ough t to be. It em erged from the c ritical study of th e judicial process with which American jurisprudence has b een on the wh ole so b en­ e ficially occupie d . The m o s t sceptical of these critics - the l o o sely nam e d ' Realists ' of the 1 9 3 0s - perhap s too naIvely so Hiigerstrom, Inquiries Into the Nature of Lal}J and Morals 2 1 7 ( Olivecrona edn. 1 953) : ' [T]he whole theory of the subjective rights of private individuals is incompatible with the imperative theory '. See also ibid. at 2 2 1 : 'The description of them [ claims to legal protection] as rights is wholly derived from the idea that the law which is concerned with them is a true expression of rights and duties in the sense in which the popular notion of justice understands these terms.' 5 1 Ibid. at 2 1 8. •

•

.

POSITIVISM, LAW, AND MO RALS

63

accepted the concep tual framework o f the natural sciences as adequate for the characterization o f law and for the analysis of rule-gUided action of which a living system of law at least

partly

consists.

But they

opened men's eyes to what ac tually

goes on when courts decide cases , an d the contrast th ey drew

between the actual fa c t s

of judicial decision and the

ditional terminology for describing it as if it were

a

tra­

wholly

logical operation was usually illuminating ; for in spite of some exaggeration the Realists made us acutely c onscious o f one cardinal feature o f human l anguage and human thought, em­ phasis on which is vital n o t only for the understanding of law but in areas of philosophy far b eyond the c onfines of juris­ prudence. The insight o f this sch ool may be presente d in the following example . A legal rule forbids you to take a vehicle int o the public p ark . Plainly this forbids an auto m obile, but what ab out bicycles, roller skates , toy automobiles? What ab out aeroplanes ? Are thes e , as we say , to b e called 'vehicles ' for the purpose o f the rule or not? If we are to communicate

with

each o ther at al, and i f, as in the most elementl;l.ry form

of law, we are to express our intentions that a certain type o f behaviour be regulate d b y rules, th e n t h e general words

we

use - like 'vehicle ' in the c as e I consider - must have some standard instance in which n o doubts are felt ab out its appli­ catio n . There must be a core of s ettle d meaning, but there will be, as well , a penumbra of deb atable cases in which words are neither obviously

applicable nor obviously rule d out.

Th ese cas es will each h ave some features in comm o n with the standard cas e ; they will lack others or be accompanie d by features n o t pres ent in the standard case. Hum an invention and natural proce sses continually throw up such variants on the familiar, and if

we

are to say that thes e ranges of facts do

or d o not fall under existing rules, then the classifier must make a decision which is not dictated to him , for the facts

and phenomena to which we fit our words and apply our rules are as it

w ere dumb.

The toy automobile cannot sp eak up and

say, 'I am a vehicle for the purpose of this legal rule' , nor can the roller skates choru s , 'We are not a vehicle. ' F ac t situations do not await us neatly lab elled, creased, an d folde d ; nor is their legal classification written on them to be simply read off by the j u dge . Ins tead , in applying legal rules, s o m e one must take the responsibility o f deciding that words do or do

64

GENERAL THEORY

not c over some case in hand , with all the practical conse­ quences involved in this decision. We m ay c all the problems which arise outside the h ard core

of

stan dard instances or settled meaning 'problems of the penumbra' ; th ey are always with us whe ther in relation to such triv,ial things as the regulation of the use of the public park or in relation to the multidimensi onal generalities of a constituti o n. If a p enumbra o f uncertainty mus t surround all l eg al

rules,

then their application to specific cases in the pen­

umbral are a cannot be a matter of logical deduction, and so deductive re asoning, which for generations has b e en cherished as th e very p erfection of human reasoning, cann ot s erve as a m o del for what judge s , or indeed anyone, should do in bring­ ing p articular cases under general rules. In this are a men can­ n o t live by deduction alone .

And

it follows that if legal

arguments and legal decisions of p enumbral questions are to be rational , th eir rationality must lie in som ething o ther than a logical relation to premises . So if it is rational or 'soun d ' to argue and to decide th at for the purposes o f this rule an aero­

plane is not a vehicle , this argum en t must be sound or rational without b eing logically conclusive. What is it then that m akes such decisions

correct or at least better than altern ative

decisions ? Again, it seems true to s ay that the criterion which makes a decision sound in such cases is some concept of what the law ought to b e ; it is easy to slide from that into saying that it must be a moral judgment ab out what law ough t to b e . S o here we touch u p o n a p oint o f necessary 'intersection be­ tween law and m orals ' which demonstrates the falsity or, at

any rat e , the misle ading character of the Utilitarians ' em­

phatic insistenc e on the separation of law as it is and ought to

b e . S urely, B en th am and Aus tin could only h ave written as they did b ecause they misunders t o o d or neglected this aspect o f the j u dici al process , because they ignored the problems of the penumbra. The misconception of the j u dicial process which ignores th e problems o f the p enumbra and

which

views the process as

c o nsisting pre-eminently in deductive reasoning is often stig­ matized as the e rror of 'form alism ' or 'literalism '. My question

now i s , how and t o what e xtent does the demons tration o f this error sh ow th e utilitarian distinction to b e wrong o r m isleading? Here th ere are m any issu es which have been

65

POSITIVIS M , LAW , AND MORALS

confused, but I can only disentangle some. The charge of formalism h as been levelled b o th at the 'p o sitivist' le gal the o r­

and at the c ourts , but o f course it must be a v e ry different charge in each case. Levelled at the legal theorist , the c harg e means that he h as made a theoretical mistake ab out t h e character of legal decision ; he has thought o f the reasoning

ist

involved as c onsisting in deduction from premises in which the ju dges ' practical choices or decisions play no p ar t It woul d .

be easy to show that Austin was guiltless o f this erro r ; only an entire misconception

and why he

of

what analyti cal j urisp rudence is

he, closed logi­

though t it imp ortan t has led to the view that

or any other analys t ,

believed

that

the law was

a

cal system in which ju dges de duced their decisions fro m premise s . 3 2 O n t h e contrary , h e was very much alive to the character

of langu age ,

to its vagu eness or

open character ;33 he

th ou gh t that in the p enumbral situation judges must neces­ sarily legislate, 34 an d , in accents that sometimes r e c all th o s e 3 2 This misWlderstanding o f analytical jurisprudence i s to be found in, among others, Stone, The Province and Function of Law 1 4 1 ( 1 950 ) : 'In short, rejecting the implied assumption that all propositions of all parts of the law must be logi­ cally consistent with each o ther and proceed on a single set of definitions he · [ Cardozo, J.J denied that the law is actually what the analytical jurist, for his limited purposes , assumes it to be. ' See also ibid. at 49, 52, 1 3 8 , 140 ; Friedmann, Legal Theory 209 (3rd edn. 1 953). This misunderstanding seems to depend on the unexamined and false belief that analytical studies of the meaning of legal terms would be impossible or absurd if, to reach sound decisions in particular cases, more than a capacity for formal logical reasoning from unambiguous and clear predeter­ mined premises is required. 33 See the discussion of vagueness and uncertainty in law, in Austin, op. cit. n. 12 supra , at 202-5, 2 0 7 , in which Austin recognized that, in consequence of this vagueness, often only 'fallible tests' can be provided for determining whether particular cases fall under general expressions_ 34 See Aus tin, op. cit_ n. 12 supra , at 1 9 1 : 'I cannot understand h ow any per son who has considered the subject can suppose that society could possibly have gone on if judges had not legislated ' As a corrective to the belief that the analytical jurist must take a 'slot machine' or 'mechanical ' view of the judicial process it is worth noting the following observations made by Austin: ( 1 ) Whenever law has to be applied, the "'competition of opposite analogies '" may arise, for the case 'may resemble in some of its points ' cases to which the rule has been applied in the past and in other points 'cases from which the appli­ cation of the law has been withheld '. 2 Austin, Lectures on Jurisprudence 633 (5th edn. 1 885). (2) Judges have commonly decided cases and so derived new rules by 'build­ ing' on a variety of grounds including sometimes (in Austin's opinion too rarely) their views of what law ought to be. Most commonly they have derived law from pre-existing law by 'consequence founded on analogy', i.e. , they have made a new rule 'in consequence of the existence of a similar rule applying to subjects which are analogous .' 2 ibid. at 638-9. .

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GEN E RAL THEORY

of the late J u d ge Jerome Frank, h e b erated the common-law · for l egi slat in g feebly an d timidly and for blindly rely­

judges

ing on real or fancied analogies with past cases instead of a d apt in g

their decisions

t o the

growing needs of society as

revealed by the moral stan d ard of utility. 3 s The villains of

thi s piec e , responsible for the conception automaton, are not the utilitarian thinkers .

o f the ju dge as an The resp onsibility ,

if i t is to be laid at the door o f any theorist, is with thinkers like

an

Blackstone and, at

earlier stage, M ontesquieu. The ro ot

of this evil is preoccupation

with

the separation of powers

and Blackstone 's 'childish fic tion ' ( as Austin termed it) that ju dge s only ' find', never 'mak e ' , law. But we are concerned with 'formalism' as a vice not o f jurists but of j u dges. Wh at precisely i s i t for a judge to commit thi s error, to b e a ' formalist', 'automatic', a 'slot machine' ? Curiously enough the literature, which is full of the denunci­ ation o f these vices, never makes this clear in concrete term s ; ins tead we h ave only descriptions which c annot mean what they app e ar to say ; it is said that in the formalist error courts make an excessive use of logic , take a thing to 'a dryly logical e xtrem e ',36 or make an excessive use of analytical metho ds. But just h ow in being a form alist does a judge m ake an ex­ cessive use o f logic ? It is clear that the essence of his error is to give some general term an

interpretation which

is blind to

so cial values and conse q uences ( o r which is in some other way

( 3 ) ' [ I] f every rule in a system of law were perfectly definite or precise', these difficulties incident to the application of law would not arise. 'But the ideal com­ pleteness and correctness I now have imagine d is not attainable in fact though the system h ad been built and ordered with matchless solicitude and skill.' 2 ibid. at 9 9 7-8. Of course he thought that much could and should be done by codifi­ cation to eliminate uncertainty. See 2 ibid. at 662-8 1 . 3 5 2 ibid. a t 6 4 1 : 'Nothing, indeed, can b e more natural, than that legislators, direct or judicial (especially if they be narrow-minded, timid and unskilful) , should lean as much as they can on the examples set by their predecessors. ' See also 2 ibid. at 64 7 : 'But it is much to be regretted that J udges of capacity, experience and weight, have not seized every opportunity of introducing a new rule ( a rule beneficial for the future) This is the reproach I should be inclined to make against Lord Eldon [TJhe Judges of the Common Law CQurts would not do what they ought to have done, namely to model their rules of law and of pro­ cedure to the growing exigencies of society, instead of stupidly and sulkily adher ing to the ol d and barbarous usages.' 36 Hynes v. New York Cen t. R. R. , 23 1 N.Y. 229, 235 ; 1 3 1 N.E. 898, 9 0 0 ( 1 92 1 ) ; see Pound, Interpretations of Legal Histo ry 1 2 3 ( 2 n d edn. 1 9 3 0 ) ; Stone, op. cit. n. 32 supra , at 140- 1 . • • . •

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POSITIVIS M , LAW, AND MORALS

stupid o r perhap s merely disliked b y c ritics) . B u t logic does not prescribe interp re tation o f term s ; it dic tates neither the stupid nor intelligent interpre tation o f any expression . Logic only tells you hypothetically that

if you

give a c ertain t e rm a

certain interpretation then a certain conclusion follows . Logic is silent on how t o classify p articulars - and this is the h e art of a ju dicial decision. S o this reference to logic

and to

logical

extremes is a misnomer for something else, whic h mus t b e this. A judge has to apply a rule t o a c oncrete c a s e - p e rhaps the rule that one m ay n o t take a stolen 'vehicle ' across State lin e s , and in this case an aeroplane has been taken. 3 7 He e ither

does not see or pretends n o t to see that the general terms of

this rule are suscep tible o f different interpretations and that h e has a choice left open uncontrolled by lingu istic conven­ ti ons. He ignores , or i s blind to, the fact that he i s in the area o f the p enumbra and i s not dealing with a stan d ard cas e . In­ stead of choosing in th e ligh t of social aims th e ju dge fixes the meaning in a differen t way. He either takes the meaning that the word m o s t obviously suggests in its ordinary non-l egal context to ordinary men , or one which the word has been given in some o ther legal contex t , or, still worse , he thinks of a standard c a s e an d then arbitrarily identi fies certain fea tures in i t - for example, in the case of a vehicle , ( 1 ) n ormally used on lan d , ( 2 ) c apable o f carrying a human pers o n , ( 3 ) capable of being self-propelled - and treats th ese three as always

necessary and always sufficient conditions for the use in all contexts of the word 'vehicle ' , irrespective of the social con­ sequences of giving i t this interpretation. This choic e , not 'logic ', would force the judge to inclu de a toy m o tor c ar ( i f electrically propelled) an d to exclude bicycles and the aero­ plane. In all this there is p o s sibly great stupidity , but no more 'logic ', and no les s , than in cases in which the interpre tation given to a general term and the consequent applicati on o f s o m e general rul e to a p articular cas e i s consciously contr olle d by s o m e identifi e d social aim . Decisi ons m ade in a fashion as b lind as this would scarc ely des erve th e name o f decisions ; we might as well toss a p enny in applying a rule of l aw. But it is at least doubtful whether any judicial decisions ( even in England) have 37

See McBoyle

v.

b een quite as

United States, 283 U.S. 25 ( 1 9 3 1 ) .

68

GENERAL THE O R Y

au tomatic as this . Rather, either t h e interpretations s tigm a­ tized as automatic h ave resulted from the conviction that it is fairer in a criminal statute to take a m e aning which would jump to the m ind of the ordinary m an at the cost even of defeating other values, and this itself is a social policy (though p ossibly a bad one ) ; or much more fre quently , what is stigma­ tiz e d as 'mechanical ' and 'automati c ' is a determined choice made indeed in the ligh t of a social aim but of a conservative social aim . Certainly many of the Supreme Court decisions at the tum of the century which have b e en so stigmatized38 rep ­ res ent clear choices in the p enumbral area to give e ffect to a p olicy o f a c onservative type. This is p eculiarly true of Mr Jus tice Peckham 's opinions defining th e spheres of p olice power an d due process . 3 9 Bu t h o w d o e s t h e wrongness o f deciding cases i n an auto­ matic and m echanical way an d the rightness of deciding cases by reference to social purposes show that the utilitarian in­ sistence on the distinction between what th e law is and what it ought to be is wrong? I take it that no one wh o wished to u s e thes e vices of formalism as pro o f that the distinction b e ­ tween what is and what ought to b e is mistaken would deny that the decisions stigm atized as automatic are law ; nor would he deny that the system in which such au tomatic decisions are m ade is a legal system. Surely he would say that they are law, but they are b ad law; they ought not to be law. But this would be to use th e dis tincti on , not to refute it ; and of course b o th B enth am and Austin used it to attack judges for failing to decide p enumbral cases in accordance with the growing needs of society. Clearly, if the dem onstration o f the errors o f form alism is to sh ow the u tilitarian distinction to b e wrong, the p oint mus t b e drastically restated. The point m u s t be n o t merely that a judicial decision to be rational mus t b e m ade in the light of some conception o f what ought to be, but that th e aim s , the soci al p olicies and purposes t o which j u dges should app e al if 3. See, e.g. , Pound, 'Mechanical ]urisprudence ', 8 Colum. L. Rev. 605 , 6 1 5 - 1 6 ( 1 90 8 ) . 30 See, e.g., Lochner v . New York , 1 9 8 U.S. 4 5 ( 1 905). Jus tice Peckham's opinion that there were no reasonable grounds for interfering with the right of free contract by determining the hours of labour in the occupation of a baker may in deed be a wrongheaded piece of conservatism but there is nothing automatic or mechanical about it.

69

POSITIVISM, LAW , AND MORALS

their decisions are to b e rational , are themselves to b e con­ sidered as part of the law in some suitably wide sens e of 'l aw'

which is held to b e m o re illuminating than that used by the Utilitari ans . This restatement of th e point would have the following consequenc e : instead of saying that the re currence of p enumbral ques tions shows us that legal rule s

are

e ssen­

tially incomplete, and that , when they fail to d e termine de­ cisions, judges mus t l e gislate and so e xercis e a creative c h oice b etween alternatives , we shall say that the so cial policies which guide the j u d ge s ' choice are in a sense there for them to discover; the judges are only 'drawing ou t ' o f the rule what,

i f i t is prop erly unders t o o d , is 'latent ' within it .

To

call this

judicial legislation is t o obscure some essential c ontinuity be­ tween the clear cases of the rule's application an d the pen­ umbral decisions. I s h all question later wh ether this way of talking is salutary , b u t I wish at th is time t o p oint out s o m e­ thing obvi ous, but lik ely , if not stated, to tangle the issues. It does not follow that , because the op p osite o f a decision reached blindly in the

formalist or literalist m anner is a

dec ision intelligently reached b y reference to some concep tion o f what ought to be, we have a junction of law and m o rals . We mus t , I think, beware of thinking in a t o o simple-minded fashion ab out the word 'ough t ' . This is not because there is no distinction to be m ade b e tween law as it is an d ought to

b e . Far from it. It is b ecause the distinction sh ould b e between

what is and what fro m many di fferent p oints o f view ought to be. The word ' ough t ' merely reflects the presenc e o f some standard of criticism ; one o f these standards is a moral stan­ dard, but not all standards are m o ral . We say to our n eigh­

b our, 'You ought n o t to lie ' , and that may certainly be a moral ju dgment, b u t we should rememb er that th e baffl ed poisoner may say , 'I ought to have given h er a s econd d o s e ' _ T h e point here is t h a t intelligent d ecisions whic h

we

oppose

to mechanical or formal decisions are n o t necessarily iden tical with decisions defensible on m oral grounds . We may say o f many a decision : 'Ye s , that is right ; that is as it ought t o b e ' , and w e may m ean o nly th at s ome accepted purp ose or p olicy has b een thereby advanced ; we may not m e an t o endors e the m oral p ropriety of the policy or the decision. S o the c o n tras t be tween the m echanical decision and th e intelligent one c an b e reproduced inside a system dedicate d to t h e pursuit o f the

70

GENERAL THEORY

most evil aims. I t does not e xist as a contrast to b e found only

in le gal systems which , like our own, widely recogniz e prin­ ciples o f justice an d moral claims of individuals .

An e x ample m ay m ake this p oint plainer. With us the task of sentencing in criminal c ases is the one th at seems most obviou sly to demand from th e ju dge the exercise o f m oral ju dgm ent. Here the factors to be weighe d seem clearly to b e moral factors : s ociety must not b e exp o s e d to wanton attack ; t o o much misery must n ot be inflicte d on either the vic tim or his dependants ; e fforts mus t be made to e nable him to lead a better life and regain a position in the s ociety whose laws h e has violated . To a j u dge striking the b alance among thes e claim s , with all t h e discretion and p erplexities involved, his task s eems as p lain an example of the e xercise of m o ral judg­ ment as c ould b e ; and it seems to be the polar opposite of s o m e m echanic al appli cation o f a tari ff o f p enalties fixing a sentence careless of th e moral claims which in our system have to be weigh e d . So here intelligen t and rational decision is guided however uncertainly by m oral aims . But we have only to vary the example to see that this n e e d not necess arily b e s o and surely , i f i t need not necessarily b e s o , the u tilitarian p oint remains unshaken . Under the Nazi regime men were sen­ tence d b y courts for criticism of th e regim e. Here the choi c e o f s entence m i ght b e guided ex clusively by c onsideration o f what was needed to main tain t h e state 's tyranny e ffectively. What sentence would both terrori z e the public at large and keep the friends and family of th e p risoner in suspense so that b o th h op e an d fear would c o op e rate as fac tors making for s u b servie nce? Th e pris oner o f such a system would be re­ garded s imply as an obj ect to b e used in p ursuit o f these aims . Y e t , in contrast with a mechanical decisi o n , decision o n these grounds would b e intelligen t and purp o sive , and from one p oint of view the decision would b e as it ough t to b e . O f course, I am not unaware that a wh ole philosophical tradition has sough t t o demonstrate the fact th at we cannot c orrectly call decisions or b eh avi our truly ratio n al unless they are in conformity with m o ral aim s and p rinciples . But the example

I h ave used seems to me to serve at leas t as a warning that we cannot use the errors of formalism as s o m ething which per se demons trates the falsity of the u tilitarian insistence on the dis­ tinction between law as it is and law as

morally it

ought to b e .

POSITIVISM , LAW , AND MO RALS

71

We can now return to the m ain point. If it is true th at the intelligent decision o f penumbral ques tions is one made not mechanically but in the light o f aims , purp o s e s , and policies, though n ot necessarily in the light o f anything we woul d call moral principles, is it wise to express this imp ortant fact by saying that the firm u tilitarian distinction between what the

law is and what it ought to be should be dropped? Pe rhaps the claim that it is wis e c annot b e theoretically refuted, for it is , in effect, an invita tion to revise o ur conception o f what a legal rule is. We are invite d to include in the 'rule ' the various

aims and policies in the light o f which its penumbral c ases are decided on the ground that these aims have, b ecause of their imp o rtance, as much right to be called law as the c ore of legal rules whose meaning is s e ttled. But th ough an invitation c an­ not be refuted, it m ay be refused, and I would pro ffer two reasons for refusing this invitation. First , everything we h ave learned ab out the judicial process can be express e d in other less m ysteri ous ways. We can s ay laws are incurably incom­ plete and we must d ecide the p enumbral cas e s rationally by referenc e to social aims. I think Holmes, who h ad such a vivid appreciation of the fact that 'general propositions do not decide c oncrete c ases ', would h ave put i t that way . S e c ondly, to insist on the utilitari an distinction is to emphasize that the hard core o f s ettled meaning is law in some centrally import­ an t s ense and that even if there are b orderlines , there must first be lines . If this were not so the notion o f rules con trolling courts ' decisions would be s enseles s , as some of the ' Realists ' - in their m o s t e x treme moods , and, I think , on bad grounds - claime d .40 By contras t , to s o ften th e distinction, to ass e rt mysteriously that there is some fused identity between law as it is and as it 40 One recantation o f this extreme position is worth mention in the present context. In the first edition of The Bramble Bush , Professor Llewellyn c ommitted himself wholeheartedly to the view that 'what these officials do about disputes is, to my mind , the law itself', and that 'rules are important so far as they h elp you predict what j udges will do That is all their importance, except as pretty playthings. ' Llewellyn, The Bramble Bush 3 , 5 ( Ist edn . 1 930). In the sec ond edition he said that these were 'unhappy words when not more fully devel­ oped, and they are plainl y at best a very partial statement of the whole tru th [ O l ne office o f law is to control officials in some part, and to guide them even where no thoroughgoing control is possible, Dr is desired [T ] he words fail to take proper account of the office o f the institution of law as an instrument of conscious shaping .' Llewellyn, The Bramble Bush 9 ( 2nd edn. 1 9 5 1 ) . •

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72

ought to b e , is to suggest that all legal qu estions are funda­ mentally like those of the p enumbra. It is to assert that there is no central element of actual law to be seen in the core o f central meaning which rules h ave, that there i s no thing i n the n ature o f a legal rule inconsistent with all questions b eing open to reconsideration in the light of social policy. Of course, it is good to b e occupie d with the penumbra. Its problems are rightly the daily diet o f the law sch o ols. But to be occupied with the penumbra is one thing, to b e preoccupied with it another. And preoccupation with the penumbra is, if I m ay say s o , as rich a s ource o f confusio n in the American legal tradition as formalism in the English. Of course we might ab andon the n otion th at rules h ave au thority ; we might cease to attach forc e or even meaning to an argument that a case falls clearly within a rule and the scope of a precedent. We might call all such reas oning 'auto m atic ' or 'me chanical ' , which is already t h e routine invective o f t h e courts . But until we decide that this

is

what we want, we should n o t encourage

it by obliterating the utilitarian distinction.

IV Th e third criticism of the sep aratio n of law and morals is of a very different character ; it certainly is less an intellectual argument against the utilitarian distinction than a passionate appeal sup p o rted not b y detailed reas oning but by reminders of a terrible e xperience . F o r it consists of the tes tim ony o f tho s e wh o h ave descended into Hell , and, like Ulysses or Dante , brought b ack a message for human b eings . Only in this cas e the Hell was not beneath or b eyond earth , but on it ; it was a Hell created on earth b y men for o ther men. This app e al comes fro m those Germ an thinkers wh o lived through the Nazi regime and reflected upon its tations in the legal sy stem . One o f these thinkers, Gustav Radbruch, h ad himself shared the 'positivis t ' doctrine until the Nazi tyranny , but h e was converted by this exp erience and so his app e al to other men to discard the doctrine of the sep aration o f law and m orals has the sp ecial p oignancy o f a rec antatio n . What is imp ortant ab out this criticism is that it really d o e s c onfront the p articular p oint which Bentham and Austin had in mind in u rging the separation of law as it is and

POSITIVISM, LAW, AND MO RALS

73

as i t ough t t o b e . Th ese German thinkers put th eir insistence on the need to j oin together what the Utilitarians separated just where this separation was o f most imp ortance in the eyes o f the Utilitarians ; for they were concerned with the problem posed by the existence of m orally evil laws.

Before his conversion Radbruch held that resis t ance to law

was a m atter for the p ersonal conscience, to be thought out by the individu al as a moral problem , and the validity of a law c ould n o t be disprove d by showing that its requirem ents were morally evil or even by sh owing that the e ffect of com­ pliance with the law would be more evil than the e ffect of disobedienc e . Aus tin , it may b e recalled, was emphatic in con­ demning those who said that if human laws conflicted with the fundamental principles of morality th en they ceas e to be laws , as talking 'stark nonsens e ' . T h e m ost p ernicious laws, and therefore those which are m o s t opposed to the will of God , have been and are continually enforc e d as l aws by ju dicial tribunals. Suppose an ac t innocuous, or p ositively benefic ial , be prohibited by the sovereign under the penalty of death ; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of G od . . . the c ourt of justic e wil dem o nstrate the inconclusiveness of my reasoning by hanging me up, in pursu ance of the law of which I have impugned the validity. An excep tion, demurrer, or plea, founded on the law of God was never heard in a Court o f Jus ­ 41 tice, from the creation of the world down to the present moment. These are strong, indeed bru tal words, but we mus t remember that they went along - in the c ase of Austin and , of c o urs e,

Bentham - with the conviction that if laws reached a certain degree of iniquity then there would be a plain moral ob ligation to resist them and to withhold obedience. We sh all s e e , wh en

we consider the alternatives , that this simple presentation of th e human dilemma which may arise has much to be said for i t . Radb ruch , however, h ad concluded from th e eas e with which the Nazi regime had exploited subservience to mere law - expressed, as he th ought, in the 'p ositivis t ' slogan 'law as law'

( Gesetz als Gesetz )

- and from the failure o f the

Germ an legal profession to protest against th e en o rmities

which they were required to p erp etrate in the name of law, 4 1 Aus tin, The Province of Jurisprudence Determined 1 85 ( Library of Ideas edn. 1 954).

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GENERAL THEORY

that 'positivism ' (meaning here the insistence on the separ­ ation of law as it is from law as it ought to b e) had powerfully contributed to the horrors. His considered reflections led him to the doctrine that the fundamental principles of humani­ tarian morality were part of the very concept of R echt or Legality and that no positive enactment or s tatute , however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a given legal system, could be valid if it contravened b asic principles of morality. This doctrine can be appreciated fully only if the nuances im­ ported by the German word R echt are grasped. But it is clear that the doctrine meant that every lawyer and judge should denounce statutes that transgressed the fundamental prin­ ciples not as merely immoral or wrong but has having no legal character, and enactments which on this ground lack the quality of law should not be taken into account in working out the legal position of any given individual in particular cir­ cumstances. The striking recantation of his previous doctrine is unfortunately omitted from the translation of his works , but it should be read by all who wish to think afresh on the question of the interconnection of law and morals.42 It is impossible to read without sympathy Radbruch's passionate deman d that the German legal conscience should be open to the demands of morality and his complaint that this has been too little the case in the German tradition. On the other hand there is an extraordinary naIvety in the view that insensitiveness to the demands of morality and s.u bser­ vience to state p ower in a people like the Germans should have arisen from the b elief that law might be law though it failed to conform with the minimum requirements of moral­ ity. Rather this terrible history prompts inquiry into why em­ phasis on the slogan 'law is law', and the distinction between law and morals , acquired a sinister character in Germany, but elsewhere, as with the Utilitarians themselves , went along with the most enlightened lib eral attitudes. But something more disturbing than naIvety is latent in Radbruch's whole 42 See Radbruch, 'Gesetzliches Unrecht und U bergesetzliches R e cht', I Sud­ deutsch ]uristen-Zeitung 1 05 ( Germany 1 946 ) ( reprinted in Radbruch, Rechts philosophie 347 ( 4th edn_ 1 950». I have used the translation of part of this essay and of Radbruch, 'Die Emeuerung des Rechts', 2 Die Wandlung 8 ( Germany 1 947 ) , prepared by Professor Lon Fuller of the Harvard Law School as a mimeo­ graphed supplement to the readings in jurisprudence used in his course at Harvard.

POSITIVIS M , LAW , AND MORALS

75

presentatio n o f t h e issues to which t h e existence o f morally iniquitous laws give ris e . It is n o t , I think, uncharitable to s ay th at we c an see in his argument that he has only half diges t e d th e spiritu al message o f liberalism which he is seeking to c on­ vey to the legal profession. F o r everything that he s ays is really dependent upon an enormous overvaluation of the im­ p o rtance , o f the b are fact that a rule may be s aid to be a valid rule of law , as if this , once declared, was conclusive of the final moral question : 'Ought this rule of law to be obeyed? '

Surely the truly liberal answer to any sinister use of the s l ogan 'law is law ' or of the distinction b e tween law and m orals i s ,

'Very well, b u t that d o e s n o t c onclu de t h e question. L a w i s not morality ; d o not le t i t supplant morality. ' However, we are not left to a m ere academic discussi on in order to evaluate the plea which Radbruch made for the re­ vision of the distinctio n between law and m o rals . A fter the war Radbruch's c onception o f law as containing in itself the essential m oral principle of humanitarianis m was applie d in practice by Germ an courts in certain cases in which local war criminals, spies, and inform ers under the Nazi regim e were punished. The special imp ortanc e of these cases is that the persons accused of these crime s claim ed that what they had done was not illegal under the laws of the regime in force at th e time these actions were perform ed. This plea was m e t with the reply that the laws upon which they relied were invalid as c ontravening the fundamental principles o f morality. Let ' me cite briefly one o f these cas e s . 43 In

1 944

a wom an , wishing to be rid of her husband,

4 3 Judgment of 27 July 1 949, Oberlandesgericht, Bamberg, 5 Siiddeutsche Juristen-Zeitung 207 ( Germany 1 950 ) , 64 Ham L. Rev. 1 005 ( 195 1 ) ; see Fried mann, Legal Theory 45 7 ( 3rd edn. 1 9 5 3 ) . The text has been left as originally written, but it has been shown by Dr H. O. Pappe of the Australian National Uni versity in his article 'On the Validity of Judicial Decisions in the Nazi Era' in 23 Mod. L Rev. ( 1 960), 260, that the report of the case in 64 Harv. L. Rev. which was followed by the author is misleading. As Dr Pappe shows , in the actual case the German court after accepting the theoretical possibility that statutes might be invalid if in conflict with natural law held that the N azi statutes in question could not be held to violate it; the accused was held guilty of unlawfully depriving her husband of liberty , since she had no duty to inform against him but did so for purely personal reasons and must have realized that to do so was in the circum stances 'contrary to the sound conscience and sense of justice of all decent human beings ', Accordingly, the case as discussed in the text must n ow be regarded as a hypothetical one_ Dr Pappe's careful analysis of a decision in a similar case in the German Supreme Court sh ould be studied. (Op, cit., 268 ff. ) .

GENERAL THEORY

76

denounced him to the authorities for insulting remarks he had made ab out Hitler while home on leave fro m the German army. The wife was under no legal duty to rep ort his acts, though what h e h ad said was app arently iIi violation of s tat­ utes making it illegal to make statements d etrim ental to the government of the Third Reich or to impair by any means the m ilitary defence of th e German p eople . The husband was arrested and sentenced to death , app arently p ursu ant to th es e statutes, though he was not executed but was sent to the front .

In

1 94 9 the wife was prosecuted in a West German

court for an o ffen c e which we would describ e as illegally de­ priving a person o f his free dom

(rech tswidrige Freiheitsbe­

raubung) .

This was punishable as a crime u nder the German Criminal C o d e of 1 8 7 1 which had remained in force continu­ ously since its enactment. Th e wife pleaded that her husb and 's

imprisonment was pursuant to th e Nazi statutes and h ence that she h ad committed no crime. Th e c o urt o f app e al to which the c ase ultimately came held that the wife was guilty of procuring th e deprivation of her husb an d ' s lib erty by de­ nouncing him to the German c ourts , even though he had b een sentenced by a c ourt for having violate d a statute, since, to qu ote the words of the court , the statute 'was contrary t o the s ound c onscience an d sense of jus tic e of all decent human beings '. This reas o ning was followed in m any c ases which have been h aile d as a triumph o f the doctrines of natural law and as signalling the overthrow of p ositivism. The unqualified s atis ­ faction with this result seems to m e to b e hysteria. Many o f u s migh t applaud the obj ective - that o f p unishing a woman for an outrageously immoral act - but this was secured only by declaring a statute established since 1 9 3 4 not to h ave the force of law, and at least the wisdom of this course must b e doub ted. There w ere , o f course, t w o o ther choices. O n e was to let the woman go unpunished ; one c an sympa thize wi th and endorse the view that this might h ave been a b ad thing to do . Th e o ther was to face the fact that if the woman were to

be punishe d it must be pursuant to the introduction o f a frankly retrospec tive law and with a full c onsciousness of what was s acrificed in securing her punishment in this way . Odious as retrosp ec tive criminal legislation and punishment may b e , to h ave pursued it openly in this case would at least have h ad the meri t s of candour. It would h ave made plain that

POSITIVISM , LAW , AND MORALS

77

in punishing the woman a choice had to b e made between two evil s , that of leaving h er unpunished and that of sacrificing a very precious principle of morality endors ed by most legal systems. Surely if we have learned anything from the history of morals it is that th e thing to do with a m oral quandary is n o t to hide it. Like nettles, the occasions when life forces u s to ch oose the lesser o f two evils mus t be grasp e d with the

c onsciousness

that

they are what they are. The vice

of this use of th e principle that , at certain limiting p o ints, wh at is utterly imm oral cannot be law or lawful i s that it will serve to cloak the true nature o f the problems with which we are faced and will encourage the romantic o p timis m that all th e values we cherish ultimately will fit into a single system , that no one of them h as to be s acrificed or compromised to accommo date another. All Discord Harmony n o t understood All Partial Evil Univers al G o o d This is surely untrue, and there is a n insincerity i n any for­ mulation of our problem which allows us to de scribe the treatment of the dilemma as if it were th e disposition o f the ordinary case. It may seem perhaps to make too much of forms, even p er­ haps o f words, to emp hasize one way of dis p o sing o f this dif­ ficult case as compared with ano ther which might have l e d , so far as the woman was c o ncerned, t o exactly the same re sult. Why should we dramatize the di fference between them ? We migh t punish the wom an under a n ew retrospective law and declare o vertly that we were doing something in consis tent with our principles as the lesser of two evils ; or we m ight allow the case to pass as one in which we d o not p o int out precisely where we sacrifice such a principle . But candour is not just one am ong many minor virtu es of the administration of law, ju st as it is not merely a minor virtue of m o rality . For if we adop t Radbruch 's view, and with him and the German courts make our protest against evil law in the form of an ass ertion that certain rules canno t be i aw b ecause of their m oral in­ iquity, we confuse one o f the m o s t p o werful, b ecau s e it is the simplest , form s of m oral criticism . If with the Utili tarians we sp eak plainly , we say that laws may be law but

too

evil t o be

obeyed. This is a m o ral condemnation which everyon e can

78

GENERAL THEORY

understand and it makes an immediate and o bvious claim to moral attention. If, on the other hand, we formulate our o b ­ j e c tion a s an assertion that these evil things are n o t law, here is

an

asserti on which many people do not b elieve, and if they

are disp osed t o consider it at all , it would seem to rais e a whol e host o f philos ophical issue s b efore it c an be accep ted. S o p erhap s the most imp ortant single lesson to be learne d fro m this form o f the denial o f t h e u tilitarian distinction is the one that the Utilitarians were most concerned to teach ; when we h ave the ample resources of plain speech we must not present th e moral cri ticism of institutions as propositions o f a disputable philosophy.

v

I have en d e avoured to show th at , in spite of all that has b e en learn ed and experienced since the Utilitarian s wrote , and in spite of th e defects of other parts of their doc trine, their pro­ test against th e confusion o f what is and wh at ought to be

law has a m o ral as well as an intellectual value. Yet it m ay well be s ai d that , though this distinction is valid and import­ ant if applied to any p articular law o f a system , it is at least misleading i f we attempt to apply it to 'law', that is , to the notion of a l egal system , and th at if we insist , as I have, on the narrower truth (or truism ) , we obscure a wider ( or deep er) truth. A fter all, it m ay be urged , we have learned that there are m any things which are untrue of laws taken sep arately, but which are true and imp ortant in a legal system considered as a whole. F or example, th e c onnection between law and s anctions and between the existence of law and its 'e fficacy' mus t b e understood in this mo r e general way . I t is surely not arguable

( without some desperate extension o f the word

'sanction ' o r arti ficial narro wing of the word 'law ') th at every law in a municipal legal sys tem must h ave a sanction, yet i t is at least plau sible to argue that a legal system must, to be a legal system , provide sanctions for certain of its rules. S o to o , a rule o f law may b e said t o exist th ough enfo rc ed o r obeyed in only a minority of cas es, but this could not be s aid of a legal system as a whole. P erhap s the differences with respect to laws taken separately and a legal system as a wh ole are als o true of th e c onne c ti o n b e twe en moral ( or some other)

POS ITIVISM, LAW, AND MORALS

79

conceptions of what law ought to b e and law in this wid er sense. Thi s line o f argument, found (at least in embry o form ) in d raw s attention to the fact that every devel­

Austin, where he

oped

legal

system

contains

certain

fundamental

n o tions

which are 'necess ary' and 'bottomed in the c ommon n ature of m an ' ,44 is worth pursuing - up to a p oint - and I s hall s ay briefly why and how far this is s o . We must avoid , i f w e c an , the arid wastes o f inapp ropriate definition , for, in relatio n to a concep t as m any-sided and vague as that o f a legal system , disputes ab out the 'essential ' character, or nec essity to the whole , o f any single el ement soon b egin to look like disputes ab out wh ether chess could be 'chess ' if play e d without pawns . Th ere is a wish, which may b e understan dable, to cut straight through th e question whether a legal system, t o be a legal system , must measure up to s ome m oral or o ther standard with simple statements o f fact : for e x ample, that n o system which utterly failed in this respect has ever existed or could endure ; that the n ormally fulfilled assump tion that a legal system aims at some fo rm o f

justice colours t h e whole way i n which w e interpret sp ecifi c

rules in particular cases , and if this normally fulfille d assump­ tion were not fulfilled n o one would h ave any reason to obey excep t fear ( and probably not that ) , and still les s , o f course, any moral obligatio n to obey. The connectio n b e tween law and moral standards and principles of justice is therefore as

little arbitrary and as 'necessary ' as the connection b etwee n law and sanctions, and t h e pursuit o f t h e question wh ether this necessity is logical (part o f the 'meaning' o f law) or merely factual or c ausal c an safely be left as an innoc ent pas­ time for philosophers. Yet in two respects I should wish to go further (even th ough this involves the use o f a philosophical fantasy) and show what c ould intelligibly be meant by the claim that cer­ tain provisions in a legal system are 'necessary '. Th e world in which we live, an d we who live in it , may one day change in many different ways ; and if this change were radic al enough not o nly would certain statem ents of fact n o w tru e be fals e and vic e versa, but wh ole ways of thinking and talking which •• Austin, 'Uses of the S tudy of Jurisprudence', in Th e Province of Jurispru dence Determined 3 6 5 , 3 7 3 , 3 6 7 9 ( Library of I deas edn. 1954).

80

G E N E R A L THEORY

c onstitu te our present concep tual apparatus , through which we see the world and each o ther, would lap s e . We have only

to consider how the whole of our s ocial, moral , and legal life ,

as we understand it now, depends on th e contingent fac t that

though our bodies do change in shape, size , and other physical prop erties they do not do this so drastically nor with such quicksilver rapidity and irregularity that we canno t identify e ach o th er as the same persistent individual over considerable spans of time. Th ough this is but a contingent fact which may one day be different , on it at present rest huge structures o f our th ought and principles o f action and s ocial life. Similarly, consider the follo wing possibility (not b ec ause it is m o re than a po ssibility but because it reveals why we think certain things necessary in a legal system and what we mean by this ) : sup­ pose that men were to become invulnerable t o attack by each o ther, were clad perh aps like giant land crab s with an impen­ etr ab le carapac e , and could extract the foo d they needed from the air b y some internal chemical process . In such cir­ cu mstances (the de tails of which can be left to science fiction) rules forbidding the free use o f violence and rules constituting th e m inimum form of prop erty - with its rights and duties suffic ient to enable fo od to gro w and be retained u n til eaten would not h ave the necessary non-arbitrary status which they h ave for us , c onstitu ted as we are in a world like ours . At present, and until such radical changes supervene, such rules are s o fundamental that if a legal system did not have them there w ould be no p oint in h aving any other rules at all. Such rules overlap with basic moral principles vetoing murder, violence, and theft ; and s o we can add to the factual state­ m ent that all legal systems in fact coincide with m orality at such vital p o in t s , the statement that this is, in this sense, necessarily so. And why not call it a 'natural ' necessit y ? O f course even this much depends on t h e fact that in asking what content a legal system must have we take this question to b e w orth asking only if we who consider it cherish the humble aim of survival in close proximity to our fellows. Natural-law th eory, however, in all its pro tean guises , attemp ts to push the argument much furth er and to assert th at human beings are equally devote d to and unit ed in their c o nception o f aim s (th e pursuit o f knowledge, j u stic e to their fellow m en ) other than that of survival and these dictate a furth er

81

POSITIVIS M , LAW, AND MORALS

necessary content to a le gal system (over and ab ove my humble minimum) without which it would be p o in tl e s s Of course we must b e careful not to exaggerate the di fferences among human beings , but it seems to m e that above this mini­ mum t h e purp oses men have for li v in g in s o c i e t y are too con­ flicting and varying to make possible much extension o f t h e argument that some fuller overlap of legal rules and m o ral standards is 'necessary ' in this sense. Another aspect of the matter deserves attention. If we attach to a legal system the minimum meaning that it must consist of general rules - general both in the sense that they refer to courses of action, not single actions and to mul ti­ p lic i ti es of m e n , not s in gle individuals - this meaning con­ notes the p rin cip le of t reating like cases alike, th ough the criteria of when cases are alike will be, so far, only the general elem ent s specified in the rules. It is, however, true t h at o ne essential element o f the concept of justice is the principle of treating like cases alike. This is j u s ti ce in the administration of the law, not justice of the law. So there is , in the very notion of law cons i st in g o f g e n eral rules, someth in g which prevents us from treating it as if m orally it is utterly neutral, without any necessary contact with moral p rin c ip les . Natural p.r ocedural justice consists therefore of those principles of objectivity and impartiality in the administration of the law which implement just this asp ect of l aw and which ar e de­ signed to ensure that rules are appl i ed o nly to what are genu­ inely cases of the rule or at least to mi ni m i z e the ri sks of inequalities in this sense. These two reasons ( or excuses) for talking of a ce rt ai n overlap b e t w ee n l e gal and moral s tandards as n ece s s ary and natu ral, of course, should not sat is fy anyone who is really disturbed by the u t ili tari an or 'positivis t' insis tence t h at law and morality are distinct. This is so because a legal system that satisfied these minimum requ ire m e n ts m igh t apply , with the most pe dan t ic impartiality as b etween the persons affected, laws which were hideously oppressive, and might d e n y to a vast rightless slave p opul at i o n the minimum benefits of pro­ tection from violence and theft . The stink of such s o c ie ty is, after all, s till in our nostrils, and to argue that they have (or had) no legal system would only involve th e rep e titio n of the argument. Only if the rules failed to p rov i de these essen tial .

82

GENERA L THEORY

benefits and protection for anyone - even for a slave-owning group would the minimum be unsatisfied and the system sink to the status of a s e t of m eaningless tab o o s . O f course no one denied those benefits would h ave any reason to obey ex­ cept fear and would have every m oral reas o n to revolt .

VI

I should be less than candid if I did not , in c onclusion, con­ sider something which ,

I

susp ect , most troubles tho s e wh o

react strongly against 'legal p ositivis m ' . Emphasis on the dis­ tinction between law as it is and law as it ought to be m ay be taken to depen d upon and to entail what are called ' subj ect· ivist ' an d 'relativis t ' or 'noncognitive ' the ories concerning the very nature of moral judgments, moral distinctions , or 'values '. Of course the Utilitarians themselves ( as distinct from later positivists like Kelsen) did not countenance any such theories , however unsatisfactory their moral philosophy may app e ar to us now. Austin thought ultimate moral p rinciples were the commands o f G o d , known to us by revelation or through the 'index ' o f u tility , and B entham thought th ey were verifiable prop ositions about utility . None the less I think ( though I cannot prov e ) that insistence upon the distinction b etween law as it is and ought to be has been, under the general head of 'p ositivism ', c onfused with a m oral the ory according to which statements of what is the case ( 'statements o f fact ') belong to a category or type radically different from state­ ments of what ought to be ( 'value s tatements ') . It may there­ fore be well to dispel this source of c onfusion. Th ere are many contemporary variants of this typ e of m oral theory : according to some, ju dgments o f what ought to b e , or ought to be done, either are or include as essential elements expressions o f 'feeling', 'emotion ' , or 'attitudes ' , or 'subj ective preferences ' ; in others such judgments both express feelings or emotions or attitudes and enj o in others to share them. In other variants such judgments indicate that a p ar­ ticular case falls under a general principle or p olicy o f action which the speaker has 'chos en ' or to which he is 'committed' and which is itself not a reco gnition of what is the case but analo gous to a general 'imperative' or command addressed to all including the speaker himself. Common to all these

PO S ITIVIS M , LAW ,

AND MORALS

83

variants is the insistence that judgments of what ought to be done, because they c ontain such 'noncognitive ' elements, can­ not be argued for or established by rational methods as state­ ments of fact can be, and cannot be shown to follow from any statement of fact but only from other judgments o f what ought to be done in conjunction with some statement of fact. We cannot, on such a theory , demonstrate, e.g. , that an action was wrong, ought not to have been done, merely by showing that it consisted of the deliberate infliction o f p ain solely for the gratification o f the agent. We only show it to be wrong if we add to those verifiable 'cognitive' statements of fact a gen­ eral principle not itself verifiable or 'cognitive ' that the inflic­ tion of pain ip such circumstances is wrong, ought not to be done. Togethe r with this general distinction between state­ ments o f what is and what ought to be go sharp parallel dis­ tinctions between statements about means and s tatements of moral ends. We can rationally discover and deb ate what are appropriate means to given ends, but ends are n ot rationally discoventble or debatable ; they are 'fiats o f the will', ex­ pressions of 'emotions ', 'preferences ', or 'attitu des '. Against all such views (which are of course far subtler than this crude survey can convey) others urge that all these sharp distinctions between is and ought, fact and value, means and ends, cognitive and noncognitive, are wrong. In acknowledg­ ing ultimate ends or moral values we are recognizing some­ thing as much imposed upon us by the character of the world in which we live, as little a matter of choice, attitude, feeling, emotion as the truth of factual judgments about what is the case. The characteristic moral argument is not one in which the parties are reduced to expressing or kindling feelings or emotions o r issuing exhortations or commands to each other, but one by which parties come to acknowledge after closer examination and reflection that an initially disputed case falls within the ambit of a vaguely apprehended principle (itself no more 'subj ective' , no more a 'fiat o f our will' than any o ther principle of classification) , and this has as much title to be called 'cognitive ' or 'rational ' as any other initially disputed classification of particulars. Let us now supp ose that we accept this rejection o f 'non­ cognitive ' theories of morality and this denial of the drastic distinction in type between statements of what is and what

84

GENERAL THEORY

ought to b e , and that moral ju dgments are as rationally de­ fensible as any other kin d o f ju dgments. What would follow from this as t o the n ature o f the connection b etween law as it is an d l aw as it ough t to be? Surely , from this alone, nothing. Laws , however m orally iniquitous , would s till (so far as this point is concerned) be laws . The only difference which the acc eptance of this view of the nature of moral judgments would make would be that the moral iniquity o f such laws would be s o m ething that could be dem onstrat e d ; it would surely follo w merely from a statement of what the rule re­ quired to be done that the rule was m orally wrong and so ought not to be law or conversely that it was m orally desir­ abl e and ought to be law. But the demonstration of this would not show the rule not to be (or to be) law. Proof that the principles by which we evaluate or condemn laws are ration­

ally discoverable , and not mere 'fiats o f the will ' , leaves un­ touched the fact that there are laws which may have any degree of iniquity or stupidity and still b e laws . And c on­ versely there are rules that have every m oral qualificati on to be laws and yet are not laws. Surely s om ething further o r more sp ecific mus t be said if disproof o f 'noncognitivism ' or kindred th eories in ethics is to be relevant to the distinction between law as it is and law as it ought to b e , and to lead to the ab andonment at some point or some softening o f this distinction . N o one has d one

m ore than Professor Lon Fuller of the Harvard Law School in his various writings to make clear such a line of argument , and I will end by criticizing what I take to be its central point. It is a point which again em erges when we consider n ot those legal rules o r parts o f legal rules the m e anings o f which are clear and excite no debate, but the interpretation of rules in c oncrete cases where doubts are initially felt and argum ent develops about their m eaning. In no legal system is the scope o f legal rules restricted to th e range o f concrete instances which were present or are b elieved to h ave b e en present in the minds o f legislators ; this indeed is one o f the imp o rtant differenc e s b etween a legal rule and a command. Yet , when rules are recognized as applying to instances b eyond any that legislators did or could have c onsidered, their extension to such new cases o ften presents itself not as a deliberate choice o r fiat on the p art o f those who so interpret th e rule . It

PO S IT I V IS M , LAW , AND MORALS

85

app e ars neither as a decision t o give the rul e a new o r extended meaning nor as a gue s s as to what legislators , dead perhaps in the eigh t eenth century , would h ave said had they b e en alive in the twentieth century. Rather, the inclusion of the new case

under the rule takes its place as a natural elaboration of the rule , as s omething implementing

a

'purpos e ' which it seems

natural to attribute (in s ome sens e ) to the rule itself rather than to any p articular person dead or alive. The utilit arian description o f such interpretative e xtension of old rules to new cases as judicial legislation fails to do justice to this phenomenon ; it . gives no hint of the differences b etween a delib erate fiat or decision to treat the new case in the same way as past c;ases an d a recognition (in which there is little that is delibe rate or even voluntary ) th at inclusion of the new case under the rule will implement or articulate a c ontinuing and identical purpose, hith erto less specifically apprehen ded. P erhap s m any lawyers and ju dges will see in this language som ething ,that precisely fits th eir exp erience ; others may think it a 'ro m antic glo s s on facts b etter stated in the utilitarian language of ju dicial 'legislation ' or in the mo dem American terminology o f 'creative choice'. To make the p oint clear Professor Fuller uses a non-legal example from the philosopher Wittgenstein which is ,

I

think,

illuminating. S o m eone says t o m e : 'Show the children a gam e . ' I teach them gaming with dice and t h e other says 'I did not m ean that sort of game. ' Must th e exclusion of the gam e with dice have come before h is m ind when he 45 gave m e the order?

Something important does seem to me to be t ouched on in this example. Perhap s there are the following (dis tinguishable) p oints. Firs t , we norm ally do interpret n ot only what people are trying to do but what they say in the light of assumed common human obj ec tives , so that unless the contrary were expressly indicate d we would n o t interp re t an instruction to show a young child a game as a mandate to introduce him to gambling even though in other contexts the word ' game' would be naturally so interpreted. Secondly, very often, the speaker whose words are thus interpreted might say : 'Yes, th at 's what 41

I

mean [ or 'that 's what

I

meant all along' ] though

Fuller, 'Human Purpose and Natural Law', 53 J. Philos. 6 9 7 . 700 ( 1 95 6 ) .

86

G E N ERAL THEORY

I never th ough t of it until you put this particular case to m e . ' Third , when we thus recognize, p erhaps after argument or consultation with others, a particular case not specifically en­ visaged b eforehand as falling within the ambit of some vaguely express ed instruction, we may find this exp erience falsified b y descrip tion of it as a mere decision on our part so to treat th e p articular case, and that we can only describ e this faith­ fully as coming to realize and to articulate what we 'really ' want or our 'true purp o s e ' - phrases which Pro fessor Fuller uses later in the same article.46 I am sure that many philosophical discussions of the charac ­ ter o f m oral argument would benefit from attention to cases of the sort instanced by Professor Fuller. Such attention would h elp t o provide a corrective to the view that th ere is a sharp separation between 'ends ' and 'means ' and that in de­ bating 'ends ' we can only work on each other non-rationally, and that rational argument is reserved for discussion of 'm eans ' . But I think the relevance o f his point to the issue whether it is c orrect or wise to insist on the distinc tion be­ tween law as it is and law as it ough t to b e is very small indeed. Its net effect is that in interpreting legal rules there are some cases which we find after reflection to be so natural an elab­ oration or articulation of the rule that to think of and refer to this as 'legislation', 'm aking law ' , or a ' fiat ' on our p art would be misleading. S o , the argument mus t be, it would be misleading to distinguish in such cases b etween what the rule is and what it ought to be - at least in some sense of ought. We think it ought to include th e new cas e and come to see after reflection that it really does. But even if this way of presenting a recognizable exp erience as an example of a fusion between is and ought to be is admitte d, two caveats must b e b orn e in mind. Th e first i s that ' ou ght' in this case need h ave nothing to do with morals for the reasons explained already in section III : there m ay be just the same sense that a new c as e will implem ent and articulate t h e purpose o f a rule i n inter­ preting th e rules of a game or some hid eously immoral c o de of oppression whos e immorality is appreciated by those c alled in to interpret it. They too c an see what the 'spirit ' o f the game th ey are playing requires in previously unenvisage d cases. 46

Ibid. at 7 0 1 , 7 02.

P O SITIVI S M , LAW , AND MO RALS

87

More imp ortant is this : after all is said and done we must rem ember how rare in the law is the phenomenon held to justify this way o f talking, how exceptional is this feeling that one way o f deciding a case is imp osed up on u s as the only natural o r rational elab oration of som e rule. Surely it cannot b e doubte d that , for most cases o f interp retation, the language of choice between alternatives, 'ju dicial legislation ' or even 'fiat ' ( th ough n o t arbitrary fiat ) , b etter conveys t h e realities o f t h e situation. Within the framework o f relatively well-settled law th ere j ostle too many alternatives too nearly equal in attraction b etween which ju dge and lawyer must uncertainly pick their way to m ak e a,ppropri ate here language which may well de­ scribe those dxperience s which we have in inte rp reting our own or o thers ' p rinciples o f conduct , intention, or wish es , when we are not conscious of exercising a delib erate choic e , b u t rather of recognizing something awaiting recognition. T o u s e i n the description o f t h e interpretation o f laws t h e sug­ gested tetnliriology of a fusion or inability to sep arate what is law and ought to be will serve (like earlier stories that ju dges only find, never make , law) only to conceal th e facts, that here if anywhere we live am ong uncertainties between which we have to cho ose, an d that the exis ting law imposes only limits on our choice and not the choice itself.

POSTS CRIPT S ee for criticism s and com m ents: 1. L .

Fuller, 'Positivism and F idelity to Law : a Reply to P rofessor Hart ',

n Harv. L. R ev. 6 3 0 2. R.

( 1 958 ) .

.

A. D u ff, 'Legal O b li gation and the Moral Nature of Law', Juridical

R ev. 6 1 ( 1 9 8 0 ) .

3 . R. M. D workin,

Ta k ing

Rights

S erio usly ( 2nd

impression, 1 9 7 8 ) ,

ch. IV, and pp . xii, xiii, 1 05 8 , 1 24-6 , 3 2 6 - 7 , 3 3 2 -9 , 3 4 1 -3 , 3 48-9.

4 . J . Raz , Th e A u th o rity o f L aw (Oxford 1 9 7 9 ) , 3 7 -5 2 , 1 46 - 9 ; 'The P u rity o f the Pure T heo ry ' , R e vu e Internationale de Philosop hie 44 1 ( 1 9 8 1 ) . 5 . J . F innis, Natural Law and Na tural R ights (Oxfo r d 1 9 8 0 ) , 2 6 , 2 9 , 5 0 , 3 6 3 ff. , 3 6 7 .

6.

N.

MacCormick, H.L.A. Hart (London 1 9 8 1 ) , 9 2 1 0 2 .

7 . D. Ly ons, ' On F ormal Justic e ' , 5 8 Co rn ell L. R ev. 8 7 3 ff. ( 1 9 7 3 ) .

8. D . Lyons, 'Moral Aspects of Legal Theory ' , 7 Midwest S tudies in Philosophy 2 2 3

( 1 9 82) .

Essay 3

Problems of the Philosophy of L aw

The existence of legal systems, even the most rudimentary, has afforded the opportunity for a variety of academic disci­ plines. Of these some are, or purport to be, empirical : they include the historical study of particular legal systems or specific legal doctrines and rules, and sociological studies o f the ways in which the content and the efficacy of law an d the forms and procedures of law-making and law-applying both influence and are influenced by their economic and social setting, and serve social needs or specific social functions . But since law in most societies soon reaches a very high degree of complexity, its administration requires the special training of judges and professional lawyers. This in tum haS created the need for a specific form of legal science concerned with the systematic or dogmatic exposition of the law and its specific methods and proce dures. For this purp ose the law is divided into distinct branches (such as crime, tort, and contract) , and general classifications and organizing concepts are introduced to collect common elements in the situations and relationships created by the law ( such as rights , duties, obligations, legal personality, ownership , and possession) or elements common to many separate legal rules ( such as act and intention) . N o very firm boundaries divide the problems confronting these various disciplines from the problems of the philosophy of law. This is especially true of the conceptual schemes of classification , definition, and division introduced by the aca­ demic study of the law for the purpose of exposition and teaching; but even some historical and sociological statements about law are sufficiently general and abstract to need the attention of the philosophical critic. Little, however, is to be gained from elaborating the traditional distinctions between the philosophy of law, jurisprudence (general and particular) , and legal theory, although importance has often been attri­ buted to them. Instead, as with other branches of philosophy, it is more important to distinguish as b elonging to the phil­ osophy of law certain groups of questions which remain to be

PROBLEMS O F THE PHILOSO PHY OF LAW

89

answered even when a high degree of competence or mastery of particular legal systems of the empirical and dogmatic studies mentioned above has been gained. Three such groups may be distinguished : problems of definition and analysis , problems of legal reasoning, and problems of the criticism o f law. This division is , however, n o t uncontroversial; an d o bj ec­ tions to it are considered in the last section of the article . PROBLEMS O F D E F INITION AND ANALYSIS

The definition of law. All the obscurities and prejudices which

in other areas of philo sophy surround the notions of defi­ nition and of. meaning have contributed to the endlessly de­ bated proble m s of the definition of law. In early arguments the search for the definition of law was assumed to be the task of identifying and describing the 'essence' or 'nature' of law, and thus the uniquely correct definition of law by reference to which the propriety of the use, however well established, of the expre s sions 'law ' and 'legal system ' could b e tested. It is frequently diffi cult to distinguish from this search for the essence of law a m ore modest conception of definition which , while treating the task as one of identifying and describing the standards actually accepted for the us e of these expressions , assumes that there is only one 'true', 'strict', or 'proper' use of them and that this use can be described in terms o f a single set of necessary and sufficient conditions. A wide range of different considerations has shown how unrealistic or how sterile this assumption is in the case of law, and has compelled its surrender. Among these considerations is the realization that although there are central clear instances to which the expressions 'law' and 'legal system ' have undisputed appli­ cation, there are also cases, such as international law and primitive law, which have certain features of the c entral c ase but lack others. Also, there is the realization that the justifi­ cation for applying general expressions to a range of different cases o ften lies not in their conformity to a set of necessary and sufficient conditions but in the analogies that link them or their varying relationships to some single elem ent. The foregoing are difficulties of definition commonly met in many areas of philosophy , but the definition of law has peculiar difficulties of its own. Thus, the assumption that the

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definition of law either has been or should be lexical, that is, concerned with the characterization or elucidation of any actual usage, has been challenged on several grounds . Thus it is often asserted that in the case of law, the area of indeter­ minacy of actual usage is too great and relates to too many important and disputed issues , and that what is needed is not a characterization or elucidation of usage but a reasoned case for the inclusion in or exclusion from the scope of the ex­ pressions 'law' and 'legal system ' of various deviations from routine and undisputed examples. These deviant cases include not only international law and primitive law but also certain elements found in developed municipal legal systems , such as rules to which the usual sanctions are not attached and rules which run counter to fundamental principles of morality and justice. In the above circumstances some theorists disclaim as necessarily deceptive any aim to provide an analysis or defi­ nition of law which is a neutral description or elucidation of usage ; instead, they speak o f the task of definition as 'stipu­ lative ', 'pragmatic ', or 'constructive', that is, as designed to provide a scheme or m odel for the demarcation and classifi­ cation of an area of study. The criterion of adequacy of such pragmatic definitions is not conformity to or the capacity to explain any actual usage but the capacity to advance the the­ orists' special aims , which m ay differ widely. Thus , a defini­ tion of law to be used for the instruction or assistance of lawyers concerned primarily with the outcome of litigation or court proceedings will differ from the definition used to demarcate and unify the fruitful area of historical study and will also differ from the definition to be used by the social critic concerned with identifying the extent to which human interests are advanced or frustrated by modes of social organ­ ization and c ontrol. Neither the legitimacy of pragmatic definitions nor their utility for deliberately chosen obj ectives need be disputed. But it is clear that they avoid rather than resolve many of the long-standing perplexities which have motivated requests for the definition of law and have made it a philosophical prob­ lem. The factors which have generated these perplexities may be summarized as follows : Notwithstanding the considerable area of indeterminacy in their use, the expressions 'law', 'a

PROB LEMS O F THE PHI L O SOPHY O F LAW

91

law', 'legal system', and a wide range of derivative and inter­ related expressions ( 'legislation ', 'courts of law', 'the appli­ cation of law', 'legal adjudication ') are sufficiently determinate to make possible general agreement in judgments about their application to particular instances. But reflection on what is thus identified by the comm on usage of such terms shows that the area they cover is one o f great internal complexity ; laws differ radically both in content and in the ways in which they are created, yet despite this h eterogeneity they are interrelated in various complex ways so as to constitute a characteristic structure or system. Many requests for the de finition of law have been stimulated by the desire to obtain a coherent view of this struc1;.ure and an understanding of the ways in which elements ap p arently so diverse are unifie d. These are prob­ lems, therefore, of the structure of law. Reflection on the operations of a legal system disclosed problems of another s ort, for it is clear that law as a m o de of influence on human b ehaviour is intimately related to and in many >w llys dependent upon the us e or threat of force on the one han d and on morality and justice on the other. Yet law is also, at points, distinct from both, so no obvious account o f these connections appears acceptable : they appear t o b e n o t merely contingent, an d since they sometimes fail, the state­ ment of these connections does not appear to be any easily comprehensible species of necessary truth . Such tensions create demands for some stable and coherent definition of the relationships between law, coercion, and morality ; but definitions of law h ave only in part been designed to make these important areas of human experience more intelligible. Practical and indeed political issues have long been inter­ twined with theoretical ones ; and as is evident from the long history of the doctrines of natural law and legal positivism, the advocacy of a submissive or a critical attitude to law, or even of obedience or disobedience, has often been presented in the form of persuasive definition of the relationship be­ tween law and morality on the one hand and b etween law and mere force on the other. The analysis of legal concepts. Although legal rules are of many different types and may b e classified from many differ­ ent points of view, they have many c ommon constituents ; and although the law creates for both individuals and groups

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G E N E RA L THEORY

a great vari ety of different situations and relationships , some of these are constantly recurrent and of obvious importance for the co nduct of social life. Both lawyers and laymen have frequent occasion to refer to these common elements and situations, and for this purpose they use classifications and organizing concepts expressed in a vocabulary which has bred many prob lems of analysis. These problems arise in part be­ cause this vocabulary has a more or less established use apart from law, and the points of convergence and divergence be­ tween legal and non-legal usage are not always immediately obvious or easily explicable. It is also the case that the ways in which common elements in law or legal situations are classi­ fied by d ifferent theorists in part reflect and derive from diver.gent conceptions of law in general. Therefore, although different writers use such expressions as 'rights' and 'duty' in referring to the same legal situations , they select different elements or aspects from these situations. A third factor call­ ing for clarification is the fact that many o f the commonest notions us e d in referring to legal phenomena can be expli­ cated only when certain distinctive ways in which language functions in conjunction with practical rules have been under­ stood. Th es e problems of analysis are illustrated in the case of the con cepts of ( 1 ) legal obligation or duty, (2) a legal transaction , and ( 3 ) intention. (Certain distinctions once made between the notions of a legal obligation and a legal duty are no longer of importance and will be disregarded. ) The situation in which an individual has a legal duty to do or to abs tain from some action is the comm onest and most fundamental of all legal phenomena; the reference to duty or its absence is involved in the definition o f such other legal concepts as those of a right, power, a legal transaction, or a legal personality. Whenever the law of an effective legal system provides for the punishment of those who act or fail to act in certain ways, the word 'duty' applies. Thus , to take a simple example, if the law requires under penalty that persons of a certain age shall report for military service, then such persons have, or are 'under', a legal duty to do so. Thus much is un­ disputed, h owever much theorists may dispute over the analy­ sis of ' duty' or its application to situations created not by the criminal law but by the law relating to torts or to contract. Howev er, even the above simple situation can be viewed

PROB LEMS O F THE PHILO S OPHY O F LAW

from two very different s tandpoi nt s

that

93

give rise to app ar­

ently conflicting analyses of duty . From one of these ( the predictive standp o int ) , reporting for military service is classi­ fie d

as a

duty simply because failure to rep ort renders likely

certain forms of suffering

at the hands of o fficials. From the standpoint ( the n orm ative s tan dp oi nt ) , rep orting for military service is classifi e d as a duty be c aus e , owing to the existence of the law, it is an action which m ay be rightly or j u s t i fiabl y demanded of those concerned; an d failure to rep ort other

is significant not merely b ecause it renders future su ffering likely but als o because p unishment is legally justified it d oes n o t always follow disob edience. F rom J erem y B entham onward the pre dictive duty as

a chance

obe dience to the for

a v ari ety

even

analysis

if of

or likeliho o d of su ffering in the event o f dis­

law h as

b een advocated by important writers

of theoretical and practical reasons . On the o ne

h and it h as seemed

to

free the idea of legal duty from meta­

physical obscurities and irrelevant associations with morals , � and o � t h e o ther t o provide a realistic guide to life under law.

It

isolates what for som e

th e operation of

a

m en is

the only imp ortant fact about

legal system and what for all men is

at

l e ast

one imp ortant fact : the occasions and ways in which the law works adversely t o their interests . This is o f paramount im­ portance not

only t o the m alefac tor but also to the critic and law concerned to balance again s t the benefits which l aw b rings its costs in terms of human suffering. By contrast , the normative point of view, without iden­ tifying moral and legal duty or insis ting on any c ommon con­ ten t , stresses certain comm on formal features that both m o ral and legal duty possess in virtue of their b oth being asp ects of

reformer o f th e

rule-guided conduct. This is the point of view o f those who , although they

may not regard the law as the final arb iter o f accept the existence o f legal as legally jus tifying demands

nevertheless generally rules as guides to c on duct and

conduct,

for conformity , punishment, enforc e d comp ensation, or other forms o f coercion. Attention to these features of

the idea of law is

is essential for understan ding the ways in which c onceived o f and operative in social life.

duty

Although

theorists have often attributed exclusive

correct­

ness to these different standpoin t s , there are various ways in which they m ay be illuminatingly combined. Thus, the

94

G E N E RAL THEO R Y

normative account might b e said to give correctly the mean­ ing of such statements as that a person has a legal duty to do a certain action, while the predictive account emphasizes that very frequently the point or purpose of making such state­ ments is to warn that suffering is likely to follow disobedience. Such a distinction between the meaning of a statement and what is implied or intended by its assertion in different con­ texts is of considerable importance in many areas of legal philosophy . The enactment of a law, the making of a contract, and the transfer by words, written or sp oken, of ownership or other rights are examples of legal transactions which are made poss­ ible by the existence of certain types of legal rules and are definable in terms of such rules. To some thinkers, such trans­ actions (acts in the law, or juristic acts) have appeared mys­ terious - some have even called them magical - because their effect is to change the legal position of individuals or to make or eliminate laws. Since, in most modern systems of law, such changes are usually effected by the use of words, written or spoken, there seems to be a species of legal alchemy. It is not obvious how the mere use of expressions like 'it is hereby en­ acted . . . ', 'I hereby bequeath . . . ', or 'the parties hereby agree . . . ' can produce changes. In fact, the general form of this phenomenon is not exclusively legal , although it has only comparatively recently been clearly isolated and analysed. The words of an ordinary promise or those used in a christening ceremony in giving a nam e to a child are obvious analogues to the legal cases. Lawyers have sometimes marked off this dis­ tinctive function of language as the use of 'operative words ' , and under this category have distinguished, for example, the words used in a lease to create a tenancy from the merely de­ scriptive language of the preliminary recital of the facts con­ cerning the parties and their agreement. For words (or in certain cases gestures , as in voting or other forms of behaviour) to have such operative effect, there must exist legal rules providing that if the words (or gestures ) are used in appropriate circumstances by appropriately qualified persons, the general law or the legal position of individuals is to be taken as changed. Such rules may be conceived from one point of view as giving to the language used a certain kind of force or effect which is in a broad sense their meaning ;

PRO B LE M S O F T H E PHILO SOPHY OF LAW

95

from another point of view they may be conceived as confer­ ring on individuals the legal power to make such legal change s . I n continental jurisprudence such rules are usually referred to as 'nonns of competence ' to distinguish them from simpler legal rules that m erely impose duties with or without corre­ lative rights. As the expressions 'acts-in-the-Iaw' and 'op erative words ' suggest, there are important resemblan c es between the ex­ ecution of legal transactions and more obvious cases of human actions. These points of resemblance are of especial import­ ance to understanding what has often seemed problematic the relevance of the mental or psychological states o f the parties conce:rned to the constitution or validity of such trans­ actions. In many cases the relevant rules provide that a trans­ action shall be invalid or at least liable to be set aside at the option of various persons if the person purporting to effect it was insane, mistaken in regard to certain matters, or subj ected to duress or undue influence. There is here an important anal­ ogy wIth the ways in which similar p sychological facts (mens rea) may , in accordance with the principles of the criminal law, excuse a person from criminal responsibility for his action. In both spheres there are exceptions : in the criminal law there are certain cases of 'strict' liability where no element of knowledge or intention need be proved; and in certain types o f legal transaction, proof that a person attached a special meaning to the words he used or was mistaken in some respect in using them would not invalidate the transaction, at least as against those who have relied upon it in good faith. Attention to these analogies between valid legal transac­ tions and responsible action and the mental conditions that in the one case invalidate and in the other excuse from re­ sponsibility illuminates many obscure theoretical disputes concerning the nature of legal transactions such as contract. Thus ; according to one principal theory (the 'will ' theory ) a contract is essentially a complex psychological fact - some­ thing which comes into b eing when there is a meeting of minds (consensus ad idem ) that jointly 'will' or 'intend' a cer­ tain set of mutual rights and duties to come into existence. The words used are, according to this theory, merely evidence of this consensus. The rival theory (the 'obj ective' theory) insists that what makes a contract is not a p sychological

96

G E N E RAL THEORY

phenomenon but the actual use of words of offer and accept­ ance, and that except in special cases the law simply gives effect to the ordinary meaning of the language used by the parties and is not concerned with their actual states of mind. Plainly, each side to this dispute fastens on something import­ ant but exaggerates it. It is indeed true that , like an ordinary promise, a legal contract is not made by psychological facts. A contract, like a promise, is 'made' not by the existence of mental states but by words ( or in some cases deeds) . If it is verbally made, it is made by the operative use of language , and there are m any legal rules inconsistent with the idea that a consensus ad idem is required. On the other hand, just be­ cause the operative use of language is a kind of action, the law may - and in most civilized legal systems does - extend to it a doctrine of resp onsibility or validity under which cer­ tain mental elements are made relevant. Thus a contract, although made by words , may be vitiated or made void or 'voidable' if a party is insane, mistaken in certain ways, or under duress . The truths latent among the errors of the 'will' theory and the 'objective ' theory can therefore be brought together in an analysis which makes explicit the analogy between valid transactions made by the operative use of language and resp onsible actions. The fact that the law often treats certain mental states or psychological conditions as essential elements both in the validity of legal transactions and in criminal responsibility has thrust upon lawyers the task of distinguishing between and analysing such notions as 'will', 'intention', and 'motive'. These are concepts which have long puzzled philosophers not primarily concerned with the law, and their application in the law creates further specific problems. These arise in various ways : there are divergencies between the legal and non-legal use of these notions which are not always obvious or easily understoo d ; the law, because of difficulties of proof or as a matter of social p olicy , may often adopt what are called ex­ ternal or obj ective standards , which treat certain forms of outward behaviour as conclusive evidence of the existence of mental states or impute to an individual the mental state that the average man behaving in a given way would have had. Although statutes occasionally use expressions like 'mali­ ciously ', 'knowingly ', or 'with intent', for the most part the

PROBLEMS O F T H E PHILOSOPHY O F LAW

97

expressions 'intentionally ' and 'voluntarily ' are not t h e lan­ guage of legal rules but are used in the exposition of such rules in summarizing the various ways in which either crimi­ nal charges or civil claims may fail if something is done - for instance , accidentally, by mistake, or under duress . The problems that arise i n these ways may be illustrated in the case of intention. Legal theorists have recognized inten­ tion as the mental element of central importance to the law. Thus , an intention to do the act forbidden by law is in Anglo­ American law normally the sufficient mental element for criminal responsibility and also is . normally , although not always , necessary for responsibility. So if a man intends to do the act forbidden by law, other factors having to do with his powers of self-control are us�ally irrelevant, although s ome­ times duress and sometimes provocation or deficient ability to control conduct, caused by mental disorder, may become relevant. In fact, three distinct applications of the notion of intention , are important in the law, and it is necessary to distingu i sh in any analysis of this concept ( 1 ) the idea of intentionally doing something forbidden by law; ( 2 ) doing something with a further intention ; and ( 3 ) the intention to do a future act. The first of these is in issue when, if a m an is found to have wounded or killed another, the question is asked whether he did it intentionally or unintentionally. The second is raised when the law, as in the case of burglary defined as 'breaking into premises at night with the intention of committing a felony ', attaches special importance or m ore severe penalties to an action if it is done for some further purpose, even though the latter is not executed. The third application of intention can be seen in those cases where an act is criminal if it is accompanied by a certain intention for instance, incurring a debt with the intention never to pay. Of these three applications the first is of chief imp ortance in the law, but even here the law only approximates to the non­ legal concept and disregards certain elements in its ordinary usage. For in the law the question whether a man did some­ thing intentionally or not is almost wholly a question c oncern­ ing his knowledge or b elief at the time of his action. Hence , in most cases when an action falling under a certain descrip­ tion (such as wounding a policeman) is made a crime , the law is satisfied , in so far as any matter of intention is concerned,

98

G E N E RAL THEORY

if the accused knew or believed that his action would cause injury to his victim and that his victim was in fact a policeman. This almost exclusively cognitive approach is one distinctive way in which the law diverges from the ordinary idea of inten­ tionally doing something, for in ordinary thought not all the foreseen consequences of conduct are regarded as intended. A rationale of this divergence can be provided, however. Although apart from the law a man will be held to have done something intentionally . only if the outcome is something aimed at or for the sake of which he acted, this element which the law generally disregards is not relevant to the m ain ques­ tion with which the law is concerned in determining a man's legal responsibility for b ringing about a certain state of affairs. The crucial question at this stage in a criminal proceeding is whether a man whose outward conduct and its consequences fall within the definition of a crime had at the time he acted a choice whether these consequences were or were not to occur. If he did, and if he chose that in so far as he had influ­ ence over events they would occur, then for the law it is irrelevant that he merely foresaw that they would o ccur and that it was not his purpose to bring them about. The law at the stage of assessing a man's responsibility is interested only in his conscious control over the outcome, and discards those elements in the ordinary concept of intention which are irrel· evant to the conception of control. But when the stage of conviction in a criminal proceeding is past, and the question b ecomes how severely the criminal is to be punished, the matter previously neglected o ften becomes relevant.· Distinc· tions may be drawn at this stage between the man who acted for a certain purpose and one who acted merely foreseeing that certain consequences would come about. The second and third applications of the notion of inten· tion ( doing something with a further intent and the intention to do a future action ) are closer to non-legal usage, and in the law, as elsewhere, certain problems of distinguishing motive and intention arise in such cases. P R O B LEMS O F LEGAL REASONING

Since the early twentieth century, the critical study of the forms of reasoning by which courts decide cases h as b een a

P RO B LEMS O F THE PHILOSOPHY O F L A W

99

principal concern of writers on jurisprudence, especially in America. From this study there has emerged a great variety of theories regarding the actual or proper place in the proc ess of adjudication of what has been termed, often ambiguously, 'logic '. Most of these theories are sceptical and are designed to show that despite appearances , deductive and inductive reasoning play only a subordinate role. Contrasts are drawn between 'logic ' and 'experience' (as in Holmes 's famous dic­ tum that 'the life of the law has not been logic ; it has been experience ') or b etween 'deductivism ' or 'formalism ' on the one hand and 'creative choice ' or 'intuitions of fitness ' on the other. In general, such theories tend to insist that the latter members o � these contrasted sets of expression more ad­ equately characterize the process of legal adjudication, despite its appearance of logical method and form . According to some variants of these theories, although logic in the sense of deductive and inductive reasoning plays little part, there are other 33 Hence, when Mill cam e to discuss the liberty of the individ­ ual he argued that it was only to be interfered with or restric­ ted ( whether by law or social pressure) wh en the c onduct of the individual is harmful to others , whereas a strict maxi­ mizing utilitarian would have to allow that the freedom of an individual might always be restricted if this would increas e the total aggregate welfare of s ociety. Mill's doctrine of liberty is on this point a striking departure from the maximizing prin­ cip le of utilitarianism and the effect of it is to secure for each individual an area of freedom for the whole range of his ac­ tivities which are not harmful to others . Since it offers this p rotection to the freedom of the individual as such , it secures the same area of liberty for all individuals and thus a measure o f equality , whereas pure utilitarianism is in no way commit­ ted to equality of treatment as an independent value. Of course Mill 's doctrine is not without its famous ambiguities or difficulties, mainly flowing from the op e n te x ture d or -

33 Mill, supra

n.

20. at 2 1 9 .

1 94

LIBERTY, UTILITY , AND RIGHTS

vague character of the concept of 'harm to others ', but it is a striking departure from the maximizing principle of utili­ tarianism. However, only in our own time has a direct frontal attack been made on the central maximi z ing principle of utilitarian­ ism. This m odern critique has been developed largely in the United S tates in the last twenty years , most notably in J ohn Rawls 's A Theory of Justice ,34 which is the most imp ortant work of p olitical philosophy written in English since J ohn Stuart Mill. Rawl s 's work is already profoundly influential, though bo th its critique of utilitarianism and its positive theory of basic rights is controversial and incomplete. A simi­ lar critique of utilitarianism is now to be found in many other modern writers , American and English. 35 The thrust of this modern critique consists of a claim that utilitarianis m 'does not ta,ke seriously the distinction between persons ',36 since it licenses the imp osition of sacrifices in in­ dividual cases whenever this can be shown to advance aggre­ gate welfare. Persons on this view are of no intrinsic value, but are merely the receptacles for the experiences which will in­ crease or diminish the sole intrinsic value, namely aggregate welfare . These considerations show why u tilitarianism, once re­ garded as the great inspiration of progressive social thought, also possesses a darker sinister side permi tting the sacrifice of one individual to secure the greater happiness of others . Accordingly, the contemp orary modern philosophers of whom I have sp o ken, and pre-eminently Rawls in his Theory of Justice , have argued that any morally adequate political philosophy must recognize that there mus t be, in any morally tolerable form of social life , certain protections for the free­ dom and basic interes ts of individuals which constitu te an essential framework of individual rights. Though the pursuit of the general welfare is indeed a legitimate and indeed neces­ sary concern of governments, it is something to be pursued 3 4 J . Rawis, A Theory of Justice 2 2-4 , 2 7 , 1 8 1 , 1 8 3 , 1 8 7 { 1 9 7 1 } . 3' E.g., R. Dworkin, Taking Rights Seriously ( 1 9 7 7) ; J . Mac k ie , Ethics: Invent ing Right and Wrong ( 1 9 7 7 ) ; R. Nozick, Anarchy, State, and Utopia ( 1 9 74) ; B . Williams, Morality: A n Introduction to Ethics ( 1 9 7 2 ) . 3 6 S e e Rawls, o p . c i t . n . 3 4 supra a t 1 8 7. I examine this claim i n detail i n my 'Between Utility and Rights , Essay 9 infra . '

UTILITARIANISM AND NATURAL RIGHTS

1 95

only within certain constraints imposed by recognition o f such rights. The modern philosophical defence put forward for the recognition of basic human rights does not wear the same metaphysical or conceptual dress as the earlier doctrines of the seventeenth- and eighteenth-century rights of man , which men were said to have in a state of nature or to be endowed with by their creator_ None the less, the most c omplete and ar­ ticulate version o f this mo dern critique of u tilitarianism has many affinities with the theories of s ocial contract which in the seventeenth and eighteenth centuries acc ompanied the doctrine of natural rights . Thus Rawls has argued in A Theory of Justice that though any rational pers on mus t know that in order to live even a minimally tolerable life he must live within a political society with an ordered government, no rational person bargaining with others on a fo oting of equality could agree to regard himself as bound to obey the laws o f any government if his freedom and basic interests, what Mill c alled 'the groundwork of human existence ' , were n o t given protec ­ tion and treated as having priority over mere increases in ag­ gregate welfare , even if the protection cannot be abs olute. B o th the philosophical foundations of this new critique o f utilitarianism and the detailed application of its doctrine of basic rights to c ontemporary constitutional, s ocial and ec on­ omic problems o f society are still highly controversial. It can­ not be said that we have had, either from the European or from American political theorists who have now become acutely conscious of the defects of an undiluted maximizing utilitarianism, a sufficiently detailed or adequately articulate theory showing the foundation for such right s and how they are related to other values which are pursued through govern­ ment. Nothing is yet available of this kin d comparable in clarity and detaile d articulation to B entham 's elaborate ex­ position and application of utilitarianism. Indeed the revived doctrines of basic rights, as currently presented, are in spite of much brilliance still unconvincing. In fact , I think, this is due to their authors seeking to define their p oint of view too exclusively in terms of the ways in which u tilitarianism has ignored certain values taken to be uncontroversial, whereas what is first needed is some more radical and detailed con­ sideration of the ways in which rights relate to o ther values

1 96

LIB E RTY , UTILITY, AND RIGHTS

pursued in s ociety . Among such writers examples could now be found in both the Conservative Right and the Liberal Left of the political sp ectrum. The work of these writers certainly demands careful assessment , but that is a task for another time . 37 Ye t it is plain that a theory of rights is urgently called for. During the last half century man's inhumanity to man has been such that the mos t basic and elementary freedoms and protections have b een denied to innumerable men and women guilty, if of anything, only of claiming such free doms and protections for themselves and others , and sometimes these have been denied to them on the specious pretence that this denial is demanded by the general welfare of a society . So the protection of a doctrine of basic human rights limiting what a state may do to its citizens seems to be precisely what the political problems of our own age most urgently require, or at any rate they require this more urgently than a call to maximise general u tility . And in fact the philosophical devel­ op ments which I have sketched have been accompanied by a gro wth, recently accelerated, of an international human rights movement. Since 1 946 when the signatories of the United Nations Charter affirme d their faith in fundamental human rights and the dignity and worth o f the human p erson, no state can claim that the denial of such rights to its own citi­ zens is solely its own business. I cannot here ass ess how much or how littl e the world has gained from the fact that in the thirty years which separate the signing of the United Nations Ch arter from the recent Helsinki Agreement, pressure for the implemen tation of basic human rights has become increas­ ingly a feature o f international relations , coventions, and diplomacy. N or can I assess here how o ften cynical lip service to the doctrine has been, and s till is, accompanied by cynical disregard of its principles. There is however no doubt that the conception of basic human rights has deeply affecte d the s tyle of diplomacy, the morality, and the political ideology of our time, even though thousands of innocent persons s till imprisoned or oppressed have not yet felt its benefits. Th e doctrine of hurrian rights has at least temp orarily re­ placed the doctrine of maximizing utilitarianism as the prime 3 7 I attempt such

an

assessment in 'Between U ti li t y and Rights', Essay 9 infra.

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philosophical inspiration o f political and social reform. I t re­ mains to be seen whether it will have as much success as utili­ tarianism once had in changing the practices of governments for human go od. POSTSCRIPT See for a

n opposed view : D. Lyons, 'Human Rights

and

the G ener al Wei,

fare ' , 6 Ph ilosop h y an d Pu blic Affairs ( 1 9 7 7 ) ; criticiz e d in 'Natural Rights : B entham in Essays on B e n th a m

and J ohn Stuart Mill '

( O x fo rd 1 9 8 2 ) , c h IV. .

my

E s s ay 9

Between U tility and Righ ts

I

I d o not think that anyone familiar with what has been pub­ lished in the last ten years, in England and the United States , on the philosophy of government can doubt that this subject, which is the meeting p oint of m oral, political, and legal phil­ osophy, is undergoing a m ajor change . We are currently wit­ nessing, I think, the progress of a transi tion from a once widely accepted old faith that s ome form of utilitarianism, if only we could discover the right form, must cap ture the es­ sence of political morality. The new faith is that the truth must lie not with a doctrine that takes the maximization of aggregate or average general welfare for its goal, but with a doctrine of b asic human rights , protecting specific basic lib­ erties and interests of individuals , if only we could find some sufficiently firm foundation for such rights to meet some long-familiar objecti ons . Whereas not s o long ago great energy and much ingenuity of many ph�losophers were devoted to making some form o f utilitarianism work, latterly such ener­ gies and ingenuity have been devoted to the articulation of theories of b asic rights. As often with such changes o f faith or redirec tion of philo­ sophical energies and attention, the new insights which are currently o ffered us seem to dazzle at least as much at they illuminate . Certainly , as I shall try to show by reference to the work of two now influential contemp orary writers, the new faith has b ee n presente d in forms which are , in spite of much brilliance, in the end unconvincing. My two examples , both American, are taken respectively from the Conservative Right an d the Liberal Left of the political spectrum ; and while the former builds a theory of rights on the moral importance of the separateness or distinctness of human persons ' which u tili­ tarianism is said to ignore, the latter seeks to erect such a theory on their moral title to equal concern and respect which, it is said, unreconstructed utilitarianism implicitly

B ETWEEN UTI LITY AND

RIGHTS

1 99

denies. S o while the first theory is dominated by the du ty of governments to respect the sep arateness of persons , the sec­ ond is dominated by the duty of governments to treat their subjects as equals , with equal concern and respect. II

For a just appraisal of the first o f these two theories it is necessary to gain a clear concep tion of what precisely is meant by the criticism, found in different forms in very many differ­ ent modern writers , that unqualified u tilitarianism fails to recognize or abstracts from the separateness of p ers ons when , as a political philosophy, it calls on governments to m aximize the total or the average net happiness or welfare of their sub­ jects. Though this accusation of ignoring the sep arateness of persons can be seen as a version of the Kantian principle that human beings are ends in themselves , it is none the less the distinctively modern criticism of u tilitarianism . In England B ernard Williams 1 and in America J ohn Rawls2 have been the most elo quent expositors of this form of criticism ; and John Rawls 's claim that 'Utilitarianism dces not take s eriously the distinction between persons '3 plays a very imp ortant role in his A Theory of justz"ce. Only faint hints of this particular criticism flickered through the many different attacks made in the p ast on u tilitarian doctrine, ever since Jeremy B entham in 1 7 7 6 announced to the world that both government and the limits of government were to be justified by reference to the greatest happiness of the greatest number, and not by ref­ erence to any doctrine of natural rights : such doctrines he thought so mu ch 'bawling upon paper ',4 and he first an­ nounced them in 1 7 7 6 in a brief rude reply S to the American Declaration of Independence. I ' A Critique of Utilitarianism', i n J . Smart a n d B. Williams , Utilitarianism, For and Against 1 08-1 8 ( 1 9 73) : and 'Persons, Character and Morality ' in The Identity of Persons ( Rorty edn., 1 9 7 7 ) . 2 See J . Rawls , A Theory o f Ju st ice 2 2 - 4 , 2 7 , 1 8 1 , 1 8 3 , 1 8 7 ( 1 9 7 1 ) . 3 Ibid. at 1 8 7 . 4 Bentham, A narch ical Fallacies, in 2 Works 494 ( Bowring edn., 1 83 8 4 3 ) . • For an accoun t of this reply included in An Answer t o t h e Declara tion of the American Congress ( 1 7 76) by Bentham's friend J ohn Lind, see my 'Bentham and the United States of America', 1 9 J. L. & Eco n . 5 4 7 , 555-6 ( 1 9 7 6 ) , reprinted in my Essays on Ben tham (Ox ford, 1 9 82), ch. III.

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What then does this distinctively modern criticism of utili­ tarianism, that it ignores the moral imp ortance of the sep­ arateness of individuals , mean? I think its meaning is to be summed up in four main points , though not all the writers who make this criticism would endorse all of them. The first p oint is this : In the perspective of classical maxi­ mizing u tilitarianism separate individuals are of no intrinsic importance but only imp ortant as the p oints at which frag­ ments of what is imp ortant, i.e. the total aggregate of pleasure or happiness , are located. Individual persons for it are there­ fore merely the channels or locations where what is of value is to be found. It is for this reas on that as long as the totals are thereby increase d there is nothing, if no independent princi­ ples of dis tribution are introduced, to limit permissible trade­ offs between the satisfactions of different pers ons . Hence one individual 's happiness or pleasure, however innocent he may be, may be s acrificed to procure a greater happiness or pleasure located in o ther persons, and such replacements of one p ers on ·by another are not only allowed but required by unqualified u tilitarianism when unrestrained by distinct dis­ tribu tive principles . Secondly, u tilitarianism is not, as s ometimes it is said to be, an individualistic and egalitarian doctrine , although in a sense it treats persons as equals , or of equal worth. For it does this only by in effect treating individual pers ons as of no worth ; since not persons for the utilitarian but the exper­ iences of pleasure or satisfaction or happiness which persons have are the sole items of worth or elements of value. It is of course true and very imp ortant that, according to the utili­ tarian m axim , 'everybody [is ] to count for one, nobody for more than one ', 6 in the sense that in any app lication of the greatest happiness calculus the equal pains or pleasures, satis­ factions or dissatisfactions or preferences of different persons are given the s ame weight whether they be Brahmins or Untouchables, Jews or Christians , black or white . But since utilitarianism has no direct or intrinsic concern but only an instrumental concern with the relative levels of total well­ being enjoyed by different persons, its form of equal concern 6 See J. S. Mill, Utilitarianism (ch. 5), in 10 Collected Works of John Stuart Mill 1 5 7 ( 1 969) ; Bentham, Plan of Parliamentary R eform , in 3 Works 459 (Bow ring edn. 1 838-43).

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and respect for p ersons embodied i n the maxim 'everybody to count for one, nobody for more than one' may license the grossest form of inequality in the actual treatment of individ­ uals , if that is required in order to maximize aggregate or average welfare. So long as that condition is s atis fied, the situation in which a few enjoy great happiness while many suffer is as good as one in which happiness is more equally distributed. Of course in comparing the aggregate economic welfare pro duced by equal and unequal distribution of resources account must be taken of factors such as diminishing marginal utility and also envy. These factors favour an equal distri­ bution of resources, but by no means always favour it con­ clusively. For there are also factors pointing the o ther way, such as adminis trative and transaction costs, loss of incentives and failure of the standard assumption that all individuals are equally goo d pleasure or satisfaction machines , and derive the same utility from the same amount of wealth. Thirdly, the modern critique of utilitarianism ass erts that there is nothing s elf-evidently valuable or authoritative as a moral goal in the mere increase in totals of pleas ure or happi­ ness abs tracted from all questions of distribution . The collec­ tive sum of different persons ' pleasures, or the net balance of total happiness o f different persons ( supp osing it makes sense to talk of adding them), is not in itself a pleasure or happiness which anybody experiences . Society is not an individual ex­ periencing the aggregate collected pleasures or pains o f i ts members ; no pers on experiences such an aggregate . Fourthly, according to this critique, maximizing utilitarian­ ism, if it is not restrained by distinct distributive principles , proceeds on a false analogy between the way in which it is rational for a single prudent individual to order his life and the way in which it is rational for a whole communi ty to order its life through government. The analogy is this : it is rational for one man as a single individual to sacrifice a pres­ ent satis faction or pleasure for a greater satis faction later, even if we discount s omewhat the value of the later s atisfac­ tion because of its uncertainty. Such sacrifices are amongst the most elementary requirements of prudence and are com­ monly accepted as a virtue, and indeed a paradigm of practical rationality, and, o f cours e , any form o f saving is an example

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of this form of rationality. In its misleading analogy with an individual's prudence, maximizing utilitarianism not merely treats one p erson's pleasure as replaceable by some greater pleasure of that same person, as prudence requires , but it also treats the pleasure or happIness o f one individual as similarly replaceable without limit by the greater pleasure of other in dividuals. So in these ways it treats the division between persons as of no more moral significance than the division be­ tween times which separates one individual 's earlier pleasure from his later pleasure, as if individuals were mere parts of a single persisting entity. III

The modern insight that it is the arch-sin of unqualified utili­ tarianism to ignore in the ways I have mentione d the moral importance of the separateness of persons is , I think, in the main , a profound and pen etrating criticism. It holds good when utilitarianism is restated in terms of maximum want or pre ference satis faction and minimum want or preference frus­ tration rather than in the Benthamite form of the balances of pleasure and pain as psychological states, and i t holds good when the maximand i s taken to be average rather than total r general welfare. But it is capable of being abused to discredit all attempts to diminish inequalities and all arguments that , one man 's loss may be compensated by another's gain such as have inspired policies of social welfare ; all these are discredited as if all necessarily committed the cardinal sin c ommitted by maximizing utilitarianism of ignoring the s ep arateness of individuals. This is I think the b asis of the libertarian, strongly anti-utilitarian political theory developed by Robert Nozick in his influential book, Anarchy, S tate, and Utopia . 7 F or Nozick a strictly limited set of near-absolute individual rights con­ stitute the foundations of morality . Such rights for him 'ex­ press the inviolability of persons ' s an d 'reflect the fact of our sep arate existences '.9 The rights are these : each individual , so long as he does not violate the same rights of others , has the right not to be killed or assaulted, to be free from all forms 7 R. Nozick, Anarchy, State, and Utopia ( 1 9 74 ) . Ibid a t 32. 9 Ibid at 33.

•

B ETWEEN UTILITY AND RIGHTS

203

of coercion o r limitation of freedom , and the right not t o have prop erty, legi timately acquired, taken, o r the use of it limited. He has also the secondary right to punish and exact compensation for violation of his rights , to defend himself and others against such violation. He has the positive right to ac­ quire prop erty by making or finding things and by transfer or inheritance from others, and he has the right to make such transfers and binding contracts . The moral landscape which Nozick explicitly presents contains only rights and is emp ty of everything else except possibly the moral permissibility o f avoiding what he terms catastrophe. Hence moral wrongdoing ! has only one form : the violation o f rights, p erpetrating a wrong to the holder of a right. S o long as rights are n ot violated it matters not for morality, short of catastrophe , how a social system actually works , how individuals fare under it, what needs it fails to meet or what misery or inequalities it pro duces . In this scheme of things the basic rights which fill the moral landscape and express the inviolability of persons are few in number but are all equally s tringent. The only legit­ imate S tate on this view is one to which individuals have transferred their right to punish or exact compensation from others , and the S tate may not go beyond the night-watchman functions of using the transferred rights to protect persons against force, fraud, and the ft or breaches of contract . In par­ ticular the State may not impose burdens on the wealth or in­ come or restraints on the liberty of s ome citizens to relieve the needs or suffering, however great, of others . S o a S tate may only tax its citizens to provide the p olice, the law courts , and the armed forces necessary for defence and the perform­ ance of the night-watchman functions. Taxing e arnings or profits for the relief of poverty or destitution, however dire the need, or for the general welfare such as public education, is on this view morally indefensible ; it is said to b e 'on a par with ' forced labour 1 0 or making the government imposing such taxes into a 'part owner' of the p ersons taxed. l l Nozick's development of this extreme libertarian p osition is wide-ranging. It is full of original and ingenious argument splendidly designed to sha.ke up any complacent intervention­ ist into p ainful self-scrutiny. But it rests on the slenderest

)

10

Ibid. at 1 69 .

II

Ibid. at 1 72.

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LIBERTY , UTILITY, AND RIGHTS

foundation. Indeed many critics have complained of the lack of any argument to show that human beings have the few and only the few but very s tringent rights which Nozick assigns to them to support his c onclusion that a morally legitimate gov­ ernment c annot have any more extensive functions than the night-watchman's . But the critics are wron g : there is argument of a s ort, though it is woefully deficient. Careful scrutiny of his book shows that the argument consists of the assertion that if the functions of government are not limited to the protection of the basic stringent rights, then th e arch-sin of I ignoring the separateness of persons which modem critics im­ i pute to utilitarianism will h ave been committed. To sustain ! this argument Nozick at the start of his book envelops in metaphors all p olicies imposing burdens or restraints going beyond the functions of the night-watchman S tate , and the metaphors are in fact all drawn from a description of the arch­ sin imputed to utilitarianism. Thus , not only is taxation said to be the equivalent of forced labour, but every limitation of prop erty rights , every restriction of liberty for the benefit of others going beyond the constraints imp osed by the basic rights , are described as vio lating a person, 1 2 as a sacrifice of that person, 1 3 or as an outweighing of one life by others /4 or IS a treatment of a distinct individual as a resource for others . So c oncep tions o f justice permitting a graduated income tax to provide for basic needs or to diminish social or economic inequalities are all said to neglect the b asic truth 'that each individual is a separate person, that his is the only life he has ' . 1 6 To h old that a person should bear costs that benefit others more is represented as a 'sacrifice ' of that person and implying what is false : namely that there is a single social Ii as entity with a life of which individual lives are merely part just ; as one individual's desires sacrificed for the sake o f his other desires are only p art of his life. I ? This imputation of the arch­ sin committed by utilitarianism to any p olitical philosophy which assigns functions to the state more extensive than the night-watchman's c onstitutes , I think, the foundation which Nozick offers for his system. It is a paradoxical feature of Nozick 's argument, hostile 12 14 16

Ibid. at 3 2 . Ibid. Ibid.

13

15

17

Ibid. at 33. Ibid. Ibid. at 3 2-3.

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though it is to any form o f utilitarianism, that it yields a result identical with one o f the least acceptable conclusions of an unqualified maximizing utilitarianism , namely that given certain conditions there is nothing to choose between a society where few enjoy great happiness an d very many very little , and a society where happiness is more equally spread. For the utilitarian the condition is that in b oth so­ cieties either aggregate or average welfare is the sam e . For Nozick the condition is a historical one : that the patterns of distribution of wealth which exist at any time in a society should have come about through exercise of the rights and p owers of acquisition and v oluntary transfer included in own­ ership and without any violation of the few b asic rights . Given the satisfaction of this historical conditi on, how people fare under the resulting patterns of dis tribution, whether grossly inegalitarian or egalitarian, is of no moral significance. The only virtue of social institu tions on this view is that they pro­ tect the few basic rights, and their only vice is failure to do this . Any consequence of the exercise o f such rights is un­ objectionable . It is as if the model for Nozick's basic moral rights were a legal one . Just as there can be n o legal objec­ tion to the exercise of a legal right, so in a morality as emp ty as Nozick's is of everything except rights , there can be no moral o bjection to the exercise of a moral right. Why should a critic of society thus assume that there is only one form of moral wrong, namely, violation of individual rights ? Why should he tum his gaze away from the conse­ quences in terms of human happiness or misery produced by the working of a system of such rights? The only ans wer ap­ p arent in Nozick's work is that to treat this misery as a matter of moral concern and to require some p ersons to contribute to the assistance of o thers only m akes sense if one is prepared, like the maximizing utilitarian , to disregard the separateness o f individuals and share the superstition that thos e required to make such contributions are merely part of the life of a single p ersisting social entity which both makes the contribu­ tions and experiences the b alance of good that comes from such contributions. This of course simply assumes that utili­ tarianism is only in telligible if the satisfactions it seeks to maximize are regarded as those of a single social entity. I t also assumes that the only alternative to the Nozickian philosophy

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of right is an unres tricted maximizing utilitarianism which respects not persons but only experiences of pleasure or satis­ faction ; and this is of course a false dilemma. The impression that we are faced with these two unpalatable alternatives dis­ solves if we undertake the no doubt unexciting but indispens­ able chore of confronting Nozick's misleading descriptive terms, such as 'sacrifice of one individual for others ', 'treating one individual as a resource for others ', 'making others a part owner of a man', 'forced labour', with the realities which these expressions are misused to describe . We must also sub­ stitute for the blindingly general use o f concep ts like 'inter­ ference with liberty ' a discriminating catalogue which will enable us to distinguish those restrictions on liberty which can be imposed only at that intolerable cost of sacrificing an individual's life or dep riving it of meaning, which according to Nozick is the cost of any restriction of liberty except the restriction on the violation of b asic rights . How can it be right to lump together, and ban as equally illegitimate, things so different in their impac t on individual life as taking some of a man's income to save o thers from some great suffering, and killing him or taking one of his vital organs for the same pur­ pose? If we are to construct a tenable the ory of rights for use in the criticism of law and s ociety we must, I fear, ask such b oring ques tions as : Is taxing a man's earnings or income , which leaves him free t o choose whether t o work and t o choose wha t work t o do, n o t altogether different i n terms of the burden it imp oses from forcing him to labour? Does it really sacrifice him or make him or his body just a resource for others ? Does the admitted moral impermissibility of wounding or maiming others or the existence of an abs olute moral right not to have one 's vital organs taken for the benefit of others in any way support a conclusion that there exists an absolute m oral right to retain untaxed all one 's earnings or all the income accrued from inherited property excep t for taxes to support the army and the police? Can one man's great gain or relief from great suffering not outweigh a sma�l loss of in­ come imposed on another to provide it? D o such outweighings only make sense if the gain and the loss are of the same pers on or a single 'social entity '? Once we shake off that assumption and once we distinguish between the gravity of the different restrictions on different sp ecific liberties and their importance

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for the conduct of a meaningful life o r the development of the pers onality, the idea that they all , like unqualified maxi­ mizing utilitarianism, ignore the moral importance of the div­ ision of humanity into separate individuals , and threaten the proper inviolability of persons, disappears into the mist. There is of course much of value to be learne d from Nozick's ingenious an d diverting pages, but there are also many quite different criticisms to be made of i ts foundations apart from the one which I have urged. But since other critics have been busy with many such criticisms I will here mention only one. Even if a s ocial philosophy can draw its morality, as Nozick assumes, only from a single source ; even if that s ource is individual rights, so that the only moral wrongdoing con­ sists in wrongs done to individuals that violate their rights , and even if the foundation for such rights is respect for the separateness of p ersons, why should rights be limited as they are by Nozick to what B entham called the n egative services of others, that is to abstention from such things as murder, assault, theft, and breach of contract? Why should there not be included a basic right to the positive service of the relief of great needs or su ffering or the provision of basic education and skills when the cos t of these is small compared with both the need to be met and with the financial res ources of those taxed to provide them? Why should property rights, to be morally legitimate, have an absolute , permanent, exclusive, inheritable, and unmodifiable character which leaves no room for this? Nozick is I think in particular called upon to answer this question because he is clear that though rights for him constitute the only source of constraint on action , they are not ends to be maximized, ' 8 the obligations they impose are , as Nozick insists , 'side constraints', s o the rights form a pro­ tective b astion enabling an individual to achieve his own ends in a life he shapes himself; and that, Nozick thinks , is the in­ dividual 's way of giving meaning to life. 19 But it is of course an ancient insight that for a meaningful life not only the protection of freedom from deliberate re­ striction but opportunities and resources for its exercise are needed. Except for a few privileged and lucky persons, the ability to shape life for oneself and lead a meaningful life is II

Ibid. at 28-9.

It

Ibid. at 48-5 0 .

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something to be constructed by positive marshalling of social and economic resources. It is not something automatically guarantee d by a structure of negative rights . Nothing is more likely to bring freedom into contempt and so endanger it than failure to support those who lack, through no fault of their own, the material and social conditions and opportunities which are needed if a man's freedom is to contribute to his welfare . IV

second example of contemp orary right-based s ocial phil­ osop hy is that put forward with very different political impli­ cations as one ground for rights in the original , fascinating, but very complex web of theory spun by Professor Ronald Dworkin in his book Taking Rights Ser£ously . 20 Dworkin 's theory at first sight seems to be, like Nozick's, implacably op­ posed to any form of u tilitarianism ; so much so that the con­ cep t of a right which he is concerned to vindicate is expressly describe d by him as 'an anti-utilitarian concep t'. It is so de­ scribed because for Dworki n 'if someone has a right to some­ thing then it is wrong for the government to deny it to him even though it would be in the general interest to do S O ' . 2 1 In fact the two writers , in spite of this surface similarity, differ on almost every imp ortant issue except over the con­ viction that it is a morality of individual rights which both imposes moral limits on the coercive powers of governments , and in the last resort justifies the use of that power. Before I turn to examine in detail Dworkin 's m ain thesis I shall summarize the major differences between these two mo dern philos ophers of right. For Nozick the supreme value is freedom - the unimp eded individual will : for Dworkin it is equality of concern and respect, which as he warns us does not always entail equality of treatment. That governments must treat all their citizens with equal concern and respect is , for D workin 'a postulate of political morality / 2 and, he pre­ sumes, everyone accepts it_ Consequently these two thinkers ' lists o f basic rights are very different, the chief difference My

2 0 R . Dworkin, Taking Rights Seriously ( 1 9 7 7) . 21 Ibid. at 269. 22 Ibid. at 2 7 2 .

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being that for Dworkin there is no general or residual right to liberty, as there is for Nozick. Indeed, though he recognizes that many, if n ot most, liberal thinkers have b eli ev ed in such a right, as Jefferson did, Dworkin calls the idea 'absurd '.2 3 There are only rights to specific liberties such as fr e ed o m o f speech, worship , association, and p ersonal and sexual relation­ ships . Since there is no general right to liberty there is n o general conflict between liberty and equality, though the rec­ onciliation of these two values is generally regarded as the main problem of liberalism ; nor, since there is no ge n e ral right to liberty, is there any inconsistency, as conservatives often claim, in the liberal 's willingness to accep t restriction on econ­ omic but not on personal freedom . This is why the p olitical thrust of these two right-based theories is in opp osi te direc­ tions. So far from thinking that the S tate must be confined to the night-watchman 's functions of protecting a few basic negative rights but not otherwise restricting freedom, Dworkin is clear that the S tate may exercise wide interventionist func­ tions ; so if overall social welfare fairly assessed would be thereby adv�nced, the State may restrict the use of property or freedom o f contract; it may enforce desegregation, provide through taxation for public education and culture ; it may both prohibit discrimination on grounds of sex or c olour where these are taken to be badges of inferiority, and allow schemes of reverse racial discrimination, if required in the general interest, even in the form which the Supreme Court has recently refused to uphold in Bakk e 's case.24 But there is no general right to liberty : so the freedom from legal restric­ tion to drive bo th ways on Lexington Avenue and the free­ dom , later regretted but upheld in Lochner's case2 S against State legislation, to enter into labour contracts requiring more than ten hours work a day were, as long as they were left unrestricted, legal rights of a sort ; but they were not and cannot constitute m oral or p olitical rights in Dworkin's s trong 2. Ibid. at 2 6 7 . Yet 'Hercules' (Dworkin 's model of a judge) is said not only to believe that the Constitution guarantees an abstract righ t to liberty but to hold that a right to privacy is a consequence of it. Ibid. at 1 1 7. 24 Regents of the Univ. of Cal. v. Bakk e , 438 U.S. 265 ( 1 9 7 8 ) ; an d see R. Dworkin, supra n. 20, at 2 2 3 -39, and N. Y. Rev. Books , 1 0 November 1 9 7 7 , at 1 1 -1 5 . 2 5 See Lochner v . New York , 1 98 U.S. 4 5 ( 1 905), and R. Dworkin, supra n. 20, at 1 9 1 , 269-7 8. "

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'anti-u tilitarian ' sense, jus t b ecause restriction or abolition of these liberties might properly be impose d if it advanced gen­ eral welfare . Finally , notwithstan ding the general impression of hostility to utilitarianism suggested by his stress on the 'anti-utilitarian ' charac t e r of the concep t o f a right , Dworkin does not reject it wholly as N ozick does, but, as in the Lexing­ ton Avenue and lab our contract examples, ac tually endorses a form o f utilitarianism . Indeed he says 'the vast bulk of the laws which diminish my liberty are jus tified on utilitarian grounds '.2 6 But the u tilitarianism which Dworkin endorses , is a purified or refined form of it in which a 'corrupting 2 7 element which he finds in vulgar B enthamite u tilitarianism is not allowed to weigh in determining decisions. Where the cor­ rupting element does weigh it destroys, according to Dworkin, the fair e galitarian character, 'everybody to count for one , nobody for more than one', which utilitarian arguments other­ wise have. This corrupting element causes their use or the use of a maj ority democratic vote (which he regards as the nearest practical p olitical representation of utilitarianism ) to violate , in the case o f certain issues , the fundamental right of all to equal concern and respect. Before we consider what this 'corrup ting' element is and how it corrupts I wish to stress the following major point. Dworkin interestingly differs from mos t philosophers of the liberal tradition. He not merely seeks to draw a vital distinc­ tion between mere liberties which may be restricted in the general interest like freedom of contract to work more than ten hours a day, and those preferred liberties which are rights which may not be restricted, but he attemp ts to do this with­ out entering into some familiar controversial matters . He does not make any appe al to the imp ortant role playe d in the con­ duct of individual life by such things as freedom of speech or of worship or of p ersonal relations , to show that they are too previous to be allowed to be subordinated to general welfare. So he does not app eal to any theory of human nature designed to show that these liberties are , as John S tuart Mill claimed, among 'the e ssentials of human well-being',2 8 'the very ground " Ibid. at 269. It is clear that this means 'adequately justified ', not merely 'said to be justified'. 27 Ibid. at 23 5 . 21 J . S . Mill, supra n . 6 , a t 2 5 5 .

BETWEEN UTILITY AND RIGHTS 211 , work o f our existence /9 or t o any substantive ideal of t he go od life or individual welfare . Instead Dworkin temp tingly offers s om e thing which he believes t o be uncon troversial by which to distinguish liberties which are to rank as moral rights like freedom of speech or worship from other freedoms , like freedom o f contract or in the use of property, which are n ot moral rights and may be overridden i f they conflict with gen­ eral welfare. What distinguishes these former lib erties i s not their greater substantive value but rather a relational or com­ p ara t iv e matter, in a sense a p ro c edur al matter : the mere , consideration that there is an 'antecedent likelihood 3 0 that if it were left to an unrestricte d utili tarian c al cu l a t i o n of the general interest or a majority vote to determine whether or not these should be restricted, the balance would be tipped in favour of restriction b y that element which , as Dworkin b elieves, corrupts utilitarian arguments or a majority vote as decision procedures and causes them to fail to treat all as equals with equal concern and respect. So anti-utilitarian rights essentially are a resp onse to a defect - a species of un­ fairness - likely to corrupt s ome utilitarian arguments or a majority vote as decision procedures. Hence the pr e fe rr e d liberties are those such as freedom of sp eech or sexual re­ lations , which are to rank as rights when we know 'from our , general knowledge of society 3 1 that they are in danger of being overridden by the corrup ting element in such decisi on procedures. What then is this element which may corrup t utilitarian argument or a democratic vote? Dworkin identifies it by a distinction betwe en the pers onal and external preferences 32 or satisfactions of individuals , both of which vulgar u tilitarian­ ism counts in assessments of general welfare and both o f which may be represented in a m aj o rity vote . An individual 's personal preferences (or s atisfactions) are for (or arise from) the assignment of goods or adv a n tages , including liberties , to himself; his external preferences are for such as signm ents t o others. A utilitarianism refined or purified in the s ense that it counted only personal preferences in assessing the balance of .. Ibid . R. Dworkin, supra n. 20, at 2 7 8. 31 Ibid. at 2 7 7 . •• Ibid. at 234-8 , 2 75-8.

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social welfare would for Dworkin be 'the only defensible form o f Utilitarianism ', 33 and indeed it is that which justifies the 'vast bulk of our laws diminishing liberty '. 34 It would, he thinks , genuinely treat persons as equals, even if the upshot was not their equal treatment. So where the balance of per­ sonal self-interest preferences supported some restriction on freedom (as it did according to D workin in the labour con­ tract cases) or reverse discrimination ( as in Bakk e's case) , the restriction or discrimination may be justified, and the free­ d om restric ted ; or the claim not to be discriminated against is not a moral or p olitical right. Bu t the vulgar, corrup t form of utilitarianism counts both external and personal prefer­ ences and is not an accep table decision procedure since (so Dworkin argues) by counting in external preferences i t fails to treat individuals with equal concern and respect or as equals.35 " Dworkin 's ambitious strategy in this argument is to derive rights to specific liberties from nothing more controversial than the duty of governments to treat their subjects with equal concern and respect. His argument here has a certain Byzantine complexity and it is imp ortant in assessing it not to be misled by an ambiguity in the way in which a right may be an 'anti-utilitarian right'. There is a natural interpretation of this expression which is not Dworkin 's sense ; it may natu­ rally be taken merely to mean that there are some liberties so precious for individual human life that they mus t not b e over­ ridden even in order to secure an advance in general welfare, because they are of greater value than any such " increase of general welfare to be got by their denial, however fair the pro cedure for assessing the general welfare is and however genuinely as a procedure it treats persons as equals. Dworkin 's sense is n o t that ; his argument is not that these liberties must be safeguarded as rights because their value has been com­ pared with that of the increase in general welfare and found to be greater than it, but because such liberties are likely to be defeated b y an unfair form of utilitarian argument which by counting in external preferences fails to treat men as equals . So on this view the very identification of the liberties which ,. Ibid. at 2 76. 34 Ibid. at 269. 3 5 Ibid. at 237, 2 75 .

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are to rank as rights i s dependent on the anticipated result of a majority vote or a utilitarian argument ; whereas on the natu­ ral interpretation of an 'anti-utilitarian right ' the liberties whi ch are to rank as rights and prevail over general welfare are quite independently identified. Dworkin's actual ar gum e nt is more complicate d3 6 than this already complex story , but I do not think what is omitted is needed for its just assessment. I think both the general form of the argument and its detail are vulnerable to many different objections. The most general objection is the following. What moral rights we have will , on this view, depend on what ex­ ternal preferences or prejudices are current and likely at any given time in any given society to dominate in a utilitarian "decision procedure or m ajority vote . So as far as this argument for rights is concerned, with the progressive liberalization of a society from which prejudices against, say, h omosexual be­ haviour or the expression of heterodox opinions have faded away , rights to these liberties will (like the S tate in Karl Marx) wither away . S o the more tolerant a society is, the fewer rights there will b e ; there will not merely be fewer occasions for asserting rights . This is surely paradoxical even if we take Dworkin only to be concerned with rights against the S tate . 3& The main complications are : ( 1 ) Personal and external preferences may be intertwined in two differen t ways. A personal preference, e.g. , for the segregated company of white men, may be parasitic on an external preference or prejudice against black men, and such 'parasitic' preferences are to rank as external pre fer­ ences not to be counted ( ibid. at 236). They are however to be distinguished from certain personal preferences which, although they too involve a reference to others, do so only in an instrumental way, regarding others as a means to their personal ends. So a white man's preference that black men be excluded from law school because that will increase his own chances of getting in ( ibid. at 234-5) or a black man 's preference for reverse discrimination against whites because that will in crease the number of black lawyers, is to rank as a personal preference and is to be counted. ( 2) Though personal and external preferences are in principle dis tin guishable, in practical politics it will often be impossible to discriminate them and to know how many of each lie behind majority votes. Hence whenever external preferences are likely to influence a vote against some specific liberty, the liberty will need to be protected as an 'anti Utilitarian right'. So t he 'anti-utilitarian' con­ cept of a right is 'a response to the philosophical defects of a utilitarianism that counts external preferences and the practical impossibility of a utilitarianism that does not' ( ibid . at 2 7 7). Notwithstanding this 'practical impossibility' , there are cases where according to Dworkin valid arguments may be made to show that ex ternal preferences are n o t likely to have tipped the b alance. See his comments on Lochner 's case ( ibid. at 2 7 8) and Bakke 's case ( see n. 23 and accomp anying tex t supra ) and his view that most o f the laws limiting liberties are justified on u tilitarian grounds ( R . Dworkin, supra n. 20, at 269).

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But this paradox is compounded by another. Since Dworkin 's theory is a resp onse specifically to an alleged defect of utili­ tarian argument it only establishes rights against the outcome of utilitarian arguments concerning general welfare or a ma­ jority democratic vote in which external preferences are likely to tip the b alance. This theory as it stands cannot provide support for rights against a tyranny or authoritative govern­ ment which does not b ase its coercive legislation on consider­ ations of general welfare or a majority vote . So this particular argument for rights helps to establish individual rights at neither extreme : neither in an extremely toleran t democracy nor in an extremely repressive tyranny. This of course nar­ rows the scope of Dworkin 's argument in ways whi ch may surprise readers of his essay 'What Rights Do We Have? '. 3 7 But of course he is entitled to reply that, narrow though it is, the reach of this p articular argument extends to c ontemporary Western democracies in which the allegedly corrupting 'exter­ nal preferences ' hostile to certain liberties are rife as preju­ dices. He may say that that is good enough - for the time being. 3 8 However, even if we accept this reply, a close examination of the detail of the argument shows it to be defective even within its limited scop e ; and the ways in which it is defective show an imp ortant general failing. In constructing his anti­ u tilitarian right-based the ory Dworkin has sought to derive too much from the idea of equal concern and respect for per­ sons, just as Nozick in constructing his the ory sought to derive to o much from the idea of the separateness of persons. Both of course appear to o ffer something comfortably firm and uncontroversial as a foundation for a theory of basic rights . But this appearance is decep tive : that it is s o becomes clear if we press the question why, as Dworkin argues , does a utili­ tarian decision procedure or democratic vote which counts S 7 R. Dworkin, supra n. 20, at 266-78. 31 This argument from the defect of unreconstructed utilitarianism in counting external preferences is said to be 'only one possible ground of rights' {ibid. at 2 72 , and R . Dworkin, supra n. 2 0 , a t 3 5 6 (2nd printing 1 9 7 7 ) , and i s stated to be applicable only in communities where the general collective justification of politi cal decisions is the general welfare. Though Dworkin in dicates that a different argument would be needed where collective justification is not utilitarian (ibid. at 3 6 5 ) , he does not indicate how in such a case the liberties to be preferred as righ ts are to be identified.

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b o th personal and external preferences , fo r that reaso n , fail to tre at persons as equals , so that when as he says it is 'ante­ ceden tl y li k el y' that e x tern al preferences may t i p the b al ance against s om e individual 's sp ecific li be r t y , that liberty becomes clothed with the status of a moral right not to be overridden by s u c h procedures . Dwo rkin 's argument is that counting ex­ ternal pre fe r e n c es corrupts the utilitarian argument or a ma­ j o ri ty vote as a decision procedure , and this of c ourse must be distinguished from any further i n d e p ende nt moral objec­ tion there may be to the actual decision re s ul ti ng from th e procedure . An obvi ous example o f s uch a vice i n ut i li tarian argument or in a majo rit y vote procedure would of course b e double counting, e.g. counting o n e individual 's (a Brahmin 's 'or a white m an' s ) vote or preference twice while co un ting another's ( an Untouchable's or a b la ck man ' s ) only once . This is, of course, the very vice excluded by the maxim 'everyb o dy [ is ] to count fo r o n e, n obo d y for more than one ' which Mill thought made utilitarianism so s p l e n did Of c our se an Un­ touchable denied some li be r ty , say l i be rt y to worship, or a black student denied access to higher· education as a result of such d o ubl e c ount in g would not have been tre a ted as an e qual , but the right needed to protect him agains t this is not a right to an y specific l ib erty but s i m p l y a righ t t o have his vote or preference count equally with the B rahmin 's or the white m a n 's. And of course the decision to deprive him of the lib­ e r t y in q ue s tio n m i gh t als o be m o r al l y obje c ti o n able for reasons quite in de p e n den t of the unfairness in the procedure by wh i c h it was reached : i f freedom of religion or access to e d u c ati on is s o mething of which n o one should be deprived wh at e ve r decision procedure , fair or un fair, is used, then a right to that freedom would be necessary for its p r o te c tio n . Bu t it i s vital to di stin gu i s h the specific allege d vice of un­ refined utilitarianism or a de m ocr ati c vote in fai l ing, e.g., t hro u gh double counting, to treat p ersons as equals , from any independent objection to a p art i cu l ar decision reached through that procedure. It is necessary to bear this i n mind in considering Dworkin 's argument. So, fin all y , why is counting external pre fe r en c e s th o ugh t to be, like the double counting of the Brahmin 's or white m an 's preference, a vice o f utili t ari an argument or a maj o r i ty vote? Dworkin actually says that the inclusion o f external .

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preference is a 'form of double counting'.39 To understand this we must distinguish cases where the external preference is favourable to, and so supports , some pers onal preference or want for s ome good or advantage or liberty from cases where the external preference is hos tile . Dworkin 's simple example of the forme r is where one person wants the construction of a s wimming-p ool40 for his use and others , non-swimmers, sup · p ort this . But why is this a 'form of double counting'? No one 's p reference is counte d twice as the B rahmin's is ; it is only the case that the prop osal for the allocation of some good to the swimmers is supp orted by the preferences both of the swimmer and (say) his disinterested non-swimmer neighb our. Each of the two preferences is counted only as one ; and surely no t to count the neighbour's disin,terest�d preference on this issue would be to fail to treat the two as equals . It would be 'under-counting' and p resumably as b ad as double counting. Suppose - to widen the illustration - the issue is freedom for homosexual relationships , and suppose that ( as may well have been the case at least in England when the old law was re­ formed in 1 9 6 74 1 ) it was the disinterested external preferences of liberal heterosexuals that homosexuals should have this freedom that tipped the balance against the external prefer­ ences of other heterosexuals who would deny this freedom . How in this situ ation could the defeated opponents of free­ · dom or any one else complain that the procedure , through counting external preferences (both those supp orting the free­ dom for o thers and those denying it) as well as the personal preferences of homosexuals wanting it for themselves, had failed to treat pers ons as equals? . I t is clear that where the external preferences are hos tile to the assignment of some liberty wante d by others , the phenomenon of one person's preferences being supported by those of ano ther, which, as I think, D workin misdescribes as a 'form of double counting', is altogether absent. Why then , since the charge of double counting is irrelevant, does count­ ing such hostile external preferences mean that the procedure does not treat p ersons as equals? Dworkin 's answer seems to be that if, as a result of such preferences tipping the balance, 39 Ibid. a t 235 40 Ibid. 41 Sexual O ffences Act, 1 96 7 , c. 60. . .

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persons are denie d some liberty, say to form certain sexual relations , those so deprived suffer because by th i s result their concept of a proper or desirable form of life is despised by others , and this is tantamount to trea t i ng them as inferior to or of less worth than others , or not deserving equal c o ncern and resp ect. S o every denial of freedom on the basis o f external preferences implies that those denied are not entitled to equal concern and respect, are not to be considered as equals. But even if we allow this most questionable interpretation of denials of freedom , still for Dworkin to argue in this way is altogether to change the argument. The objection is no longer that the utilitarian argument or a majority vote is , like double counting, unfair as a procedure becaus e it c ounts in 'external preferences ' , but that a particular upsho t of the procedure where the balance is tipped by a particular kind of external pre ference, one which denies liberty and is assume d to express contempt, fails to treat persons as equals . But this is a vice not of the mere externality of the preferenc es that have tipped the balance but of their conten t : that is, their liberty­ denying and respect-denying content . But this is no l onger to assign certain lib erties the status of ( 'anti-utilitarian ') rights simply as a response to the sp ecific defects of utilitarianism , as Dworkin claims t o d o . Y e t that i s n o t the m ain weakness in his ingenious argument. What is fundamentally wrong is the suggeste d interpretation of denials of freedom as denials of e qual concern or respect. This surely is mistaken . I t is indeed least credible where the denial of a liberty is the upshot of a utilitarian decision procedure or maj ority vote in which the defeated minority 's preferences or votes for the liberty were weighed equally with others and outweighe d by number. Then the message need not be, as Dworkin interprets it, 'You and your views are inferior, not entitled to equal consi der­ ation, c oncern or respect' , but 'You and your supporters are too few. You, like everyone else , are counted as one but no more than one. Increase your numbers and then your views may win out . ' Where those who are denied by a maj ority vote the liberty they seek are able, as they are in a fairly working democracy, to continue to press their views in public argu­ ment and to attempt to change their opponents ' minds , as they in fact with success did after several defe ats when the law relating to homosexuality was changed in England, it

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seems quite imp ossible to cons true every denial of libery by a majority vote based on external preferences as a judgment that the minority wh om it defeats are of inferior worth , not entitled to be treate d as equals or with equal concern and resp ect. What is true is something different and quite familiar but no support for Dworkin 's argument: namely that the pro­ cedural fairness of a voting system or utilitarian argument which weighs votes and preferences e qually is no guarantee that all the requirements of fairness will be met in the actual working o f the system in given social conditions . This is so because majority views may b e , though they are not always , ill-informed and impervious to argument : a majority of theor­ etically in dependent voters may be consolidated by prejudice into a self-deafened or self-perp etuating bloc which affords no fair opportunities to a despised minority to publicize and argue its case. All that is possible and has s ometimes been actual . But the moral unaccep tability of the results in such cases is not traceable to the inherent vice of the decision pro­ cedure in counting external preferences , as if this was ana­ logous to double counting. That , of course, would mean that every denial of lib erty secured by the doubly counte d votes or preferences would necessarily not only be a denial of lib­ erty but also an instance of failing to treat those denied as equals . I do not exp ect, however, that Professor Dworkin would concede the point that the triumph of the external preference of a maj ority over a minority is not as such a denial of equal concern and resp ect for the defeated minority, even if in the face of my criticism he were to abandon the analogy which he uses to support the argument between such a triumph and the procedural vice of double counting, which vice in the plainest and most literal sense of these not very clear phrases certainly does fail to treat all 'as equals ' or with 'equal con­ cern and respect '. He would , I think, simply fall back on the idea that any imposition of external preferences is tantamount to a judgment that those on whom they are imposed are of inferi or worth, not to be treate d as equals or with equal con­ cern and respect. But is this true? Of course, that governments should as far as p ossible be neutral b etween all s chemes of values and impose no external preferences may be an admir­ able ideal, and it may be the true centre of liberalism, as

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Dworkin argues, b u t I cannot see that this ideal is explained or ju s ti fi ed or strengthened by its description as a form of, or a derivative from, the duty of governments to show equal concern and respect for their citizens . It is not clear why the rejec ti o n of this ideal and allowing a majority 's ext e rn al pref­ erences denying a l i b e rty to prev ail is tan t amo un t to an affir­ mation of the inferior worth of the minority. Th e maj ority imposing such external preferences may regard the minority 's views as mistaken or si n ful ; but overriding them , for those reasons (however objectionable on other groun ds) , s eems quite compatible with recognizing the equal worth of the holders of such views and may even be inspired by concern for them . In any event both the liberal prescription for govern­ ments, 'imp ose no scheme of values on any one ', and its op­ posite , 'impose this p articular conception of the goo d life on all ', though they are universal prescrip tions , s eem to have no th in g sp ecifically t o do with equality or the value of equal concern and respect any more than have the prescriptions 'kill n o one ' and 'kill everyone', though of c ourse conformity with such universal prescriptions will involve treating all alike in the relevan t respect.42 Though the p oints urged in the last p aragraphs destroy the 4 . My suspicions that the ideas of 'equal concern and respect' and treatmen t 'as equals' are either t o o indeterminate to play the fundamental role which they do in Dworkin's theory or that a vacuous use is being made of the notion of equality are heightened by his later observations on this subject. See 'Liberalism', in Pu b lic and Priva te Morality 1 2 7-8, 1 36-40 ( Hampshire e dn., 1 9 7 8). Here he argues that in addition t o the liberal conception o f equal concern al).d respect there is another, conservative, conception which, far from requiring governments to be as neutral as possible between values or theories o f the good life, requires them to treat all men as a 'good man would wish to be treated', according to some particular preferred theory of the good life. On this view, denials of certain forms of sexual liberty as well as the maintenance of social and economic inequalities , if required by the preferred moral theory, would be the conservative form of treating all as equals and with equal concern and respect . But a notion o f equal concern and respect, hospitable to such violently opposed interpretations ( or 'conceptions of the concept' ) does not seem to me to be a single concept at all, and it is far from clear why either of these two conceptions should be thought of as forms of e qual c oncern and respect to all. Though the claim that liberal rights are derived from the duty of governments to treat all their citizens with equal concern and respect has the comforting appearance of resting th e m on some· thing uncontroversial ( 'a p ostulate of p olitical morality ' which all are 'presumed to accept', R. Dworkin, supra n. 20, at 2 7 2 ) , this appearance dissolves when i t is revealed that there is an alternative interpretation o f this fundamental duty from which m ost liberal rights could not be derived but negations of many liberal rights could.

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the argument that denial of liberty on the basis of external preferences is a denial of equal concern and respect and the attemp ted derivation of rights from equality, this does not mean that such denials of freedom are unobjectionable or that there is no right to it: it means rather th at the freedom must be defended on grounds other than equality. Utilitarian arguments , even purified by the exclusion of external prefer­ ences , can produce illiberal and grossly inegalitarian results . Some liberties, because o f the role they play in human life are too precious to be put at the mercy of numbers even if in favourable circumstances they may win out. S o to protect such precious liberties we need righ ts which are indeed 'anti­ u tilitarian rights ' and 'anti- ' much els e , but in so far as they are 'anti-utilitarian' they are so in the common and not the Dworkinian sense of that expression, and they are needed as a shield not only against a prep onderance of external prefer­ ences ' but against personal preferences als o. Freedom of speech, for example , may need to be de fended against those who would abridge and suppress it as dangerous to their pros ­ perity, security or other p ersonal interests .4 3 We cannot escape, as Dworkin 's purp orted derivation of such rights from equality seeks to do, the assertion of the value of such lib­ erties as compared with advances in general welfare , however fairly assessed. It is in any case surely fantastic to suppose that what, for example , those denied freedom of worship , or homosexuals denie d freedom to form sexual relations, have chiefly to complain about is not the restriction of their liberty with all its grave impact on p ersonal life or development and happi­ nes s , but that they are not accorded equal concern and re­ spect : that o thers are accorded a concern and resp ect denied to them. When it is argued that the denial to some of a certain 43 D workin certainly seems to endorse utilitarian arguments purified of ex­ ternal preferences, yet he states that his arguments against an unrestricted utili tarianism are not in favour of a restricted one. (R. Dworkin, supra n. 20, at 35 7 ( 2n d p rinting 1 9 7 7 ).) The contrary impression is given by earlier statements such as that the vast bulk of laws which diminish our liberty are justified on utilitarian grounds (ibid. at 269) , and the following comment on the right of liberty of con­ tract claimed in Lochner's case : 'I cannot think o f any argument that a political decision to limit such a right is antecedently likely to give effect to external preferences and in that way offend the right of those whose liberty is curtailed to equal concern an d respect. If as 1 think no such argument can be made out then the alleged right does not exist'. Ibid. at 2 7 8 (emphasis added). .

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freedom, say to some form of religious worship or t o some form of sexual relations , is essentiaily a denial of equal con­ cern and respect, the word 'equal ' is playing an emp ty but misleading role. The vice of the denial of such free dom is not its inequality or unequal imp ac t : if that were the vice the prohibition by a tyrant of all forms of religious worship or sexual activity would n o t increase the scale of the evil as in fac t it surely would, and the evil would vanish if all were con­ verte d to the banned faith or to the prohibited form of sexual relationship. The evil is the denial of liberty or respect ; not equal liberty or equal respect : and what is deplorable is the ill-treatment of the victims and not the relational matter of the unfairness of their treatment compared with o thers. This becomes clear if we contrast with this spurious invocation of equali ty a genuine case o f a failure to treat men as equals in the literal sense of these words : namely literal double count­ ing, giving the Brahmin or the white man two v otes to the Untouchable 's or black man 's single vote . Here the single vote given to the latter is indeed b ad just because the others are given two : it is , unlike the denial of a religious or sexual free­ dom, a genuine denial of equality of concern and respect , and this evil would vanish and not increase if the restriction to a single vote were made universal . v

I conclu de that neither Nozick's nor Dworkin 's attempt to derive rights from the seemingly uncontroversial ideas of the separateness of persons or from their title to equal concern and respect succeeds . So in the rough seas which the philos­ ophy of p olitical morality is p resently crossing be tween the old faith in utilitarianism and the new faith in righ ts , perhaps these writers ' chief and very considerable service is to have shown, by running up against them , some of the rocks and shoals to be avoided, but not where the safe channels lie for a prosperous voyage . That still awaits discovery. Much valuable work has been done , especially by these and other American philosophers , but there is much still to be done to identify the peculiar features of the dimension of morali ty consti tuted by the conception of b asic moral rights and the way in which that dimension of morality relates to other values pursued

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through government ; but I do not think a satisfactory founda­ tion for a theory of rights will be found as long as the search is conducted in the shadow of utilitarianism, as both Nozick's and Dworkin 's in their different ways are . For it is unlikely that the truth will be in a doctrine mainly defined by its free­ dom from u tilitarianism's chief defect - neglecting the sep­ arateness of persons - or in a doctrine resting, like Dworkin 's , everything on 'equal concern and respec t ' as a b arrier against an allege dly corrupt form of utilitarianism . POSTSCRIPT See for criticisms and comments : R. Dworkin, 'Is there a Right to Pornography?', Oxfo rd L. J. 1 7 7 at 206-1 2 { 1 9 8 1 } .

E s s ay 1 0

Rawls o n Liberty and

I ts Priori ty

I. INTRODUCTION

No b ook of political philos ophy since I read the great classics of the subject has stirred my thoughts as deeply as John Rawls's A Theory of Justt"ce . But I shall not in this article offer a general assessment of this imp ortant and most interest­ ing work. I shall b e concerne d with only one of its themes , namely, Rawls 's account o f the relationship between justice and liberty, and in particular with his conception that justice requires that liberty may only be limite d for the sake of lib ­ erty and not for the sake o f other social and economic advan­ tages. I have chosen this theme partly b ecaus e of its obvious importance to lawyers , who are , as it were , professionally concerned with limitations of liberty and with the justice or injustice of such limitations. I choose this theme also because this p art of Rawls 's book has not, I think, so far received, in any of the vast number of articles on and reviews of the book which have been published, the detailed attention whi ch i t deserves. Yet, a s Sidgwick found when he considere d a some­ what similar doctrine ascribing priority to liberty over other values , such a conception of liberty, though undoubtedly striking a resp onsive chord in the heart o f any liberal , has i ts baffling as well as its attractive aspect,! which becomes app ar­ ent when we consider, as Rawls intends that we should, what the application of this doctrine would require in practice . Part of what follows is concerned wi th a major question of interpretation of Rawls 's doctrine, and the res t is critical . But I am very conscious that I may have failed to keep constantly in view or in proper perspective all the arguments whi ch Rawls, at different places in this long and complex work, con­ centrates on the p oints which I find unconvincing. I would 1 H. Sidgwick, The Methods of Ethics ( 7th edn. 1 90 7 ) hk. III, ch. V. § 4 . 'I admit that it commends itself much to my mind But when I endeavour to bring i t into doser relation to the actual circumstances of human s ociety it soon comes to wear a different aspect.' .

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LIB E RTY , UTILITY, AND RIGlITS

not therefore be surprised if my interpretation could be cor­ rected and my criticisms answered by some further expla­ nation which the author could supply. Indeed I do not write to confute , but m ainly in the h ope that in some of the in­ numerable future editions of this book Rawls may be induced to add some explanation of these point� I hope that I can assume that by now the main features of Rawls 's A Theory of Justice are familiar to most readers , but for those to whom it is not, the following is a minimum ac­ count required to make this article intelligible. First, there is what Rawls terms the 'Main Idea'. This is the striking claim that principles of justice do not rest on mere intuition, yet are not to be derived from utilitarian principles or any other teleological theory holding that there is some form of good to be sought and maximized. Instead, the prin­ ciples of justice are to be conceived ' as those that free and rational persons concerned to further their own interests would agree should govern their forms of social life and insti­ tu tions if the y had to choose such principles from behind 'a veil of ignorance ' - that is, in ignorance of their own abilities, of their psychological propensities and conception of the good, and of their �tatus and p osition in society and the level of development of the society of which they are to be mem­ b ers . The position of these choosing parties is called 'the orig­ inal p osition ' . Many discussions of the validity of this Main Idea have already appeared, and it will continue to be much debated by philos ophers, but for the purposes of this article I shall assume that if it could be shown that the parties in the original position would choose the principles which Rawls identifies as principles of justice , that would be a strong ar u­ ment in their favour. From the Main Idea Rawls makes a transition to a general form or 'general conception ' of the p rinciples that the parties in the original p osition would choose. This general conception of justice is as follows : All social values liberty and opportunity, income and wealth, and the bases of self-respect are to be distributed equally unless an unequal distribution of any;or all , of these values is to everyone's advantage. 2

This general conception of justice, it should be observed, refers to the equal distribution of liberty but not to its 2 Rawls, A Theory of Justice 6 2 ( 1 9 7 1 ) .

RAWLS ON LIBERTY AND ITS PRIORITY

2 25

maximization or extent. However, m ost o f the book is con­ cerned with a special interpretation of this general concep tion which refers both to the maximization and the equality of liberty. The principal features of this special conception of justice are as follows : First Princ ip le

[ 'the

principle of greatest equal liberty ,

3

]

Each person is to have an equal right to the mos t extensive t otal sys­ tem o f equal basic liberties co mpatible with a simil ar system

of lib

erty for all . S e c ond Principle Social and e conomic inequalities are _

to

be arranged so that they are

. . to the great est benefit of the least advantaged .

,

. ,4

To these two principles are attached certain priority rules, of which the most imp ortant is that liberty is given a priority over all other advantages, so that it may be restricted or un­ equally distributed only for the sake of liberty and not for any other form of social or economic advantage. To this account two points specially relevant to this article must be added. First, Rawls regards his two p rinciples as 'e stablished or justified not simply by the fact that they would be chosen, as he claims they would, by the parties in the orig­ inal position, but also by the general harmony of these prin­ ciples with ordinary 'considered judgments duly pruned and adjuste d'.5 The test of his theory, therefore, is in p art whether the principles he identifies illuminate our ordinary judgments an d help to reveal a basic structure and coherence underlying them. Secondly, it is an important and interesting feature of Rawls 's theory that once the principles of justice have been chosen we come to understand what their implementation would require by imagining a four-stage process. Thus , we are to suppose that after the first stage , when the parties in the original p osition have chosen the principles of justice, they move to a constitutional conventi on . There, in accordance 3 Ibid. 1 24. 4 Ibid. 3 0 2 . I have here omitted the provisions for a just savings principle and for equality of opportunity, which Rawls includes in this formulation of his second principle, since they are not relevant to the present discussion. s Ibid. 20. Rawls, in fact, speaks of a 'reflective equilibrium' between prin ciples and ordinary judgments , since he envisages th at where there are initial discrepancies between these we h ave a choice of modifying the conditions of the initial position in which principles are ch osen or modifying in detail the ju dge m ents (pp. 20 ff.) .

226

L I B E RTY , lTfILITY, A N D RI GHTS

with the chosen principles , they choose a constitution and establish the basic rights or liberties of citizens . Th e third s tage is that o f legislation , where the justice of laws and p olicies is considered ; enacted s tatutes , if they are to be just , must satisfy b oth the limits laid down in the c onstitu tion and the originally chosen principles of justice. The fourth and last stage is that of the application of rules by judges and other officials to particular cases. II. LIBE RTY A N D BAS IC LIBE RTIES

Throughout his b ook Rawls emphasizes the distinction be­ tween liberty and other social goods , and his principle of greatest equal liberty is, as I have said, accompanied - in his special conception of justice as distinct from his general con­ cep tion - by a priority rule which assigns to liberty, or at least to certain forms of liberty institutionally defined and protecte d, a priority which forbids the restriction of liberty for the sake of other benefits : lib erty is only to be restricted for the sake of liberty itself. In the general conception of jus­ tice there is no such priority rule and no requirement that liberty must be as extensive as p ossible , though it is to be equally distribute d unless an unequal distribution of it is justi­ fie d as b eing to everyone 's advantage . 6 The special concep tion is to govern societies which have developed to the point when, as Rawls says, 'the basic wants of individuals can be fulfilled' 7 and social con ditions allow 'the effective establishment of fundamental rights '. s If these favourable conditions do not obtain, e qual liberty m ay be denied, if this is required to 'raise the level of civilization so that in due course these free doms can be enjoyed'.9 I find it no easy matter, on s ome quite crucial p oints , to interpret Rawls 's complex doctrine , and there is one initial question of interpretation which I discuss here at some length. But it is p erhaps worth saying that to do justice to Rawls 's principle of greatest equal liberty it is necessary to take into account not only what he says when expressly formulating, expounding, an d illustrating this principle, but also what he 6

•

Ibid. 6 2 . Ibid. 1 52, 542.

7

•

Ibid. 543. Ibid. 1 5 2 .

RAWLS ON LIB E RTY AND ITS P RIO RITY

227

says about some other apparently separate issues in p articular , natural duties ,l O obligations arising fro m the principle of fairness/ 1 permissions/ 2 paternalism 1 3 and the comm on go od o r common interest,I4 for these may app arently sup ­ plement the rather exiguous provision for res trictions on lib ­ erty which are all that, at first sight, his p rin c ipl e of greates t equal liberty seems t o allow. The initial question of interpretation arises from the fol­ lowing circumstances . Rawls in his b ook often refers in broad terms to his first principle of justice as 'the principle of great­ est equal liberty' , I s and in similarly broad terms to its associ­ ated priority rule as the rule that 'liberty c an be restrict e d only for the sake of liberty , . 1 6 These references t o liberty in quite general terms , and also Rawls's previous formulation in his articles of this first principle as the principl e that everyone has 'an equal right to the most extensive lib erty compatible with a like liberty for all', t 7 suggest that his doctrine is similar to that criticized by Sidgwick. 1 8 It is probable that Sidgwick had chiefly in mind a formulation of a principle of greates t equal liberty urged by Herbert Spencer i n h i s long-forgotten Social Statics . 1 9 This was effectively criticized by Sidgwick as faili�g to account for some of the most obvious res tric­ tions on liberty required to protect individuals from harms oth er than constraint or deprivation o f liberty, and indeed as forbidding the institution of private property , since to o wn anything privately is to have liberty to use it in ways denied to others. Spencer attempted to get out of this difficulty ( or 10

Ibid. 1 1 4 ff., 333 ff. 1 2 Ibid. 1 1 6 ff. Ibid. 1 0 8 ff. 1 4 Ibid. 9 7 , 2 1 3 , 246. 1 3 Ibid. 248. u Ibid. 25 0 , 302. . 1 5 E.g. ibid. 1 24. 1 7 Rawls, 'Justice as Fairness', 67 Philosophical Review 1 64, 1 65 ( 1 95 8 ) ; see Rawls , 'The Sense of J ustice', 7 2 Philosophical R eview 283 ( 1 9 63 ) ; Rawls, 'Dis tri bu tive Justic e' , in Politics, Philosophy, and Society 61 (3rd Series , Oxford 1 9 6 7 ) . This formulation i n these articles should n o t be confus ed wi t h the formulation of the 'general conception' of j ust ice in the boo k . See pp. 3 ff. 11 H . Sidgwick , supra n. 1 , bk. III , ch. V., § § 4 5 , an d ch. XI, § 5. I . See H. S p e ncer, Social Statics ( 1 850). Criticisms of Spencer's the ory i n terms very similar to Sidgwick's criticisms were made by F. W. Maitland in 1 Col lected Papers 247 ( H. Fisher edn. 1 9 1 1 ). Maitland treate d S pencer's doctrine of equal liberty as virtually identical with Kant's notion of mu tu al freedom un der universal law expounded in the latter's Rechtslehre . I am grateful to Profe ss or B. J. Diggs for pointing out to me important differences between Rawls 's d oc trine of liber ty and Kant's conception of mutual freedom under universal law. II

2 28

LIBERTY , UTILITY, AND RIGHTS

ra,t her outside it) by simply swallowing it, and reached the con­ clusion that, at least in the case of land, only property held in common by a community would be consistent with 'equal , liberty 20 and hence legitimate . Rawls in his book simply lists without argument the right to hold personal p roperty, but not property in the means of production, as one of the basic liberties,2t though , as I shall argue later, he does this at some cost to the c oherence of his theory. Rawls 's previous formulation of his general principle of greatest equal liberty - 'everyone has an equal right to the most extensive liberty compatible with a like liberty for all ' - was then very similar to the doctrine criticized by Sidgwitk. But Rawls 's explicit formulation of it in his book is no longer in these general terms . It refers not to 'liberty' but to basic or fundamental liberties , which are understood to be legally recognized and p rotecte d from interference. This, with its priority rule , as finally formulated, now runs as follows : Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all . . . . [ L ] iberty can be restricted only for the sake of liberty. There are two cases: ( a ) a less extensive liberty must strengthen the total system of liberty shared by all; ( b ) a less than equal liberty must be acceptable to those with the lesser liberty. 22

Even to this , however, for complete accuracy a gloss on the last sentence is needed because Rawls also insists that 'accept­ able to those with the lesser liberty ' means not acceptable just on any grounds , but only accep table because affording a greater protection of their own liberties.2 3 The basic liberties to which Rawls 's p rinciple thus refers are identified by the p arties in the original p osition24 from be­ hind the veil of ignorance as essential for the pursuit of their ends, whatever thos e ends turn out to be, and so as deter­ mining the form of their society. Not surprisingly, therefore, the basic liberties are rather few in number, and Rawls gives 2 0 H . Spencer, supra n, 1 9 . 2 1 Op. cit. n . 2 supra, 6 1 . 2 2 Ibid. 302. 2 3 Ibid. 233.

2 4 E.g" 'equal liberty of conscience is the only principle that parties in the original position can acknowledge ', ibid. 20 7.

RAWLS ON LIBERTY AND ITS PRIORITY

229

short list of them whi ch he describes i n the index a s an 'enumeration ' / 5 though he warns us that thes e are what they are only 'roughly speaking'.2 6 They comprise p olitical liberty, that is , the right to vote and be eligible for public office ; free­ dom o f sp eech and of assembly ; liberty of c onscience and freedom of thought; freedom of the person, along with the right to hold personal property ; and freedom from arbitrary arrest and seizure. Now the ques tion of interpretation is whether Rawls 's change of language from a principle of greate s t equal liberty couched in quite general terms ( 'everyone has an equal right to the most extensive liberty ') , to one re ferring only to specific basic liberties , indicates a change in his the ory. Is the principle of liberty in the book still this quite general prin­ cip le , so that under the priority rule now attached to it no form o f liberty may be restricted excep t for the s ake of lib­ erty? It is difficult to be sure, but my own view on this im­ portant poin t is that Rawls no longer holds the quite general theory which app eared in his articles, perhaps because he had met the difficulties p ointe d out by Sidgwick and oth ers . There are, I think, several indications , besides the striking change in language, that Rawls 's p rinciple is now limited t o the list of basic liberties , allowing o f course for his statement that the actual list he gives is only rough. The first indication is the fact that Rawls does not find it necessary to reconcile the ad­ mission of p rivate property as a liberty with any general prin­ ciple of maximum equal liberty, or of 'an equal rights to the most extensive lib erty ' , and he avoids the difficulties found in Herbert Spencer's doctrine by giving a new sense to the re­ quirement that the right to hold property mus t be equal . This sense of equality turns on Rawls 's distinction between liberty and the value or worth of liberty.2 7 Rawls does not require , except in the case of the po litical lib erties ( the right to p ar· ticipate in government and freedom of speech) , that basic liberties be equal in value , or substantially e qual, so he does not require , in admitting the right to property as a basic e qual liberty, either that property should be held in common s o that everyone can enjoy the same prop erty, or that separately a

25 26

27

Ibid. 540. Ibid. 6 1 . Ibid. 2 04, 225 ff.

230

LIBERTY , UTILITY, AND RIGHTS

owned property should be equal in amount. That would be to insist that the value of the right to property should be equal. Wh at is required is the merely formal condition that the rules28 governing the acquisition, disposition and scope of property rights should be the same for all . Rawls 's reply to the familiar Marxist criticism that in this case we shall have to say that the beggar and the millionaire have equal property rights would be to admit the charge , but to p oint out that , in his system, the unequal value of these equal property rights would be cut down to the point where inequality would be justified by the working of the difference principle , according to which economic inequalities are justified only if they are for the benefit of the least advantaged . 29 The second indication that Rawls 's principle of greatest equal liberty and its priority rule ( 'liberty can be restricted only for the sake of liberty ') 30 is now limited to the basic liberties is his careful and repeated explanation that, though the right to hold property is for him a 'liberty ', the ch oice between p rivate capitalism and state ownership of the means of p roduction is left quite open by the principles of justice . 3 1 Wh ether o r n o t the means of production are t o be privately owned is something which a society must decide in the light of the knowledge of its actual circumstances and the demands of social and economic efficiency . But, of course, a decision to limit private ownership to c onsumer goods made on such grounds would result in a less extensive form of liberty than would o btain i f private ownership c ould be exercised over all forms of property. Rawls 's admission of this restriction as allowable s o far as justice is concerned would be a glaring in­ c onsistency if he was still advancing the general principle that there must be 'an equal right to the most extensive liberty ', for that , under the priority rule, would entail that n o form of liberty must be narrowe d or limited for the sake of economic benefits , but only for the sake of liberty itself. These c onsiderations support very strongly the interpret­ ation that Rawls 's principle of greatest equal liberty, as it is develop ed in this book, is concerned only with the enumer­ ated basic liberties , though of course these are specified by him only in broad terms . But I confess that there are also 2 . Ibid. 63 4. 30 Ibid. 302.

., Ibid. 204. 3 1 Ibid. 66, 2 7 3-4.

RAWLS ON LIBERTY AND ITS PRIORITY

231

difficultie s in this interpretation which suggest that Rawls has not eliminated altogether the earlier general doctrine of lib­ erty, even though that earlier doctrine is not, as I have e x­ plained above , really c onsistent with Rawls 's t r e atm en t o f th e admissible limitations o f the right o f property . F or it s eems obvious that there are imp ortant forms of liberty - sexual freedom and the liberty to use alcohol or drugs among them - which apparently do not fall within any of the roughly de­ scri b e d basic liberties ;32 y e t it would be very surprising if prin­ ciples of justice were silent about their restriction. Since John S tuart Mill's essay On Liberty , such liberties have been the storm centre of discussions of the proper scope of the crimi­ nal law and other forms of social coercion , and there is, in fact, just one passage in this book from which it is clear that Rawls thinks that his principles of justice are not silent as to the justice of restricting such liberties.33 For in arguing against the view that certain forms of sexual relationship should be prohibited simply as degrading or shameful, and so as falling short of some 'perfectionis t' ideal, Rawls s ays that we should rely not on such perfectionist criteria but on the principles o f justice , and that according to these no reas onable case for restriction can b e made out. There is mu ch that I do not understand in this short pass­ us to age . Rawls says conduct , eitb.�Lthat with the basic liberties of others 'they violate ...w..me Thisses anunexpl ained departure from the s trict line so In the case. be restricted for set of Is there then a for

__ "

31 It has been suggested t o me that Rawls would regard these freedoms as basic liberties fali i ng under his broad category of liberty of conscience , which is con cerned not only with religious but with moral freedom. But Rawls's discussion of this, ibid. 205 ff. , seems to envisage only a man 's freedom to fulfil moral o bli gations as he interprets them, and sexual freedom would therefore only fall under this category for those to whom the promptings of passion presented themselves as calls of moral duty. Others have suggested that these freedoms would fall under Rawls's category of freedom o f the person ; but this seems most unlikley to me in view of his collocation of it with property ('freedom o f the p erso n along with the right to h old personal property'). It is to b e noted also that sexual freedom is spoken of as a 'mode of conduct ' , ibid. 33 1 , and the possibility of its interference with 'basic liberties' (.not 'other' basic liberties) is mentioned. 33 Ibid. 3 3 1 .

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LIBERTY , UTILITY, AND RIGHTS

non-basic liberties?' This solution would have i ts own diffi­ to the from a individuals which to choo��-�fL�IJh. �ve chosen the P'!in­ justicea:stIDi"dards for institu tions ; wliiCh T fciKe it to prevent violation of any such natural duties or obligations, this may rather severely narrow the area of liberty, for the natural duties in­ clude- the duty to assist others when this can be done at small cost and the duty to show respect and courtesy, as well as duties to support jus t institutions, not to harm the innocent, and not to cause unnecessary suffering. Further, since the parties in the original position are said to choose the principles of justice as standards for institutions before they choose the natural duties for individuals, it is not clear how the former can incorporate the latter, as Rawls suggests they do when he says that principles of justice require us to show, before we restrict conduct, that it violates either basic liberties or natural duties or obligations. I hope that I have not made too much of what is a mere passing reference by Rawls to liberties which do not appear to fall within his categories of basic liberties, but have been at the centre of some famous discussions of freedom. I cannot, however, from this book see qui te how Rawls would resolve the difficulties I have mentioned, and I raise below the related question whether liberties which are plainly 'basic' may also be restricted if their exercise involves violation of duties or obligations .

III . LIMITING LIBE RTY FOR THE SAKE OF LIBERTY

I tum now to consider the principle that basic liberties may be limited only for the sake of liberty . Rawls expresses this principle in several different ways. He says that basic liberties may be restricted or unequally distributed only for the s ake o f a greater 'system of liberty as a whole'/4 that the restriction ,. Ibid. 203.

_

RAWLS ON LIBERTY AND ITS PRIORITY

233

must yield 'a greater equal libertY ', 3 5 or 'the best total system of equal liberty , 36 or 'strengthen' that system,37 or be 'a gain for . . . freedom on b alance '. 3 8 What, then , is it to limit liberty for the sake of liberty ? Rawls gives a numb er of examples which his principle would p ermit. The simplest case is the introduction of rules of order in debate,39 which restrict the liberty to sp'eak when we please. Without this restriction the liberty to say and advocate what we please would be grossly hampered and made less valuable to us. As Rawls says, such rules are necessary for 'profi table ,4 0 discussion , and plainly when such rules are introduced a bal­ ance is struck and the liberty judged less imp ortant or less valuable is subordinated to the other. In this very simple case there seems to b e a quite obvious answer to the question as to which of the two liberties here conflicting is more valuable, since, whatever ends we are pursuing in debate , the liberty to communicate our thought in speech must contribute more to their advancement than the liberty to interrupt communi­ c�tion. It seems to me, however, misleading to describe even the resolu tion of the conflicting liberties in this very simple case as yielding a 'greater' or 'stronger' total system of liberty, for these phrases suggest that no values other than liberty and dimensions of it, like extent, size, or s trength , are involved. Plainly what such rules of debate help to secure is not a grea ter or more extensive lib erty , but a liberty to do something which is more valuable for any rational p erson than the activities forbidden by the rules, or, as Rawls himself says, something more 'profitable' . So some criterion of the value of different liberties must be involved in the resolution of conflicts be­ tween them ; yet Rawls sp eaks as if the system 'of basic lib­ erties ' were self-contained, and conflicts within it were ad­ justed without appeal to any other value besides liberty and its extent. In some cases, it is true, Rawls's conception o f a greater or m ore extensive liberty resulting from a more satisfactory res­ olution of conflicts between liberties may have application. One fairly clear example is provided by Rawls when he says that the principle of limiting liberty only for the sake of " Ibid. 2 2 9 . 5 1 Ibid. 2 5 0 . Sf Ibid. 203.

3. Ibid. 203. 38 Ibid. 244. 40 Ibid.

2 34

LIBE RTY, UTILITY, AND RIGHTS

lib erty would allow conscription for military service in a war genuinely undertaken to defend free institutions either at home or abro ad.4 1 In that case it might plausibly be said that only the quan tum or extent of liberty was at stake ; the tem­ porary restriction of liberty involved in military conscription might be all owed to prevent or remove much greater inroads on liberty. Similarly, the restriction imp osed in the name of public order and security , to which Rawls often refers,4 2 may be justified simply as hindering greater or more extensive hin­ drances to liberty of action . But there certainly are important cases of conflict between basic liberties where, as in the simple rules of debate case, the res olution of conflict must involve consideration of the relative value of different mo des of con­ duct, and not merely the extent or amount of freedom. One such conflict, which, according to Rawl s 's four-stage sequence, will have to be settled at a s tage analogous to a constitutional convention, is the conflict between freedom of speech and of the pers on, and freedom to participate in government thr ough a demo cratically elected legislature.43 Rawls discusses this conflict on the footing that the freedom to participate in government is to be considered as restricte d if there is a Bill of Rights protecting the in dividual's freedom of speech or of the pers on from regulation by an ordinary majority vote of the legislature. He says that the kind of argument to support such a restriction, which his principles of justice require , is 'a justification which appeals only to a greater equal liberty '.44 He admits that different opinions about the value of the con­ flicting liberties will affect the way in which different persons view this conflict. None the less , he insists that to arrive at a just resolu tion of the conflict we must try to find the point at which 'the danger to liberty from the marginal loss in con­ trol over those holding political power jus t balances the se­ curity of lib erty gained by the greater use of constitu tional , devices .45 I cannot myself understand, however, how such weighing or striking of a balance is conceivable if the only appeal is, as Rawls says , to 'a greater liberty '. These difficulties in the notion of a greater total liberty , ••

•2 ••

••

Ibid. Ibid. Ibid. Ibid.

380 . 9 7 , 2 1 2-1 3 22 8-30 . 229.

.

••

Ibid. 230.

RAWLS ON LIBE RTY AND ITS PRIORITY

2 35

or system o f liberty , resulting from the just resolution of con­ flict between liberties, are made more acute for me by Rawls's description o f the p oin t o f view from which he says all such conflicts between liberties are to be settled whether they occur at the constitution-making stage of the four-s tage se­ quence, as in th e case last considered, or at the s tage of legis­ lation in relation to other matters . Rawls says that when liberties conflict the adjustment which is to secure 'the b est total system ' is to be s ettle d from the stand-p oint of ' the representative equal citizen ', and we are to ask which adjustment 'it would be rational for him to , prefer .46 This, he says , involves the application of the prin­ ciple of the c omm on interest or common good which selects those conditions which are necessary for 'all to equally fur­ ther their aims' or which will 'advance shared ends '.4 7 It is , of course, easy to see that very simple conflicts between liberties , such as the debating rules case, may intelligibly b e said to be settled by reference to this point of view. For in such simple cases it is certainly arguable that , whatever ends a man may have, he will see as a rational being that the restrictions are required if he is to pursue his en ds successfully, and this can be expressed in terms of 'the common good ' on the footing that such restrictions are necessary for all alike. But it would b e quite wrong to generalize from this simple case ; other con­ flicts between basic liberties will be such that different resol­ uti ons of the conflict will correspond to the interests of dif­ ferent people who will diverge over the relative value they set on the conflicting liberties . In such cases, there will b e no resolution which will b e uniquely selected by reference to the common good. So, in the constitutional case discussed ab ove, i t seems difficult to understand how the conflict can be re­ solve d by reference to the represerttative equal citizen , and wi thout appeal to utili tarian considerations or to some con­ ception of what all individuals are morally entitled to have as a matter o f human dignity or moral right. In particular, the general strategy which Rawls ascribes to the p arties in the original position of choosing the alternative that yields the best worst p osition is no help excep t in obvious cases like the deb ating rules case. There, of course, it can be argued that it 4' Ibid. 204.

47

Ibid. 9 7 .

2 36

LIBERTY , UTILITY, AND RIGHTS

is better to be restricte d by reasonable rules than to be ex­ posed to unregulated interruption, s o that it is rational to trade off the liberty to speak when you please for the more valuable b enefit o f being able to communicate more or less effectively what you please. Or, to put the same exceedingly simple point in the 'maximum' terms which Rawls often il­ luminatingly uses, the worst position under the rule (being restrained from interruption but given time to speak free from interruption) is better than the worst p osition without the rule (being constantly exposed to interruption though free . to interrupt) . Such simple cases, indeed, exist where it can be said that all 'equal citizens ', however divergent their individual tastes or desires , would, if rational, prefer one alternative where lib­ erties conflict . But I do not understand how the notion of the rational preference of the representative equal citizen can assist in the resolution of con flicts where reasonable men may differ as to the value of conflicting liberties , and there is no obviously best worst position which a rational man would prefer. It is true that at the stages in the four-stage sequence where such conflicts have to be resolved there is no veil of ign orance to prevent those who have to take decisions know­ ing what proportions of the population favour which alterna­ tives. But I do not think Rawls would regard such knowledge as relevant in arguments about what it would be rational for the representative equal citizen to prefer ; for it would only be relevant if we conceive that this representative figure in some way reflects (perhaps in the relative strength or intensity of his con flicting desires) the distribution of different prefer­ ences in the population. This , however, would be virtually equivalent to a utilitarian criterion an d one that I am sure is far from Rawls 's thoughts. I would stress here that I am not complaining that Rawls 's invocation of 'the rational prefer­ ence of the representative equal citizen' fails to provi de a de­ cision procedure yielding a determinate answer in all cases. Rather, I d o not understand, except in the very simple cases, what s ort o f argument is to be used to show what the rep­ resentative's rational preference would be and in what sense it results in 'a greater liberty '. Of course, it is open to Rawls to say, as he does , that argu­ ments concerning the representative 's rational preference will

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237

often b e equally balanced, and in such cases justice will b e in­ determinate. But I do not think that he can mean that justice is to be indeterminate whenever different people value alter­ natives d ifferen tly . I n d ee d , he i s quite clear tha t , in sp i te of such difference in valuation, justice does require that there be some constitu tional protections for individu al freedom, though these will limit the freedom to participate in govern­ ment j48 th e only indeterminacy he contemplates here is as to the particular form of constitu tional protection t o be selected from a range of alternatives all of which may be p ermitted b y principles o f justice. Yet , if opinion i s divided o n the main issue ( that is , whether there should be any or no restrictions on legislative power to protect individual freedom ) , I do not understand what sort of argument it is that is supp osed to show that the representative equal citizen would prefer an affirmative answer on this main issue as securing 'the greater liberty '. This difficulty still plagues me even in relatively minor cases where one might well accept a conclusion that prin­ ciples of j ustice are indeterminate . Thus, suppose the legislator has to determine the scope of the rights of exclusion com­ prised in the private ownership of land, which i s for Rawls a basic liberty,49 when this basic liberty conflicts with o thers. Some people may prefer freedom of movement not to be limited b y the rights of landowners supported b y laws about trespass ; others , whether they are landowners or not, may pre­ fer that there be some limitations. If justice is indeterminate in this minor case of conflicting liberties , then no doub t we would fall back on what Rawls terms procedural justice , and accep t the majority vote of legislature operating under a just 48 'The liberties of equal citizenship must be incorporated into and protected by the constitution' ( ibid. 1 9 7 ) . 'If a bill of rights guaranteeing liberty of con­ science and freedom of though t and assembly would be effective then it should b e adopted' ( ibid. 23 1 ) . •• It has been suggeste d to me by Mr Michael Lesnoff that Rawls mjght not consider the private ownership of land to be a basic liberty since , as noted above, justice according to Rawls leaves 9pen the question whether there is to be private ownership of the means of production. I am not, however, clear what is included in the scope of the basic liberty which Rawls described as 'the right to hold [ per sonal ) property ' ( ibid. 6 1 ) . Would it comprise ownership or (in a socialized econ omy ) a tenancy from the state in land to be used as a garden? If not, the example in the text might be changed to that of a conflict between pedest rians ' freedom of movement and the rights of drivers of automobiles.

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constitution and a fair procedure, even if we cannot say of the outc ome that it is in itself a just one . But, presumably , in considering what measures to promote and how to vote , the le gi s lat o r s mus t , since this is a case , though a minor one , of conflicting basic liberties, begin by asking which of the alter� natives a representative equal citizen would, if rational , prefer, even if they are doomed to discover that this question has no determinate answer. But indeterminacy and unintelligibility are different things , and it is the intelligibility of the question with which I am concerned. What do the legislators mean in such cases when they ask which alternative it would be rational for the representative equal citizen to prefer as secur­ ing the gre ater liberty , when they know that s ome men may value privacy of property more than freedom of movement, and others n ot ? If the question is rephrased, as Rawls says it can be, as a question involving the principle of the common good, then it will presumably appear as the question which alternative will in the long run most advance the good of all, or ends that all share. This might be an answerable question in principle if it could be taken simply as the question which alternative is likely most to advance everyone 's general wel­ fare, where this is taken to include economic and other ad­ vantages besides liberty. If, for example , it could be shown that unrestricte d freedom of movement over land would tend to reduce everyone 's food supply , whereas no bad conse­ quences likely to affect everyone would result from the other alternative , then the conflict should be resolved in favour of restriction of movement. But this interpretation of the ques­ tion in terms of welfare seems ruled out by the principle that liberty may only be limited for the sake of liberty, and not for social or economic advantages . So, I think that the con­ cep tion of the rational choice of the representative equal citi­ zen need� further clarification. IV. LIMITING LIBERTY TO PREVENT HARM OR SUFFERING

I now tum to the question whether the principle of limiting liberty only for the sake of liberty provides adequately for restrictions on conduct which causes pain or unhappiness to others o therwise than by constraining liberty of action. Such harmful conduct in some cases would be an exercise of the

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basic lib erties , such as freedom of sp eech, for example , or the use of property, though in other cases it may be the exercise of a lib erty not classed by Rawls as basic. It would b e extra­ ordinary if principles of jus tice which Rawls claims are in general in harmony with ordinary considere d judgments were actually to exclude (because they limited liberty otherwise than for the sake of liberty) laws restraining libel or slander , o r publications grossly in fringing privacy, or restrictions o n the use o f private property (e.g. autom obiles ) designed t o pro tect the environment and general social amenities . These restrictions on the basic liberties o f speech and private prop­ erty are commonly accepted as trade-offs not of liberty for liberty, but of liberty for protection from h arm or loss o f amenities o r other elements o f real utility . There are two ways in which perhaps Rawls 's principles can at least partly fill this gap .50 In some cases m ore plausibly than others , he might argue that a n unres tricte d liberty to in­ flict what we call harm or suffering on others would in fact restrict the victim 's lib erty of action in either or b oth of two ways. The physical injury inflicte d might actually impair the capacity for action, or the knowledge that such harmful ac­ tions were not prohibited might create conditions of app re­ hension and uncertainty among p otential victims which would grossly inhibit their actions . But such arguments seem quite implausible except in cases o f conduct inflicting serious physi­ cal harm on individuals , and even there, when such restrictions are accepted as a reasonable sacrifice of liberty, it seems clear that if pain and suffering and distress were not given a weigh t independent of the tendency of harmful con duct to inhibit the victim 's actions or incapacitate him from action, the b al­ ance would o ften, in fact, not be s truck as it is. 50 Professor Dworkin and Mr Michael Lesnoff have suggested to me that what I describe here as a 'gap' may not in fact exist, since Rawls's basic liberties may be conceived by him as limited ab initio so that they do not include the liberty to act in a way damaging to the interests or liberties of others. But though it is certainly consistent with much of Rawls 's discussion of basic liberties to treat his admittedly rough description of them as simply indicating areas of conduct within which the parties in the original position identi fy specific rights after resolving conflicts be­ tween the several liberties and the interests or liberties of others , this does not fit with Rawls 's account of the basic liberties as liable to conflict, nor with his ac count of the conflicts as resolved not by the parties in the original position but by constitu tional convention or by a body of legislators adopting the point of view of the representative equal citizen.

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It is , however, necessary at this p oint again to take into account th ose natural duties which are standards of individual conduct, as distinct from principles of justice, which are stan­ dards for institutions . These duties include the duty not to harm others or cause 'unnecessary suffering' and also the duty to come to the assistance of others . In discussing the accept­ ance of such duties by the parties in the original p osition , Rawls represents them as calculating that the burdens of such duties will be outweighed by the benefits ;5 1 so natural duties represent cases where , like the simple rules of debate case, the best worst p osition for all rational men can be identified, and in these cases even from behind the veil of ignorance. Even there it will appear to the parties as rational self-interested p ersons that it is , for example, better t o be restrained from practising cruelty to others while protected from them than to be exposed to o thers ' cruelty while free to practise it, and better to have t o provide modest assistance to others in need than never to b e able to rely on such assistance being forth­ coming. So it is plain that these natural duties might fill part of the gap left open by the principle that liberty may only be limited for the sake o f liberty, if Rawls means ( though he does not explicitly say it) that even the basic liberties may be re­ stricted if theit exercise would infringe any natural duty . But again , these natural duties chosen from behind the veil of ignorance would only account for very obvious cases where the benefits of the restrictions would, for all rational men , plainly outweigh the burdens . This will not help where diver­ gent choices would reasonably be made by different individ· uals in the light o f their different interests , and it seems to me that this will very often be the case. Some persons, given their general temp erament, might reasonably prefer to be free to libel others or to invade their privacy, or to make use of their own property in whatever style they like , and might gladly take the risk of being exposed to these practices on the part of others and to the consequences of such practices for themselves and the general social and physical environment. Other p ersons would not p ay this price for unrestricted liberty in these matters , since, given their temp erament, they would value the protections afforded by the restrictions higher than 51 Op. cit.

n.

2 supra , 3 3 8 .

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the unrestricted liberty . In such cases restrictions on the basic liberties of speech or private property cannot be represented as a matter of natural duty on the footing that rational men , whatever their p articular temperament, would opt for the re­ strictions just as they might opt for general restrictions on killing o r the use of violence . Of course, it is certainly to be remembered that justice for Rawls does not exhaust morality ; there are, as he tells us , requirements , indeed duties, in relation to animals and even in relation to the res t of nature which are outsi de the scope of a theory of what is owe d to rational individuals.52 But even if there are such moral duties, regarding even rational beings , I do not think that Rawls would consider them -as supplement­ ing principles of justice which apply to institutions . I take it, therefore, that restrictions on the basic liberties excluded by the principles of justice because they are not restrictions of liberty for the sake of liberty could not be independently sup­ ported as just by appeal to other principles of morality . The p oint here is not that Rawlsian justice will be shown to be in­ determinate at certain points as to the proprie ty of certain restrictions on lib erty; it is, on the contrary , all too deter­ minate , since it seems to exclude such restrictions as actually unjust because they do not limit liberty only for the sake of liberty. I take it Rawls would not wish to meet this p oint by simply adding to his principles of jus tice a further supplement permitting liberty to be restricted if its exercise violated not only the natural duties but any requirements of morality, for this would, it seems to me, run counter to the general liberal tenor of his theory . V. THE CHOICE OF BASIC LIBERTIES

I think the most important general p oint which emerges from these separate criticisms is as follows . Any scheme providing for the general distribution in society of liberty of action necessarily does two things : first, it confers on individuals the advantage of that liberty, but secondly, it exposes them to whatever disadvantages the practices of that liberty by others may entail for them. These disadvantages inclu de not only the ' 2 Ibid. 5 1 2.

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case on which Rawls concentrates, namely interference with another individual 's basic liberties, but also the various forms of harm, pain , and suffering agains t which legal systems usually provide by restrictive rules . Such harm may also in­ clu de the destruction of forms of social life or amenities which otherwise would have been available to the individual. So whether or not it is in any man 's interest to choose that any specific lib erty should be generally distributed depends on whether the advantages for him of the exercise o f that lib­ erty outweigh the various disadvantages for him of its general practice by others . I do not think Rawls recognizes this ad­ equately in his discussion of conflicting liberties and his theory of n atural duties. His recognition is inadequate , I think, because his doctrine insists that liberty can only be limited for the sake of liberty, an d that when we resolve conflicts we must be concerned only with the extent or amount of liberty . This conceals the character of the advantages and disadvan­ tages of different sorts which must be involved in the resol­ ution of such conflicts ; and his doctrine also leads him to misrepresent the character of all except those most simple conflicts between liberty and other benefits which are re­ solved by the p arties in the original position when they choose the natural duties. Throughout, I think, Rawls fails to recog­ nize sufficiently that a weighing of advantage and disadvan­ tage must always be required to determine whether the general distribution of any specific liberty is in a man 's interest, since the exercise of that liberty by others may out­ weigh the advan tages to him of his own exercise of it. A rather startling sign that this is ignored appears in Rawls's remark that 'from the standpoint of the original position, it is rational ' for men to want as large a share as possible of liberty, since 'they are not compelled to accept more if they do not wish to, nor does a p ers on suffer from a greater liberty '.53 This I fin d misleading because it seems to miss the vital p oint that, whatever advantage for any individu al there may be in the ex­ ercise of some liberty taken in itself, this may be outweighed by the disadvantage for him involved in the general distri­ bution of that liberty in the s ociety of which he is a member. The detailed criticisms which I have made so far concern 5.

Ibid. 143.

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the application of Rawls's principle of greatest equal liberty. But the general p oint made in the last paragraph, if it is valid, affects not merely the application of the principles of justice once they have been chosen but also the argument which is designed to show that the parties would in the conditions of the original p osition, as rational self-interes ted persons , choose the basic liberties which Rawls enumerates . Even if we assume with Rawls that every rational pers on would prefer as much liberty as he can get if no price is to be p aid for it, so that in that sense it is true that no one 'suffers from a greater liberty' , it does n o t follow that