Hart and natural law: the three concessions reviewed

The story so far. Herbert Hart was one of the founding fathers of contemporary legal positivism – the doctrine that laws are created through a specialised social practice of setting down (or positing) enforceable norms for behaviour, and are known and recognised as such by their grounding in that social practice. Sociologically speaking, this may sound uncontentious; the key contribution of legal positivism is the lack of any further stipulations as to what the law, inherently, is or what it is (necessarily) for. In any law-governed society (legal positivism argues) there is a system of laws which are recognised as such and an apparatus of roles and procedures for making and amending those laws; and (as Private Eye would put it), er, that’s it. To say that the legal system of Nazi Germany was a bad legal system – on the basis that it facilitated what are almost universally held to be evil and unjust outcomes – makes no more sense than to say that the language spoken by the Nazis was a bad form of German.

Advocates of ‘natural law’ – the theory that there are coherent and discoverable pre- or extra-legal principles, generally based on morality, by which positive law can be judged – have held that this picture needs to be qualified in different ways. In writings from 1958 and 1961, Hart singled out three ways of arguing the connection between natural and moral criteria, on one hand, and positive law on the other, and made concessions – ranging from major to very minor indeed – to each of them.

Firstly, the Substantive Natural Law position holds that any imaginable legal system – or, perhaps, any imaginable adequate legal system; any legal system functioning as a legal system – will have a certain minimum content: there are certain things that ‘the law’ has always forbidden and always will forbid, murder being the most obvious example. Hart gave this argument extended consideration and was willing to concede – if the minimum content was defined sparingly enough – that it might be correct. However, Hart was at pains to point out that the minimum content itself derived from the brute facts of human existence rather than from morality. Hart’s definition of the minimum content of law, in terms of obligatory forbearance from exploiting fundamental universal vulnerabilities, is compatible with Kelsen’s austere severance of legal from moral obligations: one could argue, following Kelsen, that the moral obligation not to kill and the legal prohibition of homicide are not only two separate norms, but elements of two distinct systems of norms, each of which is offered as a solution to the problems of coexistence in society. Natural law in this light is ‘natural’ in a Hobbesian sense – it is the law that elevates above the state of nature for the sake of survival (rather than, for instance, underpinning the Aristotelian conditions of human flourishing). Nor is there any inherent connection between minimal substantive natural law and justice. A universal and impartial breach of natural law would not be unjust; in the case of any more selective breach, the injustice would derive from the selectivity.

The Procedural Natural Justice position, secondly, holds that there is justice in the correct administration of the law, irrespective of the justice of the outcomes or of the law itself – or, conversely, that there is injustice in the maladministration of the law, irrespective (again) of our assessment of the law itself or of the outcomes reached. There is – by design – no connection between our assessment of natural justice in the administration of the law and the content of the law, natural or otherwise. In 1958 Hart referred to rule-based impartiality as ‘natural procedural justice’ and suggested that this was a moral virtue: “there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles”. In The Concept of Law he wrote, more guardedly, of “apply[ing] a law justly” and referred to procedures to ensure impartiality as “requirements of justice”. In other words, Hart’s 1961 formulation withdraws his earlier concession to the ‘procedural natural justice’ position, leaving open two alternative lines of argument: either justice in this sense is a term of art – a technical term for the appropriate administration of those things called laws – or it is a virtue in its own right. This may be a distinction that makes no difference, however: in the second case justice is not conceived as a moral virtue.

Lastly, the (Natural) Morality of Law position suggests that the law as a system – the properties of the laws themselves as well as the way in which they are administered – can be critiqued on moral grounds. The argument here is not merely that it’s a bad thing for laws to be confusingly worded or badly implemented, although it draws strength from that intuition. Rather, the argument is that subjecting society to governance by law is itself a morally good enterprise, and that the particular moral virtues which it embodies can be found – or found to be lacking – in particular legal systems, in individual laws and in acts of law-making. A key concept in this respect is followability: the law is taken to be a system of norms which addresses its subjects as free, rational and responsible for their own actions – and which is the less ‘law-like’ the less effectively it does so (through the use of laws which are unknowable, incomprehensible, impossible to comply with, capriciously applied, etc).

Hart did not address this argument in his 1958 paper. In The Concept of Law he considered it as a technical argument, on the basis that any system of ‘[social] control by rule’ needs to have certain characteristics – ‘[the rules] must be intelligible and within the capacity of most to obey… [so that], for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey’. Might these requirements be taken as rising to the level of morality? Hart’s response is brief and devastating: “if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.” In other words, the fact (as Hart saw it) that unjust and immoral outcomes are entirely compatible with a pursuit of a ‘followable’ system of laws makes the idea of ‘followability’ as a virtue irrelevant or frivolous.

To sum up: Hart concedes the argument for Substantive Natural Law, but only after narrowing its scope to the point of guaranteeing mere survival rather than promoting human flourishing. In 1958 he concedes the argument for Procedural Natural Justice; in 1961, however, he situates procedural justice either as technical excellence in the administration of justice or as a (non-morality-based) virtue in its own right. His position on the Morality of Law is more complex: he argues that the merits described thereby are purely the technical merits of a functioning system of rules, but leaves open the possibility that they can be called a morality – subject to the withering proviso that such a morality, and such a necessary connection between law and morality, appears to have no actual effect on the law. In other words, Hart does not challenge the logic of Fuller’s argument but questions whether it is necessary to analyse the law in the real world, with the strong presumption that it is not.

As we have seen, David Lyons’s papers address the second and third of these concessions, from a position which can perhaps best be described as a radically sceptical formalism. Lyons’s key move – made in both papers – is the technical argument, which he raises to a higher level of abstraction than had Hart: he grants that certain features might represent a defect in the law (or its effective administration), but denies that this necessarily tells us anything about justice.

On Procedural Natural Justice, Lyons’s bracingly sceptical denial that there was any moral virtue in proceeding by rule or in treating like cases alike would certainly have appealed to Hart; a post-Lyons revision of the argument in The Concept of Law might have stressed the idea of procedural justice as a technical merit of a well-administered legal system, to the exclusion of granting it even nominal consideration as a form of justice. However, I’m not convinced that this move is one Hart would have wanted to make. Lyons’s central argument can be summed up in a question posed rhetorically in his 1973 paper: “Why should we suppose that the pattern of treatment prescribed by the law is the same as (or even compatible with) that prescribed by any principle of justice?” As I noted above, considerations of justice come into play in some fields but not others. If we, as a kind of thought-experiment, think of law as a field in which justice may not be involved, there is then no particular reason to think of the administration of law in terms of justice of outcome, or by extension to think of the process of the administration of law in terms of procedural justice. But I think, for Hart, that would have been a formalist move too far. I do not think Hart would have found it necessary or useful to drive a wedge, as Lyons does, between the concepts of ‘law’ and ‘justice’, both of which Hart saw as human, social, culture-bound concepts. While Hart promoted the classification of merits in the administration of the law in neutral, technical terms, I don’t think anything turned for him on not calling these merits principles of justice. Ironically, I think he would have sympathised with Lyons’s devalorised version of rule-following as a way of describing the administration of the law, but rejected as idealism Lyons’s unqualified references to justice as a virtue.

Lyons shares Hart’s lack of enthusiasm for the Morality of Law but criticises it from a different angle. While an inadequately followable law can reasonably be seen as defective, Lyons argues, additional information would be required in order to call this defect an injustice. Hart’s position, by comparison, is both weaker and stronger: weaker, in that he takes no definite position on whether Fuller’s ‘morality of law’ is a moral framework or merely a set of technical considerations; stronger, in that he effectively dismisses the debate as not worth having.

Lyons’s argument, like his position on formal justice, is grounded in his scepticism about the relationship between law and justice. This (as I have argued in both instances) over-reads the moral neutrality of well-formed rules and rule-following. Certainly rules may be contradictory or incomprehensible without any injustice being done, just as rules can be followed or broken without moral implications. However, in social practices where distributive or allocative justice is at stake – where a single standard is being applied to multiple individuals, with potential consequences affecting them – procedural justice is necessarily engaged, and rule-writing and rule-following become questions of justice. This is the case with regard both to practices which may affect the outcome and (perhaps less obviously) practices which cannot – if only because there is no way to be sure, either during or after the process, that any discriminatory practice can be ruled out as not affecting the outcome. To be singled out for special treatment (good or bad) in the course of a court case – even if one has a well-founded confidence in one’s innocence and the fairness of the court – is necessarily, and of itself, to be a party to (procedural) injustice. Similarly, if the state asks citizens to obey a law and obedience is impossible – or only intermittently possible, or unascertainable – each citizen is placed in an anomalous position, and one of unjust disadvantage relative to the large number of citizens who obey the law (or who may be obeying the law, or who may be treated as if they are).

However, I don’t think Hart’s position on the morality of law would have been affected either by Lyons’s sceptical argument or by my response. His position on the virtues of a good legal system, as identified by Fuller, is that these are indeed virtues of a good legal system, in the same sense that sharpness is a virtue of a good knife and undetectability is a virtue of a good poison. He might even have granted the point that Lyons denies – that procedural virtues in the process of making law and administering justice can be considered, by extension, as forms of procedural justice. He might have been resistant to this line of thinking (his references to it in The Concept of Law are guarded at best), but I think fundamentally he would have thought it to be beside the point – neither true nor importantly false, merely irrelevant.

Lyons draws a line – I think incorrectly – between ‘law’ in the world and ‘justice’ in the heaven of ideas. The line Hart draws encompasses law and justice, both located in the world, both variable from one system to another, both amenable to more or less technical assessment. Arguably even morality is inside the line – it too exists in the world and can be invoked (although it need not be) in the workings of the law, as a source of principles and as a means of assessing outcomes. Outside the line are the virtue of procedural justice and the morality of well-written law – and they’re outside not because Hart situated them in a Platonic realm of concepts but because he was indifferent to whether they existed or not; his model had no need for them. The debate between Hart and Fuller was not between two rival framings of the law, but between an advocate of one framing and someone who believed that it was irrelevant – that nothing turned on whether it was used or not. This may account for the occasional asperity of the debate between Hart’s and Fuller’s partisans. Hart’s famous formulation that the morality of law was “compatible with very great iniquity” is, logically, a challenge to the position that it is impossible for an iniquitous regime to have a followable system of laws – this being the only position which would have made it necessary to incorporate the inner morality of law into his thinking. However, the position advanced by Fuller and his successors is merely that an entirely followable system of laws (whatever the laws’ content in all other respects) is more just than the same system would be if it were less followable. This implies that an iniquitous regime, with no respect for its subjects, will have no reason to avoid introducing unfollowable laws; this in turn suggests that it is unlikely that an established iniquitous regime will not have taken the opportunity to introduce unfollowable laws. However, this is not to say that a followable system of laws is not “compatible with very great iniquity”; at its strongest, Fuller’s argument leaves Hart’s position untouched. Hart’s challenge is unanswerable; if Fuller’s model is to be used, other justifications are needed for doing so.

One final point, before I conclude this series of posts by looking at other writers’ comments on these issues. A striking virtue of Fuller’s argument is that it considers legal systems as a whole, arguing that they may exhibit the same merits and defects in many different ways. An individual law may be unfollowable for reasons of content, structure, administration or enforcement: because it clearly requires the impossible, or because it is drafted so badly as to be incomprehensible, or because it is liable to be changed without warning, or because it is only capriciously enforced. With this in mind, it is worth recalling the first aspect of the minimum content of natural law – the substantive element – and asking whether it may have any bearing on the other two, wholly or partly procedural, elements. If laws – some laws – are required in any conceivable human society, for the sake of bare collective survival, does this tell us something about the nature of law? Might it be appropriate – natural, indeed – to take as a starting point the assumptions that (contra Lyons) law does in fact embody the value of justice in society, and that (contra Hart) this value is of supreme moral importance?

Two counter-arguments can be envisaged, one minimal and one maximal. On one hand, it could be argued that justice is comparative and distributive: when an outcome is applied evenhandedly to the whole of a society, justice has nothing to say about what that outcome is. It is unjust for one person to be killed; it cannot be unjust for an entire society to perish. Consequently, although the minimal content of substantive natural law embodies the network of collective forbearances required to keep society in existence, this is not a goal of justice. An answer to this is that what the minimum framework of forbearances wards off is not instantaneous extinction but a lawless chaos, in which many injustices would in fact be done: the survival of society is not a goal of justice but a condition of justice, or of the prevention of injustice. On the other hand, it could be argued that justice is – as Lyons suggests – something we know rather little about: from a Marxist point of view, for example, a genuinely just settlement might involve the withering away of the state and the communalisation of private property. The answer to this is that justice is scalar rather than binary: an innocent prisoner detained without trial is a victim of injustice, but she may still become a victim of further injustice (by being singled out for mistreatment, isolation etc). Conversely, a structurally unjust society (e.g. one dominated by a single low-wage employer) may become more just without changing that fundamental condition (e.g. by the introduction of more effective factory regulation).

Let us say, then, that the survival of a functioning society is a precondition of justice, and that the law – as well as being a means to that survival – embodies, however imperfectly, the pre-legal standard and value of justice. Can we then ground Lyons’s scepticism about the relationship between law and justice – or Hart’s bracketing of the inherent virtues of law, so as to discuss laws alongside the rules of games? Does Hart’s “minimum content of natural law” in fact lead us back to natural law theory?

Hart and natural law: Lyons on Fuller

David Lyons’s 1971 paper “The Internal Morality of Law” is an interesting critical review of Fuller’s theory of the same name. Lyons sets out his sceptical stall with two references to claims made by Fuller:

He says that public officials, those who make and enforce the law, are committed to ideals of legal excellence – eight ideals concerning not the substance of the law but whether its requirements can be understood, followed, and met, and how they are to be applied. There ought to be general rules, first of all, and these ought to be clear, consistent, publicized, prospective, satisfiable, constant, and “scrupulously” enforced.

It is not entirely clear, however, why we should suppose that there is such a commitment.

And:

Fuller also writes: “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults”. This passage is suggestive, though it hardly solves our problem. Why should we say there is this commitment? And what has it got to do with justice?

Lyons cites Fuller’s list of

eight kinds of legal defect corresponding to the eight kinds of legal excellence … a failure to make general rules; rules that cannot be understood, that are inconsistent, not made known to the parties affected, retroactive, or frequently changed; rules that “require conduct beyond the power of the affected party”; and “a failure of congruence between the rules as announced and their actual administration”.

He notes that this last defect can be seen in terms of the failure to apply the law “faithfully, equally, uniformly and impartially”, and hence that the eighth of Fuller’s types of legal excellence corresponds to the supposed virtue of procedural or formal justice (Lyons’s subsequent comments on this were discussed in the previous post). However, this can also be seen in terms of ‘followability’, which is the key value undermined by the other seven defects: just as a law is impossible to follow if it is incomprehensible, if it varies unpredictably or if it sets conditions which cannot be satisfied, it is not in practice followable if it is applied intermittently and capriciously. To say that laws (or systems of law) are followable is to say that they respect their subjects, or at least offer them a specific kind of respect: they address their subjects as free and responsible agents capable of rationally choosing to follow rules. To the extent that they do this (as Fuller argues that they should), they will have the qualities Fuller identifies as ideals of legal excellence.

But how would this view of the law be grounded by anyone who does not necessarily share Fuller’s world view? Lyons concedes that the idea of followability is fundamental to the nature of laws as a means of guiding behaviour:

part of the very concept of a legal requirement is, not that it actually is followable, but that it is supposed to be and may be presumed to be. The idea of law includes that of regulating behaviour in a certain way – by setting standards that people are to follow. And this idea is incorporated in the notion of a legal requirement. If so, from the notion of a legal requirement it might seem to follow that, to the degree a putative legal requirement cannot be used by one to whom it applies to guide his own behaviour, that requirement is defective.

But we’re not out of the woods. We may have identified good reasons for calling unfollowable requirements defective, but “to say this is not to make a moral judgment” (emphasis added). As with the question of whether there is a procedural morality of rule-following, the morality of setting followable requirements does not follow from the fact that they are preferable; the superiority of followable requirements may be a purely technical question.

Can Fuller’s argument be grounded morally? Lyons suggests one solution, noting that “[w]hen a person is penalized for failing to meet an unfollowable requirement, he is treated unjustly.” The practice of penalising individuals for failure to follow requirements is one which engages questions of justice, inasmuch as standards are being applied to multiple people’s behaviour and consequences imposed on those people individually: as soon as two people are penalised for failing to follow a rule, the possibility exists that one of the two is being penalised unjustly. (Whether an injustice can be done if no comparisons can be made – if a rule is only ever applied to one person, or if everyone is uniformly held to have breached the rule – is an interesting philosophical question, although it’s one that can probably be shelved for lack of real-world examples.)

However, Lyons does not find this persuasive:

If we call the rules under which [individuals] may be penalized unjust, that is because individuals are, or are likely to be, penalized unjustly under them. But this kind of treatment is not essential to or inevitable in a legal system – not even one that contains defective requirements … From the fact that a legal system contains rules or requirements that cannot be understood or followed or met, it does not follow that anyone shall be penalized under them or even that the system requires or allows such treatment

He goes on to consider a (hypothetical) community of utopian socialists, each of whom is strongly committed to the success of the community and highly averse to the use of sanctions, and each of whom knows these facts to be true of all the others. Such a community, Lyons argues, would be guided by laws but without any imposition of sanctions; hence any unfollowable laws would not result in injustice, since their inevitable breach would not lead to anyone being penalised. The argument is ingenious but ultimately rests on a kind of idealism – as if to say that the courts and the institutions of punishment in accordance with law are social practices, but the law itself is an immaterial essence. If we see the law – “the enterprise of subjecting human conduct to the governance of rules”, in Fuller’s terms – as a social practice, the distinction disappears: to the extent that legal standards are standards applied to multiple people’s behaviour in order to judge them (whatever the consequences may or may not be), to that extent justice is engaged in the application of the law.

As in his paper on procedural justice, Lyons is keen to dissociate the law from justice; he argues that

the standards that may seem implicit in the law, conceived at least in part as a system of guidelines for human behaviour, would seem to say nothing about what counts as an injustice. They tell us only that a certain kind of requirement or rule is defective – and only because it is not followable. But this does not tell us that the application of such a rule would be unjust.

And:

we cannot learn what use of sanctions is (or would be) unjust simply by understanding what the law is. We need to know what constitutes an injustice. And so far, our understanding of what the law is tells us nothing about that.

On the contrary – Fuller might have answered – while “our understanding of what the law is” may tell us nothing about injustice, our ordinary-language understanding of injustice tells us that the imposition of laws which could not be followed would constitute an injustice. The question of justice is engaged by the process of ascribing, to some individuals but not others, the social status of having broken a law; break the link between this status and those individuals’ past freely-chosen actions, and injustice necessarily results.

It may be argued – and Lyons would certainly argue – that this conclusion proves more than it set out to, and implicates substantial parts of the English criminal law in the production of injustice (retroactive legislation, reverse onus provisions, strict liability offences). At the moment I’m inclined to think that a feature rather than a bug.

Lies, damned lies and the BBC News

I’ve always thought the BBC News was reasonably trustworthy. Very establishment-oriented, very quick to condemn disorder in any form, very slow to condemn the police or politicians (unless a readily identifiable bad apple can be found), basically rather right-wing, unthinkingly dismissive of the radical Left and rather too fond of displaying attacks from the Right as evidence that they have achieved ‘balance’. For all that, I’ve always thought they were basically reliable on matters of fact, not to mention on fundamental issues like the importance of not killing, not lying and taking the law seriously.

My confidence has been dented by some recent stories. I was disturbed by the BBC’s coverage of the ‘Trojan Horse’ affair, parts of which didn’t so much skirt the ‘anti-extremist’ rabbit-hole as jump straight down it: “where does multi-culturalism end and extremism begin?” we were asked one evening, by the newsreader himself. (So, about these darkies – can we trust them as far as we can throw them?) Parts of the Gaza coverage have also been appalling. But it was last night’s news that really shook me – the story on restricting out-of-work benefits to EU migrants, specifically.

So here’s the story from PM, broadcast at 17.00 on 29/7/2014.

The government is defending new measures to restrict out-of-work benefits such as Job Seeker’s Allowance to EU migrants, saying they’ll save half a billion pounds over the next five years. EU claimants will receive only three months of payments unless there’s a very clear prospect of them getting a job.

On the 6.00 News (18.00, 29/7/2014), Norman Smith covered the politics of the announcement, and when I say ‘politics’…

Today’s curbs on so-called benefit tourism follow a string of similar announcements aimed at ending what the Prime Minister calls the “magnetic pull” of the British benefits system – the hope that barring EU migrants from claiming support after three months will deter many from coming here in the first place. But the move is also designed to reassure voters that Mr Cameron is serious about tackling immigration. … UKIP meanwhile, who have made immigration central to their appeal, mocked today’s announcement, insisting that under Mr Cameron immigrants would continue (in their words) to flood into Britain … The European Commission have also stepped into the fray, dismissing ministers’ concerns over benefit tourism and announcing a review into the legality of the government’s benefit changes. All of which is most unlikely to trouble Mr Cameron – provided today’s announcement helps convince voters he’s at least trying to address their concerns over immigration.

First off, there is nothing principled or even rational here. Smith distinguishes between the actual effect of the policy and its presentational impact, but the only effect cited – Cameron’s ‘hope’ – is that fewer people from other parts of the EU end up coming to Britain. Why is that a good idea? We’re not told; we don’t need to be told. But as well as this hoped-for reduction in the numbers of people speaking English with a foreign accent (and wasn’t there something about saving half a billion pounds earlier on?), the policy is designed to ‘reassure voters’ that the government is ‘trying to address their concerns’. By the end of the piece this has become the main purpose of the announcement: it’s not that the government hates foreigners, you understand, it’s just that lots of people out there do hate foreigners and the government wants their votes. As for the European Commission, we know that our Prime Minister doesn’t listen to them! (On a side note, the relentless personalisation of this story is depressing in itself – when was David Cameron elected president?) Those Europeans – they can talk about how there’s no evidence, and how it might be against the law or something, but why should anyone care what they say? Bunch of foreigners!

So there’s xenophobia; cynical attempts to pander to xenophobia, for no other reason than that somebody else is doing it; the design of government policy around vote-chasing, irrespective of whether it’s needed or what effect it will have; contempt for international obligations; contempt for evidence; contempt for the rule of law. This is disgusting stuff; to hear the BBC passing it on as political normality is depressing and, frankly, alarming.

But all is not lost. The programme included a second report on the same policy by Mark Easton, who seems to have more traditional ideas about how journalism works:

When the BBC asked how many migrants would be affected by the proposed changes to eligibility, we were told ministers simply didn’t know. There are no figures for EU migrants claiming Job Seeker’s Allowance for more than three months. The government blames the previous Labour administration for not keeping proper records. Our analysis suggests the number affected by the new measures could be as low as a few thousand across the whole country. … [The Prime Minister] told reporters today’s changes would save the British taxpayer half a billion pounds over the next five years. However, later Downing Street explained he was referring to estimates for how much might be saved by existing immigration controls. As we now know, they can’t tell how much the policy might save, because they admit they don’t have the evidence that would tell them.

Wait a minute – that’s a story right there. The Prime Minister announced the reduction of entitlement to out-of-work benefits from six to three months, and then he said – it was quoted all over the place – “Our changes today will save the British taxpayer half a billion pounds over the next five years”. None of your ‘existing immigration controls’ – our changes today. That claim was false – or speculative at best – and it’s been retracted, after the BBC did the numbers and asked for clarification. That’s the headline, surely. At the very least it’s a proud day for BBC News: “Government withdraws misleading claims under pressure from BBC”. This could have legs: “Furious Cameron demands source of inaccurate immigration figures”; “Cameron under pressure as ‘misleading’ immigration claims unravel”; “Fears for coalition as Lib Dems challenge immigration policy” (they haven’t yet, but get this out there and they will)…

At the very least, the story has changed: it’s no longer a story about how your government is going to save money and address your fears about all those nasty immigrants (with a nod and a wink to the grown-ups from Norman Smith: OK, so it’s all just scaremongering, but that’s politics for you!) It’s now a story about how the government has put forward a very controversial and possibly illegal policy, with the specific aim of making one group of very poor people even poorer, and first claimed to have evidence to support it, then admitted that there is no evidence.

News headlines, Radio 4, 19.00, 29/7/2014

The government is defending new measures to restrict out-of-work benefits such as Job Seeker’s Allowance to EU migrants, saying they’ll save half a billion pounds over the next five years.

Unless they use pre-recorded news headline segments, by the time that script was read out, the government wasn’t ‘saying’ that. The announcer himself had probably heard the retraction on the 6.00 News. The only reason for leaving that claim unchallenged is to save the government’s face – and that’s the last thing the BBC News should be doing, least of all when the loss of face is related to a baseless, evidenceless, cynical, hateful and illegal exercise in chasing votes and polluting the public discourse.

BBC News: shame on you.

Hart and natural law: Lyons on formal justice

David Lyons’s 1973 paper “On Formal Justice” begins unpromisingly:

A number of legal and political theorists have suggested that public officials who fail to act within the law that they administer act unjustly. This does not mean that injustice is always likely to be done merely because it often happens to be done when officials depart from the law. Some writers have held that injustice is done whenever an official fails to act within the law, regardless of the circumstances. I shall call this type of view “formal justice.”

This is odd, to say the least, as it implies that (formal) injustice is done when a judge breaks a speed limit but not when she decides two similar cases in wildly different ways. In point of fact, the focus of the paper as a whole is unclear; broad formulations such as ‘official deviation from the law’ are frequently used, implying a contrast between official obedience to the law and actual law-breaking, but so too are narrower formulations such as ‘adherence to existing legal rules’. This second concept – implying a rule-driven approach to applying the law – seems to be the focus here:

Such a view may be considered “formalistic” because it places value, in the name of justice, on adherence to existing legal rules without regard to “substantive” factors such as their contents, the consequences of obeying them, their defects or virtues, or any other circumstances of their application. The only condition imposed is that an official must by law follow the rule in his official capacity. Furthermore, those who attempt to account for this view believe that the requirements of formal justice rest directly on such notions as “proceeding by rule” or “treating like cases alike,” which are thought to be at the heart of our shared concept of justice. The basic requirements of formal justice are thus supposed to be exempt from the controversy over substantive principles of justice and their possible justification.

It is also the focus of the third section of the paper, on Hart. In The Concept of Law, Lyons argues, Hart offers three points in support of ideas of administrative justice. (As we have seen, all three of these had been made in less qualified and more moralised form in Hart’s 1958 paper.)

The first bases administrative justice on the precept “treat like cases alike”; the second grounds it on a notion with which the first is often confused, namely, following a rule; the third is rooted in the idea of impartially applying the law to particular cases.

Should we treat like cases alike? Perhaps so, but what does it have to do with justice? Lyons argues that treating like cases alike so has no intrinsic relationship with justice as an outcome – given that the same principle is involved in duties such as promise-keeping and helping those in need – but this is either irrelevant or an equivocation: the point is not that this principle is conducive to justice of outcome but that it is (perhaps) a form of procedural justice, which can be used equally well to measure how justly the law is applied and how justly we carry out our other social obligations. He also points out (as Hart had done) that no two cases are ‘alike’ or ‘unlike’ in and of themselves: two cases can only be judged to be alike by the application of a given set of criteria. In the case of the law, Hart had argued, the criteria to be applied are precisely the rules of the law. Hence:

From the premises that justice fundamentally requires a uniform treatment of cases and that the law prescribes one way of uniformly dealing with them, we are asked to conclude that justice in the administration of the law requires officials to follow the law. But this argument begs the question at issue, which is whether the pattern of treatment prescribed by law is identical (or even compatible) with the pattern required by justice. Once we realize that the justice of a law is not determined by the law, or in other words that the resemblances and differences between persons, acts, and circumstances which the law tells us to consider are not necessarily the ones that justice says we may consider, the error of the formalist becomes obvious.

Lyons continues: “Why should we suppose that the pattern of treatment prescribed by the law is the same as (or even compatible with) that prescribed by any principle of justice?” (emphasis in original). The only argument he offers in favour of doing so is the hypothetical argument that following the law might be the only way of achieving the “uniform treatment of cases” required by justice – but, of course, this is clearly not the case. Acquitting the defendants who offer a bribe and convicting everyone else is treating like cases alike.

Treating like cases alike – where likeness is given by the criteria of the law – is dealing with them uniformly. But, as the bribery example demonstrates, dealing with cases uniformly is not justice unless the criteria used to define like cases are themselves just – and in the case of the law, we have no necessary reason to assume this. Is this a valid argument? It’s certainly persuasive, but I suspect it rests on a blurring of different senses of the word ‘just’ – and an undervaluation of the procedural nature of the justice being analysed. Suppose that, as the model of formal justice requires, we bracket out the justice of the laws and of the outcome of legal decisions; to make it simpler, suppose that we’re dealing exclusively with unjust laws and decisions with bad and unjust outcomes. Let’s say that having a surname beginning with Q has been declared a capital crime.  Alternatively, suppose that we’re dealing exclusively with correct and welcome decisions on just laws: acquittals of falsely-accused murder suspects following an inquiry into police corruption, say. In the second case, we know that the law is just and that a just decision is, at least, highly likely; in the first, we know that the criteria given by the law are not just, and that the possibility of a just outcome is vanishingly small. Can we still speak of injustice being done by a capriciously varied application of the law – perhaps, if the judge delays three days before passing sentence, rules on a second case in five minutes flat and reads the third sentence in a silly voice? This, surely, would be a violation of fair official treatment of which even the acquitted defendants could complain, and which would make the position of the defendants in the nightmare scenario still worse. (Should this experience of stress and uncertainty be considered part of the ‘outcome’ of the case? Surely not – this would collapse a clear distinction (between outcome and procedure) for no real gain.) There seems no reason not to think in terms of procedural justice as a criterion for the application of the law – or, perhaps more precisely, for the process of the application of the law.

Lyons’s second argument addresses the related concept of rule-following, which – as we have seen – is generally required in order to make sense of the idea of treating like cases alike. (Lyons notes that judges can “devis[e] a uniform treatment of cases even when no relevant rules exist, for example, by comparing current cases among themselves”, but this puts too much weight on the need for rules to be stated formally and explicitly.) On rule-following and justice, Lyons is, again, sceptical:

The argument turns entirely on the notion of applying a rule to particular cases; it contains no further restrictions. If the result were a principle of justice, then any deviation from any rule that one is supposed to apply would be, in itself, an unjust act. Nothing restricts this mode of argument to the conduct of public officials, or even to the law.

Insofar as official nonconformity to law is regarded merely as the failure to follow rules, it is implausible to regard it as a kind of injustice. Is there anything else essential to official noncompliance that would provide the required link? It must be something essential to this kind of rule breaking, that is, something independent of all circumstances. Otherwise, a formal justice claim cannot be supported, for formal justice maintains that official disobedience is always morally objectionable, regardless of the circumstances.

Following a rule faithfully cannot be classed as justice, because rules are followed in all walks of life and may have nothing to do with justice. However, the question of equating rule-following with justice only arises in the context of duties or functions with effects on multiple other people – activities in the context of which it makes sense to talk about justice and injustice (Lyons’s counter-example of following the rules of grammar is question-begging). The “something essential” is the topic which was originally in question, that of following the rules given by the law. Once this is granted, this argument reduces to the previous one – that there is no procedural justice in the uniform application of unjust criteria – and is equally false.

Lastly, Lyons considers the argument for impartiality as a component of formal justice. He quotes Hart:

To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them “equally”.

Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied to different cases is the same general rule, without prejudice, interest, or caprice.

Contra Hart, however, Lyons maintains that the idea of impartiality has no necessary relationship with that of proceeding by rule. Uniformity does not entail impartiality: “[a]lthough impartiality may require some kind of uniform behavior, merely to deal with cases in a uniform manner is not to be impartial.” Indeed, uniformity understood ‘mechanically’ allows no scope for judges to show either partiality or impartiality. Only if the judge has a choice can the choice be made impartially; but

[i]f the formalist also believes that the choice of lawful alternatives is subject to criticism in the name of justice, then he must qualify his formal justice claim accordingly, because the simple requirement that officials act within the law does not enable the formalist to differentiate between the lawful alternatives.

Here Lyons appears to be making rather heavy weather of the ‘formalist’ claim that rules (with all their grey areas) should be applied, but applied impartially – both-and, not either-or. (Rather confusingly, Lyons uses ‘formalist’ as shorthand for ‘believer in the inherent virtue of formal justice’. He appears himself to be a formalist, in the more conventional sense of ‘analyst of a phenomenon in terms of its forms rather than any inherent qualities’.) When he pursues the topic of impartiality further, his argument becomes confused.

The claim that administrative justice requires impartial application of the law to particular cases is not inherently formalistic. One might agree, for example, that the just way of applying the law is the impartial way, while believing that justice may sometimes require that officials not apply the law. The formalistic version of the claim maintains that impartial application of the existing rules of law fully embodies administrative justice, with the understanding that this claim fundamentally requires officials to act within the limits laid down by law.

Certainly justice may sometimes require that officials not apply the law, but procedural justice – justice in the process of the application of the law – cannot. To say that “the just way of applying the law is the impartial way” is to make a claim about procedural justice, which is not at all affected by claims about the justice of the law itself or of particular outcomes. What Lyons means by the formulation “fully embodies administrative justice” is unclear, but it seems to suggest some claim about the justice of the process as a whole – not the justice with which it is administered.

Let us assume that officials should, to do justice, be impartial; this does not imply adherence to any particular set of rules, such as the rules of law. Again, suppose that the only just way of applying the law is the impartial way; it does not follow that an official who fails to follow the law acts unjustly. Let us agree that an application of the law which is not impartial is unjust; it does not follow that all deviations by officials from the law are unjust. For not every such departure could be described as an application of the law that fails to be impartial. An official might deliberately refuse to follow the law; this is not the same as applying it in, for example, a biased or prejudiced manner. This distinction is important, for the official may refuse to follow the law on principled grounds, precisely in order to prevent an injustice of which he would be the instrument.

The first claim here is irrelevant; the topic at issue here is precisely impartiality in following the rules of the law. The second is a non sequitur, which seems to broaden the argument unhelpfully to official deviancy in general. The remainder of the paragraph is valid, but what it expresses is simply the distinction between procedural injustice and injustice of outcome. It’s open to Lyons to argue that there is no procedural injustice in cases where justice of outcome is unaffected, but – as I argued above – this is only tenable if we effectively define ‘outcome’ to include all the effects on an individual of being involved in a court case, which is surely far too broad.

Next, Lyons on Fuller; then back to Hart.

Hart and natural law: the three concessions

In this & the following posts I’m going to look (sometimes quite obliquely) at Hart’s position on natural law – on the ways in which, and the extent to which, law can and should be taken to rest directly on morality, rather than constituting its own free-standing structure of posited norms.

Hart is strongly associated with legal positivism, and with what Jules Coleman has called the ‘no necessary connection’ argument in particular. Legal positivism tells us that the law is constituted, and can be identified, through rule-based social practices which confer meaning and significance on particular statements, acts and roles. The ‘no necessary connection’ argument tells us that the rule of recognition – the set of rules, assumptions and practices which qualify law as law in a given society – either may or may not include reference to moral standards. Contra Kelsen on one hand and natural law theorists on the other, Hart argued that morality and the law might (in some systems) be connected – there might be a settled and officially-recognised practice of deciding certain points by reference to moral arguments – but that the two had no inherent, general or necessary connection.

In this post I’m going to introduce three apparent concessions by Hart to natural law arguments, then introduce a late comment in which he suggests that one of these might be in need of revision. The next two posts will look at two papers by the philosopher David Lyons, one of which prompted Hart’s remark qualifying his position, and ask what implications Lyons’s arguments had for Hart. After summing up how I think Hart might have made use of Lyons’s arguments, I shall review some later responses to Hart’s qualification, from Matthew Kramer, Leslie Green and John Gardner.

The Giant Land Crab Postulate

Hart makes three concessions to natural law arguments, covering the content of law, the justice with which it is administered and the followability of law. We can refer to these as substantive natural law,  procedural natural law and the morality of law, respectively. In his 1958 paper “Positivism and the separation of law and morals”, Hart introduces the concept of a necessary minimum level of law – and hence a minimal framework of substantive natural law – by reference to the fact that we are not giant land crabs.

suppose that men were to become invulnerable to attack by each other, were clad perhaps like giant land crabs with an impenetrable carapace, and could extract the food they needed from the air by some internal chemical process. In such circumstances (the details of which can be left to science fiction) rules forbidding the free use of violence and rules constituting the minimum form of property – with its rights and duties sufficient to enable food to grow and be retained until eaten – would not have the necessary non-arbitrary status which they have for us, constituted as we are in a world like ours. At present, and until such radical changes supervene, such rules are so fundamental that if a legal system did not have them there would be no point in having any other rules at all. Such rules overlap with basic moral principles vetoing murder, violence, and theft; and so we can add to the factual statement that all legal systems in fact coincide with morality at such vital points, the statement that this is, in this sense, necessarily so.

The argument is developed further in The Concept of Law, in which Hart identifies three fundamental facts of social life from which we can derive a minimal system of mutual forbearances, and hence the “minimum content of natural law”:

  1. human vulnerability
  2. approximate equality
  3. limited resources
  4. limited altruism
  5. limited understanding and strength of will

It has to be said that Hart’s second and fifth qualities don’t entirely seem to belong. The last is introduced in the context of the need for sanctions to back up voluntary compliance with a code of forbearances, rather than the need for the code itself. The second seems more to be a background condition of any human society. Hart refers to the impossibility of imposing a generally-accepted framework of rules on individuals of vastly differing capacities; in the absence of general rough equality, in other words, the 20-foot noblemen (or the mutant superheroes) could lord it over all of us and no law of ours could bind them. This seems a counterfactual too far, and Hart seems to have brought it in mainly in reference to international law; he argues that the absence of this condition is precisely the key problem in that setting.

If we remove these, we are left with a core list of three facts of life:

  1. human vulnerability
  2. limited resources
  3. limited altruism

These three can all be seen as vulnerabilities – vulnerability to direct physical harm; to material deprivation (ultimately, to hunger and cold); and to social abandonment and neglect. The three vulnerabilities have the interesting quality that the removal of any one of them would address the other two. (Try it: for the third one, “imagine all the people sharing all the world”. Also, “imagine there’s no scarcity” and “imagine we’re all solar-powered land crabs”. Some would say that John Lennon missed a trick there.)

There are certain adverse outcomes to which we are all vulnerable, in any imaginable human society, and which – crucially – we can all bring about in others: anyone can kill or be killed, steal or be stolen from, abandon or be abandoned. Hence a certain minimum, presumptively universal, content to the law, which can without too many problems be called natural. (It might seem that deprivation of human kindness – abandonment by one person of another – is considerably less serious than robbery or violence. But consider that, in most cases where one adult can be said to abandon another, it will be unclear who has deprived whom of kindness. Ideas of abandonment come into play – and into the realm of the law – where one party is need of care and/or the other has a duty of care.)

Substantive natural law, then, gives a minimum content to positive law. It has a considerable degree of overlap with the precepts of morality, but it derives – as does morality – from the facts of human existence. Substantive natural law is the minimum framework of mutual forbearances required to regulate society in response to the irreducible fact of human vulnerability (physical, material and social).

It’s the Law

Procedural natural law is introduced by Hart in his 1958 paper as follows:

If we attach to a legal system the minimum meaning that it must consist of general rules … this meaning connotes the principle of treating like cases alike, though the criteria of when cases are alike will be, so far, only the general elements specified in the rules. It is, however, true that one essential element of the concept of justice is the principle of treating like cases alike. This is justice in the administration of the law, not justice of the law. So there is, in the very notion of law consisting of general rules, something which prevents us from treating it as if morally it is utterly neutral, without any necessary contact with moral principles. Natural procedural justice consists therefore of those principles of objectivity and impartiality in the administration of the law which implement just this aspect of law and which are designed to ensure that rules are applied only to what are genuinely cases of the rule or at least to minimize the risks of inequalities in this sense.

In The Concept of Law, Hart develops this argument; he also includes a second argument in response to Fuller. (Fuller’s Anatomy of Law had not yet appeared at this stage, but Fuller had replied to Hart’s 1958 paper in the same year, arguing for an ‘inner morality of law’.)

We may say that [the idea of justice] consists of two parts: a uniform or constant feature, summarised in the precept “Treat like cases alike” and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different. … In certain cases, indeed, the resemblances and differences between human beings which are relevant for the criticism of legal arrangements as just or unjust are quite obvious. This is pre-eminently the case when we are concerned not with the justice or injustice of the law but of its application in particular cases. For here the relevant resemblances and differences between individuals, to which the person who administers the law must attend, are determined by the law itself. To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids; no prejudice or interest has deflected the administrator from treating them equally. Consistently with this, the procedural standards such as ‘audi alteram partem‘ ‘let no one be the judge in his own case’ are thought of as requirements of justice, and in England and America are often referred to as principles of Natural Justice. This is so because they are guarantees of impartiality or objectivity, designed to secure that the law is applied to all those and only to those who are alike in the relevant respect marked out by the law itself. The connection between this aspect of justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule, without prejudice, interest or caprice. (pp. 160-1)

Further aspects of this minimum form of justice which might well be called ‘natural’ emerge if we study what is in fact involved in any method of social control … which consists primarily of general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules without further official direction. If social control of this sort is to function, the rules must satisfy certain conditions: they must be intelligible and within the capacity of most to obey, and in general they must not be retrospective, though exceptionally they may be. This means that, for the most part, those who are eventually punished for breach of the rules will have had the ability and opportunity to obey. Plainly these features of control by rule are closely related to the requirements of justice which lawyers term principles of legality. Indeed one critic of positivism has seen in these aspects of control by rules, something amounting to a necessary connection between law and morality, and suggested that they be called ‘the inner morality of law’. Again, if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity. (pp. 206-7)

For Hart in 1958, “natural procedural justice” consists in applying general rules objectively and impartially so as to treat like cases alike; this is “justice in the administration of the law”, which can be distinguished from “justice of the law”. For Hart in 1961, “to apply a law justly” is to apply the same rule to different cases without prejudice; however, he does not refer to this (in his own voice) as a principle of natural justice. He is also reluctant to extend the label of ‘natural’, or the term ‘morality’, to the ‘requirements of justice’ identified by Fuller as an ‘inner morality of law'; Hart prefers to characterise these as ‘features of control by rule’, requirements which are (‘in fact’) characteristic of any form of rule-based social control. However – in a seemingly nugatory concession which has the effect of making Hart’s position much stronger – Hart grants that Fuller’s ‘inner morality of law’ may be accepted as such, with the dismissive proviso that it appears to have no effect (moral or otherwise) on the outcomes produced by a legal system.

Friendly Fire

By 1961, then, Hart’s attachment to any idea of procedural natural justice was already qualified and reluctant. What, then, to make of the closing paragraph of the “Introduction” to 1983’s Essays in Jurisprudence and Philosophy?

I hope that in what is a second exchange of friendly polemics between myself and Fuller … 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 [sic] essay on Formal Justice that an argument similar to mine against Fuller might be used to show that my claim made in ["Positivism and the separation of law and morals"] and repeated in my Concept of Law that a minimal 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.

What indeed? We’ll find out next time, by way of a reading of David Lyons’s 1973 paper “On formal justice”.

Logic, emotion and Twitter (in Gaza)

This article in the (leftish) Jewish Daily Forward is quite something. You can get the gist from the headline and standfirst:

Israel Has a New Worst Enemy — Twitter

The Medium’s Immediacy and Emotion Overwhelm All Logic

And the first paragraph:

Shortly after Israel began its ground invasion of Gaza, Anne Barnard, a New York Times reporter who has covered wars for over a decade, stood in the emergency room of the Al-Shifa hospital in Gaza City and watched a 9-year-old girl die.

The girl was alone, without family, nameless. And when the doctor finally pronounced her dead, Barnard and another reporter wept.

And then she tweeted

…and that’s what the story’s about: Twitter. Hold back for a moment your own reflection on the appalling human tragedy represented by that little girl’s lonely death; let’s think about the interesting and novel development represented by lots of other people reflecting on it. Because (the author suggests) a lot of those people might not take the same view of it that you and I would; in fact, the further that message travels, the less likely it is that anyone will take the same view that we do.

Israel’s wars are always fought on two fronts — the actual on-the-ground one and the battlefield of world opinion. The tricky part is that a victory on one front very often means a loss on the other: Say a house is bombed, killing a man in charge of a rocket launcher, but it also killed his family, including five children, whose lifeless bodies appear on television that night. It’s not clear what front should have priority — your perspective on this will depend largely on whether you yourself are cowering in a bomb shelter in a city targeted by that rocket launcher or have the benefit of viewing all this from a safe distance.

If anyone not directly involved would see the situation in a certain way, that does seem to suggest something about the two perspectives. (To say nothing of the possibility that ‘you yourself’ might ‘have the benefit of viewing all this’ from Gaza.)

But what’s absolutely certain now is that Twitter has been a game changer for the public perception front, demolishing much of the distance that allowed for attempts at objectivity and balance, the careful construction of stories that bow to the narratives of both sides.

So here’s a good story: “In this troubled region, the intransigence of one side all too often seems to bring out the worst in the other side. While Gaza is pounded by IDF artillery, there is still no sign of Hamas repudiating the anti-semitism of its founding Charter.”

And here’s a bad story: “I have just watched a nine-year-old girl die from injuries inflicted by IDF artillery.”

But why is the second example a bad story? Apparently it has to do with immediacy and the personal touch:

As Barnard herself put it in an interview recently on NPR, she writes things in tweets that would never go in an article or get past an editor. … Unlike in a news story, with a tweet like that, Barnard said, “people feel like they are getting a postcard from another human being who is experiencing something far away.”

To combat the impact of those postcards on people’s perception of the conflict, Israel has deployed logic — logic that often makes a great deal of sense. It is true that Hamas would kill many more Israeli civilians if it could, that a tallying of deaths doesn’t take into account “intended deaths.” It is true that Hamas bears responsibility for endangering its own population by shooting rockets from populated areas. And it is true that Israel has accepted unconditional cease-fires while Hamas hasn’t. Fair or not, this argumentation, so rational and reasonable, is powerless when put up against an image or description of a dead child.

This is the core argument of the article, and it’s an argument which, I think, needs to be rejected quite firmly. We pit logic against emotion all the time, and generally speaking logic wins. You pit logic against emotion when you have a pet put down or agree to turn off a loved one’s life support. In a broader sense, states pit logic against emotion every time they go to war, and armies do so with every act of war. Killing people is both morally wrong and viscerally repulsive: battlefield stress is a natural emotional response to being put in a situation nobody would choose to be in and doing things nobody would choose to do. (Of course, there are people who would choose to do those things – but we hope and trust they won’t be in the position to do so. I’m told that British army officer training reliably weeds out two types of people – those who, when push comes to shove, realise that they couldn’t kill another person, and those who realise that they would enjoy it.) We rely on logic to demonstrate rationally that the emotionally horrible things soldiers are being asked to do should still be done: to demonstrate, in other words, that military aggression was deployed for legitimate reasons – primarily self-defence – in the first place (jus ad bellum) and that lethal force is being used to achieve legitimate military objectives without disproportionate damage to civilian life and property (jus in bello).

Now, it’s true that “Hamas bears responsibility for endangering its own population by shooting rockets from populated areas”. To quote the Geneva conventions:

The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

Using civilians and civilian properties to shield military objectives is a war crime. But read on:

Any violation of these prohibitions shall not release the parties to the conflict from their legal obligations with respect to the civilian population and civilians

Attacking civilians, even civilians being deliberately (and unlawfully) used as human shields, is still a war crime – unless the civilian casualties are unavoidable in attaining a valid military objective and proportionate to the value of that objective. And (needless to say) responsibility for it still lies with the attacker.

It’s also true that “a tallying of deaths doesn’t take into account ‘intended deaths.'” – and, frankly, quite right too. If you have an enemy who wants to kill anything up to 75% of your population, you have only two hopes, self-defence and diplomacy. You make sure that, in the short term, you’ll be strong enough and they’ll be weak enough to minimise the actual danger they pose; and you try to make sure that, in the longer term, they’ll change their minds. Killing (say) 2% of their population has very little to do with self-defence and nothing to do with diplomacy. Comparing actual Palestinian deaths to theoretically possible Israeli deaths – in a nightmare scenario in which the balance of power and weaponry between Israel and Gaza was somehow reversed – is bizarrely perverse: the point for Israel is surely to stop such a confrontation from happening, not to indulge in the consoling thought that in that case Israel would at least have the moral high ground. (As, right now, it doesn’t.)

As for unconditional ceasefires, the record here is disputed – but even if it is true that “Israel has accepted unconditional cease-fires while Hamas hasn’t”, I wonder how much this is to Israel’s credit. An unconditional ceasefire – with Gaza’s borders closed, with the port blockaded and with illegal building (and evictions) continuing on the West Bank and in East Jerusalem: how long could that be expected to last until Hamas (or a militia not under Hamas control) decided to lash out again? Ceasefires come and go, but only a comprehensive settlement in accordance with international law is going to create the conditions for peace in Gaza. And while both Israel and its key international partner prefer to ignore international law (“For many outside the United States, Israel’s occupation of Palestinian territory in the West Bank is considered illegal.” – New York Times), that settlement could be a long time coming.

One last thought from Forward:

in a battle involving asymmetric defense systems, in which the vast majority of the casualties are on the Palestinians’ side, Twitter punches you in the gut on behalf of those civilians in a way that overwhelms much else.

In a battle against an enemy which has killed very few of our people, in which we’re killing a lot of their people, mostly civilians, the thought of all those dead civilians makes you wonder if perhaps we might not be wholly in the right. Blame Twitter.

Mutterings in favour of Kelsen

Hart’s Essays in Jurisprudence and Philosophy includes two pieces engaging, in tones of patient and courteous bafflement, with the ‘pure theory of law’ propounded by Hans Kelsen. Hart focuses on four main assertions:

  1. Law is a system… All valid laws, qua valid laws, form a single system. Kelsen was willing to extend this argument to cover international law, with the implication that there is only one system of law in the world.
  2. …which is logically coherent, Every legal system must be logically self-consistent throughout, such that no two valid laws can contradict each other.
  3. rests on a basic norm… While a legal system must be observed (treated as binding on conduct) in order to have any validity, every legal system is also founded on a presupposed ‘basic norm’ on which all legal powers granted within that system, and all laws laid down by those powers, ultimately rest.
  4. and has no moral content. Legal obligation and moral obligation are distinct and separate concepts, deriving from separate logical systems: if moral obligations were allowed to impinge on the law, it would be possible for obligations to conflict, which would destroy the logical coherence of the law as a system. The statement that a valid law is immoral is thus of no more legal significance than the observation that it was enacted on a Tuesday.

For completeness, I should add that Kelsen subsequently revised the second and third points here, allowing the possibility of valid contradictory laws and redefining the ‘basic norm’, not as a norm which was presupposed rather than having been enacted, but as a fictitious norm enacted by a fictitious lawmaker. The second of these is more promising than it sounds; I haven’t been able to find any commentary on the first.

Hart’s arguments against Kelsen are both meticulous and dense, but they take two main forms: demonstrations that one of Kelsen’s assertions cannot be logically sustained, or has unsatisfactory implications if assumed to be true; and demonstrations that, even if true, the assertion would not do the work Kelsen claims that it does. I’m certainly not in a position to say anything authoritative about Kelsen, let alone rebut any of Hart’s criticisms. In this post I want to take on an easier target: Hart’s bafflement. Repeatedly in Hart’s two papers we seem to hear him muttering Why would you think that? Or perhaps, Yes, that’s very neat, but why would you think it’s true? (Something similar can be heard, rather less sotto voce, in Neil Duxbury’s 2007 paper on the later ‘fictitious’ basic norm.) In Hart’s hands, Kelsen’s pure theory comes across as the proverbial beautiful hypothesis brought down by an ugly fact – or rather, a dense and elaborate hypothetical architecture undermined by a closely-marshalled assault by ugly facts. Kelsen’s model seems to do some of the work done by Hart’s own theory of law, but only some of it and not as adequately.

For me, this prompts the question: why would you think that? If we took Kelsen’s pure theory as a starting point, what would it give us – would it take us anywhere that Hart’s legal positivism doesn’t? Here are some thoughts about three of the four counter-intuitive propositions above (I’m not touching the second, on grounds of not being familiar with Kelsen’s later revisions to it).

Law as a single system: well, plainly, all valid laws don’t compose a single system. Kelsen (on Hart’s account) advances very few arguments in support of this proposition, and Hart finds it easy to dismantle those which are offered. But the complex of ideas which Kelsen reduces to this assertion – the mutual recognition (or constitution) of international and domestic law; the tendency (and on occasion the need) for one jurisdiction’s laws to be honoured by another – may be worth more attention than Hart gives them. We could argue, for example, that law tends to universality, and that this tendency (as well as practical necessity) underlies the tendency for discrete legal systems to find points of contact and forms of understanding; international law, in this framework, would be a separate enterprise undertaken to provide a single universal solution to this problem, like a connectivity standard – SOAP to municipal law’s XML. (And there goes my very last reader!) We could then go further, treat the tendency to universality as a norm (part of a ‘morality of aspiration’ in Fuller’s terms) and suggest that, to the extent that a legal system refuses arrangements of mutual recognition with other systems, to that extent there’s something unlawlike about that system. This certainly isn’t a move Hart would make – for Hart there wasn’t much more to say in formal terms about the legal system in Nazi Germany than that it was one – but that doesn’t mean it’s necessarily a bad idea. In other words, perhaps what Kelsen had in his sights here is, precisely, an aspect of the morality of law.

The basic norm: digressing slightly, I found Duxbury’s paper both enlightening and frustrating. It’s frustrating because it appears to solve its central mystery halfway through and then carry on as if it was still unsolved. (Unless I’m missing something obvious – also a frustrating thought!) To fill in the background, Kelsen saw the law as composed of ‘norms’ – conceived mainly as statements that behaviour X would attract sanction Y – which had been enacted by acts of will; the acts in question had been validated by prior norms, setting down how and by whom law could be made. However, these norms themselves had (by definition) been enacted by acts of will, creating an infinite regress (or founding the law on the brute facts of history, although this doesn’t seem to be an alternative Kelsen entertained). Hence a basic norm, never actually enacted, had to be presupposed as the foundation for the entire system. Late in life Kelsen changed tack: rather than presupposing a basic norm which (although not enacted) was both real and valid, he proposed that we treat the basic norm as a fictitious norm, enacted like all other norms, but enacted by a fictitious act of will.

Duxbury’s paper looks for support for the proposition that this isn’t as daft as it sounds, and largely fails – or rather (in my view) succeeds halfway through, almost without noticing. The key is in Kelsen’s definition of ‘fictitious': he follows a philosopher called Vaihinger (not otherwise familiar to me) who distinguished between the partially fictitious (things which could exist but just happened not to) and the wholly fictitious (things which couldn’t exist). The basic norm, in Kelsen’s late formulation, is wholly fictitious: in other words, it’s a contradiction in terms, the paradox of a valid norm resting on an act of will which itself has no validation. Viewed in this light, the late formulation is, perhaps, a more satisfactory restatement of the earlier one. By putting our trust in the basic norm, we are not arbitrarily presupposing a norm which happens to have arisen without a prior valid act of will – which, in Kelsen’s terms, is a bit like arbitrarily presupposing a triangle which happens to have four sides. Rather, we are deliberately relying on a norm which we have defined as paradoxical and impossible: our triangle has four sides and we know it.

What does this get us? I think it gets at an aspect of the moral significance of law – another theme on which Hart wasn’t particularly keen. In terms of actually, practically grounding the validity of law, Hart cut Kelsen’s knot and warded off the infinite regress by proposing that every law-governed society has its own ‘rule of recognition’ – a rule, or practice, or assumption, or set of rules and practices and assumptions, which determines how law is made and who by. The reference is sideways rather than upwards, in other words (“Who can revise law A?” “Refer to rulebook X.” “Who can revise rulebook X?” “Refer to rulebook X.”). But, whatever the rule of recognition might in practice be, I think the idea of the basic norm – and in particular the fictitious basic norm – captures something important about why the law matters, or is believed to matter. Ultimately, perhaps, the question the basic norm answers isn’t “where did this law come from?” but “why should I obey this law?”. And here there still is a reference upwards, unless it’s cut off by a learned shrug (“why should you obey this law? because you’re a citizen of a law-governed country, this law is a validly enacted law according to that country’s rule of recognition, and as such obeying validly enacted laws is what you should do”). “Why should I obey this law?” “Because you should obey the Law[= those laws currently in force in your society].” “Why should I obey the Law?” “Because it’s right to obey The Law[=the laws laid down in pursuance of the project of subjecting social behaviour to just, consistent and uniform regulation]“. “Why is it right to obey The Law?” “Because the basic norm demonstrates how important the enterprise of The Law is – it’s important enough to be founded on a paradox; important enough for its foundations to be treated as real even though we know they’re not.”

No moral content: here Kelsen might seem to be cutting with the grain of Hart’s positivism, as well as against the grain of any kind of natural law theory. Things aren’t that simple, though; although Hart certainly maintained that the rule of recognition (and hence the law) could have no moral content, he was at pains to deny that it must have none. The rule of recognition itself could encompass moral precepts, in other words. Although we can see why Hart might have made this move – presumptively de-moralising the rule of recognition would have created hostages to fortune in his disputes with natural law theorists – I tend to think it creates unnecessary confusion. Although lawyers and legislators can and do invoke moral assumptions in their decisions (this being the avenue Hart would have wanted to close off) they do not do so in any predictable or systematic way, which is surely what would be required for moral arguments to form part of a rule of recognition. I would argue that the ‘rule of recognition’ model sits more comfortably with Kelsen’s austere division between moral and legal domains: whatever morality might dictate, the law is what is made law through the practices of legislators, lawyers and juries, and nothing else.

Despite appearances, treating law entirely as positive law is not the end of the line for the moral critique of law, or even for natural law. If law is autonomous of morality, this does not make the project of subjecting law to morality any less valid or important – if anything, the reverse is true. Moreover, if there is a ‘natural’ core to positive law, as Hart conceded; or if the conditions of possibility for a community living under the law can be considered as a ‘morality of law’, as Fuller argued; or if (as Jules Coleman has argued) morality itself requires that the law be applied consistently and interpreted without reference to moral norms; then the dichotomy between morality and positive law cannot be treated as absolute. And – paradoxically perhaps – if we want to think about how the dichotomy should be modified and reinterpreted, we’re better off starting with a theory which emphasised it (Kelsen’s) than with one which blurred and downplayed it (Hart’s).

In short, the reason why Kelsen’s theory looks logically airtight, unsustainable in the real world and ultimately slightly crazy may actually be that it is all of those things – but it’s still useful to think with, and in some ways more useful than Hart’s all-purpose scepticism.

Next up: Hart on Fuller. That should be quick and easy…

Anyone still here? Do feel free to comment, link, retweet etc.

The names of the Rawls

My very last post (I hope) on Rawls’s A Theory of Justice as seen by H.L.A. Hart. (A specialised subject, but a surprisingly interesting one. Well, I was surprised – this is the seventh post in what was originally going to be a series of one.)

Learning about Rawls via Hart, I find myself fascinated by Rawls’s ideas but very much out of sympathy with them – as Hart was himself, although I don’t think my reservations are quite the same as his. In this post I want to look at some of the labels which – it occurred to me as I read Hart’s review – can be applied to Rawls, or to aspects of what Rawls does. It’s all going to be a bit “blind men and the elephant”, but hopefully it will indicate the shape of something coherent.

Rawls, bourgeois liberal
One of the more obvious ways to pigeonhole Rawls would be to situate his liberalism within his time and place: don’t say ‘liberal’, say ‘bourgeois liberal’. This would seem straightforwardly appropriate while also suggesting the location of some hard limits to his thought (even if they were limits that Rawls managed to avoid running up against). Speaking as a Marxist, I’ve got some sympathy for this approach, but I’m not sure how much about Rawls it would really tell us. Although treating money as a simple fact of life is a dreadful faux pas for anyone who took the first chapter of Capital seriously, that of itself probably isn’t enough to earn Rawls the B-word. Again, Rawls alludes to personal property ownership as a basic liberty, but it’s clear that this doesn’t include the ownership of the means of production, and debatable whether it includes land. While Rawls clearly wasn’t a Marxist – and, just as clearly, was a liberal – it doesn’t seem particularly helpful or enlightening to label him a bourgeois liberal.

Rawls, right-Libertarian
Can we follow Rawls’s liberalism in another direction? There’s certainly something striking about his seeming incuriosity about harm and protection from harm. One might expect the need to protect individuals from avoidable harm to be acknowledged as a goal of any society; liberties, in this perspective, are rights held by individuals in those situations where the pursuit of safety through prohibition produces greater harms. Instead, Rawls seems to take liberties as primary and define harms largely in terms of encroachments on them. This line of thinking seems, at least, consonant with the outlook of those who view government interventions as illegitimate, however protectively they might be intended – and view the harms independent citizens do to one another in robust caveat emptor terms (or even robuster vae victis terms). That said, Rawls’s world is clearly not one in which the weak go to the wall, let alone one in which this outcome is celebrated; moreover, his relative lack of interest in private property as a basic right is even less characteristic of right-Libertarianism than of bourgeois liberalism.

Rawls, conservativeright-Hegelian
As I noted several posts ago, there’s something oddly cautious about some of Rawls’s formulations – it’s a conservative utopianism, or (perhaps) a Hegelian sublation of contemporary liberalism, with an emphasis on the preservation rather than the suppression (see digressive footnotes). Thus, when he writes that “rights to the unimpeded access to public places and to the free use of social resources to express our political views … when granted to all, [would be] so unworkable and socially divisive that they would actually greatly reduce the effective scope of freedom of speech”, I feel he’s taken rather more of the limitations of our real world with him than somebody starting from scratch really needs to. (If every public space were Hyde Park Corner, would that ‘actually’ reduce effective freedom of speech? Necessarily?) Of course, those adjectives do a lot of the work – “unimpeded access to public places”, “free use of social resources” – but then, don’t they always? There’s a sense, in other words, in which Rawls’s maximalism is complicit with a kind of conservatism – as if to say, “ideally, public transport would take everyone to wherever they want to go, door to door, in the shortest possible time and free of charge… but since that’s not possible, how much should a bus pass cost?”

Rawls, quietist
I wonder, too, about the particular human fundamentals on which Rawls rests his model – the two ‘moral powers’, the powers to co-operate reasonably and deliberate rationally. I wonder about this choice of starting-point because of the consequences it seems logically to have. As we have seen, Hart puzzled over the possibility of conflicting valuations of different liberties – the liberty to roam versus the liberty to enjoy private property in land; the liberty to play loud music versus the liberty to enjoy peace and quiet – and queried whether Rawls’s scheme could address this. Rawls’s development of the metric of ‘significance’ with regard to particular liberties, together with the device of the veil of ignorance, seems to cover it. Parties in the original position would not know whether they were landowners or not, or for that matter whether they enjoyed loud music or not, but would know that the interests of each were best served by a balance of liberties which would promote the moral development of all. The interests of both the landowner and the trespasser, and the preferences for both loud music and a quiet life, would necessarily be taken into account. But this is quietist on quite a deep level: the ideal outcome seems to be, not merely a system without injustice, but one without conflict. The point is not that conflicts of interest and diverging preferences would be taken into account, but that they would always already have been taken into account. I find it hard to reconcile this line of thinking with Rawls’s evident assumption that political processes would operate in his imagined society; I’m not sure what point politics would have. This is not, in other words, the work of someone who believes that human history has always been and always will be driven by scarcities and conflicts of interest.

Rawls, utopian
Or perhaps – and in a way this is the most troubling charge of all – Rawls did believe that human history had been driven by conflict, but saw it (in Stephen Dedalus’s formulation) as “a nightmare from which I am trying to awake”. But in that case we’re basically just worldbuilding, and for me that’s not terribly interesting (cf. comments on Hart on Nozick; see also footnote on Marx).

Rawls, Pragmatist
Perhaps the simplest explanation – and one which corresponds reasonably well to the overall shape of the elephant – is the one I alluded to in an earlier post. Whether Rawls would have called himself a Pragmatist I don’t know, but I wonder if he believed, like Dewey, in working with the materials to hand: starting with what we think we know, what we think matters and what we think works well, discarding anything that can’t be justified from (what we think of as) first principles, and then working outwards and upwards. In which case, the charge of worldbuilding is both accurate and irrelevant: Rawls was building an ideal world, but he was building an ideal world based on some very basic and widely shared fundamentals. It’s an ideal world, but it’s our ideal world – isn’t it? And if not, why not?

Digressive footnotes

On Hegelian sublation (nothing to do with Rawls, but who knows when I’ll mention sublation again?): the sublation (Aufhebung) of the concept is a dialectical process encompassing preservation and suppression. Not ‘realisation’. You see this phrase ‘realisation and suppression’ a lot in Situationist-influenced writing; I’m not sure how it got started or by whom (Vaneigem?) but it ain’t Hegel. I’m guessing somebody once described the higher-order supersession of the concept – which is the end-result of the Aufhebung – as its realisation, somebody else misread that and we were off.

On Marx: it’s interesting that Marx is often criticised as a utopian, not so much because he designed ideal worlds as because he refused to do so, beyond that famous aside about rearing cattle after lunch or whatever it was. Starting from a blank slate is bad enough – insisting on leaving the slate blank is even worse, somehow. And yet, if you look at the Communist Manifesto, at least the initial shape of the future society is right there, in only too much detail. It’s some sort of tribute to the power and groundedness of Marx’s thought that Marxists are still denounced as impractical dreamers – or, at worst, loaded with the actual crimes and errors of other Marxists – rather than being accused of wanting to organise labour brigades and socialise the institution of marriage.

Hart on Rawls – a review

First, some links to the individual posts in this series.

  1. Liberty or liberties?
  2. Restricting liberty for liberty’s sake
  3. Restricting liberty for harm’s sake
  4. Choosing (more) liberty
  5. The priority of liberty (same post as previous)

These five points can be boiled down to three key questions: the quantification of liberty; the joint possibility of individual liberties, posing the need for protective as well as permissive rights; and the human preference for liberty over (for example) material wealth or peace and quiet. On the first of these I’d say that Rawls carries the day, at least in the sense that Hart’s challenge prompted some valuable elaboration and clarification of his model. On the other two – which are inter-related, at least in Rawls’s presentation of them – I’m less sure. Rawls’s argument is airtight – and he appears to escape the charge of designing a model world for model citizens – but I’m not entirely convinced; I think Hart’s scepticism may be the X that marks the spot of quite a deep equivocation.

Quantifying liberty (posts 1 and 2)
The quantification of liberty appears to pose problems for Rawls in two respects: allocation and comparison. Suppose that the basic liberties can each be considered as contributing a quantum of fungible ‘Liberty-stuff’ to an overall total. In that case, there is no reason to take the actual list of basic liberties as definite, and it may be that a model which maximised the amount of Liberty-stuff allocated to all citizens would take us in directions that Rawls wouldn’t want to go (e.g. away from the institution of private property). If, on the other hand, the basic liberties are seen as individually and discretely valuable – because what they provide is not fungible Liberty-stuff but different and distinguishable types of freedom – then there seems to be no basis on which to strike a balance between them. This second possibility becomes more pressing if we consider Rawls’s dictum that a liberty should only be restricted for the sake of another liberty: if liberties are incommensurable, how can this be achieved except by random selection?

Rawls addressed both these points in the 1982 lectures by introducing the notion of ‘significance’, and in the process making it clearer that liberties function in his model as a means to an end. He wrote: “a liberty is more or less significant depending on whether it is more or less essentially involved in, or is a more or less necessary institutional means to protect, the full and informed and effective exercise of the moral powers” – these in turn being the powers to co-operate reasonably and to seek the good rationally. The basic liberties are liberties which are in fact conducive to reasonable co-operation and rational deliberation; the issue of comparison is resolved by considering the conditions created by the exercise of a particular liberty. The question of allocation (and fungibility) is not banished as easily; however, what Rawls can offer is a strong presumption that the basic liberties he lists do have at least some ‘significance’ in his sense, and the criteria with which an alternative list would need to be justified.

Compossibility (posts 3 and 4)
The two questions of whether restrictions on liberty could be justified in order to prevent harm, and of whether the choice of greater liberty for all would be rational, both turn on the Kantian question of the conditions for the joint possibility (or compossibility) of individual wills freely exercised. We know from experience that societies can function on the basis of a shifting balance of freedom and coercion; the question is whether there is a coherent and non-arbitrary solution to the problem, a framework of basic rights or liberties which will tend to produce social harmony out of the free independent actions of individuals. Hart’s comments suggest that, in his view, Rawls has assumed that his model has this virtue but has not demonstrated it.

Rawls’s answer to this point is, once again, to invoke the ‘significance’ of the basic liberties and their exercise. The point, in other words, is not to maximise liberty or liberties, but to create those conditions which are best created by the exercise of the basic liberties. It follows that a balance between the basic liberties, and hence the limitation of particular (less significant) liberties, is an integral part of the model. The basic liberties are both self-limiting and mutually limiting: to the extent that a liberty furthers “the full and informed and effective exercise of the moral powers”, to that extent it will tend to be protected over and against liberties whose exercise is less significant.

I find this argument convincing but unpersuasive; to put it another way, it seems to answer the question within its own framework but at the cost of making that framework less attractive – and, perhaps, distancing it from the world in which the question was asked. It may be significant that the question of harm is one on which (at least according to Hart’s account) Rawls is all over the place: starting from the presumption that a liberty should only be curtailed for the sake of another liberty, we can cover the idea of infringing liberty to protect from harm by invoking the liberty-reducing effects of harm, an association between citizenship and the exercise of liberties, and ideas of a duty of care to animals and the natural world, but it ends up looking like a bit of a hack. (The hackwork is mostly mine, but the gap it fills seems to have been left by Rawls.)

The preference for liberty (post 4)
Lastly, Hart poses two questions which can both be taken as calling into question Rawls’s assumption of a preference for liberty (as distinct from, say, material wealth or a quiet life). Hart suggests that Rawls has tacitly built his model society on a liberal model of active civic virtue, thereby resolving all such questions in favour of the – undeniably virtuous but potentially strenuous and unrewarding – pursuit of reasonable co-operation and rational deliberation.

The charge is made lightly but it is potentially devastating, reducing Rawls’s model to a utopian vision of how people would live if only they were good. Rawls rejects it, quietly but firmly; while he concedes that his presuppositions are liberal, they find expression not in the characters of the subjects populating his model but in their nature. Specifically, it is in their nature to work together with other individuals (and hence to value reciprocity and fairness) and to value some states of affairs more highly than others (and hence to value morality and logic). The only qualities Rawls reads into the subjects in his model are the capacities to co-operate reasonably, where ‘reasonableness’ includes a sense of justice, and to deliberate rationally, where ‘rationality’ includes an idea of the good. Everything else in the model follows – which is to say, everything in the model follows from some facts about people as they are.

Again, I find myself convinced but unpersuaded. One reason why I’ve harped on Rawls’s particular definitions of the ‘reasonable’ and ‘rational’ is that they’re easily overlooked, but make Rawls’s model much easier to understand if they’re taken into account – cf. Hart’s puzzlement over how the model would work on assumptions of ‘self-interested rationality’. But another reason is more critical. Certainly there are such things as co-operative reasonableness and rationality oriented towards an idea of the good, and practices informed by them; an account of society based exclusively on individual self-interest would be not so much impoverished as false. But bracketing out means/end rationality and reasonableness in the pursuit of one’s own desires seems like an equal and opposite distortion. The question is not whether Rawls’s moral powers are a human reality but whether they could ever do the work he wants them to – and saying that they could do if their exercise were given priority over less moral pursuits is begging the question.

I sense that Hart saw a deep equivocation here, between a model which could exist (in the sense that it rests on valid assumptions about human nature) and one which could exist (in the sense that the model itself represents an imaginable society). It may be that Rawls only saw himself as developing the first of these; however, to the extent that such an abstract standard can be a driver for reforms to the society we have, it must surely be possible to envisage reforms which would represent steps towards it, even if they were fated never to reach it. And, if Rawls’s model is supposed to represent something approachable (even if not attainable), we’re back to the original question: why are his subjects so nice? The answer seems obvious – it’s because they’ve chosen to prioritise conditions favouring the exercise of the two moral powers – but this only defers the question: in the light of most of human history to date, why have they chosen to do that? If we’re going to have a society founded on a complex balance of basic liberties – and it sounds like a good idea – where are we going to get the people who want one? And, if we haven’t go those people, maybe we should be working on something for the people we have got – a theory of justice as between flawed, lazy, selfish and intermittently deceitful people, for example.

 

Hart on Rawls – 4

Yet more on Hart and his 1973 paper on John Rawls’s A Theory of Justice. Hart put forward five queries; in this post I’ll be covering the fourth and fifth.

  1. Liberty or liberties?
  2. Restricting liberty for liberty’s sake
  3. Restricting liberty for harm’s sake The third post in this series focused on what seems to be a blind spot in Rawls’s argument: the idea that liberties may sometimes need to be limited for harm-related as well as liberty-related reasons.
  4. Choosing (more) liberty Rawls argues that subjects in the original position would, in their own interest, tend to choose more rather than less extensive liberties. Given the potential adverse effects of liberties extended to the whole of society, is this valid?
  5. The priority of liberty Following on from the previous point: Rawls appears to believe that, all else being equal, subjects in the original position would choose a quantum of liberty over a quantum of material benefit. Is this an unstated presupposition on Rawls’ part? How is our perception of his model affected if this is granted?

Choosing (more) liberty
Hart’s argument on the fourth point, above, hinges on the difference between enjoying a liberty and being affected by other people’s enjoyment of it – a consideration which may cast a different light on Rawls’s assumption that it is rational, from the standpoint of the original position, to want as large a share of liberty as possible. “Even if we assume with Rawls that every rational person would prefer as much liberty as he can get … it does not follow that a liberty which can only be obtained by an individual at the cost of its general distribution through society is one that a rational person would still want.” If the question is whether I want to be free to have a symphony orchestra in my back garden, the answer is Yes, of course – why wouldn’t I? If the question is whether I want my neighbours to have that same freedom, the answer is No. Or rather (crucially) the answer may be No. It may not: I may have a high tolerance for noise; I may have an overpowering fascination with the sound of a symphony orchestra, or an academic interest in discord. Different people will make different choices; in many cases, “whether it would be rational to prefer liberty at the cost of others having it too must depend on one’s temperament and desires” – which, of course, cannot be referred to in the original position.

There are two issues here. One is whether liberties can be generalised in any straightforward way, given that each person’s actions will have effects on other people: a generalised liberty-to-X is also a generalised right-to-protection-from-interference-in-Xing, or else a liberty-to-X-subject-to-interference (which in some situations will barely deserve the name of ‘liberty’). We’re in familiar Kantian or post-Kantian territory here: from my right to X we cannot simply read off a prohibition on some other action Y, even where your doing Y makes my Xing difficult or impossible. (Where X = ‘maintain my bodily integrity’ and Y = ‘swing your fists wildly’, the argument for liberty to be accompanied by protection works well enough; where X = ‘run my business as I think best’ and Y = ‘strike for higher pay’, however…) On Hart’s account Rawls has basically overlooked this.

The second issue is the irreducible fact of human variety. Hart sometimes seems to mean this in a relatively weak sense – preference for quiet vs tolerance of noise – which is vulnerable to Rawls’s ‘best worst case’ argument: since subjects in the original position wouldn’t know what preferences they had, they would work on the basis that they might prefer quiet (or privacy, harmony, etc) and reluctantly forgo the possible pleasures of noise (or intrusiveness, strife, etc). (Something interesting surfaces here in terms of the kind of values likely to be selected in the original position; I’ll return to this later.) However, Hart’s argument also takes a stronger form. When it comes to human variety, Hart stresses repeatedly – and I think correctly – that it applies at every level. I’ll discuss this below, when I come to consider Rawls’s answer to Hart on the second point (and on Hart’s fifth question).

On the first point, Rawls argues that the basic liberties themselves can do the job. Or rather, he argues that a society committed to the general effective exercise of the basic liberties would ipso facto be a society in which their exercise was limited. Not only is an extensive scheme of liberties the only justification for limiting individual liberties; it is, Rawls argues, the only thing necessary. He notes “that the basic liberties not only limit one another but they are also self-limiting”, adding that “[t]he notion of significance shows why this is so”. His explanation merits quoting at length:

while we might want to include in our freedom of (political) speech rights to the unimpeded access to public places and to the free use of social resources to express our political views, these extensions of our liberty, when granted to all, are so unworkable and socially divisive that they would actually greatly reduce the effective scope of freedom of speech. These consequences are recognized by delegates to a constitutional convention who are guided by the rational interest of the representative equal citizen in a fully adequate scheme of basic liberties. Thus, the delegates accept reasonable regulations relating to time and place, and the access to public facilities, always on a footing of equality. For the sake of the most significant liberties, they abandon any special claims to the free use of social resources. This enables them to establish the rules required to secure an effective scope for free political speech in the fundamental case.

The basic liberties are means to the end of securing a general freedom to co-operate reasonably (where reason implies justice) and to deliberate rationally (where rationality includes an idea of the good). Whether “rights to the unimpeded access to public places and to the free use of social resources to express our political views” would in fact prove to be unworkable and socially divisive is a secondary, political question (and one on which I’m inclined to disagree with Rawls). The point here is that the basic liberties are, so to speak, a weapon that can only be used for good: freedom of speech extended to the point where it undermines its own object ceases to be desirable and hence will, in Rawls’s model, be curtailed. The question of unintended consequences does not arise; the most extensive possible scheme of basic liberties is one which has no unintended consequences (any more extensive would be too extensive).

This is certainly an answer, but I’m not sure how useful it is. At this point Hart and Rawls seem to be talking past each other; certainly the question of how liberties could justly be restricted by and in a society of people committed to the most extensive possible scheme of basic liberties isn’t one that we can imagine detaining Hart for long. But we’re moving now onto the terrain of the second point above, and of the fifth question, which I’ll introduce here.

The priority of liberty
In the final section of his essay Hart comments on a curious detail of Rawls’s model: the ‘priority rule’. It is envisaged that, when subjects behind the veil of ignorance adopt a scheme of basic liberties, they do so on the understanding that the implementation of the scheme may be postponed until the material wealth of the society has developed sufficiently to support it. (I’m personally not sure about the assumption that a scheme of basic liberties requires a certain material substrate, but let’s take it as read.) When society’s material development reaches a certain point, Rawls argues, liberty (or liberties) will take priority: any quantum of material progress which might have been used to make unfree citizens a bit richer will instead be used to develop the institutions required to support the basic liberties. Now, the subjects behind the veil of ignorance have no idea what stage of material development their society has reached, so the question of when to invoke a priority rule – and, more importantly, whether to invoke it at all – will be a live one. Rawls compares different hypothetical social orders by reference to the ‘least worst’ position (in which society would the worst-off individual be least deprived?); in this case, Hart argues, we have a choice between A, an impoverished individual who would rather have a bit more money than the free institutions her society is intent on building (society with priority rule) and B, her counterpart who desires forbidden political freedoms even more than an escape from poverty (society with no priority rule). Rawls’s argument implies (according to Hart) that rational subjects in the original position would consistently think it worse to be B than A.

But is this the case – or rather (a more important as well as an easier question) is this self-evidently the case? Hart suggests not: “[w]hen the veil of ignorance is lifted some will prefer A to B and others B to A”. Rawls’s ideal subjects do not have the variability of human beings, in other words – variability which (as Hart insists) operates at every level.  I myself prefer strawberries to raspberries, folk songs to pop songs, tranquillity to bustle, democratic accountability to executive efficiency, freedom of religion to compulsory observance, agnosticism to atheism, wisdom to knowledge, debate to certainty and a Fullerian liberal idealist reading of the rule of law to the disaggregative scepticism of contemporary legal positivism – but it’s perfectly legitimate to take the opposite position on any or all of these points, and plenty of people do. As the 25-year-old Karl Marx pointed out, the law works by treating unequal people equally, but it can only do so by taking a partial view – treating them from a particular angle, and an angle (Hart might have added) which may vary from one legal system to another. (On first consideration I thought that these two challenges – the problem of subjecting human variety to a uniform rule and the possibility of multiple approaches to doing so – were also a score against legal positivism, but on reflection that’s the wrong way round: these are questions which positivists leave unanswered, but the possibility of a coherent theory which leaves them unanswered is a point in positivism’s favour.)

If Rawls’s model relies on there being a single answer on which everyone can agree – at any level – that’s a score against it; at least, it suggests that there’s something different and more idealistic going on than Rawls appears to acknowledge. Hart:

I think the apparently dogmatic course of Rawls’s argument for the priority of liberty may be explained by the fact that, though he is not offering it merely as an ideal, he does harbour a latent ideal of his own, on which he tacitly draws when he represents the priority of liberty as a choice which the parties in the original position must, in their own interest, make as rational agents choosing from behind the veil of ignorance. The ideal is that of a public-spirited citizen who prizes political activity and service to others as among the chief goods of life and could not contemplate as tolerable an exchange of the opportunities for such activity for mere material goods or contentment. It is, of course, among the chief ideals of Liberalism, but Rawls’s argument for the priority of liberty purports to rest on interests, not on ideals, and to demonstrate that the general priority of liberty reflects a preference for liberty over other goods which every self-interested person who is rational would have.

We seem to have come a rather long way round to end up back with Schutz and the (social) scientist as puppeteer. One sign that there may be a bit more going on here is Hart’s use of the word ‘rational’ to refer to self-interested means/end rationality; as we have seen, the word has a specialised and somewhat teleological meaning for Rawls. So too does ‘reasonable’, a word which features heavily in Rawls’s response to Hart on this point. Rawls acknowledges that Hart was correct “in supposing that a conception of the person in some sense liberal underlies the argument for the priority of liberty”. But:

this conception is the altogether different conception of citizens as free and equal persons; and it does not enter justice as fairness by imputation to the parties. Rather, it enters through the constraints of the Reasonable imposed on the parties in the original position as well as in the revised account of primary goods. This conception of the person as free and equal also appears in the recognition by the parties that the persons they represent have the two moral powers  … This conception of the person can be said to be liberal (in the sense of the philosophical doctrine) because it takes the capacity for social cooperation as fundamental and attributes to persons the two moral powers which make such cooperation possible.

The point is not that everyone in Rawls-world is good and public-spirited. The point is, rather, that Rawls assumes a society of free and equal persons, each of whom is capable of two things: social co-operation, subject to the demands of fairness and promise-keeping which can be called ‘reasonable'; and ethical deliberation, within the framework of logic and value which can be called ‘rational’. In terms of entry requirements for the world of his model, Rawls has set the bar surprisingly low. To derive the priority of liberty – or any other of Rawls’s apparently idealistic or counter-intuitive formulations – we may not need to assume a world of model citizens; perhaps all we need to do is to assume that everyone is capable of working together and valuing one set of ideas more highly than another, and then take those assumptions seriously.

Enough for now; I’ll conclude next time with a bit of summing-up and some thoughts on Rawls as libertarian, as bourgeois liberal, as conservative… as quite a variety of unpleasant names.

Hart on Rawls – 3

More on Hart and his 1973 paper on John Rawls’s A Theory of Justice. Hart put forward five queries, of which I’ve now covered the first two:

  1. Liberty or liberties?
  2. Restricting liberty for liberty’s sake In the second post in this series, we saw that the idea of restricting one liberty for the sake of another raises commensurability issues. In his reply to Hart, Rawls addressed these – partially addressing Hart’s first criticism in the process – by introducing the metric of ‘significance’.
  3. Restricting liberty for harm’s sake Rawls appears not to grant that liberties should sometimes be limited for harm-related as well as liberty-related reasons. Is this sustainable?
  4. Choosing (more) liberty Rawls argues that subjects in the original position would, in their own interest, tend to choose more rather than less extensive liberties. Given the potential adverse effects of liberties extended to the whole of society, is this valid?
  5. The priority of liberty Following on from the previous point: Rawls appears to believe that, all else being equal, subjects in the original position would choose a quantum of liberty over a quantum of material benefit. Is this an unstated presupposition on Rawls’ part? How is our perception of his model affected if this is granted?

Now for #3.

Restricting liberty for harm’s sake
Although (as we have seen) Rawls later modified this position, in the first edition of A Theory of Justice he argued that a basic liberty could only legitimately be curtailed for the sake of another basic liberty – or rather, for the sake of bringing about a more extensive and/or more equal distribution of basic liberties. As Hart pointed out, this implies that it is possible to weigh up basic liberties against one another, a problematic position which I covered in the previous post. Hart also criticises this position on the grounds of what it does not include: specifically, it makes no provision for restrictions to basic liberties for the sake of preventing harm, or (more broadly) in order to restrict or regulate behaviour which causes loss, pain or suffering to others.

This is a fairly big deal. The possibility of living together in freedom and under law has been a focus of political philosophy since Kant. If we say, broadly following Kant, that the law should protect each individual’s right to pursue his own interests without prejudice to anyone else’s right to pursue theirs, we run into the problem that interests conflict. I stress ‘conflict’ as distinct from ‘compete': competing interests, as between two companies in the same line of business – where the parties have a rivalrous interest in the same resource – pose no problem in theory. Conflicting interests arise when the parties define the situation differently, as between a business (with a legitimate interest in maximising profit) and a trade union (with a legitimate interest in protecting its members). The problems this situation poses are, fairly clearly, political problems, with no easy answer on the philosophical plane. We could lower our sights somewhat and go with Mill, arguing for complete freedom of action up to the point where another person is harmed – a position which has entered the language in the formulation “The right for me to swing my fists ends where your face begins“. But, despite its surface plausibility, this gets us no further forward, as it depends entirely on interpretation of the word ‘harm’. Define ‘harm’ as actual physical harm and many undesirable activities would be permitted, from harassment to the sale of contaminated food. Define ‘harm’ as the setting back of interests and we’re back with Kant. Should trade unions be banned, as their tendency is to raise members’ wages, lower the amount available to pay dividends and hence harm (set back the interests of) shareholders? Should shareholders be expropriated, on the grounds that their extraction of value from businesses tends to lower the amount available to pay wages and hence harm (set back the interests of) workers? I’m not familiar enough with Mill’s work to say how he would have answered these questions, but I’m fairly confident that it would have been a political answer, rather than one dictated by the terms of the question.

There is no theoretical or practical difficulty encroaching on liberties so as to prevent harm; societies do it all the time. However, justifying those restrictions in a coherent and generalisable way has proved to be a serious challenge for political philosophy. Rawls, oddly, doesn’t seem to say much about it, other than to rule it out on principle – because a liberty should only be curtailed for the sake of a liberty (of greater significance). Can this be accepted, and if so how? Hart canvasses two – unsatisfactory – solutions, to which I’ll add another couple.

  1. They’re all liberties! Perhaps, when we curtail a liberty so as to prevent harm, we are actually doing so for the sake of another liberty. Steal my car and my effective liberty to exercise property rights is curtailed; hit me hard enough and my effective liberty to participate in society becomes moot, at least temporarily. Hit me when doing something you want to deter (voting, say) and the fear of future harm may have even more liberty-impairing effects. In other words, might harm be derivative of impairment of liberty? The argument is superficially attractive but ultimately implausible; as Hart comments, the actual valuation of injury and harm is clearly independent of any consequential liberty-impairing effects they may have. I would add that the argument is also covertly circular, inasmuch as liberties would be meaningless if we were not vulnerable to harm from one another. If property were inalienable (or all property were held in common), there would be no need for a right to property; if incitement could never result in injury, there would be no need to restrict speech and hence no need for a right to free speech.
  2. …unless they’re duties. In addition to the basic liberties, Rawls suggests that subjects behind the veil of ignorance would take on certain natural or moral duties, judging that the benefit to all from doing so outweighed the costs; examples include the duty to aid those in need and the duty not to cause unnecessary suffering. Clearly, the existence of duties would have some liberty-curtailing effects. Arguably this is unsatisfactory on grounds of theoretical parsimony; it certainly suggests that the ‘only curtail liberties for the sake of liberties’ formulation might need to be amended. In any case, the range of natural duties seems far too narrow to cover all those cases in which unrestricted liberties could foreseeably cause avoidable harm, from invasion of privacy to exhibitionism.
  3. We’re all citizens here. Perhaps Rawls overlooked the prevention of harm because, within his scheme, harm wasn’t relevant. He was designing a model to be inhabited by full citizens in effective possession of their liberties; a citizen convalescing in hospital, or immobilised by car theft, is not effectively a full citizen, and as such is of no relevance to the model. All we can do is hold their place in the model open for when they’re ready to occupy it again. The point could even be generalised to cover harms which do not directly attack liberties: a citizen recovering from a head wound may still be able to take part in political deliberations, but her mind won’t really be on the task in hand. This is probably the weakest solution of all: the point is, of course, to prevent one’s citizens from suffering these interpersonal harms in the first place, and one could well argue that a scheme of liberties which doesn’t do this job isn’t worth the candle – particularly if one were sitting in a planning meeting with a bandaged head at the time.
  4. …unless we’re minors. In the context of the second point here, Hart notes that Rawls acknowledges the existence of duties owed to the non-human world, “which are outside the scope of a theory of what is owed to a rational individual”. Building on this suggestion, we can imagine a modified combination of the first and third solutions, which would tie liberties to citizenship. In this model, criminal harms would be conceived as attacks on liberty-enjoying citizens, thus meeting Hart’s objection to the first solution – that our valuation of harms does not depend on their consequential liberty-impairing effects. Conversely, those who are routinely deprived of liberties – minors, prisoners, hospital patients etc – would be seen as deprived of citizenship because unable (for the moment) to exercise it effectively. Restrictions on liberties implemented in order to protect free citizens from harm, or to restrain those not able to exercise the liberties of citizenship effectively, could then be defined as restrictions on liberties for the sake of liberties, as Rawls would (presumably) wish. This is ingenious (if I say so myself) but unsatisfactory. Although it accounts for the assimilation of harms to attacks on liberties, it does so at too high a cost: the implication that prisoners, hospital patients et al are non-citizens is troubling, and the further implication that harms to those people are of less account is unacceptable. This model also fails to account for (among others) students, employees and the patients of psychoanalysts, all of whom are free citizens who are routinely subjected to un-lawlike regulation of their movements and activities.

It’s all rather unsatisfactory, and I’m afraid that’s how I’m going to have to leave it – Rawls’s 1982 lectures are as far as I’m going for further reading at the moment, and he makes no reference in them either to original-position duties or to the prevention of harm. Fortunately he’s a bit more forthcoming on Hart’s next question.

Hart on Rawls – 2

As noted in the previous post, in his 1973 paper on John Rawls’s A Theory of Justice, Hart put forward five queries. They can be summarised under the following headings.

  1. Liberty or liberties? In the first part of this series, we saw that Rawls’s model of multiple ‘basic liberties’ is problematic: either they’re commensurable (which suggests that they may be fungible and hence that one or more of them can be dispensed with) or they’re incommensurable (in which case it’s debatable whether they have any common property of ‘liberty-ness’).
  2. Restricting liberty for liberty’s sake Rawls argues that the only justification for limiting a liberty is an overall extension of liberties. What issues does this raise in terms of resolving potential conflicts between liberties?
  3. Restricting liberty for harm’s sake Rawls appears not to grant that liberties should sometimes be limited for harm-related as well as liberty-related reasons. Is this sustainable?
  4. Choosing (more) liberty Rawls argues that subjects in the original position would, in their own interest, tend to choose more rather than less extensive liberties. Given the potential adverse effects of liberties extended to the whole of society, is this valid?
  5. The priority of liberty Following on from the previous point: Rawls appears to believe that, all else being equal, subjects in the original position would choose a quantum of liberty over a quantum of material benefit. Is this an unstated presupposition on Rawls’ part? How is our perception of his model affected if this is granted?

Now for part 2.

Restricting liberty for liberty’s sake
Rawls argues (in Hart’s words) that “basic liberties may be limited only for the sake of liberty”. Restriction, or the unequal distribution, of basic liberties can only be justified if the adjustment yields “a greater equal liberty” or “the best total system of equal liberty” (the last two phrases are Rawls’s). In simple cases what this means may be fairly straightforward; an example is the imposition of rules of debate, which both curtails the liberty to speak at will and protects the liberty to speak at length, for a net expansion of effective freedom of speech. Similarly, public order laws and military conscription can (sometimes) be justified as present curtailments of citizens’ liberties to prevent greater future inroads on the same liberties. In more complex cases, when rival and – ex hypothesi – incommensurable liberties are at stake, the adjustment between competing liberties should be made from the standpoint of “the representative equal citizen”, on the basis of what “it would be rational for him [sic] to prefer”.

Hart finds both these formulations problematic, suggesting that criteria of value will necessarily be involved in both. Beginning with the simple case, he argues that what rules of debate help to secure “is not a greater or more extensive liberty, but a liberty to do something which is more valuable for any rational person than the activities forbidden by the rules”. I think this is an important point, which could be pressed further. If I interrupt a speaker at a public meeting by shouting obscenities, I’m not ‘speaking’ – or, by extension, exercising freedom of speech – in the same sense that the speaker is: there’s a qualitative difference between using one’s voice to express ideas and using it to prevent ideas being expressed. More difficult examples are available, and the argument could be taken further: there is also a qualitative difference between using speech to create the conditions for an informed dialogue and using it to shut dialogue down, for instance by giving amplified and officially-sanctioned expression to settled government policy. But the principle is the same: one does not protect freedom of speech by limiting freedom of speech, as Rawls suggested. The freedom to speak in such a way as to develop one’s ideas without interruption is protected by limiting the freedom to interrupt; the freedom to engage in dialogue is protected (perhaps) by limiting the freedom to fill the space available with a privileged monologue.

I would also go further than Hart in critiquing Rawls’s examples of military conscription and public order legislation, which Hart passes over with a nod to their plausibility. To be precise, he uses formulations like “may be justified” and “might be plausibly said”; Hart the lawyer concedes that a case can be made out, so Hart the philosopher doesn’t need to get involved. But it’s arguable that this concession itself rests on an equivocation. It certainly is the case that infringements on civil liberties can be justified on the grounds that subversive organisations, if they achieved their aims, would infringe those same civil liberties more extensively. It can be done – it’s syntactically possible and rhetorically quite acceptable – and it often has been: if you don’t like Special Branch tapping a few people’s phones, imagine if it was the Stasi tapping everybody’s phone! (This specific illustration may have been overtaken by developments.) But this is a question of rhetoric and not of measurement – not least because the future potential curtailment of liberties can, by definition, not be measured. We can see this point more clearly if we look at Rawls’s formulation of the circumstances in which conscription might be justifiable – “if it is demanded for the defense of liberty[sic] itself, including here not only the liberties of the citizens of the society in question, but also those of persons in other societies”. Rhetorically this formulation plainly works well: it advances the plausible proposition that the loss of liberties in conscription can in some circumstances be justified on the basis of the liberties secured or defended thereby. But if we ask it to do a more demanding job – not to state the proposition but to ground it, by making it possible to compare one set of liberties to the other in a measurable way – the difficulties are obvious: the set of liberties to be defended is not only a potential future attribute of a political situation but an attribute of the situation of a different group of people. Ironically, what seems to lurk behind Rawls’s formulations is an idea of fungible Liberty-stuff, whose production can be restricted now so as to produce it in greater volumes at a later date.

In short, the ‘sameness’ of the liberties being curtailed and expanded, suspended and secured in the ‘simple’ case is more apparent than real: if we curtail a liberty for the sake of the overall balance of liberties (which, for Rawls, is the only justification for doing so) then we are always in the position of adjusting rival and incommensurable liberties. This makes the device of adjusting competing liberties from the standpoint of “the representative equal citizen” even more important. Hart expresses bafflement on this point: if we take it that two citizens may reasonably differ in the importance they attach to different values, it must follow that two citizens may reasonably differ in the priority they give to two competing liberties – not only in particular cases (disagreements which could conceivably be resolved by an appeal to a larger scheme of liberties) but in principle. As Hart points out, there is nothing irrational about valuing the liberty to roam above the liberty to enjoy property free from trespass, or vice versa; and examples could be multiplied. Once again it would appear that political disagreements are being elevated to the level of principle and then forestalled (or precluded), albeit in this case without any specification of how this would be done.

With regard to the “representative equal citizen”, Rawls’s 1982 lectures are of little help; he acknowledges Hart’s scepticism on this point but does not address it directly. It is worth noting that Rawls’s reference to the rational preferences of the representative equal citizen appears to rest on a very specific definition of rationality; Rawls defines the “two moral powers” as “the capacity for a sense of right and justice (the capacity to honor fair terms of cooperation and thus to be reasonable), and the capacity for a conception of the good (and thus to be rational)” (emphasis added). The only substantial reference to the “representative equal citizen” appears after Rawls’s definition of a “fully adequate scheme” of liberties as one in which the basic liberties are adjusted “so as to allow the adequate development and the full and informed exercise of both moral powers”. Such a scheme, Rawls argues, “coheres with that of adjusting the scheme of liberties in accordance with the rational interests of the representative equal citizen”. Other than noting that the term ‘rational’ is, presumably, used here to denote the capacity for a conception of the good (rather than simply referring to means/end rationality), it is difficult to gain much enlightenment from this. Either the conflict between rival liberties can be resolved in principle (in which case let’s get on and see how we can do it), or it can’t (in which case we are leaving a lot of important questions to be settled politically – and it’s not clear what philosophical work the basic liberties are doing). Rawls appears to be putting forward a middle position, in which conflicts between liberties can be resolved at the level of principle but we don’t know how. If, as Rawls seems to be suggesting, the key factor in making the resolution philosophically possible is the nature of the adjudicator – the “representative equal citizen” with her Good-oriented rationality – then we don’t seem to be saying much more than that people would get on much better if they were nice.

However, the 1982 lectures do enable us to resolve this question differently – or, perhaps, to sidestep it altogether. As the reference to an independently-justified “fully adequate scheme” suggests, the judgment of the “representative equal citizen” may be a device we can dispense with; perhaps there is something about the basic liberties themselves which makes it possible to resolve conflicts between them (without thereby specifying how the conflicts would be resolved). This line of argument seems to be closer to Rawls’s thinking, at least by the time of the 1982 lectures. In that text he introduces the criterion of “significance”: “a liberty is more or less significant depending on whether it is more or less essentially involved in, or is a more or less necessary institutional means to protect, the full and informed and effective exercise of the moral powers”.

This is a particularly interesting formulation. Not only does it abandon the austere “only restrict liberty for liberty’s sake” position which Hart had found so problematic; it also suggests a metric of sorts for comparing different liberties, without the need to resort to ideas of fungible Liberty-stuff. The good, for societies, is the general, informed and effective exercise by individuals of the powers to co-operate reasonably and seek what they consider to be the good rationally. The basic liberties, having been defined as preconditions for this social good, should be maximised to the extent that doing so tends to promote it – and adjusted relative to one another to the extent that these adjustments promote it.

I think this is an important – nay, significant – addition, which goes a long way towards fleshing out the idea of a resolvable conflict between basic liberties. However, some of the credit for it should probably go to Hart, whose criticisms are not so much answered by it as conceded; arguably they were unanswerable within Rawls’s framework as it stood.

Hart on Rawls – 1

In his paper on A Theory of Justice, Hart put forward five queries, all of which Rawls (some years later) responded to directly; I’ll incorporate some comment on Rawls’s responses as we go along.

Hart’s questions can be summarised under the following headings.

  1. Liberty or liberties? Is Rawls talking about a single quality of liberty which takes multiple forms, or about multiple discrete liberties? If it’s the latter, what are they and where do they come from – and what implications does Rawls’s selection of specific liberties have for his model?
  2. Restricting liberty for liberty’s sake Rawls argues that the only justification for limiting a liberty is an overall extension of liberties. What issues does this raise in terms of resolving potential conflicts between liberties?
  3. Restricting liberty for harm’s sake Rawls appears not to grant that liberties should sometimes be limited for harm-related as well as liberty-related reasons. Is this sustainable?
  4. Choosing (more) liberty Rawls argues that subjects in the original position would, in their own interest, tend to choose more rather than less extensive liberties. Given the potential adverse effects of liberties extended to the whole of society, is this valid?
  5. The priority of liberty Following on from the previous point: Rawls appears to believe that, all else being equal, subjects in the original position would choose a quantum of liberty over a quantum of material benefit. Is this an unstated presupposition on Rawls’ part? How is our perception of his model affected if this is granted?

For reasons of space and time, in this post I’ll only address the first of these. (Whatever else you can say about Hart, his writing is extraordinarily good to think with – particularly when he’s got something as substantial as A Theory of Justice to chew on.)

Liberty or liberties?
This may be little more than a textual quibble. Rawls’s response (in “The Basic Liberties and Their Priority”) can certainly be read in this way:

the equal basic liberties in the first principle of justice are specified by a list … No priority is assigned to liberty as such, as if the exercise of something called “liberty” has a pre-eminent value and is the main if not the sole end of political and social justice. … Hart noted, however, that in A Theory of Justice I sometimes used arguments and phrases which suggest that the priority of liberty as such is meant; although, as he saw, this is not the correct interpretation

Rawls goes on to characterise the ‘basic liberties’ as (in crude terms) means to an end rather than ends in themselves – the point is not to achieve an equal distribution of liberties for its own sake but to establish the conditions of possibility for the collective construction of a just society and for collective deliberation on ideas of the good. Rawls proposes an equal distribution of basic liberties not as an end state, but because it is among those conditions of possibility – or, perhaps, a necessary condition for the eventual development of those conditions of possibility. We are a long way from a utilitarian framework of the maximisation of capital-L Liberty, in other words.

I’m not sure that this disposes of Hart’s comments, though. The question concerns the fungibility of a generic liberty (I’ll refer to this as Liberty) – or, to put it another way, the commensurability of distinct liberties. Declining to specify an optimum scheme of basic liberties, Rawls argues that multiple alternative configurations or schemes of liberties may be equally valid. However, this implies that a restriction of one liberty may be compensated by an expansion of another, which as a minimum implies that different combinations of liberties may have the same beneficial effect. The model does not require simple commensurability between liberties (a bit more freedom from arbitrary arrest is worth a bit less freedom of expression). However, it does seem to imply that Liberty is somewhere in the background, being enhanced by the expansion of one liberty and reduced by the restriction of another. At least, it suggests an underlying resource of interchangeable Liberty-stuff, such that – given satisfactory levels of two different liberties – the overall settlement could only be improved by increasing one without lessening the other. If Liberty is seen as a single state or goal, approached in different ways through the instantiation of different liberties (each producing its own contribution of Liberty-stuff), it follows that some individual liberties may be much less effective in its realisation than others; some may even be expendable. This is the case even if we know what we mean by Liberty.

A realised state of Liberty is (more or less by definition) unknown to us, however. It’s safe to assume that liberties we have not considered may deserve a much more prominent place in our thought and action. In this context, Hart has an interesting passage on Rawls’s comments on lifestyle-related freedoms – in sexual conduct, drug and alcohol use, and so on – which he does not elevate to the level of a basic liberty. This may be explained by referring back to the civic focus of the basic liberties – seen as preconditions for the development of a just community rather than as individual liberties tout court – although the idea that sexual identity is irrelevant to public deliberation was not universal even in 1973.

Conversely, some of what we now consider to be liberties may well be irrelevant to the achievement of Liberty, or even counter-productive. Citing Rawls’s reference to a ‘principle of greatest equal liberty’, Hart refers to a Kantian model of universal freedom under a common law advanced by Herbert Spencer. Spencer’s critics, including Henry Sidgwick, pointed out that the institution of private property represents a stumbling-block for any pure theory of freedom: in the simplest form it represents a hard limit to individual freedom, expanding the freedom of the owner and reducing that of everyone else. (In less simple forms, private property brings with it inherited wealth, the accumulation of capital and wage labour, all of which bring their own forms of unfreedom.) Spencer’s response to this critique was to admit its force and revise his model, arguing that the greatest equal liberty would only be attainable when all property was held in common.

The value of the right to property in Rawls’s model is circumscribed, inasmuch as there is no basic right to individual ownership of the means of production: a ‘Rawlsian’ society may have an entirely state-owned economy. However, Rawls resists Spencer’s move, including the right to own personal property in his brief list of basic liberties. This is certainly justified on pragmatic (and on Pragmatic) grounds, making his model seem less utopian – and hence more useful to think with – than Spencer’s. Whether the liberty to own property (or other discrete liberties) can be justified on other grounds is less clear. As I have argued, although Rawls treats his basic liberties as discrete and distinct, to the extent that they can be balanced against one another there must be a Liberty behind the curtain which they jointly make it possible to approach – or at least a Liberty-stuff which they each in their different ways produce.

If this is the case, the basic liberties are not fundamental, but different aspects or facets of the production of fungible Liberty-stuff, or of the approach to an ineffable Liberty. And if that’s the case, clearly Rawls’s list can’t be taken as definitive; the possibility that it might need to be lengthened, and – more disruptively – the possibility that it might be appropriate to trade down one or more of our current list altogether, can’t be avoided. Might an equal distribution of basic liberties be achievable on the basis of a Fourierian phalanstery, designed to guarantee freedom from want, idleness and anomie, but not too great for political and personal liberties? And if not, why not? To be more precise: given that we’re objecting on philosophical rather than political grounds – political disagreements start some way down the road and should be expressible within the framework we’re developing at this stage – the contention must be that the map of small-l liberties not only should not but cannot be redrawn to that extent. But how can we justify that belief without recourse to political arguments?

One superficially attractive argument justifying a Rawlsian list of basic liberties – and countering ‘fungible Liberty-stuff’ and ‘ineffable Liberty’ arguments – runs like this. Let’s suppose that, somewhere out there in concept-space, there is such a thing as Liberty, although we don’t know what it looks like. However, we do have an idea what freedom of the press, freedom of assembly, freedom of conscience and the rest of them look like. Moreover, we know they’re all valuable: we may be open to the striking of different balances between different liberties, even (perhaps) to the point of suspending one so as to preserve another, but we know that any solution which dispenses with a particular liberty altogether is a bad solution. (At least, it’s a solution with at least one bad feature – that one – and we want to avoid bad features in our solutions.) The difference between ‘balancing discrete liberties’ and ‘fungible Liberty-stuff’ models, in other words, is that the former provides a backstop, or several backstops: these liberties are things we know to be valuable, so we know that no solution in which any one of them is traded off entirely can be satisfactory.

The trouble with this argument is that it’s circular, and rather a tight circle at that. (Why shouldn’t we think in terms of fungible Liberty-stuff? Bad outcomes would result. Why would the outcomes be bad? Because there is no fungible Liberty-stuff.) However, it points the way to an argument or group of arguments which, while they lack the logical closure of this one, may be more persuasive. In its weakest form, the argument draws attention to the fact that Rawls uses a list of basic liberties at a fairly early stage in the development of the argument of A Theory of Justice - not to mention an early stage in the development of the ideal framework of social relations proposed in the book. Perhaps the choice of a list of basic liberties, and scepticism about that choice, are not positions which can usefully be counterposed in argument but simply alternative starting-points, to be judged primarily by their fruits. In other words, to the extent that Rawls makes it work, it works, and challenges at this foundational level are little more than doodling in the margin – or signs that the person putting the challenge may be reading the wrong book (“Aeschylus is so sexist!” – English student, Cambridge (overheard)).

A stronger version of the same argument would return to the first part of the circular argument set out above and plant its flag there. We do know what’s meant by each of Rawls’s basic liberties and we do know that each of them is valuable and therefore worth preserving, all else being equal. By contrast, nobody has ever seen Liberty, and we’ve got no compelling reason to believe in the existence of Liberty-stuff. Direct experience tells us about basic liberties; only human ingenuity tells us about Liberty, and we know how unreliable human ingenuity can be. The alternative to a conservative reliance on the liberties we know, on this argument, is not philosophically-grounded radicalism but reckless concept-mongering. To put it another way, trading a known basic liberty for a speculative increase in Liberty-stuff would be an irresponsible gamble. (Another criticism of Rawls, which I’ll come to in the next post, is that he’s not conservative enough in this respect.)

At its strongest, this argument would take direct aim at the shrouded numinosity of Liberty, asking whether we really have any reason to think there’s anything there. Perhaps the basic liberties have no more in common than a sandwich without mustard and a dog without a lead. Or rather (cutting off a potentially interesting but irrelevant line of questioning), perhaps we have no need to think of the basic liberties as having any properties in common in order to group them together. Perhaps, rather than working on the assumption that there is something positive and theoretically realisable called Liberty, we should think of the basic liberties as a group of absences which we hold to be significant and valuable – just as nitrogen and carbon dioxide share the common property of not being oxygen, rather than that of being saturated with phlogiston. This would, of course, leave open the question of whether Rawls’s list is the right list of basic liberties, but it would make the task of amending the list much more challenging.

Hart’s second criticism… but enough! Not sure how long this series is going to be; all I can say is that the next post will definitely address at least one of the remaining four arguments.

Earthbound skyhooks: Rawls and Dworkin

I’ve been wondering what it is that underlies my difficulties with both Dworkin and Rawls. After reading Ely’s paper on Dworkin, in particular, I’ve come to the conclusion that it’s an American thing. By which I don’t mean that it’s a legacy of of trends in American philosophy, enduringly marked by the influence of Emersonian Transcendentalism on one hand and Dewey’s Pragmatism on the other – although these are both distinctly alien to the British temperament, not least in their common emphasis on the unchallengeable meaningfulness of subjective experience. The history of American legal philosophy is similarly idiosyncratic, from a British standpoint. Hart characterises American legal theory as oscillating between the Realists’ “nightmare” of complete indeterminacy and entirely judge-made law, at one extreme, and Dworkin’s “noble dream” of a seamless web of laws and legal principles at the other. (Although on reflection the opposition may be more apparent than real. Dworkin pictures legal decisions being made by an omniscient judge called Hercules, who synthesises all the law there is based on the best and most appropriate principles. If Hercules is to be anything more than a figure of speech, somebody actually has to play that role and, in practice, make law. And in practice, as Ely points out, Dworkin’s own footwork is as nimble as any Realist’s.)

So if American philosophers, and legal philosophers, tend in their different ways to approach the world in a wide-eyed spirit of “how does this look to me, here, now?”,  you can see how that might grate on a British ear. (I’m flashing back to my only attempt to read Zen and the Art of Motorcycle Maintenance, which I gave up at the point when the book’s teenage protagonist starts angrily disproving Plato – I was a teenager myself at the time, but I wasn’t buying that. See also Ayn Rand.)

But the point about Rawls and Dworkin is a bit different. Take Ely’s (instructive and entertaining) paper on Dworkin: it begins by asking, not how Dworkin can justify opposing racial discrimination while supporting affirmative action, but how he can justify the opinion that the decision in DeFunis v. Odegaard should be upheld as constitutional while that in Sweatt v. Painter should not. Dworkin was working (as was Ely) in the specific field of US constitutional law, and this gives his work a particular character. The task is not – as it might be for a British legal philosopher – to trace the development of a legal principle through its various imperfect expressions (in legislation and in court rulings), but to work with two distinct sets of ideas. On one hand there is the ideal – whatever the philosopher him- or herself holds to be just, true and good, e.g. the principle that government should be empowered to limit working hours or that heterosexuality should not be treated as compulsory. On the other there is: the Constitution. On one hand, the skyhooks of philosophical idealism (in both senses of the word); on the other, the Founding Fathers and what they thought was appropriate – or, more realistically, the end result of what they variously put forward as appropriate and collectively agreed not to strike out as inappropriate – to the needs of an eighteenth-century settler republic. Find an approximation to A somewhere in the text of B and you’re made. Find not-A (the exclusion or denial of A) in the text of B and you’ve got a job to do. Either way, the task at hand is not, in practice, to bring out anything immanent to the law but to knit together these two enormously disparate sources. You can’t work without a sense of what seems right to you, here, now, but at the same time you can’t work without reference to the text of the US Constitution, or the plausibly imputed intentions of its authors (or some more complex reading). Earthbound skyhooks.

This background doesn’t apply directly to Rawls (who WNAL), but it does seem to relate to something I find extraordinarily difficult in his thinking – and which, I think it’s fair to say, Hart struggled with as well. I understand the image of the ‘original position’, with individuals collectively deciding on the shape of society behind a ‘veil of ignorance’ as to who they are, what aptitudes and preferences they have and what role they would have in the eventual society. From this it is possible to derive a ‘general conception of justice’, representing the principles the parties to the original position would choose. So far so good: these are good tools to think with. But when Rawls goes on to say (here I’m quoting Hart quoting A Theory of Justice) that the general conception would mandate that

All social values, liberty and opportunity, income and wealth, and the bases of self-respect, are to be distributed equally unless an equal distribution of any, or all, of these values is to everyone’s advantage.

I feel like I’ve wandered into the wrong class. “Er, Professor? Did you say ‘wealth’ just now? Did you say, er, ‘income‘?” (Benign smile from professor. Brighter students shake their heads and tut wearily – hey, it’s a Trot, just what we needed…) We’re on a pretty high plane of abstraction, up there behind the veil of ignorance, but apparently money isn’t one of the things we’re higher than. Nor, it turns out, is politics. One of Rawls’s basic liberties – those liberties which (in Hart’s words) are “identified by the parties in the original position … as essential for the pursuit of their ends, whatever their ends turn out to be” – is the right to run for elected public office. In fact – and at this point I very nearly gave up trying to understand Rawls, even with the aid of Hart – we haven’t even left political procedure behind (beneath?) us: “when the parties in the original position have chosen the principles of justice, they move to a constitutional convention … [where] they choose a constitution and establish the basic rights of citizens”.

I’m feeling dizzy – pass me the Schutz.

The puppet exists and acts merely by the grace of the scientist; it cannot act otherwise than according to the purpose which the scientist’s wisdom has determined it to carry out. Nevertheless, it is supposed to act as if it were not determined but could determine itself. A total harmony has been pre-established between the determined consciousness bestowed upon the puppet and the pre-constituted environment within which it is supposed to act freely, to make rational choices and decisions. This harmony is possible only because both, the puppet and its reduced environment, are the creation of the scientist. And by keeping to the principles which guided him, the scientist succeeds, indeed, in discovering within the universe, thus created, the perfect harmony established by himself.

Better. And breathe.

Rawls – like Dworkin – takes what appears to be a very different and much more worldly approach than a frank utopian like Nozick, but on inspection there’s something quite different – and stranger – going on than a simple opposition between utopianism and realism. The difference between Nozick and Rawls isn’t that Nozick built castles in the air; it’s that when Rawls built his castles in the air, he built them on the ground.

I’ll explain. The thing is, when real people hold a real constitutional convention, all kinds of strange and unpredictable things happen: few could have anticipated the respective roles played by the Partito Comunista Italiano and the centrist Partito Socialista dei Lavoratori Italiano in formulating the Italian law on divorce, for example. (I talk about this in my book.) When imaginary people who don’t know who they are decide on their general conception of justice, the philosopher can know exactly what happens – because it’s not actually a thing that does happens, or can happen: it’s just a way of talking about the factors which in reality hinder the adoption of a conception of justice acceptable to all, and ex negativo what the features of that conception of justice would be. So, as for what happens when imaginary people who don’t know who they are hold a constitutional convention… my head hurts. The question seems meaningless, or badly-formed – as if one were to ask what would happen if dogs started demanding the vote. I spy earthbound skyhooks.

But enough about me – let’s talk about the greatest legal philosopher of the twentieth century, and what he thought of John Rawls.

Hart, Nozick, Dworkin (in that order)

There was an old person of Ware,
Who rode on the back of a bear:
When they ask’d, – ‘Does it trot?’–
He said ‘Certainly not!
He’s a Moppsikon Floppsikon bear!’
Edward Lear

Another couple of notes on current reading.

Herbert Hart’s essays “Between utility and rights” and “Rawls on liberty and its priority” make some interesting critical points on Nozick, Dworkin and Rawls – to be precise, the Nozick of Anarchy, State and Utopia, the Dworkin of Taking Rights Seriously and the Rawls of A Theory of Justice. I’ll cover Nozick (again) and Dworkin in this post, Rawls in a separate post.

Hart’s comments on Nozick are a bit less knockabout than the comments I mentioned in the previous post, but no more favourable. Hart presents ASU as one long series of exercises of the definitional fiat: if you define the right to own property as fundamental (and not, say, the right to life), and if you define taxation as logically equivalent to forced labour – one of several hyperbolical flourishes which Nozick seems to use both for effect and in earnest, in a “ha ha only serious” sort of way – then it follows that only the most minimal of minimal states can be legitimate, and so on. (Hence Nozick’s iconic status with right-Libertarians and other anti-state economic liberals. To be fair, Nozick’s model also has some far from conservative implications when it comes to present-day property ownership, given that only freely-undertaken transfers of title are treated as legitimate – and this with a fairly demanding definition of ‘free’.) If you define your terms thus and so, in other words, the model you build will give the conclusions you’re looking for. I don’t know if Hart ever read Schutz, but reading this paper I was strongly reminded of this passage, which forms the conclusion to Schutz’s essay “Common sense and scientific interpretation of human action”:

The relationship between the social scientist and the puppet he has created reflects to a certain extent an age-old problem of theology and metaphysics, that of the relationship between God and his creatures. The puppet exists and acts merely by the grace of the scientist; it cannot act otherwise than according to the purpose which the scientist’s wisdom has determined it to carry out. Nevertheless, it is supposed to act as if it were not determined but could determine itself. A total harmony has been pre-established between the determined consciousness bestowed upon the puppet and the pre-constituted environment within which it is supposed to act freely, to make rational choices and decisions. This harmony is possible only because both, the puppet and its reduced environment, are the creation of the scientist. And by keeping to the principles which guided him, the scientist succeeds, indeed, in discovering within the universe, thus created, the perfect harmony established by himself.

Defining people as independent property-owners – rather than, say, as interdependent community-builders – Nozick succeeds (indeed) in discovering within the universe, thus created, the perfect harmony established by himself.

But perhaps this isn’t the worst thing a political philosopher can do. To be more precise, for me this sort of frankly other-worldly (u-topian) system-building isn’t the most difficult or annoying thing a political philosopher can do. If Nozick stacked the deck – or rather, substituted a pack of cards of his own design – it’s no more than Marx did. What I find far harder to deal with is an approach taken by both Rawls and Dworkin (what little I’ve read of them), which I’d characterise as a kind of mundane idealism. It’s not that they don’t have ideas for a better world, or that they don’t build systems – Rawls in particular could never be accused of either of those failings. It’s that the ideas they have, and the systems they build, are tethered to (their) contemporary social conditions in ways I find unpredictable, arbitrary and unjustified. Marx had his blind spots – Kate Soper said once that when Marx dreamed of being able to “hunt in the morning, fish in the afternoon, rear cattle in the evening, criticise after dinner“, she wanted to know who had made the dinner – but the human fundamentals he starts from are pretty fundamental (they don’t include money, for a start). Both Rawls and Dworkin seem to bob back and forth between blank-slate system-building and the most cautious, considered, Overton window realism, in a way which (for me) makes them very hard to get to grips with. The effect is to build an ideal world on some curiously unexamined foundations – as if to say that, come the revolution, we could spend the morning hunting and the afternoon lobbying our MP, then rear cattle in the evening and write a letter to the Guardian after dinner.

Hart wasn’t a Marxist – and he certainly wasn’t a utopian – so these aren’t exactly his criticisms of Rawls or Dworkin. But they’re not a million miles off. In Taking Rights Seriously, Dworkin presents individual rights in terms of the need to guarantee equal respect for all. Rights are thus a brake or side-constraint on the utilitarian pursuit of the common good; Dworkin refers specifically to ‘anti-utilitarian rights’. The idea is not simply that utilitarianism may sacrifice any individual’s freedom and well-being for the greater good of society, and that inviolable individual rights will prevent this happening; the problems with this superficially attractive idea were pointed out long ago (see previous post). Dworkin’s argument starts further down the line, conceding that some freedoms should in fact be sacrificed for the good of society, but maintaining that others should not – as we do when we argue that teachers should be free to punish children in their care but not to use physical force; or, that employers should be free to terminate employment after a disciplinary offence, but not to do so on the grounds of religion or ethnicity. In making statements like these, Dworkin argues, we are effectively mapping out a set of (anti-utilitarian) rights. But what are the boundaries of this set of rights and how can they be identified?

At this point I would be inclined to shrug and misquote Harold Macmillan – “Politics, dear boy, politics”. (Or – stretching the Macmillan image a bit – “Struggle, dear boy, struggle”.) Dworkin, who was made of sterner stuff, argued that the rights which should be protected are those which would qualify on utilitarian grounds – or (what amounts to the same thing) those which would gain majority support in a free vote – under certain conditions. The key condition is that the preferences to be considered in the utilitarian argument – or (less straightforwardly) the preferences on the basis of which votes would have to be cast in order to be valid – are self-directed; other-directed preferences would count for nothing. So, for example, “All in favour of making Wesleyan Methodism the state religion” is (arguably) self-directed but wouldn’t pass. “All in favour of freedom of worship for you and your family” is self-directed and would pass. “All in favour of denying freedom of worship to Wesleyan Methodists” might pass, but it’s other-directed and so shouldn’t be allowed to. Hence, freedom of worship is an anti-utilitarian right. If other-directed preferences are allowed to count, Dworkin argued, the effect is tantamount to double-counting: I’m not only getting what I want (freedom for me) but negating someone else’s vote for what they want (no freedom for Wesleyan Methodists). On the other hand, if other-directed preferences are not expressed (or even felt) – if nobody, or hardly anybody, wants to deny anyone freedom of worship in the first place – the right ceases to be anti-utilitarian, fades into the background and ultimately ceases to exist. If you can get the same result by referring to “rights”, “common sense” and “the way things are done”, few people will choose the first option – or have any need to.

Hart finds all of this puzzling. (As an aside, the more I read Hart the more I envy anyone who knew him – let alone anyone who had him as a supervisor. I imagine that his expressions of puzzlement were a warning sign that you would come to fear, or relish.) The idea that rights – not the expression or effective assertion of rights, but the rights themselves – are time- and place-dependent is a stumbling-block; as Hart points out, this would mean that citizens of the most liberal and empowering society would have the fewest rights, which seems counter-intuitive to say the least. Hart’s argument focuses mainly on the (metaphorical?) image of double-counting and the idea of other-directed preferences, both of which he finds to be much more slippery, and harder to generalise, than Dworkin acknowledged. The idea of double-counting, in fact, he simply finds incoherent, once it’s generalised beyond simple examples of policies which explicitly disadvantage a targeted group – do we add one for every individual (other than the voter him or herself) who is either benefited or disadvantaged by a vote, since our vote counts for one extra vote for or against their interests? (And if so, how many valid – single-counted – votes would be left?) Hart finds the broader idea of other-directed preferences more substantial but just as problematic. He notes (using slightly different terms) that Dworkin would count a heterosexual voter’s opposition to gay rights as an other-directed preference; he then asks why, if the same voter came round to supporting gay rights, this preference would not also be considered ‘other-directed’ and hence inadmissible.

Two answers seem to be available, both difficult to argue. Hart’s own conclusion is that discounting positive other-directed preferences in this way would be absurd. We could theorise this position by argue that other-directed preferences should be seen as admissible – and, perhaps, that they should not be seen as other-directed – when their tendency is to promote overall equality of respect. The problem with this argument is that it relies on smuggling substantive ideas of the good back into an argument which purports to float free of them. Which is to say, the concept of equality of respect does not, in itself, give us the means to differentiate between ‘good’ and ‘bad’ examples of the ‘other-directed preference’. Shaw’s inversion of the Golden Rule – “Do not do unto others as you would have them do unto you. They may have different tastes.” – is glib and shallow, but it remains (annoyingly) pertinent. If I believed that human flourishing was best secured through the institution of heterosexual monogamy, I could argue that those social arrangements which promote it pay the most respect to all individuals, however uninterested in that institution they might be at the moment. Encouraging the expression of homosexual feelings would then be a disrespectful other-directed preference, despite its superficial liberalism: it would express the contemptuous view that some people were unable to overcome their base and self-destructive urges – as if to say that the liberal response to alcoholism was to set alcoholics free to drink themselves to death. Equally, it could be argued that laws mandating maximum working hours or a minimum wage are not founded on respect for the worker (or self-respect for oneself as worker) but on other-directed disrespect for the employers who would be inconvenienced by them – a prejudice against business which should not be given consideration. And so on.

Alternatively – and more consistently with the letter of Dworkin’s argument – we could argue that even altruistic other-directed preferences should not be counted: that only the preferences of those directly affected should be taken into consideration. The problem with this approach is that it would delegitimate social solidarity among anyone whose shoe didn’t pinch in exactly the same place, depoliticising rights discourse to a disabling extent. It would, for example, make it inadmissible for supporters to advance the rights of a group whose members were not themselves demanding them – a familiar scenario in the context of groups as disparate as children in care, migrant workers and abused women. Something like this does in fact appear to have been Dworkin’s position, although he avoided its more alarming implications by supplementing his modified version of preference utilitarianism with deontological arguments. In other words, he held that altruistic other-directed preferences should not in fact be counted as individual preferences, but that they should be attended to as the expression of views which might be independently (‘ideally’) correct, irrespective of how many or how few people held them. By this point, though, we are not so much smuggling an idea of the good into a utilitarian argument as moving out of the utilitarian argument altogether to shack up with an idea of the good.

Whichever way you take it, Dworkin’s argument against other-directed preferences seems to boil down to saying that majority votes – and utilitarian greater-good arguments – are problematic when they justify things that are wrong; the question of what actually is wrong remains open (and, I would add, political). It could be argued that these considerations of value pluralism have nothing to do with equality of respect – in other words, that these are arguments we would have been having anyway – but in fact that’s the point: Dworkin’s metric gives us no guidance precisely when we need it. Hart concludes by casting doubt on whether it is possible to derive anything of substance from the notion of equality of respect: after all, a law forbidding the practice of any religion is just as equal in its respect for belief as a law allowing complete religious freedom. (Both have an impact on the lives of all believers – and no non-believers.) In terms of equal application, Hart adds ghoulishly, “kill everyone” is just as good a command as “kill no one”.

Dworkin replied to Hart’s criticisms, in a paper with the unhelpful title of “Is there a right to pornography?” (try googling “Dworkin pornography” and see what you get). I have read it – the section on Hart at least – but I’ve got to admit defeat. I’m honestly not sure what Dworkin was saying, although there seemed to be a certain amount of question-dodging and subject-changing going on. I can recommend John Hart Ely’s 1983 paper on the Dworkin/Hart exchange, “Professor Dworkin’s External/Personal Preference Distinction”; Ely engages much more closely with Dworkin than I have the energy for, but he ends up seeming equally unimpressed (“Professor Dworkin has led us a merry chase, but each of the alleys has proven blind”).

Hart seems to have found Rawls considerably more substantial than Dworkin; he praises A Theory of Justice highly. But issues remain.

Some baby! (Hart on Nozick)

…some bathwater!

Before today, it had never really occurred to me to wonder what Hart had made of Nozick. The answer, according to a 1976 address collected in Hart’s Essays in Jurisprudence and Philosophy, seems to be “not a lot”. Hart cites, with qualified approval, Bentham’s attack on the notion of absolute and inalienable rights as making any form of government impossible:

nothing that was ever called government ever was or could be in any instance exercised save at the expence of one or other of those rights … in as many instances as Government is ever exercised some one or other of these pretended unalienable rights is alienated

In Anarchy, State and Utopia, Hart argues,

Nozick raises precisely Bentham’s question and asks “How much room do individual rights leave for government?” What is astonishing is that Nozick also gives Bentham’s answer: No room except in an imaginary world. … he argues that granted a set of natural rights – such as the right not to be killed, assaulted, coerced, not to have property taken or destroyed, and not to be limited in the use of property – only a minimal form of state, the so-called “nightwatchman” state, whose functions are limited to the punishment of violations of such rights, can be legitimate.  Moreover, given those natural rights, even that minimal form of state could be justified only under conditions which Bentham never considered. Yet Bentham might be forgiven for failing to do so, for they are conditions produced out of Nozick’s lively imagination which are highly unlikely to be satisfied in the real as contrasted with the imaginary world.

Ouch.

The conditions in question are that the state should have arisen through individuals voluntarily joining a private protection association which might eventually achieve, without infringing any natural rights, dominance in a limited territory even if not everyone joined it. But all this seems indeed imaginary and and irrelevant in a world where states do not arise in that way.

Bentham was wrong, Hart argues, to dismiss all talk of rights as either utopian or trivial, and irrelevant either way – rights being either overriding constraints (which cannot possibly obtain in the real world) or interests to be balanced against others (and hence deserving no special consideration). But, Hart concludes,

I do not think we yet have a satisfactory theory showing how respect for such rights is to be combined with the pursuit of other values. Some theories seem to me to throw out the baby – that is basic rights compatible with each other and with government – with the bathwater of excessive rigidity. Other theories – perhaps Professor Nozick’s among them – do worse; they throw out the baby and keep the bathwater.

Perhaps it’s unfair to castigate Nozick for producing a model that was both utopian and inapplicable to the real world. It could equally be argued that, once having identified principles of justice from which an ideal model of society could be elaborated, declaring that the model was in fact a map of the world would be an anti-climax at best. There would be more critical mileage in going the whole utopian hog, the better to measure the distance between that model and our world as it is.

Ultimately this passage is probably less valuable as a knock-down critique of Nozick than as a demonstration of the importance of one’s starting-point. For Hart, a model of justice was first and foremost a model of justice as it was administered in the real world: if such a theory pointed us in the direction of greater, less compromised or better-distributed justice, so much the better, but its first hurdle was to fit the reality of justice as we knew it. In Hart’s view, by defining justice in terms of principles which could only be realised in Utopia, Nozick had succeeded only in severing his own ideal of justice from the common-or-garden justice about which other theorists wrote. There is a parallel here with Hart’s insistence on the existence of law in slave-holding regimes or in Nazi Germany (although these are separate arguments, clearly; Hart didn’t deny that those regimes were characterised by great injustice). For Hart, a theory of law which only covered the law in peaceful, egalitarian, democratic regimes – while excluding other contexts in which people recognised as lawyers practised something recognised as law – would not be stronger but weaker for it: any gain in coherence would be decisively outweighed by the loss of breadth.

Unlike Nozick, Hart didn’t define justice in terms of a more-or-less unrealised end-state – or, perhaps it would be more accurate to say, he wasn’t very interested in looking at justice in those terms. Law, still less: he didn’t think in terms of law as its own self-description and its own regulative ideal – law consisting at once of the carrying-out of law-like practices in law-like ways, and as an ideal which was the more fully realised the more law-like that process was. In other words, he didn’t see law (or didn’t find it interesting or useful to see law) as providing the resources for its own immanent critique. But more on that another time.

Triggering the community

I’ve written a paper on anti-social behaviour and, in particular, the ‘Community Trigger’. It’s based entirely on published sources, so the conclusion is basically that somebody ought to do some proper research on this – I’m hoping to get some funding to do just that. In the mean time here’s the abstract and the references, in case anyone’s interested in the kind of stuff I’m doing at the moment (at least, the more policy-ish end of it; more skirmishes in the region of legal theory to come).

Noisy students, pro-life protesters and street football: How the Community Trigger has refined our understanding of anti-social behaviour

Abstract

This paper reviews the experience of the Community Trigger pilot schemes carried out in England in 2012 and 2013. The Community Trigger, now enacted in law, is a mechanism whereby people affected by anti-social behaviour (ASB) can request a review of their case, which has to be undertaken if repeated complaints have been made with an unsatisfactory response. The experience of the Community Trigger pilots offers a testing ground for different conceptions of ASB – considered variously as ‘neighbourhood disorder’, as ‘incivilities’ and as the actions of an ‘anti‑social minority’ – and for approaches to addressing ASB, based on different understandings of where authentic knowledge of ASB resides (with legislators, with local specialists or with the individuals affected). The pilots demonstrate wide variation among the areas involved, suggesting that different approaches to ASB and its management are likely to persist. Given the inherent variability of ASB – considered as ‘context-dependent’ disorder – the persistence of local and regional variation is likely to pose challenges for measurement of ASB and of the success of any centrally-driven initiatives to address it.

References

Bannister, J. and Kearns, A. (2013), “The function and foundations of urban tolerance: Encountering and engaging with difference in the city”, Urban Studies 50(13): 2700-17.
Blair, A. (2006), speech at Downing St, 10 January; online at <http://news.bbc.co.uk/1/hi/uk_politics/4600156.stm&gt; (last accessed 19/6/2014).
Bottoms, A. (2009), “Disorder, order and control signals”, British Journal of Sociology 60(1): 49‑55.
Bryant, R. and Egerton, J. (2013), Manchester City Council Community Trigger Assessment Report, Manchester: Manchester City Council.
Castleton, P. (2013), Brighton and Hove Community Trigger Trials Assessment Report, report to Brighton and Hove Community Safety Forum, 10 June.
Cocker, S., Hunn, P. and Eden. A. (2013), Community Trigger Trial – Boston Borough Assessment Report, Boston: Boston Borough Council.
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Something in the air

Apparently Mosul has fallen to ISIS (The Islamic State of Iraq and Al-ShamsAl-Sham (Damascus); Al-Shams (literally ‘the sun’) translates here as ‘the Levant’ (thanks to Ankaralı Jan on Twitter for the correction)). This is not good news; ISIS is an al-Qaida affiliate, rumoured to be funded by Saudi Arabia, rumoured to have had any Saudi funding emphatically withdrawn, rumoured to be seen as ‘too extreme’ by al-Qaida. As for Mosul, it’s in the North. Iraq is the shape of a truncated triangle; it has six land borders, three long and three relatively short. In the south it borders Jordan (SW), Saudi Arabia (S, long) and Kuwait (SE); carrying on round, you get to Iran (NE, long), Turkey (N) and Syria (NW, long). (Historic Kurdistan straddles northern Iraq, southern Turkey, north-east Syria and north-west Iran; this is one reason why the Kurds have never got anywhere (or been allowed to get anywhere) with state-building.) Mosul, in the North, is more or less midway between the north-eastern regions, bordering Iran, which are held by the Kurdish Regional Government and the regions bordering Syria which are already effectively held by ISIS. (Another correction: got the geography completely scrambled in the first draft. Confession: I tend to get East and West confused on maps if I can’t see Wales or Russia.)

Meanwhile in Cheetham Hill:

I know this is basically anecdotal taxi driver journalism stuff but the shawarma joints run by Syrian Kurds on our part of Cheetham Hill Road were buzzing tonight. These are a fairly recent phenomenon here, and seem to have in large part replaced a wave of vaguely Iranian cafes that suddenly appeared around 2008.  Whatever. The thing is, a while back I noticed that one of these places had a collection box for medical aid for Rojava on the counter and when I asked about it I ended up having an interesting chat with the man behind the counter slinging the fatteyah dough, a job for which he seemed to be considerably overqualified.

Anyway, the idea was that Syrian Kurdistan – Rojava – would take the opportunity of the anti-Assad uprising to establish de facto autonomy, then come to terms with Iraqi Kurdistan and then, when the time was right, there would be a Kurdish state. We didn’t get into the PKK-Turkey situation.

Well, as of a couple of hours back there was a buzz all the way up the road, from Bakery and Company to the Cheetham Star, and there were bills and posters up with the red-yellow-green tricolour, also the Kurdish ‘sun’ flag. I didn’t have a conversation with anyone. It was obviously ‘our thing’, people huddled around some guy talking on a cellphone and repeating what he was hearing to the group. But I did get the impression that the schedule had moved forward.

Like I say, strictly anecdotal stuff, the view of a viewer of interested parties from faraway Manchester 8. But I’ve also seen pictures ISIS grubbing out the border posts between Syria and Iraq and it seems to me that no-one is in a position to put them back.  That has implications all over the region. Sykes-Picot, he dead.

Following up Jamie’s post, I read this article from yesterday (11th June) on the BBC Web site. The title is “Battle for Mosul: Critical test ahead for Iraq” – which says it all, unfortunately. Some extracts and comments:

Governor Atheel Nujaifi made a desperate appeal on the night of 9 June for citizens to use their personal weapons to form self-defence militias in their neighbourhoods in an effort to limit ISIS gains. The next step will be the regrouping of the disintegrated units, including those where policemen and soldiers stripped off their uniforms and abandoned vehicles, weapons and outposts.

Not sure what the thinking is here – people have taken off their uniforms, dropped their guns and run away, but now they’re going to be regrouped?

New armoured, artillery and aerial forces will be brought up to Mosul for the operation,

(“The operation” appears to refer to “regrouping”, above.)

though scraping together such forces is getting increasingly difficult due to the growing number of major ISIS assaults in the Baghdad suburbs and cities like Ramadi, Samarra, Tuz Khurmatu, Sharqat and Mosul. The only source of fresh forces available in Iraq is the Kurdistan Regional Government (KRG) Peshmerga, an infantry force with some artillery and light armoured vehicles.

“See? We’ve got plenty of people in the region! No problem!

Peshmerga forces have recently moved forwards along the line of disputed territories claimed by both the federal government and the KRG, including securing the areas of Mosul city east of the Tigris River. Gaining the KRG’s active support to take part in the clearance of western Mosul may only be possible if Baghdad is willing to make concessions to the Kurds on issues such as the international marketing of KRG oil and revenue-sharing between Baghdad and Iraqi Kurdistan.

And we’re back indoors (“Mr Al-Maliki? Your ten o’clock’s here…”) Not to make a virtue of the creation of ‘facts on the ground’ stuff or anything, but I think the way things are going, the making of concessions might be a bit more definite – & might be a done deal before ‘Baghdad’ has much to say about it.

For the Baghdad government of caretaker Prime Minister Nouri al-Maliki, the recovery of Mosul is a test of leadership at a critical moment when he is seeking reappointment.

Could we lay off the “who’s up, who’s down” just for a moment? I mean, there’s this war…

Iraq’s Kurds need stability in Mosul, which is just one hour’s drive from the KRG capital of Irbil. Many Kurds live in or around eastern Mosul and ISIS control of the city could pose a grave security threat to the Iraqi Kurdish region, which prides itself on providing a safe environment for investors.

Unless either (a) KRG talk to ISIS and ISIS say “we’ll take this bit, you can have that bit and we’ll leave you to it”; (b) KRG don’t trust ISIS an inch but decide to capitalise on the partial power-vacuum created by the collapse of central government control anyway; or (c) both of the above. The KRG could take the view that they can look after the security of the Iraqi Kurdish region on their own more effectively than the Iraqi government – and that they can do the job better if they’re not also trying to fight the Iraqi government’s battles for it. Apart from anything else, they’re on the spot, and the Iraqi government is a long way away. (That ‘hour’s drive’ to Irbil is 60 miles, incidentally, so an hour may be optimistic – but Baghdad to Mosul is 250 miles by road. It is a major road, but I imagine there are a few hold-ups at the moment.)

Iraq’s Sunni political, tribal and religious leaders have the most to lose from ISIS’s growth … Taking an optimistic view, these overlapping interests could create the potential for political dialogue and speedier government formation, potentially lessening tensions between Baghdad and the KRG. Alternatively, ongoing discord between the Maliki government and its Kurdish and Arab opponents could disrupt the government’s counter-offensive, allowing ISIS to consolidate its hold on western Mosul.

Ooh, speedier government formation. Call me an incorrigible optimist, but I do like to take a few minutes out of a busy day to think about political dialogue and speedier government formation. They may say I’m a dreamer… Again, there’s this weird urge to turn the actual civil war into a sand-table exercise whose success or failure will have implications for real politics.

It strikes me that the ‘optimistic view’ isn’t looking very good at the moment – or even very realistic. More to the point, it only is the optimistic view if we put the interests of the al-Maliki government at the top of the list, rather than (say) the interests of all the people who live in Iraq. (Which might coincide, but I don’t think it’s been demonstrated.) For the KRG, in particular – and their sympathisers up Cheetham Hill Road – standing the Peshmerga down, and getting dragged back into endless horse-trading with an Iraqi government they don’t respect, might not be the ‘optimistic’ outcome at all.

Off a-mollocking

Pardon the long silence. I’ve got a post planned and another started, but today I want to ask a trivial but urgent question: why adapt Jamaica Inn? Specifically, why would you adapt Jamaica Inn for TV if you’re completely out of sympathy with the book, or (more charitably) believe your audience will be completely out of sympathy with it?

I’d never read any Daphne du Maurier (or wanted to), but I was a bit short of light reading when the BBC’s adaptation of Jamaica Inn loomed up in the schedules, so I read it over the weekend. It’s a good read, if not always a comfortable one. The first thing to say about it is that atmosphere is everything. From the first chapter the book sets up a very strong opposition between the determined but powerless virtue of the heroine Mary Yellan and the uncontrolled brutality of the huge, violent inn-keeper Joss Flynn; the sickening fear that Mary will be drawn into his power through no fault of her own, and will be broken by him, is set up even before the two have met. There’s a lot more in the book – the romantic fiction sub-plot revolving around the dominating and devil-may-care Jem (“I’ll … take you home to your aunt, but I’ll kiss you first, whether you like it or not”); the excursions into Mary Webb territory, with odd meditations on the pagan past and bursts of nature mysticism; the strange but apparently sympathetic figure of Francis Davey, albino intellectual vicar. But, like Davey’s paintings, it’s all coloured by a strange and compellingly doomy atmosphere, a sense of a virtuous and independent-minded heroine who is threatened with being destroyed and has no power to resist.

To say that somebody could be ‘destroyed’ is obviously figurative – and there is a persistent, unspecific sense that something very bad is likely to happen to Mary. But Du Maurier does something rather clever at this point: she has Joss threaten Mary quite specifically, both with physical violence and with rape, and then tell her that he won’t be carrying out the threat. The reasons he gives for staying his hand vary – at one point it’s because she knows to keep her mouth shut about what goes on at the inn, at another it’s because he likes her independent spirit; obviously, this gives Mary a deeply mixed message. He underlines the point by having Mary work in the bar – which comes to life once a week, in a hellish vision of (male) violence and dissolution – and then telling her that he was the only thing keeping her safe: “Because you’re my niece they’ve left you alone, my dear, but if you hadn’t had that honour – by God, there wouldn’t be much left of you now!” Joss has the delicacy of an abuser, working away to undermine his target’s independence and ensnare her in contradictions (he holds back because he respects her independence, but she’s only independent for as long as he holds back). He’s also a brute, in word and deed (“Now get out, and if you ever ask me a question again I’ll break every bone in your body”). He’s an extraordinary character, and not without a ghastly kind of pathos.

Joss’s violence threatens to destroy Mary not only as a romantic heroine but as an independent person (“I’ll break you until you eat out of my hand the same as your aunt yonder”). The cowed, neurotic figure of Aunt Patience is an object lesson for Mary – this is what she could be reduced to. Patience also provides Mary with a reason to stay at Jamaica Inn until such time as she can get her away – although it’s not clear, to Mary or to us, how she could ever manage this. The threat to Mary’s independence and self-respect is all-pervading; even Jem, whose male power is depicted as alluring rather than threatening, talks of sex in terms of destroying Mary’s individuality: “Do they make you different from other women, then, down on Helford river? Stay here with me tonight, Mary, and we can find out. You’d be like the rest by the time morning came, I’d take my oath on that.” Later in the book, when Mary narrowly escapes being raped and is bound and gagged by two different people, spending most of one crucial scene face down on a beach, the irruption of actual brutality doesn’t come as a surprise; it’s the breaking of a thundercloud which has been building up for two-thirds of the book.

You’ll notice that I haven’t mentioned smuggling – or the worse crimes of which Joss is also guilty, a darker secret lurking behind the relatively open secret of the wagons unloading at midnight. The smuggling is actually fairly incidental to the book: all that matters is that there’s something very bad going on at Jamaica Inn (something which everybody there can see but nobody must talk about), and behind that there’s something even worse (a dreadful secret, kept hidden behind a locked door). Joss is at the core of the book: first he’s set up as a monster of psychological abuse and physical brutality, then he’s depicted in his element, as the landlord of an inn which is only ever frequented by people equally grotesque. The smuggling is part manifestation of Joss’s monstrosity, part answer to the question “how does he make it pay?”.

It’s a very powerful book, but – it’s worth saying – it’s also a very odd book. Until the denouement opens the plot out a bit, only six named characters appear, Mary apart – and five of them are out-and-out grotesques. (The exception is Squire Bassat, the magistrate and sole local representative of law and order, who is at once distant, ineffectual and threatening: when he visits the inn in Joss’s absence, Mary finds herself lying to him, her desire to protect Aunt Patience pushing her further into complicity with Joss.) It’s a vivid study of brutality – psychological as well as physical – and of a certain kind of abjection, both of which are very strongly gendered: throughout the book Mary dreams of buying her own farm and working it alone, “like a man”. One way of understanding the book is perhaps to see it as a fantastic, almost fairy-tale meditation on the conditions for women’s independence in a male-built world – much more of a real possibility when Du Maurier was writing in 1935 than in the book’s early-nineteenth-century setting, but still far from being a problem that had been solved.

If you watched the first part of the BBC dramatisation last night, you won’t have seen very much of this at all. What you will have seen is this. (Italics = element not in the book.)

After her mother’s death, Mary Yellan leaves behind her childhood sweetheart Ned and travels to Jamaica Inn. At the coach’s final stop before crossing the moor, she leaves the coach and bumps into Jem Flynn, a handsome young horse thief. The coachman refuses to take her to Jamaica Inn, so she asks around until she find somebody who will. At Jamaica Inn, her aunt and uncle are not expecting her. Joss Merlyn, her aunt’s husband, is a relatively small and nondescript man with a powerful physical presence. “Is she tame or does she bite?” he asks rhetorically; Mary bites him. Her Aunt Patience is a faded beauty with a spirited and independent nature, although she admits to being frightened of Joss. She is actively involved in Joss’s smuggling operation and justifies it to Mary; Mary disapproves of smuggling because her father was killed by smugglers. Serving at the bar, Mary hears one of Joss’s customers, a man called Zeb, sing a dirty song under his breath while following her around the room; the man tries to rape her and is prevented by Joss. Later, Mary sees Joss murder a man called Abe, an associate who is suspected of informing on him; Joss is reluctant to kill the man, but does so on the instructions of a third man, who is hiding in the store cupboard. The following day, Joss, Patience and some associates make a trip to the coast (in daylight) to retrieve some merchandise which has been thrown overboard; Mary goes along and takes an active part in the salvage operation, hauling on a rope at the head of a group of men. Mary goes to the nearest town and looks for a constable, but is dismayed to find that the local constable is Zeb, the man who had tried to rape her. She finds herself in the local church, where she meets the Reverend Francis Davey, who has a pleasant manner and an unremarkable appearance; he lives with his sister Hannah (their housekeeper, Beth, is the girlfriend of William, the man who had arranged for the merchandise to be thrown overboard). The vicar is called away to speak to a parishioner whose husband Abe had not come home the previous night. On the way home Mary runs into Jem, who rescues her from a bog when she blunders into it…

Enough already. Really, it’s an adaptation in much the same sense that Fifty Shades is an adaptation of the Twilight books. The writer seems to have had a positive compulsion to change the book – altering everything from tiny details (Aunt Patience not having got Mary’s letter) to characters (spirited Patience, conscience-striken Joss, philanthropic Francis Davey). Entire scenes have been invented without regard to plausibility: it’s specifically stated in the book that smugglers don’t collect contraband mob-handed and in broad daylight; Mary, a Cornish native but a newcomer to Jamaica Inn, does have the sense not to wander into a bog but doesn’t know the way back to town. The adaptation even short-circuits a major plot point: the idea that Joss is taking orders from somebody else is floated a couple of times but never seems very believable; it is only confirmed that he had been taking orders when the identity of his boss is revealed, and (in the book) both revelations are equally shocking. (In the book, incidentally, Joss has sole responsibility for the murder; the victim is not a suspected informer but an unnamed man who wanted out of his partnership with Joss. Mary only has circumstantial evidence that the murder happened at all, and nobody else ever refers to it.)

The result is a dramatisation with too much plot, too many characters and too little atmosphere – and a disastrously misjudged reading of the character of Mary. In the book, Mary’s passivity is key to both her virtue and her weakness -attributes which in turn are central to her character: she stays behind the bar, she refuses to have anything to do with anything illegal, and when she does venture out of the inn she’s forever getting picked up by a man in a coach and ending up where he wants to take her. Mary striding through a landscape of thinly-drawn but vaguely believeable characters – instead of a gallery of brutal and mostly nameless grotesques – is bad enough, but the real problem with this adaptation is that it has Mary striding anywhere. The book is all about a helpless but virtuous woman who can only dream of being independent, and the men who – brutally and subtly, viciously and sympathetically – arrange her life around her so that she can never achieve that dream. Lose that and you’ve basically lost the book.

Update The second instalment was, if anything, even less faithful to the book: in the first quarter of an hour there was only one scene that came from the book at all (Mary confides in Francis Davey that bad things are happening at the inn), and even that was barely recognisable. Some of the set-piece scenes were there – Joss’s horrific account of wrecking, Mary’s meal with Jem, the trip to Launceston – but even here fidelity to the book was kept to a bare minimum. (“I thought you had a house,” said Mary to Jem as they sat outside his tent in the woods. You’re not the only one.) The revelation of the identity of the Big Bad, Joss’s unseen superior – a genuinely shocking moment in the book – was thrown away; a weirdly irrelevant sub-plot about Francis Davey running a soup-kitchen was bolted on, as well as a downright unbelievable sub-plot about Mary’s father having also been a smuggler. (Aunt Patience is Mary’s mother’s sister; Mary and her mother were from a completely different part of the county. The women in that family must just have had a thing for smugglers). Above all, the character of Mary rang false, over and over again – and in the same way. In the book, Mary didn’t respond to Joss’s confession with anger and defiance; she didn’t tell Jem to serve himself (in fact she cooked the meal herself, after sweeping up); she didn’t kiss Jem first; she didn’t agree to get a room with him; and she certainly didn’t dress in breeches for the trip to Launceston. (And when she was frocked up, it seems highly unlikely that she would have ridden astride.)

I suppose I can understand somebody reading Jamaica Inn and finding Mary a bit wet and domesticated, but at the end of the day it’s what’s on the page – and with good reason. You can’t replace Mary with an Independent Woman without losing any claim to historical accuracy, or – more importantly – without doing violence to the entire structure of the book.

When strangers were welcome here

There’s a particular move in populist politics which I think of as the Death Spiral. (I was going to call it the Death Spiral of Hate, but – while indubitably more precise – that wording is probably cranking it up a bit too high for the first paragraph of a post.) It’s a bit like conjuring a folk devil and a bit like a political bidding war; it’s more contained and predictable than the folk devil phenomenon, though, and it’s unlike a bidding war in not needing a partner (although others can certainly join in).

It goes like this. First, somebody in government (or in friendly media) stokes up hatred against a particular group. Then the government responds to public concern – well, you’ve got to respond to public concern, haven’t you? – and takes action against the group. Here’s the twist: the action that the government takes doesn’t lead the hatred to subside; the angry mob doesn’t put down the pitchforks and douse the torches, satisfied that somebody’s finally listened to them and done something. The government’s action leaves the well of popular hatred very much undrained; it may even top it up. Because then, after all, the public can once again express its very real concerns – and that will give the government something to respond to (you’ve got to respond to real public concerns). Once started, the process can go round and round indefinitely: the government and its supporters sing an endless call-and-response of resentment and self-righteous severity, opposition parties are wrong-footed or forced to tag along, and everybody’s happy – except the poor sods who are getting interned, denied benefits, etc.

For example: five years ago Louise Casey – then working for the Labour government as a consultant on ‘community’ issues – argued that community sentences should be made both tougher and more visible. People carrying out unpaid work as part of a non-custodial sentence should do it out in public where people can see; to make sure people do see, they should wear those orange boiler-suits out of Misfits, or hi-viz jackets, or both. So people doing ‘Community Payback’ would become a familiar sight; instead of thinking of community sentences as a soft option, people would see the reality of ‘community punishment’ and think… well, what? Would they think, those kids picking up litter are really suffering – that looks just as bad as prison to me! It seems more likely that they would see people in orange boiler suits who weren’t working particularly hard (they might be chatting among themselves, they might even be stopping for a fag) and think, I used to think community service was a soft option – now I’m sure!. Five years on, the perception of non-custodial sentences as a soft option certainly doesn’t seem to have gone away.

My son brought another example to my attention the other day. You know this proposal to deny benefits to immigrants until they’ve been here for three months? Won’t that make them more likely to take any job that’s going, even below the minimum wage, even working cash-in-hand? “Mmm, yeah,” I said. And won’t that… I caught up. “Won’t that create more competition with the very lowest-paid British workers, thereby creating even more resentment of immigrants and even more pressure to get tough on immigration, again? Yes, I think it will.”

Whatever else I could say about Louise Casey and David Cameron, I don’t think either of them is stupid; as PM, Cameron even has a kind of intellectual praetorian guard, responsible for making sure that his ideas are in working order (as well as for preserving him from contact with any ideas from the outside world). I think he knows what he’s doing (as did Casey); I think he’s identified an appetite that will grow with feeding, and he’s making sure it’s fed.

It’s sometimes argued that populism is directionless and reactive, subject to lurches in any number of directions; it’s sometimes even argued that populism can or should be used by the Left (“where’s the Nigel Farage of the Left?” and so forth). On this way of thinking, ‘Death Spiral’ effects emerge when populism just happens to lurch in the direction of giving an unpopular minority a kicking. They may be no more than an unfortunate side-effect of giving the people what they think they want, in other words. Ed Miliband’s intervention gives the lie to this argument and throws the Death Spiral into relief, by demonstrating that it’s not the only way to address people’s worries about immigration. While it doesn’t necessarily go as far as Mike would have liked (and certainly isn’t framed in his terms), Ed’s statement takes on those who attack economic immigration and effectively calls their bluff. After all, the problem of low-paid immigrants – to the extent that there is such a problem – is by definition a problem of employers choosing to (a) employ immigrants to the exclusion of native workers and, not unrelatedly (b) to pay immigrants less than native workers; constrain those choices (whether from above, as Ed prefers, or from below) and a material source of conflict between two groups of workers disappears. (Those two groups may still hate each other on the basis of free-floating prejudice, but those feelings tend to fade over time – at least, they do if they aren’t reinforced.) Marxists know that the important antagonisms start with material interests, and that that’s where the changes need to be made. And so does Ed.

Another group which is supposed to take a grown-up view of immigration are the economic liberals, and particularly the intellects vast and cool and unsympathetic of right-libertarianism. Bryan Caplan certainly sets the right tone at the outset of his 2012 Cato Journal paper (PDF), arguing that there are no relevant differences between a Haitian being denied entry to the US and a US citizen going to Haiti on a relief mission and then being denied re-entry. (Oh, very well, a US citizen and all of his/her family went to Haiti to help out, and they were all denied re-entry. Happy now?) But we needn’t join Caplan in his helicopter to appreciate the force of his arguments against restrictions on immigration. Caplan addresses four arguments against free immigration, focusing on its effects on low-waged workers, welfare spending, cultural cohesion and the political sphere; he argues in each case that the costs may not be as high as they’re made out to be, and that any costs which are incurred can be mitigated at a lower overall cost than the cost currently imposed by restricting immigration. He concludes:

there are cheaper and more humane solutions for each and every complaint. If immigrants hurt American workers, we can charge immigrants higher taxes or admission fees, and use the revenue to compensate the losers. If immigrants burden American taxpayers, we can make immigrants ineligible for benefits. If immigrants hurt American culture, we can impose tests of English fluency and cultural literacy. If immigrants hurt American liberty, we can refuse to give them the right to vote.

There’s a lot to like about this paper (I’ve always considered myself a libertarian Marxist), but two aspects of Caplan’s argument gave me pause. One, exemplified by the passage quoted above, is the nonchalantly instrumental use made of some fairly sweeping restrictions on citizenship. It seems to me that to declare that any member of a defined category of individuals will be denied the vote – or denied welfare benefits, or taxed at a higher rate on equivalent income – is to institutionalise inequality, making members of that category significantly unequal to the majority in their enjoyment of the benefits of citizenship. In other words, Caplan is entertaining the possibility of addressing the lack of liberty involved in shutting people out from a given country by letting those people in as second-class citizens. (I don’t say Caplan is proposing doing so, as the main argument of his paper is that the disadvantages of free immigration are either non-existent or much less significant than we imagine. The second-class citizen solution is put forward as a subsidiary argument.)

I find this troubling on a number of levels. Firstly, if we’re talking in terms of nation states – as we plainly are if we’re talking about taxation and welfare benefits – I think it’s legitimate to treat the question of who is allowed to enter a country quite separately from the question of how people are treated within the country. Ultimately I’m for a world with no border controls and no borders, but ultimately I’m for a world with no wage labour. In the mean time, I think that making everybody within an arbitrary area on the map a full citizen, but making it difficult to enter that area, is a more equitable solution than making the border permeable but introducing gradations of citizenship within it. If that’s the only way to get to open borders, in other words, then I’m not so keen on open borders as I was. Secondly, I value citizenship as a good in itself, and I believe that universality (within a given political unit) is one of its key attributes; I’m unhappy with any solution (to any problem) which turns on instituting different categories of citizenship. (Needless to say, I’m opposed to this even – or especially – in cases where it is actually being done: I believe that people who don’t look for work should not be denied unemployment benefit, that visitors to the UK should not be made to pay for healthcare, that prisoners should not be deprived of the vote, and so on.) Thirdly, I wonder what the introduction of graduated citizenship for non-natives would do to citizenship as an experienced social category: would it accustom people to the idea of multiple citizenships, making it possible for further gradations to be introduced and for full citizenship to be restricted to a smaller group? Lastly, I’m particularly troubled by the thought of living in a country where second-class citizenship is imposed on a recognisable and unpopular minority – or, to put it another way, being ruled by a government which imposes second-class citizenship on such a minority. I wouldn’t like to live under a government like that for precisely the same reason that I wouldn’t want to live under a government that closed the borders: in both cases, the government would be differentially imposing restrictions on people disliked by most of its voters. It seems to me that there’s a certain political tone-deafness about Caplan’s paper when he floats these proposals. Immigration restrictions might be enacted by an anti-immigrant government courting immigrant-hating voters, but the same would surely be true of restrictions on benefits or voting rights for immigrants. Even if they were enacted in the purest spirit of right-libertarianism, they would be received as blows against an unpopular minority – and those who welcomed them would soon grow hungry for more.

Secondly, there’s an odd passage in the section in which Caplan addresses the effects of free immigration on the political sphere. The worry here – more of a worry for right-libertarians than for me, or indeed most of us – is that immigrants might bring a ‘statist’ political culture with them and shift their host country’s political spectrum to the Left. After noting that there isn’t much evidence of this happening (for good or ill), Caplan moves on to the effect of ethnic diversity on social solidarity, as expressed in support for a redistributive state. He cites research to the effect that the relationship between the two is inverse – more diversity, less solidarity – and comments:

Social democrats may find this tension between diversity and solidarity disturbing. But libertarians should rejoice: increasing foreigners’ freedom of movement may indirectly increase natives’ freedom to decide who deserves their charity.

Ahem. We weren’t actually talking about charity as such in fact that’s rather the point. (Sorry, just had to say that.) Anyway, there’s more where that came from:

Immigrants are the ultimate out-group. Even today, Americans publicly complain about “immigrants” in language they would never use for blacks or gays. If the knowledge that foreigners attend “our” public schools and seek treatment in “our” hospitals does not undermine support for government spending on education and health care, nothing will.

OK… what just happened? Right-libertarians should support free immigration, not only despite widespread hatred of immigrants but, in part, because of it? The thinking seems to be that right-libertarians should welcome a proprietary, in-group-based attitude to public services, because the extension of those services to immigrants will undermine that attitude and hence discredit the public services themselves. Pride in public services is all to the good, as long as it comes into conflict with the reality of public provision and generates disillusion; and hatred of immigrants is all to the good, as long as its main effect is to undermine social solidarity. Unrestricted immigration may lead to the development of a society of endemic self-centredness and mistrust (by multiplying the objects of distrust and fear), but this in itself should be welcomed: a cohesive, high-trust society is a society where people tend to support public provision of services.

What Caplan is expressing, or – what’s the word? – adumbrating here is the logic of the Death Spiral. If you start pointing out how public money is being spent on the wrong services (and especially) for the wrong people, that won’t lead to a trimmed and rationalised set of public services which everyone can be happy with – it’ll lead to an endless whittling away of those services, as more and more occasions for outrage are unearthed. What’s interesting about Caplan’s argument is that the Death Spiral is set out quite openly and frankly: the more immigrants are seen to be using public services, the more pressure there will be to reduce those services – and the less tolerance there will be for immigrants using them.

The underlying logic of the Death Spiral is cynical and simple: there is an out-group, there are people who will be satisfied by seeing it get a kicking, and their satisfaction can be exploited – either for political support or to further a larger objective, as in Caplan’s argument. We’re dealing here with what John Rawls called “other-directed preferences”. Rawls argued that a just political order should give equal weight to all citizens’ preferences, but only their “self-directed” preferences: my desire to have the vote, a decent education and opportunities in life should be recognised, but not my desire to deprive you of those things – even if there were a lot of ‘me’s and only a few ‘you’s. I think it’s definitive of populism that it valorises, and orchestrates, other-directed preferences: populism isn’t always socially reactionary, but even the mildest, most herbivorous populism expresses preferences directed at politicians (generally binding and restricting their actions). With Marxism, other-directed preferences aren’t part of the package, the odd revenge fantasy about bankers excepted; in action, Marxism is all about universal needs and generalised empowerment to achieve them. As for right-Libertarianism, Caplan’s unconcern for universal citizenship and his willingness to turn his hand to a Death Spiral argument both make me wonder. Certainly we shouldn’t judge the whole tribe by the Randians, with their grim relish in the come-uppance of the second-handers. Maybe right-Libertarianism isn’t just about dismantling public services, replacing citizenship entitlements with a cash nexus, and be damned to anyone who happens to be dependent on public provision when it all comes down; maybe at its core it’s a genuinely universalisable creed, which can be grounded in my, your, his and her own preference for liberty in just the same way that Marxism can be grounded in our shared preference to eat. But I wonder.

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