Hart and me

About two months ago I started reading H.L.A. Hart’s Essays in Jurisprudence and Philosophy. I’d read Hart’s The Concept of Law and found it fascinating; it sets out a model of the law to which I’m strongly opposed, but it does it in a way that leaves very little purchase for criticism. I took the volume of essays out from the library on a whim a while ago and started reading it in June.

About six weeks ago I started writing about Hart’s Essays in Jurisprudence and Philosophy, and once I’d started I found it hard to stop. By the time I reached the end of my mental list of issues on which I felt I needed to make some comment – if only to clarify my own thoughts – I’d read another thirteen papers (by Duxbury, Dworkin, Ely, Gardner, Green, Keating, Kramer, Lyons, Mackie and Rawls) and written fifteen blog posts, totalling just under 30,000 words.

I don’t know if there’s a paper in there anywhere; I’m self-taught in this area (my background’s in history) and my arguments are probably fairly basic. But I’ve enjoyed doing it.

For future reference – if only my own! – here are links to those fifteen posts, with a representative quotation from each one. Share and enjoy!

 

The first three posts are in response to the 1976 paper “Law in the perspective of philosophy”.

Some baby! (Hart on Nozick) (800 words)

“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.”

Hart, Nozick, Dworkin (in that order) (2400 words)

“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.”

Earthbound skyhooks: Rawls and Dworkin (also responds to the 1973 paper “Rawls on liberty and its priority”) (1400 words)

“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.”

 

The next six posts all address arguments in “Rawls on liberty and its priority”, taking into account Rawls’s responses in his 1982 lectures published as “The basic liberties and their priority”.

Hart on Rawls – 1 (2100 words)

“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.”

Hart on Rawls – 2 (1900 words)

“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.”

Hart on Rawls – 3 (1600 words)

“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 on Rawls – 4 (2300 words)

“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”

Hart on Rawls – a review (1500 words)

“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 names of the Rawls (1400 words)

Rawls, quietist: “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.”

(The other names I tried out are ‘bourgeois liberal’, ‘right Libertarian’, ‘Right Hegelian’, ‘utopian’ and ‘Pragmatist’ (note capital P).)

 

The next post stands on its own, as does its infamously difficult subject:

Mutterings in favour of Kelsen (in response to “Kelsen visited” (1963) and “Kelsen’s doctrine of the unity of law” (1968) (2000 words)

“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.”

 

Finally, a series of five posts relating to Hart’s debate with Lon Fuller. The focus is on Hart’s concessions to natural law theory, taking into account two papers by David Lyons. Hart suggested that Lyons’s arguments – supporting a position on natural law in some ways more severe than Hart’s – might prompt ‘considerable modification’ of his own position, although he did not (to my knowledge) follow up this suggestion.

Hart and natural law: the three concessions (2200 words)

“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.)”

Hart and natural law: Lyons on formal justice (2300 words)

“In [one hypothetical] case, we know that the law is just and that a just decision is, at least, highly likely; in [another], 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.”

Hart and natural law: Lyons on Fuller (1300 words)

“[Lyons writes:] ‘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.”

Hart and natural law: the three concessions reviewed (3000 words)

“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?”

Hart and natural law: reactions (2900 words)

(On three papers by Matthew Kramer, Leslie Green and John Gardner)
“Kramer’s critique of Lyons is excellent, and his position on procedural justice – that it is a virtue but should not be seen as a moral virtue – seems authentically Hartian; I was not convinced by the argument by which he supported it, though. Green fills out the legal positivist background very usefully, as well as alighting on a potential connection – not necessarily one Hart had in mind – between a procedural morality of law and the minimum content of natural law. Gardner’s paper does an excellent job of presenting Hart as a liberal idealist, albeit one with a neuralgic reaction to the word ‘morality’; the argument is very much in line with my own thinking about the law, but as an interpretation of Hart I found it less persuasive.”

 

About a boycott

A few basic principles about boycotts.

1. Politically-motivated choice is legitimate

1.1. Jane is purchasing a good, which we’ll call G. What G is doesn’t matter – some oranges, a magazine subscription, a cultural event which her organisation will host. G1 and G2 – the offerings from suppliers S1 and S2 – are more or less equivalent in Jane’s estimation. She has to choose one or the other; she chooses G1 over G2 not because of anything to do with the good itself, but because political principle P predisposes her against supplier S2.

1.2. This choice, as described, is plainly legitimate. It’s a familiar kind of calculation: under apartheid, South African apples and wine were (probably) as good as similarly-priced alternatives; like many other people, I chose not to buy apartheid produce. Ultimately it is no different from a politically-motivated positive choice: the choice to shop at the Co-op rather than Tesco, say, or to take out a subscription to Red Pepper rather than the New Statesman.

1.3. Of course, we may not agree with the specific principle P which motivates Jane’s choice, and if so we may not approve of the choice. But we should not expect to approve of all Jane’s choices, unless we already know that we are in complete agreement with Jane. If Jane’s purchases are guided by her enthusiasm for veganism or her support for the Liberal Democrats, she is not going to make the same choices that I would make. Her choices are her concern.

1.4. One person’s choices may have effects on other people. If I disagree with Jane’s principles, then – to the extent that her choices affect me – I may well not be happy about them; if Jane is doing my shopping for me, I may even end up asking somebody else, with more sympathetic principles, to do it. But Jane’s choice – like my choice in this second scenario – remains legitimate: she is a free and rational individual who has the right to hold her own set of principles P and choose how to follow them, as are we all.

2. Boycotts are legitimate

2.1. A boycott is a special type of politically-motivated choice. Jane boycotts supplier S when she chooses to go without good G altogether rather than offend against principle P. It is intrinsic to a boycott that G is valuable. (If G were not of particular value – if it were a matter of choosing between broadly equivalent rival Gs – we would be looking at a choice rather than a boycott; and if G were of no value to Jane she would not have chosen to purchase it in the first place and the question would not arise.) A boycott is a sacrifice: Jane is giving up G, which she values, for the sake of P.

2.2. Somebody carrying out a boycott imposes a disproportionate cost on herself – disproportionate in the sense that P is taken as an absolute constraint, not to be weighed as one factor among others. This, too, is legitimate. When I was younger I had a particular fondness for Granny Smith apples – no other fruit hit the spot – but I would and did deprive myself of them rather than buy South African. Again, we can liken the disproportionate cost of a boycott to the disproportionate cost of a positive choice: the decision to take out a subscription to Red Pepper in the certain knowledge that one wouldn’t read it, for example. (Perhaps because one already had a subscription. It’s really quite good these days; the cultural coverage has improved a lot.)

2.2.1. The value of G is not an argument against boycotting S. A boycott is a sacrifice; the more valuable G is, the greater is the sacrifice undertaken in boycotting its supplier S. A boycott cannot be challenged by emphasising the value of G (but you really like Granny Smiths!). If anything, the value of G counts in favour of the boycott: if G is extraordinarily valuable, the boycott is an extraordinarily powerful demonstration of Jane’s commitment to P.

2.3. We saw, in the broader case of political choices, that one person’s choice can affect other people, and that someone who disagrees with P may not approve of choices motivated by P. Both of these points necessarily apply in the case of a boycott. Suppose that Jane is an extreme right-winger who supported the Pinochet regime and holds a grudge against all subsequent Chilean governments. Most people reading this will not approve of Jane choosing not to buy Chilean produce, all other factors being equal, on those grounds; a fortiori, we would certainly not approve of Jane applying an absolute boycott to Chilean goods on those grounds.

2.4. Nor would we be happy about Jane doing our shopping for us, if we were housebound or incapacitated. But Jane’s choices are still legitimate, despite the repugnance of their grounds – and hence of their consequences, or rather of the implications which can be drawn from their consequences.

2.4.1. The value of G to a third party is not an argument against boycotting S. The argument at 2.2.1. holds: the message of the boycott is now that Jane’s commitment to P is such that she is willing to bear the cost of disappointing other people by depriving them of G. An ethical greengrocer could choose to refuse to stock South African produce, even in the knowledge that its customers had a particular fondness for Granny Smiths and did not share her beliefs. The choice might not be good business, but it would be legitimate and should be respected as such.

3. Politics come first

3.1. It makes no sense to challenge a boycott as harmful or costly: a boycott is a sacrifice. It makes no sense to challenge a boycott as disproportionate: it is in the nature of boycotts to be disproportionate.

3.2. A boycott is a costly and disproportionate act carried out in commitment to a political principle. To the extent that we do not share that commitment, we will not approve of the boycott.

3.2.1. However, to the extent that we do not share that principle, we would not approve of any action motivated by it, just as we would not agree with any statement made to advance it.

3.2.2. The political discussion is separate from the question of the legitimacy of the tactics used.

3.3. The key question to be asked of a boycott is: assuming rational actors motivated by a genuine commitment to a political principle which can legitimately be held, can this disproportionate sacrifice be justified? (The question is not whether we believe that it is justified.)

3.3.1. This is a question expecting the answer Yes. A boycott is, in principle, a legitimate political tactic, irrespective of our position on the political cause involved. (It may on occasion not be the best tactic to use, but this is a question for the people using it.)

3.3.2. To say that a boycott is not a legitimate tactic is, generally, to say that the principle for which it is undertaken is not a legitimate political cause.

4. Inconsistency is irrelevant

4.1. If I have never stolen, I can steal for the first time. If I have never handled other people’s money without stealing, I can choose not to steal for the first time. Perhaps the acts I have never carried out are political: I have never taken out a magazine subscription on the basis of a positive political commitment, or crossed ‘apples’ off my shopping list on the basis of a negative commitment. This has no bearing on whether I choose to do either of these things in future.

4.2. The value of an action is not determined by whether the actor has ever done it before; the legitimacy of a choice is not determined by whether the actor has ever made that choice before.

4.3. To criticise somebody for imposing a boycott for the first time, in pursuit of a principle one supports, would amount either to holding them to account for something they are no longer doing or criticising them for an improvement in their conduct.

4.3.1. We may believe that the boycott is an aberration and that in future their conduct will return to its original course; however, this in itself does not give any grounds for criticising their present behaviour, which by definition we approve of.

4.4. We may criticise somebody for imposing a boycott for the first time, in pursuit of a principle we do not support; in this case, however, we would not be criticising their inconsistency but (simply) the fact that they were taking action in support of a principle we did not support.

4.5. The fact that a boycott is being imposed for the first time cannot make it illegitimate.

5. Selectivity is inevitable

5.1. In one light, selectivity at a given time and inconsistency over time are the same concern, and are equally irrelevant. Why did I steal from that particular newsagent when I’d never stolen before? Because that was where I happened to be. Why did I hand over this purse untouched when I’d always stolen from them before? Because that was the one I was handling when the pangs of conscience struck. There is no reason to ask these questions.

5.2. Someone boycotting a particular supplier S, on the basis of a particular (legitimate) principle P, can be accused of ‘singling out’ S. There may be many potential suppliers – S1, S2, S3… – whose deserve to be boycotted on the basis of P. Moreover, there are many legitimate political principles – P1, P2, P3… – on the basis of which boycotts could be implemented. Why this principle? Why this supplier?

5.2.1. To guide one’s conduct by every imaginable political principle (P1, P2, P3…) is an obvious absurdity.

5.2.2. To guide one’s conduct, to any significant extent, by every political principle to which one assents would in practice be impossibly burdensome, unless one’s political commitments were extremely limited.

5.3. The narrower goal of applying a single principle with complete consistency – boycotting every supplier who infringes it (or else boycotting none of them) – may seem realisable in theory, but reflection shows that complete consistency would require complete knowledge and the willingness to take any imaginable cost.

5.3.1. Complete consistency in the application of a single principle is an ideal rather than a standard: in Fuller’s terms, part of a morality of aspiration (a set of excellences one aims to realise) rather than a morality of duty (a set of minimum requirements one undertakes to meet).

5.3.2. To criticise somebody for inconsistency in the application of a principle one supports is to criticise them for failing to realise an ideal, not failing to meet a standard.

5.4. To criticise somebody for inconsistency in the application of a principle one does not support is, in general, to criticise them for acting on that principle at all (see 3.2.1.).

6. Equality is difficult

6.1. Although the effects of a boycott on third parties do not, in general, affect the legitimacy of the boycott (see 2.4.1.), a boycott whose effects tend systematically to disadvantage a particular population group – by depriving them of goods or services, or even by causing them offence and distress – may be illegitimate for that reason.

6.1.1. This is true of any action which has such effects; there is nothing about boycotts making them particularly liable to delegitimation on these grounds.

6.2. The principle of non-discrimination is unproblematic in the case of innate characteristics such as gender and ethnicity, and relatively unproblematic in the case of religion (which very often amounts to an innate characteristic, at least in the perceptions of the believer herself).

6.3. Extending it to political beliefs – even long-held and hard-to-change beliefs – is problematic, however.

6.3.1. To hold a political belief is to believe that certain changes should be made to the distribution of wealth, power and relatively advantage, and that certain arguments should be made and listened to more widely.

6.3.2. To pursue a political belief is to make arguments which may offend one’s opponents, and to attempt to realise changes which will disadvantage them.

6.4. There is an asymmetry built into prejudices against innate characteristics: the political actor who aims to disadvantage Jews, Muslims, women or children has many opponents who are not political actors.

6.4.1. By contrast, political prejudice is symmetrical: to be prejudiced against Liberal Democrats, for example, is to be prejudiced against political actors like oneself.

6.4.2. Within the political context, animosity towards other political actors is normal; within this context, the idea of political prejudice has very little meaning.

6.5. To delegitimate political discrimination is to cantonise politics as a specialised pursuit, only engaged in at set times and in certain places.

6.5.1. This is undesirable.

6.6. To delegitimate political discrimination in a given area is to delegitimate political action in that area.

6.6.1. In some areas (e.g. the employer/employee relationship) political action should in fact be illegitimate, making the delegitimation of political discrimination unproblematic.

6.6.2. In others, outlawing political discrimination (and hence political action) may be the only way to be sure of outlawing racial or religious discrimination.

6.7. In all cases, delegitimating political discrimination has a cost and should only be undertaken with that cost borne in mind.

Hart and natural law: reactions

The spark for this series of posts was a brief comment at the end of the Introduction to Hart’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.

As well as wanting to investigate the possible implications of this suggestion myself, I was intrigued to see what writers on Hart had made of it. A quick literature review – carried out by the unscientific method of searching for the name Hart and the phrase “requires considerable modification” on Google Scholar – brought back three papers, by Matthew Kramer, Leslie Green and John Gardner. (This is not a discussion of Hart’s approach to procedural justice more generally, which would have to range much more widely. To name only the most obvious omission, Gardner’s paper is a response to Nigel Simmonds’s book Law as a moral idea - which I read some time ago and, I’m afraid, have not re-read for this blog post.)

Here, then, are our three authors on Hart on Lyons, and on Hart’s later inclination to row back from the idea that “the very notion of a general legal rule applied according to its tenor to all its instances” embodied a form of justice.

Kramer, M. (1997), “Justice as constancy”, Law and Philosophy 16:561-80.

The focus of Kramer’s paper is on Lyons’s argument against classing formal regularity as procedural justice, and on Lyons’s challenge to Hart. I have argued that there is some equivocation in The Concept of Law as to whether procedural justice is merely a technical merit of a well-functioning system of law – just as killing without detection is a technical merit of a well-functioning poison – or a quality which deserves the name of justice, albeit without any necessary moral weight. Lyons argued for the first of these positions; Kramer argues persuasively for the second. Procedural regularity, Kramer argues, “ensures that official conduct in the administration of laws is no worse (and no better) than what is required by the substantive standards of fairness in the laws themselves”; “procedural justice ensures a minimum of substantive justice – a minimum that is also a maximum, to be sure”.

Lyons argued that Hart’s briefly sketched examples of procedural justice – treating like cases alike, following a rule, impartiality – were empty in the absence of substantive criteria of justice; he went on to argue, contra Hart, that the justice of rule-following was no such thing and that rule-infractions were no more ‘unjust’ than infractions of the rules of grammar. In this respect Kramer’s paper arrives at similar conclusions to my posts, by a slightly different route. Where I had argued that Hart’s idea of procedural justice is best understood as a combination of rule-following and impartiality (in cases where discretion is required), Kramer focuses on rule-following and dismisses impartiality; however, he dismisses it as a stand-alone virtue and does not discuss the relationship between impartiality and discretion. Similarly, with regard to the neutrality of laws and the comparison between criminal and grammatical offences, I wrote:

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

(“Allocative justice” refers here to the assignment of legal statuses (e.g. ‘guilty’) and of criminal penalties, which are justly allocated when allocated to those who deserve them. The same argument holds if we think in terms of “corrective justice” instead.) Kramer wrote (in 1997):

a charge of procedural injustice can be perfectly apposite in connection with an infringement or a putative infringement of a linguistic norm – provided that the charge pertains to the groundlessness of someone’s condemnation (or exoneration) of the person who has allegedly infringed (or actually infringed) the norm. When we determine whether a procedural injustice has occurred in relation to such a norm, what matters is not the norm’s morally neutral status but the misdirectedness of someone’s judgment about someone else’s compliance or noncompliance with the norm’s requirements.

Kramer’s main argument turns on his reference to procedural justice as “a minimum that is also a maximum”. As such, he argues, it may be profoundly immoral, to the extent of enforcing the violation of moral obligations:

Although an official of course has a moral duty not to enforce a wicked mandate in situations where it is inapplicable, he does not have a moral duty – even a prima-facie moral duty – to enforce the mandate in situations where it indeed is applicable. He has a moral obligation not to go below the minimum of decency secured by procedural justice, but he also has a moral obligation not to treat that minimum as a maximum.

Where procedural justice sets a minimum (preventing unrestrained official harshness), it is moral; where it sets a maximum (preventing unrestrained official benevolence) it is immoral. Since it always does both of these things, it must be considered as, in itself, neutral – neither moral nor immoral. This is a powerful argument, but focuses – as had Lyons – on the justice of the outcomes produced by procedurally just or unjust processes. As I posted earlier, I think it is sustainable that an inconsistent and arbitrary application of the law carries injustice in itself, by singling out individuals for disrespectful treatment on grounds which are not open to them to understand or challenge. There is no difference in this sense between procedural injustice which produces unlawfully harsh outcomes and procedurally unjust favourable treatment: in both cases, injustice is done to the population as a whole, none of whom can have any confidence that the law will address them as individuals responsible for steering their own conduct.

Green, L. (2010), “The germ of justice”, Oxford Legal Research Paper 60/2010.

Green takes his title from one of Hart’s remarks about procedural justice: “though the most odious laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ at least of justice”. This ‘germ of justice’ argument stands alongside Hart’s denial of any necessary moral content to the law – “it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” – and may seem to contradict it, particularly if Hart is held to his earlier formulation: “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”.

Green asks: if the law (as a system of general rules) offers ‘the germ of justice’ and as such has some necessary contact with moral principles (the ‘as such’ here is the connection broken by Kramer’s argument), how can this be reconciled with Hart’s “separation of law and morals” – now commonly referred to as the ‘no necessary connection’ thesis? To be more precise, Green asks two questions: whether the ‘germ of justice’ thesis can be held consistently with legal positivism, and how (if so held) it could be true. An answer to the first question is to point out that the formulation ‘no necessary connection’ may be altogether too broad: to say that law does not necessarily “reproduce or satisfy certain demands of morality” is not to deny a number of other possible claims about law and morality, which a positivist might feel able to concede (e.g. “law necessarily deals with moral matters; law necessarily makes moral claims on its subjects, law is necessarily apt for appraisal by moral standards”). It may then be that a purely procedural morality of law – summed up in a statement such as “a functioning legal system is morally superior to a poorly-functioning system” – can similarly be entertained alongside a commitment to legal positivism (although Kramer, for one, would not accept this). Another answer is to stress that the ‘germ of justice’ is consistent with key principles of Hart’s legal positivism – specifically, what Green terms the ‘social thesis’ and the ‘fallibility thesis’. In other words, we can hold that the application of the law is always (in some, unspecified and perhaps very minimal, sense) a moral endeavour while also holding that the law is a social construction on which morality has no prior claims, and that actually existing legal systems may be highly fallible in terms of the justice they deliver. The ‘germ of justice’ in this latter formulation is reminiscent of Hart’s half-concession towards Fuller (“if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.”); it is a germ that makes no justice.

Green’s answer to his second question covers similar ground to Kramer’s response to Lyons, as well as the conclusion of my post on the purpose of law. Green notes the strong association between norms of allocation and the law, on one hand, and justice on the other: “perhaps we can say that every legal system contains allocation norms, that they are among the most important norms in the system, and that it is among these norms we find norms of justice”. Pursuing this line of thinking, Green notes that “Law is not just any old bunch of social rules”: “if there were general virtues of rule-application, and even if these had something to do with justice, then they would turn up promiscuously whenever and wherever rules are being applied. … If it were simply the ruly character of law that produced the germ of justice, then justice would have no more intimate association with law than it has with grammar or football.” Rather, the function of the legal system is to equip society with “institutions that can identify and authenticate the rules of the system, and that can render binding determinations in any disputes about them”. Hence the connection to allocation norms: “[a]uthoritative adjudication is in its essence an allocative enterprise, for its core function is to settle who is to get what, and on what grounds.” Perhaps, then, the establishment of a legal system (founded on the basic principles of procedural justice) represents the ‘germ of justice’ because it is the fundamental precondition of subjecting society to the rule of law. This remains compatible with the ‘social’ and ‘fallibility’ theses, and with a narrow reading of the ‘separability’ thesis:

To say that a legal system must of its nature settle disputes about certain kinds of concerns, and that these are moral concerns, is not to say that it must do so well or even tolerably. And as Hart insisted time and again, to say that every legal system must deliver the goods to some people does not show that it must deliver the goods to everyone, and that one of the characteristic ways that law can fail, consistently with satisfying the minimum content, is by not delivering them justly. But if we have law-producing and law-applying organs, then we do at least have social machinery by which justice could be made effective

This is an interesting and cogent argument, whose strengths (at least from my point of view) include the fact that I was thinking along similar lines before I read it; great minds, etc. Its key weakness is that – as Green concedes – the route it takes from premise to conclusion does not track Hart’s own thinking; indeed, the rule of law was a topic which Hart seems to have largely avoided, possibly mistrusting its potential for adverse judgments of ‘unlawlike’ legal systems.

Gardner, J. (2010), “Hart on legality, justice, and morality”, Oxford Legal Research Paper 44/2010.

After some fairly knockabout remarks aimed at Nigel Simmonds, Gardner focuses on Hart’s brief and often equivocal remarks about procedural justice (and about Fuller’s ‘inner morality of law’). He concedes that Hart can be interpreted as expressing outright scepticism about the concepts in question (the alternative being acceptance with limited enthusiasm). If a sceptical reading is preferred, Gardner argues, the question is where – in his formulation – the chain is to be broken: is Hart supposed to have believed that law had no necessary connection with the ideal of legality; that the ideal of legality had no necessary connection with justice; or that justice had no necessary connection with morality? In an illuminating argument, Gardner argues that Hart’s conception of law as a system of rules – “general standards of conduct communicated to classes of persons, who are then expected to understand and conform to the rules” – brings with it an assumption that laws are intended to be followed, and not simply cited by officials as a justification for coercive behaviour modification. It follows logically – whether or not Hart himself would have wished to draw this inference – that, to the extent that more laws within a system are being obeyed intelligently and willingly, that system is more lawlike. In Gardner’s words,

the ideal of legality or the rule of law is an ideal for law because there is a conceptually necessary feature of a legal system, namely that it is a system of rules, which entails that it has a proper way of functioning as a legal system, namely by guiding or (as we also put it) by ruling those who are subject to it.

As for the relationship between legality and justice, Gardner argues that the principles of legality are principles of justice: they guide free and rational individuals in such a way as to make it possible to reach a satisfactory adjustment of claims between multiple individuals. At this point Gardner endorses Lyons’s critique of formal justice (more or less in passing), dismissing any connection between justice and the law in and of itself. As with Lyons himself, the argument here seems to rest on a broader and more expansive definition of ‘justice’ than is usually implied in the phrase ‘procedural justice’. The question of whether, if an unjust society began to follow its rules more uniformly, there would be any gain in justice is not directly addressed.

Gardner sews up the relationship between legality and justice fairly tightly, but in an argument which I found difficult to paraphrase and not much easier to get to grips with. On the relationship between justice and morality he is more inconclusive and to my mind more interesting. He canvasses three readings of Hart on morality and the law, and the ‘inner morality of law’ in particular. One is that Kramer’s reading is correct – Hart believed in justice as a (more than technical) virtue of functioning legal systems, but not as a moral virtue. This reading is well supported by Hart’s own words; Gardner seems to reject it because he finds it too outlandish. A second is that Hart’s lukewarm endorsement of Fuller’s ‘inner morality of law’ should be taken at face value: Hart believed that Fuller had indeed identified a morality of law, but not a complete set of moral criteria for judging the law (which would require attention to the substantive aims of the law). This is weakly supported by Hart’s writing and – perhaps more importantly – would have represented a serious misreading of Fuller, whose ambitions for his ‘inner morality’ were less ambitious than this. The third reading, to which Gardner inclines, is itself inconclusive; perhaps, Gardner argues, the key is that ‘morality’ was a difficult concept for Hart, in whose presence his thinking became more than usually tentative and disconnected.

Reviewing the three papers, Kramer’s critique of Lyons is excellent, and his position on procedural justice – that it is a virtue but should not be seen as a moral virtue – seems authentically Hartian; I was not convinced by the argument by which he supported it, though. Green fills out the legal positivist background very usefully, as well as alighting on a potential connection – not necessarily one Hart had in mind – between a procedural morality of law and the minimum content of natural law. Gardner’s paper does an excellent job of presenting Hart as a liberal idealist, albeit one with a neuralgic reaction to the word ‘morality’; the argument is very much in line with my own thinking about the law, but as an interpretation of Hart I found it less persuasive.

Hart was clearly resistant to any argument which would suggest a necessary connection between morality and either the structure or the content of law; the evident appeal of Lyons’s formalism to Hart may have derived from its undertaking to sever morality from formal justice. If Hart had reworked his position in CoL to take account of Lyons’s argument, however, I think he might have found it came at too high a price; short of a Kelsenian late-career volte-face, I can’t imagine that the changes would have been any more than cosmetic.

A dry season

1. It’s great when you’re straight, yeah

I have a beer most nights – just the one, usually. I’m fairly conscientious about my intake; I have one dry day every week and often two, and tot up my weekly units every so often (the number’s never been at all alarming). But a low level of regular alcohol consumption is a normal feature of my life, and has been for some time. I don’t think I’ve gone as long as ten days without a drink since an ill-advised ‘detox’ attempt back in the 90s (three long weeks of muzzy caffeine withdrawal); before that you’d probably have to go back to my teens or early 20s.

I’m not a heavy drinker and never have been; I’ve never worried I was overdoing it, never felt I ought to cut down, never been tempted by a ‘dry spell’ like Alcohol Concern’s ‘Dry January’ teetotalism-for-charity initiative. (I have occasionally worried that I might overdo it; this may be connected to my lack of anxiety about my actual consumption, by a kind of precautionary anxiety principle.) If I did try and abstain for as long as a month, mind you, I think I’d find it tough. Beer writer Pete Brown has written a couple of times about his own personal ‘dry January’ routine (“I try to go dry for January every year, and have done so for years – since long before it became a piece of nonsense to beat people with”). His account makes it sound – as Guy Debord wrote of his own alcoholism – émouvant mais difficile:

In the first few days, you notice the better sleep, the higher energy, the greater clarity of thought. My blood pressure, which landed me in hospital in October, is now verging on normal. After a couple of weeks, you realise you’re thinking differently. You’re more in the moment, more thoughtful, more connected. This is not always pleasant. But like the physical benefits, it does feel like it’s doing you some good.

By the second week you start to feel like a cultist praising the virtues of abstention. By the third week, you start to notice that everything is bright and shiny and hard. Perhaps a little TOO bright. It’s natural and healthy to sometimes want to fuzz the edges and turn the lights down to mood. I’ve missed that. But I’ve missed the sensory experience of drinking – the aromas and tastes of good beer, cider, wine, sherry and the occasional malt whisky, and the stories that go with them, the associations they have, the connections they make, the contemplations and flights of fancy they inspire – a whole lot more.

Whether that ‘you’ would include me – whether somebody who averages (say) one and a half beers per day is limescaling his sensorium in this way, such that three weeks’ abstention would give his system a hard reset and make the world turn dayglo – is an interesting question; I tend to think the answer’s No, but I’m not in a hurry to find out. That small point aside, it’s clear from Pete’s post that it was quite a long month. Which is no surprise – alcohol is a normal part of most adults’ lives: in a 2011 government survey, two-thirds of men and 54% of women claimed (admitted?) to have had a drink in the previous week. For anyone other than a very occasional drinker, I think a month would be plenty. Admittedly, alcohol is less normal that it has been – in 1998, a similar survey found that 75% of men had had a drink in the previous week; while, in another recent survey, only 39% of under-16s reported ever having drunk alcohol, the lowest figure this survey has ever recorded. But it’s normal for all that; after all, giving up alcohol for a month wouldn’t be something you do for charity if it were something you’d do anyway.

So how about giving alcohol for four months?

People who repeatedly commit alcohol-related crime will be forced to wear ankle tags that monitor if they are still drinking, under a year-long pilot scheme. The “sobriety tags”, to be worn around the clock, will enforce abstinence by measuring a person’s perspiration every 30 minutes and testing to see if it contains alcohol. If any trace is found, an alert will be sent to the offender’s probation officer and they can then be recalled to court, where they may be resentenced or face sanctions such as a fine.

It is anticipated that up to 150 offenders will be fitted with the tags. They will be banned from drinking alcohol for up to 120 days, and the tag will test them to see if they flout the ban. Offenders will be screened before being tagged, and the scheme will not be used on people who are alcohol-dependent and require specialist support. The scheme, being introduced by the mayor of London, Boris Johnsons, builds on a similar scheme in the US and aims to reduce alcohol-related reoffending, ease pressure on the police and courts, and make streets safer.

A salutary initiative which will help some potentially dangerous problem drinkers clean up their act (the view of Deborah Orr in the Guardian)? Or should we be more sceptical?

2. Your weakness is none of my business

The London pilot was provided for in section 77 of LASPO; on its completion the scheme will either be rolled out nationally or repealed altogether. (Section 77(7) is an interesting bit of drafting; I don’t remember seeing an “if this doesn’t work, let’s just forget about it” clause in an Act of Parliament before.)

There are two ways of reading the pilot: it depends whether you see it as having a good chance of success, or as being highly likely to fail. My initial reaction was the latter. If you put me (or, I venture to suggest, most adults) on a total four-month alcohol ban, the result would be a foregone conclusion; inflicting a scheme like this on repeat alcohol offenders is setting them up to fail sooner rather than later. Repeat offenders are people with problems, if that’s not stating the blindingly obvious – you don’t persist in putting yourself at risk of arrest if you’ve got lots of other, less liberty-threatening options. Repeat alcohol-related offenders, specifically, are more likely than not to be people with a problematic relationship with alcohol – and, since alcohol problems tend to involve compulsive activity and the (self-induced) impairment of judgment, people with alcohol problems are more likely than not to breach controls imposed on them. (Although if candidates for this scheme do have drink problems, they’ll have to deal with them on their own. A nasty detail here is that the scheme excludes anyone whose problems amount to dependency, hence qualifying them for support as well as for control measures.)

The role played by the probation officer in this scenario is particularly saddening. Probation was once a coherent alternative to a custodial sentence, based on the belief – initially founded in doctrine but rapidly borne out in practice – that a supportive relationship with a responsible citizen, outside prison walls, can help an ex-offender go straight. Over the last thirty years there has been a stronger and stronger insistence on portraying law-breakers as both wicked and dangerous, and hence on the necessity of both punishment and incapacitation – imprisonment for public safety, putting the offender out of harm’s way. The result has been a reflexive presumption that prison is the right place for a convicted offender, and that ex-offenders in the community should be treated no differently from those inside – treated, in other words, as dangerous wrongdoers who need to be punished and need to be controlled. With suspended custodial sentences replacing discharges, and community sentences first replacing probation as an alternative to sentencing, then having custodial strings attached, the result has been a gradual annexation of probation by the prison system. The role of the probation worker in this scenario is not to “advise, assist and befriend” (the original mission of the probation service) but to monitor ex-offenders, control them and where necessary return them to court for sentencing.

If the scheme works as described – if an alarm goes off every time a tagged offender has a drink, leading automatically to the decision that the offender’s alcohol abstinence order has been breached – the scheme will “reduce alcohol-related reoffending [and] ease pressure on the police and courts” by one means only: by making 150 offenders’ lives a bit less pleasant, subjecting them to stress and anxiety for a while, then recalling them to court and rubber-stamping a prison sentence. (Admittedly, the scheme is not predicated on prison sentences for breach; alternative sentences are available, for example a fine. But the idea that imposing fines on repeat alcohol-related offenders might deter them from reoffending rests on rather unrealistic assumptions about human nature.) Overall, its effect on those 150 people will be to interfere with their lives, imposing technologically-mediated humiliation and harassment, before stigmatising them as failures and disrupting their lives still further. This isn’t rehabilitation, it’s sadism.

If the scheme is intended to work as it is described here, it is being undertaken either naively (in which case it will fail horribly) or cynically. And if it is being undertaken cynically, it represents a peculiarly debased and unlawlike use of the criminal justice system: the imposition of behavioural conditions on an offender, in place of a punitive sentence, in the expectation that the offender will breach them and incur a punitive sentence for the breach. This use of criminal penalties will be familiar to anyone who recalls the history of the ASBO: we remember cases where rowdy youths were barred from particular streets, a graffiti-sprayer from using public transport, a suspected drug-runner from sitting in the front passenger seat of a car – in each case, with the force of a criminal offence. In each case, the offender has (ostensibly) had the option of modifying his behaviour and walking free; in each case, the behaviour prohibited is legal and normal for other citizens; in each case, the behaviour modification requirements are impossible to comply with, or not without intrusions into the offender’s daily life so extensive as to greatly reduce his freedom to lead a normal life; and, in each case, the offender is held responsible for any breach and for the penalty attached to it, thus incurring the stigma of indiscipline and recidivism as well as that of law-breaking. Barring repeat drink offenders from drinking – by law – is only a more direct and straightforward version of the same logic. The inference is that problem drinkers – like anti-social youths – are now seen as a subject population, a minority group needing to be controlled for the sake of the majority, and whose own rights can be disregarded.

3. Computer says No

If the scheme is intended to work as described here… That may be a big If. The Alcohol abstinence and monitoring requirement was added to LASPO after lobbying from a group of American professionals with experience of a similar scheme in South Dakota; one member is Keith Humphreys, a Stanford professor of mental health policy and former White House drug advisor. (Humphreys’s paper on the lobbying process (presented to the International Society for the Study of Drugs Policy) is a fascinating account of how policy transfer works.) In the South Dakota scheme, Humphreys writes,

[alcohol-related repeat offenders were sentenced] to mandatory sobriety coupled with daily testing. Those who tested positive were arrested immediately and given a modest sanction, such as a night in jail. In the 24/7 sobriety model, a slow, inconsistent and capricious system of monitoring offenders was transformed into one that provided swift, certain and fair sanctions for drinking.

The effects were dramatic. A stunning 99.4 per cent of the over five million breathalyser tests administered to offenders have been negative. Despite the punishment for drinking being modest, its certainty and swiftness motivated many previously recalcitrant offenders to change their ways.

Research by the RAND Corporation – a US-based non-profit global policy think tank – found that 24/7 sobriety dropped repeat drink driving arrests by 12 per cent. The same study also yielded a pleasant surprise: domestic violence arrests dropped by 9 per cent, despite not being a focus of the programme. … This week, under the leadership of Mayor Johnsons and his team, a pilot of the programme will be launched in South London. Leaping the pond will come with some challenges, particularly around delivering sanctions swiftly within the constraints of British law, but local tailoring of innovations is always an essential part of making them spread.

It works, in other words. The figures are in: not only do offenders comply with the stay-straight provisions more than 99% of the time, the effects can be seen in the crime figures.

What should we make of this? I’ve got three comments, of increasing generality; let’s say, one technical, one analytical and one philosophical. The technical comment is this: I can’t believe it. I’ve looked at the South Dakota 24/7 Sobriety Program Evaluation Report (PDF here; more information and links here); it tells me that, when 4,009 drink driving offenders were ordered to report to a judge twice a day to be breathalysed, for periods averaging three months, 98.1% of those tests were negative and only 0.3% positive (1.3% of tests did not take place because the participant was excused; 0.3% of tests were unauthorised no-shows). Pace Humphreys, this isn’t “a stunning 99.4 per cent of … over five million breathalyser tests”, for two reasons. Firstly, the 4,009 offenders in the sample took 817,926 tests (an average of 204 apiece); Humphreys may have been generalising from the sample to the programme as a whole. Secondly, the figure of 99.4 per cent includes the 1.3 per cent of tests ‘excused’ and excludes the 0.3 per cent of no-shows; the real positive rate is the total of positive tests as a proportion of the tests taken, or 98.1/(98.1+0.3), which works out as a (stunning) 99.7% pass rate. In the course of their participation in the programme, 2,659 of the 4,009 participants – slightly less than two-thirds – had no negative tests at all. (These are convicted drink drivers, remember, being breath-tested twice a day for a period of months.) Of the remaining 1,350, between 584 and 802 (between 14% and 20%) had precisely one negative test; the number who had four or more negative tests is somewhere between 131 (one in 31) and 267 (one in 15). (The published figures lump together unauthorised missed tests and negative tests as ‘Failures’, making it difficult to derive the exact number of participants who had a certain number of negative tests.)

These figures seem to represent a level of behaviour modification which I find incredible. The programme’s advocates will say that the novelty of this outcome is related to the novelty of its key innovation, the use of those “swift, certain and fair sanctions” – if people know that one drink will infallibly earn them a night in the cells, they’re strongly motivated to stay clean. Maybe so (I’ll say a bit more about this approach further down). Even so, purely based on my knowledge of human nature, I find it very hard to imagine any combination of rewards and incentives having a 99.7% success rate in modifying entrenched behaviour, in any population (imprisoned populations included). Or perhaps I should say, based on my knowledge of British (European?) human nature. I have just as hard a time imagining the participants in such a scheme meekly turning up to be breathalysed 98.4% of the time – again, whatever the incentives and whoever (and wherever) the participants were – but that certainly appears to have happened in South Dakota. It’s a cultural difference, perhaps; when it comes to criminal justice agencies, the British (and British law-breakers in particular) just don’t respect their authority – or not the way that South Dakotans do. (“I thought they were big on liberty over there?” – my wife.)

With regard to the London pilot the point about showing up is moot – the testing is to be carried out by an ankle bracelet, replacing the stigma and inconvenience of twice-daily reporting with the stigma and humiliation of wearing a shackle that spies on you. But the point about the near-as-dammit 100% negative test rate, and the seemingly total behavioural transformation brought about by the programme, is absolutely key – and I think there’s a genuine case for saying that, like a Communist bloc election result, these figures are just too good. A clue of sorts is provided by the RAND research referred to by Humphreys – presented, in the form of a paper by Beau Kilmer, to the ISSDP conference mentioned earlier. In the published version of the paper, Kilmer and his colleagues (Nancy Nicosia, Paul Heaton and Greg Midgette) write:

More than 17,000 individuals participated in the 24/7 Sobriety Project between 2005 and 2010 and their tests indicated that there were approximately 2.25 million days without a detected alcohol violation. This does not mean that there was absolutely no drinking on those days. Rather, it provides support for a reduction in the incidence of heavy drinking among a population with a history of problem drinking.

Emphasis added. Perhaps the South Dakota breathalysers weren’t all that sensitive; perhaps the scheme operated, in practice, like a benign version of the Philadelphia Lie Detector, scaring offenders into cleaning up their act without, for the most part, actually detecting whether they had done or not. The tiny minority of negative tests might be accounted for by the tiny number of occasions when participants turned up with a really substantial amount of alcohol in their system, e.g. still drunk from the night before. The use of breathalysers to carry out the twice-daily test raises the question of what level of blood alcohol concentration constituted a positive result; if the standard DUI level of 0.08% was being used, this would be entirely compatible with participants maintaining a relatively normal level of consumption of alcohol – which in turn would make that 99.7% pass rate considerably less surprising.

This kind of approach is not planned for the London trial, however. The Alcohol Abstinence Monitoring Requirement Toolkit produced by the Mayor’s Office (downloadable here) notes:

[LASPO] allows the court to specify that the offender cannot drink more than a specified amount of alcohol (expressed as the proportion of alcohol in any one or more of the offender’s breath, blood, urine, sweat or by some other means); thus allowing for the possibility of minimal drinking rather than abstinence. For the purpose of the pilot, this provision will not be used and complete abstinence will be enforced.

Sure enough, the statement to be signed by participants in the London trial states baldly “I must not drink any alcohol until my requirement ends.” This, however, raises the question of evidence. The most widely-cited figures for the South Dakota scheme appear to be based on a sample of 4,009 participants who submitted to a twice-daily breath test, which (according to Kilmer et al) did not return a positive result for low levels of alcohol. Generalising these results from South Dakota to South London – a vastly different setting both culturally and legally – is problematic enough. Using a ‘low consumption’ success story to justify a ‘total abstinence’ trial – in a different country, with a different legal system – is problematic in a more fundamental sense; it’s not comparing like with like.

4. He’s got ‘em on the list

Still, the effectiveness of the South Dakota pilot is proven; there’s that 12% drop in repeat DUI arrests that we heard about, and the 9% drop in domestic violence arrests. (According to Kilmer et al, after being implemented the programme was rapidly extended to cover arrests for offences other than DUI – specifically including domestic violence – so it’s not quite correct for Humphreys to describe the fall in domestic violence arrests as a ‘pleasant surprise’, a side-benefit of a programme focusing on drink driving.) You can’t argue with the numbers.

Well, maybe not. But on reading the Kilmer et al paper it turns out that the ’12% drop’ isn’t anything like as simple as a comparison between year 1 and year 2 in area A, or for that matter between area A and area B in year 2. Although the initial five-county pilot of the scheme might have lent itself to the second approach, analysis was made more complicated by the rapid and uncontrolled adoption of the scheme in other counties. The writers’ approach was to make a virtue of necessity, taking arrest data from the 66 counties of South Dakota – all of which had adopted the scheme by the end of 2010 – and calculating the overall extent to which the arrest rate was affected by the introduction of the scheme. The scheme was defined as having been introduced at the point where the numbers in the scheme in a given month first equalled 25% of the county’s average DUI arrests. The much quoted 12% drop is actually an incident rate ratio of 0.883 (p < 0.05), derived from a Poisson regression of five parameters. The outcome (arrest rate) for a given county and time period is assumed to be given by the sum of α, the effects of the scheme itself; β, other known factors associated with the county; γ, “unobservable characteristics of each county that are fixed over time”; δ, “fixed effects for each month in the sample”; and ε, an undefined variable associated with both county and time period (and not referred to in the text).

More data is better than less; in principle a 0.883 regression coefficient is actually more reliable, and hence more informative, than an eyeball comparison of two figures showing a 12% drop. (If you find this counter-intuitive, join the club.) The authors’ approach is also an ingenious way to circumvent the muddying of the waters brought about by the wide adoption of the scheme. But concerns remain, particularly given the relative weakness of the results (the coefficients relating to repeat DUI and domestic violence arrests are the only programme-related results to rise to the level of p < 0.05). What difference might alternative estimates for ‘county’ and ‘month’ effects (β and δ) have made? How did the researchers arrive at values for the unobservable γ or the undefined ε – and what difference might they, in turn, have made? There are also some signs of data-mining and cherry-picking, both in the data presented and in its interpretation. The authors report “no statistically or substantively significant effect of [the programme] on first-time DUI arrests” and “suggestive evidence that it may have reduced reported traffic crashes involving men aged 18 to 40 years”. The coefficient for crashes involving 18- to 40-year-old males is 0.956 (95% CI 0.909-1.006); the figure for first-time DUI is 1.062 (0.955-1.181). One may be positive or null but is probably weakly negative; the other may be negative or null but is probably weakly positive; and neither of the two is statistically significant. In other words, the evidence for an effect on first-time DUI is no weaker than the crash-related evidence, but the effect in this case is positive – which is to say, on an uncharitable reading, this is “suggestive evidence” that the programme may have increased first-time DUI arrests. The single strongest result reported has nothing to do with the programme: according to the data, the Sturgis Rally (an annual motorcycle rally held in and around Sturgis SD) has an effect on repeat DUI arrests of 1.477 (1.330-1.641) and on crashes of 1.642 (1.293-2.086), in both cases with p < 0.001.

But let’s assume for the sake of argument that the figures are good. Let’s take it as given that Kilmer et al have shown that the effect of introducing twice-daily-breathalyser-monitored sobriety in county X in month m will be that county X‘s repeat DUI arrest figures, averaged over months m+1…m+n, are 12% lower than they were when averaged over months m-1…m-n. Now what? Or rather, now why? What’s the mechanism? I ask this not because failure to say how the effect occurred would call the effect into question – it wouldn’t – but because Kilmer et al do seem to have a specific mechanism in mind. Consider the threshold used to define when the programme had been implemented – when the numbers in the scheme in a given month equalled 25% of the county’s average monthly DUI arrests – and the alternative threshold suggested later in the paper, five scheme participants for every 10,000 population. South Dakota has a population of 825,000, of whom 17,000 were on the programme between 2005 and 2010. This is over 2% of the entire population, and a considerably higher proportion of the population typically involved in DUI offences; Kilmer et al note that, in some counties, more than 10% of men aged between 18 and 40 participated in the programme at some point. Lastly, consider the expansion of the programme following the passage in 2007 of South Dakota House Bill 1072:

The unanimous passage of House Bill 1072 dramatically expanded the 24/7 program. The bill went into effect July 1, 2007, and provided funds to counties that wanted to adopt the program. The new law allowed judges to order anyone they believed had an alcohol problem, pre- or post-conviction, to participate in the program. The law also changed rules for those who lost their license for a repeat DUI offense. It had previously been possible for some of these individuals to receive a permit to drive only to and from work, but these permits were now conditional on 24/7 participation.

So participation could be ordered by a judge without the individual involved being convicted of anything. Moreover, continuing participation could be made a condition for holding a (restricted) driving licence, making participation in the programme more or less a life sentence.

On first reading of the Kilmer et al paper I wondered if a measure for long-term rehabilitation and reform was being assumed to be successful on the basis of a confusion between outcome effects and programme effects. In other words, I wondered if the reduction in repeat DUI arrests might not be a sign of problem drinkers taking the (enforced) opportunity to turn their life around – as in Orr‘s optimistic account – but merely of drinking being temporarily suppressed by the imposition of a stressful and demeaning twice-daily reporting requirement. On re-reading it, I’m not convinced that the authors are even thinking in terms of outcome effects. Got an alcohol problem? Right – you’re on the programme; no drinking until I say so. You’ll get off the programme eventually; if you start causing trouble then, guess what – you’re back on the programme. No alcohol problem now!

5. As sloshed as Schlegel

In technical terms, I think the individual test data can’t possibly show what it appears to show, and hence that it doesn’t give reliable guidance for the London pilot. Analytically, I think the programme as described by Kilmer et al is one of mass behaviour modification rather than criminal justice – the idea seems to be, not to use the programme to help former offenders reform, but to put as many people as necessary through the programme for as long as necessary to bring crime down. This leads into my philosophical concerns about the programme – concerns which remain even if we assume the validity of the test data and the crime drop figures.

Humphreys describes the scheme as delivering “swift, certain and fair sanctions for drinking”; Kilmer and colleagues describe the South Dakota programme as combining “frequent monitoring with swift, certain and modest sanctions for violations”. Swift and certain: you test negative, you’re off to the cells, no ifs, no buts, no phone call, no duty solicitor. What’s the problem? Maybe there isn’t a problem at all – maybe the problem’s with our way of thinking, or the presuppositions of our system?

The key principle in disposals like this is certainty: offenders need to know that a breach will result in instant and decisive penalty. Our criminal justice system resists such practice. The pilot’s weakness is that it could take weeks for action to be brought against offenders who drink while tagged. If an offender breaches the sobriety order, they will first have to be returned to court where further sanctions can be imposed. Imprisonment is only likely to result from persistent non-compliance. This isn’t swift and sure justice, but neither is it the Mayor’s fault – it’s a fundamental weakness in our system of probation which needs fixing.

Opinion polling for the GLA in 2011 found that sobriety orders were popular with the public (well over two thirds supported the idea). Doubtless some will disagree. I recall the horror of a prominent politician, partial to a shandy, on being told that an electronic device might be used to monitor someone’s alcohol consumption. And I wonder how long it will be before the civil libertarians complain that sobriety tags are an egregious breach of human rights…

Thus Nick Herbert MP (Con). (It’s interesting, in passing, to see the reference to ensuring an “instant and decisive penalty”, emphasis added; Humphreys and Kilmer et al both stressed that the near-automatic sanctions for non-compliance were modest.) I think this line of argument needs to be resisted. It’s fundamental, not to “our criminal justice system” but to the rule of law, that the law governs us as free individuals. The law is a system of rules which we can freely choose to follow; when we choose to obey the law (as we generally do), it is because we know that everyone is being asked to obey the same law, and because freedom and fairness can be maximised by everyone choosing to live by the same rules. We obey the law because the law is worth obeying, not because we have personally been commanded to do certain things – still less because we have been threatened with adverse consequences if we do not. To break the law is also a free choice, and one which may be made on rationally justifiable grounds; alternatively, the choice of breaking the law may be made under conditions which (a rational observer would conclude) left no alternative course of action. To be put on trial is thus to enter a field of judgment: are we guilty of committing a criminal offence or can our action be justified? To be put on trial is precisely to have our actions ‘tried’ (tested) against the standard of the law, and the possibility always exists – however remote it may be in the day-to-day operation of the courts – that it will be the law that blinks. However clear and unambiguous the law may appear to be, the outcome of a trial is never certain; a judge’s guidance may be overruled by a jury verdict; the law itself may be amended by an appeal court judgment. At its best, the criminal justice system respects the freedom and rationality of the law-breaker as well as the law-abiding citizen.

To say that we are governed by law, then, is to say two things. The first is that the law is a system of rules with certain characteristics – universality, comprehensibility, followability – which make it possible for each one of us to arrange our lives so that we obey it: the law respects our freedom. The second is that those who break the law are not only brought to account but allowed to put their case, protected by certain fundamental safeguards – the rules of procedural justice – which exist to ensure that nobody is unjustly criminalised. The law respects us as free and rational citizens, when we break it as well as when we obey it.

This scheme is unlawlike twice over. On one hand, the idea of “fair sanctions for drinking” tends to suggest that drinking should be sanctioned; I wouldn’t have thought this was a route the USA wanted to go down, again. At best it suggests that drinking should be banned for certain, arbitrarily chosen people – as unlawlike a proposal as you could wish for, effectively substituting the rule of individual law-enforcers for the rule of law. On the other, contra Herbert, closing the gap between infraction and sanction is not “swift and sure justice”, or not for any meaning of the word ‘justice’ associated with the rule of law. Any kind of automaticity in declaring somebody a law-breaker – including but not limited to the technological automation delivered by alcohol shackles – subjects the law-breaker to the law, without defence or excuse, in a way that is corrosive to respect for the law (which we are presumably asking those law-breakers to carry on obeying in other areas of their life).

Perhaps the most telling part of Herbert’s comment is his sneering reference to a critical politician being “partial to a shandy”. Herbert himself may be a teetotaller, but he must be aware that the great majority of his fellow-citizens are, in fact, “partial to a shandy” – and as such might have well-grounded concerns in response to the development of technology that enforces total abstention. The unstated minor premise, underlying that two-thirds vote as well as Herbert’s complacency, is that alcohol shackles will never be a threat to us. Herbert’s confident that these measures will only be applied to them, that unruly minority whose behaviour needs controlling – and that we can trust law-enforcers to identify the people to control and modify their behaviour in the right way. (Deborah Orr’s message is much the same, dressed in more liberal language.)

But this isn’t the rule of law. It’s using the law, but using it as an instrument for controlling a deviant population (in this case problem drinkers). It’s using it – in Hegel’s image – like a man raising a stick to a dog.

Feuerbach bases his theory of punishment on threat and thinks that if anyone commits a crime despite the threat, punishment must follow because the criminal was aware of it beforehand. But what about the justification of the threat? A threat presupposes that a man is not free, and its aim is to coerce him by the idea of an evil. But right and justice must have their seat in freedom and the will, not in the lack of freedom on which a threat turns. To base a justification of punishment on threat is to liken it to the act of a man who lifts his stick to a dog. It is to treat a man like a dog instead of with the freedom and respect due to him as a man. But a threat, which after all may rouse a man to demonstrate his freedom in spite of it, discards justice altogether.
- Hegel‘s Philosophy of Right, thesis 99.

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 got 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.

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