I think it’s reasonable to say that the government isn’t keen on legal aid; many restrictions and obstacles have been introduced to the legal aid scene in the last few years, including an element of means-testing. It’s still broadly the case that, if you’re taken to court and you face a prison sentence (or equally serious penalty) if found guilty, you’re entitled to legal advice free of charge. Moreover, you’re entitled to choose your own representation. You may not choose to use this right or be able to exercise it effectively, but for many defendants this is a godsend. For example, if (far from hypothetically) you’re up on a public order charge arising from a demonstration, and you happen to know that a particular law firm has a good record in holding the police and the CPS to account in similar cases, you have the right to give them the call. These rights extend to serving prisoners and non-citizens such as asylum seekers, although naturally these small groups of people only supply a small proportion of the total legal aid caseload.

The government is currently bringing forward proposals to transform legal aid for criminal cases. This isn’t hyperbole, or if it is it’s not mine: the consultation document is actually called “Transforming Legal Aid“.

The transformation that the Ministry of Justice have in mind has two objectives. Firstly, costs would be cut. The consultation document hammers on the cost-cutting drum. The proposals in the consultation document fall into two categories: those with a justification on plausible financial grounds (disregarding their impact on the quality of service) and those with a vague handwave in the direction of a possible justification on financial grounds.

However, the sums involved are, in context, trivial: the estimated total annual saving is £220 million, or just under a fifth of one per cent of public sector net borrowing for the last financial year. This suggests that the second, less overtly stated, objective may be the main motivation: that the goal is not to produce a cheaper criminal legal aid system but a radically different one. The proposals would introduce competitive tendering for the right to offer legal aid services in particular areas, corresponding roughly to the forty-odd police force areas; no more than four firms would be accredited in any one area. Clients would be assigned to lawyers rather than being able to choose them, and would have to stay with the brief they’d been given throughout the case. The proposals are designed not only to create a cost-driven market in legal aid provision but to open it up to new entrants, corporations offering a standardised and streamlined legal representation service; the Eddie Stobart haulage firm has already expressed an interest. It would still be possible to pay for legal representation of one’s choice; indeed, defendants with a high enough disposable income would be debarred from legal aid, positively guaranteeing the creation of a two-tier system. There’s more, and worse.

At an open meeting, Elizabeth Gibby of the Ministry of Justice was fazed by one particularly difficult question:

“Can you remind me of the section in the consultation paper which deals with the interests of the user of the service,” a solicitor from Oxford asked politely.

“I’m sorry; I don’t quite understand what you are saying,” Gibby replied after a pause.

“Can you refer me to the section of the paper that deals with the quality of the service provided and the effect on the quality of these proposals,” the solicitor asked again.

Gibby and her team of officials still seemed lost for words. Eventually, she asked the solicitor to respond to the consultation paper if he didn’t think that quality had been adequately covered in it.

There is nothing in the consultation paper about the quality of the service. Or to put it another way, the consultation is all about the quality of the service – it’s all about replacing the existing service with a lower-quality substitute. This matters, for very much the same reason as it would matter if we were replacing GPs or teachers with low-waged employees of profit-making companies. We know it’s a bad thing when people get the wrong advice from a banker or an estate agent or a car salesman, most of all if the person giving the advice profits from it; if there were a government scheme to make it easier for financial advisors to recommend the wrong product we’d all be up in arms. But bad legal advice is much, much worse; someone who gets the wrong legal advice can end up being named as a paedophile, or burdened with a conviction that will never become spent, or behind bars for murder, without having committed any of those crimes. (These real-life examples are from A Barrister’s Wife, a new blog which I strongly recommend.) And the proposed reforms will make bad legal advice much, much more likely.

Just to be clear, I am not suggesting that standardising legal aid would drive out professionalism, or that the only decent lawyers are those who can charge huge fees. The legal aid budget is already administered fairly strictly – any legal aid criminal defence lawyer motivated by money is in the wrong branch of the business. The problem with cost pressure and standardisation is much more insidious, and rests on a little-known fact about the criminal justice system – little-known to those of us outside the system, that is; for practitioners it’s the most open of secrets. This is the fact that nobody wants a trial. For the police, taking a case to court is laborious and time-consuming; what’s worse, it creates opportunities for the criminal (as they see it) to walk free, and for all their hard work to be wasted. The CPS are duty bound to chuck out the weak cases and those which it’s not in the public interest to pursue; when they’ve identified what they see as good, strong cases, the last thing they want is to risk an acquittal. Lawyers might be thought to have more of an interest in the courtroom show going on, but their position also makes them all the more aware of what a chancy business it can be – and their workload makes quick resolution a high priority. The answer to all these problems is a guilty plea. For the police and the CPS, a guilty plea means the job’s done: the criminal’s been charged, the criminal’s owned up, the criminal’s been sentenced. For lawyers a guilty plea may be the best they can realistically achieve for their client: someone who (in the lawyer’s judgment) is likely to be found guilty in a contested trial will be well advised to plead Guilty and gain a reduced sentence. At the same time, a guilty plea will mean that they can save some time and get on to the next case, which will always be a consideration if time is limited – and time generally is limited when money is limited. Realistically, a system with cut-price, competitive-tendered, corporatised legal aid will be a system where many more suspects and defendants are persuaded to plead Guilty, irrespective of their factual guilt or innocence. In 2000 Andrew Sanders and Richard Young described the criminal justice system as being characterised by “the mass production of guilty pleas”; if these reforms go through, they (and we) ain’t seen nothing yet.

These reforms are an assault on the legal profession and on everyone’s access to justice; they have no ethical justification and only the flimsiest justification in cost terms. They need to be stopped. Please sign the epetitions Save UK Justice petition; there’s also one from 38 Degrees. If you’ve got half an hour to spare, and especially if you’ve got anything you can cite as an organisational affiliation, please complete the Ministry of Justice’s online survey. Over the fold are some highlights from my answers.

Do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court? Please give reasons.
No. If costs need to be recovered on a means-tested basis, I can see no reason to change the current system. The imposition of a threshold – however high the level currently proposed – is divisive and exclusionary. Legal Aid should be a universal service, not a safety-net for those unable to ‘go private’.

Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons.
No. No principled ethical justification is given for this proposal, unless by ‘ethical’ we mean ‘xenophobic’. A financial justification is suggested, but since no figures are given I can only conclude that this proposal is not justified in cost terms.

Do you agree with the proposal that legal aid should be removed for all cases assessed as having ‘borderline’ prospects of success?
No. The proposal is to replace an established set of criteria and exemptions with another, more restrictive set. No justification is given for this other than the prospect of saving money; since no figures are suggested, we must assume that the sums involved are either negligible or unknown.

Do you agree with the proposed scope of criminal legal aid services to be competed? Please give reasons.
No. Wherever competitive tendering has been introduced, it has driven costs down by setting firms, workforces and individuals in competition with one another, under the threat of ‘market discipline’. Competitive tendering tends to lead to lower salaries, stressed and demotivated employees and a tick-box approach to quality. Big employers and their shareholders benefit but professionalism suffers.
Competitive tendering is bad news for any profession which the public depend on, and especially bad news for any profession which offers the public creative, thoughtful and dedicated service. It would be an unmitigated disaster for the criminal law as a profession; as a result it would be disastrous for the criminal justice system itself, and for the many unfortunates who would be sure to receive rough justice and wrongful convictions as a result.

Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas?
No. Removing the defendant’s right to select a solicitor is a monstrous curtailment of effective legal rights. There is no justification for this proposal, other than the entirely illegitimate project of reducing most criminal legal representation to a cut-price corporatised service.

Do you agree with the proposals to amend the Advocates Graduated Fee Scheme?
No. No justification is given for this proposal, which would have the inevitable effect of reducing the time and effort which dedicated legal professionals devote to legal aid cases and consequently restricting effective access to justice.

Do you agree with the proposal that fees paid to experts should be reduced by 20%?
No. Far from “ensur[ing] that legal aid rates represent better value for money”, this and similar proposals would ensure that legal aid work was carried out on the cheap, leading inevitably to corner-cutting and the introduction of standardised off-the-peg services. The result for the general public would be the curtailment of access to justice and the erosion of effective legal rights.

Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper?
No. Anyone reading these proposals who was involved in the law or the criminal justice system, or had an informed layperson’s knowledge of the criminal law, would immediately identify the ‘impact’ of these proposals as the creation of a degraded, deprofessionalised system of publicly-funded legal representation, capable of delivering little more than efficiently expedited guilty pleas.
The proposals would create a two-tier legal system, pose a serious threat to the integrity and professionalism of the criminal law, restrict access to justice for those who most need it, curtail the public’s effective legal rights and lead inevitably to numerous miscarriages of justice and the ruination of many blameless lives. The proposals are odious and unjustifiable. They should not be modified; they should be abandoned.

I had a bit of trouble with my bid. I got a permanent position in 2010 and applied myself fairly concentratedly to teaching for the next couple of years. Now that I’ve cleared a bit of time and headspace for research, I keep finding I’ve had a brilliant idea which somebody else has already researched or written about – very often within the last two years, infuriatingly enough. (Or, most infuriatingly of all, a brilliant idea which has superficial but obvious similarities to part of a research project that somebody else has carried out within the last couple of years. Not that I’m bitter.) Anyway, I ended up essentially ripping up my original idea and starting again – a productive but difficult process which can’t really be done while sitting in front of a laptop. Standing up is involved – pacing, ideally; there is generally speech, also, or muttering at the very least.

In search of a room to pace and mutter, I found myself in a sunroom on the first floor. I did some quite useful rethinking, then looked around and noticed the books. I’d seen a couple of bookcases around the place and taken a vague bibliophilic interest in the religious texts in them, but the books in the sunroom were something else. There were books in that room I hadn’t seen in five years – ten, even: books that I’d last seen on my parents’ bookshelves. (My father died in 2001, my mother in 2006; they were both pillars of the local church and had been all my life.) Then I noticed the chairs – two in particular out of the many armchairs in that one room (that house was extraordinarily well upholstered). They were old-style high-backed armchairs, well-used, in covers with a light-coloured William Morris-ish floral pattern. I’d seen chairs covered with that particular material before – specifically, I’d seen them in my parents’ living room. When we’d set about clearing the house there had been some discussion with a Christian group, although it didn’t come to anything (fire regulations); I wondered for a moment if some less discriminating charity had come back later and scooped up chairs and books and all. They would then need to have transported them to the other end of the country, though, which I realised was unlikely. It was an odd moment. At the end of the first chapter of Kazuo Ishiguro’s The unconsoled (very minor spoiler), the narrator looks around his Central European hotel room and is reminded momentarily of his boyhood bedroom, before being struck by the realisation that it is his boyhood bedroom – the room he remembers so fondly has been rebuilt in this distant city, especially for him. This was a bit too close to that scene for comfort.

But of course (I reminded myself) there are lots of armchairs out there covered with Morris-esque florals. And, when I really looked, it turned out that most of the books I’d recognised actually weren’t books I’d seen on my parents’ bookshelves – not within the last ten years, at any rate. They were books, and authors, like these:

Michel Quoist
Teilhard de Chardin (The Phenomenon of Man)
Paul Tillich (The Courage to Be)
Don Cupitt
Rollo May’s Love and Will
The Truth of God Incarnate (this stood out a bit; it was written as a riposte to The Myth of ditto, which would have fitted much better but wasn’t there)
Bias to the Poor
Colin Morris (Unyoung, Uncoloured, Unpoor)
The ‘Honest to God’ Debate (although not John Robinson’s Honest to God itself)
The New Inquisition (a critical commentary on the excommunication of Hans Küng)
a book taking a positive view of Taizé
a book taking a positive view of Pentecostalism

And now the trapdoor of memory really opened. Never mind ten years, these were books I hadn’t seen in thirty years or more; many were books I hadn’t even thought of in thirty years. They were still instantly familiar: they gave me the same kind of jolt of recognition that you get when you dream of meeting someone who’s died – “why did I think I’d forgotten you?”. (Even as I write it I’m struck by how eerie the simile is, but it is apt. Sunt lacrimae rerum et mentem mortalia tangunt, and I think books are particularly rich in them.) Some of these were books that my parents had had in the house where I grew up, and turned out when they moved to Brighton in the mid-1980s; some were books that had been on the lending shelf in our local church, or on the freely-lent-from bookshelves in the Rectory, where the Rector’s wife used to keep open house for artists, musicians and local kids.

In short, as I looked around that room I was breathing the air of a certain kind of church in the 1970s (where ‘church’ means the community more than the building). I hadn’t realised how much I missed it. As well as being ecumenical as regards other Christians, being a Christian in a church like this meant being non-literalistic and generally non-doctrinaire on the Christian story itself. (When David Jenkins said that the Resurrection was “more than a conjuring trick with bones”, he was very much talking our language: as if to say, we’ll concede the flesh-and-blood resurrection if that means we can talk about what the Resurrection actually means. Shame it didn’t come across like that.) It meant not believing that you, or your church, had all the answers, or that anybody did (apart from God); it meant not worrying too much about being saved but believing that there was work to be done in this life (in the words of the Christian Aid motto, “We believe in life before death”). More specifically, it meant taking Jesus seriously when he talked about the eye of the needle and giving away your coat and the sheep and the goats. The Christians I met when I went away to university were all about Biblical literalism and accepting Jesus as your personal saviour; it was like going from seminars on number theory to being drilled in multiplication tables, badly. I never really went back to the church after that; I visited my parents’ new church in Brighton a few times and got to know the vicar (he preferred ‘priest’), but it wasn’t the same kind of church – higher, quieter, more doctrinally orthodox, less radical politically.

All of this is, of course, rather a long time ago; when you’re looking back at the age of 52, the people you had around you in your teens are often not there any more. Around 1979, the Rector moved on and was replaced by a new Rector (who didn’t much hold with the intellectual stuff and certainly didn’t hold with the ‘open house’ thing). Around 1984, my parents moved to Brighton. In the 1990s, the Rector died (fairly young, unexpectedly), and the new Rector retired (I don’t know who replaced him). The years since 2000 have seen the deaths of my father, the vicar in Brighton (who also died young and unexpectedly), my mother and the Rector’s widow. (My entire academic career to date has taken place in the same period, and most of it since my mother died – a disjuncture in time which made it particularly poignant to be faced by those books in that setting.) It’s as if the books had outlived their readers. Michel Quoist and Teilhard, Honest to God and Unyoung, Uncoloured, Unpoor: names like these make up a picture, for me, but it’s not a picture I can easily check out with anyone else. Memory can be lonely, even when it’s supported by tangible things; perhaps especially then. Maybe that’s another, not too strained, reading of sunt lacrimae rerum – “these are the tears of things”: tears which the things keep to themselves until somebody strikes the rock and draws them out.

All this in a few minutes – it was a dense experience as well as an odd one – in between pacing and muttering. As for my bid, having abandoned something about subjective experiences of procedural justice, I came away with an idea about subjective experiences of the rule of law – much more exciting. (It actually is much more exciting as far as I’m concerned, which hopefully will make for a more persuasive bid; I should certainly be able to dedicate more of myself to it.) It would make a better story if I said I would now be conducting research on the inter-generational construction of non-denominational religious identities, or something, but reality is obdurate. Besides, I need to keep something for the blog.

Hushed was the world
And oh, dark agony that suspense shook upon us
While hate came flooding o’er your wide savannas
Plunging pestilence against you -
All that stood to state: “Where men meet
There meets one human race!”

Therefore did men from Moscow to the Arctic
Rounding Vladivostok to the South where Kazbek lifts its peak
Still work and working waited news of Stalingrad
And from Cape to white Sahara
Men asked news of Stalingrad
Town and village waited what had come of Stalingrad
The tom-tom beat across thick forest
While every evening at Palava
Old men told of Stalingrad
The gauchos caught the pampas whisper
The windswept hope of Stalingrad
And in the far Canadian north
Trappers left their baiting for the latest out of Stalingrad
In the factories and coal fields
Each shift waited what last had come from Stalingrad
While statesmen searched the dispatch boxes
What they brought of Stalingrad
And women stopped at house work
Held their children close to hear
What was afoot at Stalingrad
For well men knew that there
A thousand years was thrown the fate of the peoples
Stalingrad, oh star of glory
Star of hope, oh star of flame

Oh what a midwife for this glory
Take for the pattern Pavlov and his men
A soviet soldier and his nine companions
Who full seven weeks sleepless by night and day
Fought nor gave ground
They knew that with them lay
That where men meet should meet one human race

Carpenters who had built houses
Wanted only to build more
Painters who still painted pictures
Wanted only to paint more
Men who sang life strong in laughter
Wanted only to sing more
Men who planted wheat and cotton
Wanted only to plant more
Men who set the years in freedom
Sure they would be slaves no more
They spoke peace to their neighbours in tilling
For in peace they would eat their bread
Uzbeks, Tatars, Letts, Ukranians
Russians, Muscovites, Armenians
Who ringed forests wide around arctic
Brought sands to blossom, tundras dressed for spring
These kept faith in Stalin’s town
We may not weep for those who silent now rest here
Garland these graves
These lives have garlanded all our remaining days with hope
Stalingrad, oh star of glory
Star of hope, here spread your flame

Now when news broke that Stalingrad
Still lives upon the banks of Volga
That Stalingrad was still a Soviet town
Then the turner flung his lathe light as a bird
And the gaucho spread his riot in the pampas
For this news of Stalingrad
The tom-tom beat wild madness
When the elders brought Palava these tidings out of Stalingrad
The English housewife stopped her housework
Held her child close and cried aloud
Now all men will be free!
And from Good Hope, black miners answered
This will help us to be free!
In the prison camps of Belsen
Sick men rounded from their guards
Now life was certain
Soon all men would be free
New light broke upon Africa
New strength for her peoples
New trength poured upon Asia
New hope for her peoples
America dreamed new dreams
From the strength of her peoples
New men arose in Europe
New force for her peoples
Once more they stand these men
At lathe and spindle
To recreate their hours and each new day
Bid houses rise once more in Soviet country
Men ring forests wide round arctic
Move rivers into deserts
And with high courage
Breed new generations
For still the land is theirs
Uzbeks, Tatars, Letts, Armenians
Caucasians, Muscovites, Crimeans
Still they speak peace to their neighbours at tilling
To all the wide world
And men come near to listen
Find by that day of Stalingrad
That this voice is theirs

Then Red Star spread your flame upon me
For in your flame is earnest of my freedom
Now may I rendezvous with the world
Now may I join man’s wide-flung diversity
For Stalingrad is still a Soviet town

Thanks to Shuggy for the reminder.

1. Oh you shouldn’t do that

The opening paragraph of John Gardner’s 1996 paper ‘Discrimination as Injustice’ makes an interesting claim about torture – the wrongness of torture, in particular.

Reasons of justice are reasons for or against altering someone’s relative position. The word ‘relative’ is of the essence here. One may have reasons to alter someone’s position which do not make any essential reference to anyone else’s position. For example, the fact that a prisoner is being tortured is reason enough by itself to write letters of protest, with the aim of improving the prisoner’s treatment. Torture is inhumane. But isn’t torture also unjust? Doesn’t one also have a reason of justice to protest? Perhaps. As part of one’s protest, one might relate the position of the torture victim to the position of other people (other prisoners, people of different political views, the torturers themselves, the torture victim’s victims, the government, etc). In that case one may be trying to give a reason of justice for the torture to desist. It may buttress the reason of humanity. But of course it may also fail to do so. The authorities inflicting the torture may accurately reply, in some cases, that they are inflicting it with impeccable justice. Yet still, on grounds of its inhumanity, the torture should cease, and the protests should go on if it does not.

Gardner returned to this point more recently, in his 2011 paper ‘What is tort law for? Part 1. The place of corrective justice’.

Norms of justice are moral norms of a distinctive type. They are norms for tackling allocative moral questions, questions about who is to get how much of what. Some people think of all moral questions, or at least all moral questions relevant to politics and law, as allocative. But that is a mistake. As a rule, allocative questions are forced upon us only when people make competing claims to assignable goods. Many morally significant goods, including many relevant to politics and law, are either not competed for or not assignable. They include goods such as living in a peaceful world and not being tortured. … Of course it does not follow that there are no questions of justice that bear on the resort to torture or on the quest for a peaceful world. The point is only that many moral questions about the resort to torture and the quest for a peaceful world are not questions of justice. If, for example, we say of someone who was tortured by the secret police that her treatment was unjust, she might well say, if her moral sensitivity has been left intact, that this misses the point and marginalizes her grievance. She is not complaining that she was the wrong person to be picked out for torture, that she was a victim of some kind of misallocation by the secret police, that she of all people should not have been tortured. She is complaining that torture should not have been used at all, against anyone. Her complaint is one of barbarity, never mind any incidental injustices involved in it.

Torture is inhumane or barbaric – there are other words we could use, such as ‘degrading’ or ‘brutalising’; the core meaning has to do with attacking or invading another person’s humanity or personhood. Morally, it should stop, both universally and in any given case – but it is not, of itself, unjust. The moral question raised by torture isn’t a question of allocating it justly. One distribution of torture may be prima facie less just than another – the torture of randomly-stopped motorists would arouse more outrage than the torture of convicted rapists – but the less unjust distribution is not less immoral. A regime which reserved torture for people found guilty of heinous crimes would still be morally repugnant. Any torture – for anyone – is bad torture; in an absolute sense, any torture – for anyone – is as bad as any other torture.

Gardner sets torture alongside position-relative justice, and the freely competing subjects of law-governed society, to make a point about the limits of allocative justice. No distribution of torture (or of absolute poverty, polluted air, reduced life-expectancy, etc) is more just than any other. This is both because torture is not a good to be appropriately allocated and, more importantly, because the absence of torture is not an assignable good and hence not subject to constraints of scarcity. The question of who should be exposed to torture, instead of the current victim, doesn’t arise. There is no reason, in principle, why there should not be enough non-torture for everyone – and, here and now, it will always be better if our actions do not add any more people to those already suffering it.

But there’s a bit more going on here than that. There are any many ills whose absence is not an assignable good. To put it another way, there are any number of areas in which life could in principle be made better for everyone, or (to put it in less ambitious terms) where making life better for one person doesn’t require making it worse for another: health, clean air, peace, Pettit’s ‘dominion’ (a condition of resilient non-intererference’). Depriving someone of a non-assignable good is morally wrong, without necessarily being unjust. Allocative thinking in a negative form may well be involved in the infliction of such an ill: it may be motivated precisely by the desire to improve one’s own relative position at the expense of the victim. However, allocative questions do not have to be involved in their rectification: there is in principle no shortage of clean air, so the harm of air pollution is not rectified by ensuring that the air the company directors have to breathe is equally polluted.

Actions of this type are, by definition, characterised by a lack of respect for the equal entitlements of others and ourselves. Since they don’t profit the person carrying them out (also by definition), they tend to have a character of gratuitous or vindictive malice. The definition does not, however, imply that such acts are all inhumane or barbaric. If I jammed my neighbour’s TV reception so that they were unable to receive BBC 4, this would certainly be a maliciously cruel act, but it would be a stretch to classify it as barbarity. Indeed, much of what tends to fall under the heading of anti-social behaviour consists precisely of the deliberate or reckless deprivation of others of non-assignable goods – goods like the ability to sleep undisturbed by noise or to walk to the shops unperturbed by vandalism. Depriving others of non-assignable goods is a bad thing to do, and there is no situation in which we should not, morally, strive to do less of it – but it is not generally barbaric or inhumane.

Obviously torture makes a much better example for Gardner’s purposes than anti-social behaviour, both because it’s more extreme and because it’s commonly carried out by state authorities rather than by next-door neighbours. But I think the use of torture as an example also points to a different argument about justice and moral wrongs. Consider the first sentence quoted above: “Reasons of justice are reasons for or against altering someone’s relative position.” Norms of justice, Gardner argues in the second extract, are appropriate for tackling those questions which we face “when people make competing claims to assignable goods”. There’s a fundamental concept of personhood lurking here: a person, we can infer, is someone whose position (however defined) can be measured relative to the positions of other people; someone who can successfully claim assignable goods; someone whose self-interested claims can compete with those of other people; and someone whose disputes with other people can be adjudicated, and whose relative position can be altered, through the process of law, in other words by applying public norms using socially recognised procedures. And – at the risk of sewing a shirt onto a button – a law-governed society is a society composed of such individuals; and when we say ‘law’, we mean the kind of law through which such a society, and such individuals, can govern themselves. Clearly, the terms Gardner used would not work well in a feudally-ordered society, or a society run along religiously-validated caste lines, or the small-c communist society which was to follow the withering-away of the socialist state. We are talking about a society composed of formally equal individuals, differently endowed with personal resources, but each capable of making claims to assignable goods; entitled to expect that those claims will be respected; and entitled to attempt to vindicate them through the law.

We can see how this model of personhood relates to an allocative model of justice by looking at some scenarios. If my neighbour encroaches on my back garden, I may sue him and let the courts adjudicate our competing claims to the assignable good behind my house. If he takes our dispute personally and steals my property or assaults me, justice is involved in a different sense. Restitution will certainly be required, bringing allocative justice into play; however, my neighbour is also transgressing in a more serious way, improving his relative position by socially disallowed means. Theft and personal violence can be seen as ways of gaining an unfair advantage or nobbling the competition. (Gardner also suggests that criminal justice is allocative in the sense that it turns on the correct allocation of the status of criminal, which seems valid if rather ingenious.)

What about if my neighbour gets his revenge by a more indirect route, swearing at me in the street or disturbing my rest with loud music (or jamming my BBC 4 signal)? In such a case, given that the good in question is non-assignable, justice in Gardner’s terms may not be involved. Even so, the courts are likely to take the view that my entitlement to a non-assignable good has been needlessly infringed. (Not that this is a simple proposition, as we can see if we remember Hohfeld. If I am entitled to quiet nights – and why should I not be? there is, in principle, no shortage – does this mean that I hold a privilege as against all my neighbours, with a correlative duty on each of their parts not to disturb my rest? Can this be generalised, to cover mutual obligations among neighbours and entitlements to other forms of domestic tranquillity? I think this would be very problematic. Make these duty/privilege relationships unwaivable and everyone involved would be encumbered with a vast array of duties to abstain from potentially disturbing behaviours. Make them waivable, on the other hand, and the effect would be to destroy the universality apparently offered by the discourse of rights: all we would do would be to translate different individuals’ widely varying levels of entitlement and grievance into the language of waived and unwaived rights.)

Setting these broader considerations aside, the main point here is that deliberate deprivation of a non-assignable good can be grasped in terms of (allocative) justice, essentially by assimilating it to the ‘unfair advantage’ model associated with criminal justice. Indeed, we could rework the ‘unfair advantage’ model itself in terms of the deprivation of a non-assignable good. Laws criminalising physical violence, for instance, can be seen as protecting the non-assignable good of bodily integrity. In terms of acquisitive crime, if individuals A, B and C are all planning to bid for a valuable object at an auction, but are prevented from doing so when I steal it, what I have deprived them of is precisely the non-assignable good of a fair competition. A similar argument could be developed for the theft of an article on sale, or (less directly) of something in private possession. (We can see here, incidentally, how far removed the principles of allocative justice are from any redistributive model of social justice; in allocative terms, mere ownership of a resource at a given point cannot be unjust. Allocative justice and social justice must always be in tension, this side of the revolution.)

The principle here is that the autonomous, self-interested individuals on which our legal model is predicated need – and hence are entitled to – certain non-allocative goods if they are to play their competitive, law-governed part in society. One such good is the rule of law itself; others are bodily integrity and property rights. We can extend this model of entitlement – and hence of rights which can be vindicated in the courts and disputes which can be adjudicated according to law – to other non-assignable goods, including the good of eight hours’ sleep or an evening in front of BBC 4. In practice, many non-assignable goods are difficult to deal with in this way, as witness the vagaries of anti-social behaviour legislation: the baseline entitlement to a non-assignable good (such as peace and quiet), the level to which others are responsible for upholding that entitlement and the degree to which offending behaviour infringes it are often hard to establish. However, this is not to say that relationships between one person’s anti-social behaviour and another’s unmerited suffering can never be established; in practice they very often can. My neighbour is not going to be able to fly under the law’s radar by making sure that all he deprives me of is the non-assignable good of a good night’s sleep – any more than if it were the non-assignable good of an unbroken nose.

But what is my neighbour doing in the (mercifully, highly unlikely) case that he tortures me? Here, I think, a different relationship between justice and personhood obtains. If we think of bodily integrity as a non-assignable good (and certainly your good health does nothing to impair mine), then the victim of torture has been deprived of a non-assignable good, and may be unable to play a full part in society as a result – but, as stated, this is no less true of the victim of a random assault at pub closing time. We can say that torture is more likely to have traumatic effects, and this seems significant: certainly if we think of other experiences which are likely to produce trauma (rape, battlefield stress, partner abuse) the word ‘torture’ is never far away. Torture, then, is one of the things that inflict trauma, in a way that a beating in the pub car park generally isn’t. But why is this a significant distinction? The point, I think, is that torture is an attack on my personhood. Personal violence can often be understood in terms of enhancing the attacker’s relative position by depriving the victim of a non-assignable good, making it harder for that person to play a role in society. Pace Gardner, the immorality of torture is not grounded in its depriving the victim of a non-assignable good. Torture is not about enhancing the torturer’s position relative to the victim, even with respect to the non-assignable good of freedom from pain. Torture – and other forms of traumatic assault – can be seen as an attack, not on the victim’s capacity to function in society, but on the victim’s basic recognition as a person who might be entitled to any such capacity. More simply put, causing pain for no reason is not something one person does to another; torture thus situates the victim as less than a person. It’s interesting, in passing, that Mill characterised rape in very similar terms – “the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclination”. To commit rape, in this line of thinking, is not to deny someone the good of freedom from rape, but to deny her the status of a person entitled to freedom from rape (and entitled, as a second-order right, to live her life on the basis of an assumed freedom from rape).

I think Gardner’s distinction between the immorality of torture and the wrongs which can be understood in terms of allocative justice is valid and powerful, although not quite in the way that he uses it. What I think it points to is the ways in which people can be reduced to something below the status of personhood – through torture or brutalisation, but also through homelessness, institutionalisation or becoming a refugee – and the powerlessness of the language of justice to address these very basic, fundamental wrongs. If the law is about justice, and justice is defined in terms of the correct adjudication of competing claims among autonomous individuals, how can it address – how can it fail to overlook – those people who are shut out of the game entirely, by being denied the status of person in the first place? And if the law can’t be invoked, what can?

2. Did you read the trespass notices, did you keep off the grass?

A bit more Gardner, from the 2011 paper on tort law. It’s quite a complicated thought, so the quote has to be on the long side:

Let’s allow … that tort law often helps to constitute the correctively just solution. What doesn’t follow is that tort law’s norm of corrective justice should not be evaluated as an instrument. On the contrary, to fulfill its morally constitutive role, tort law’s norm of corrective justice must be evaluated as an instrument. It must be evaluated as an instrument of improved conformity with the very moral norm that it helps to constitute. To see why, think about some other laws that are supposed to lend more determinacy to counterpart moral norms.

Quite apart from the law, for example, one has a moral obligation not to drive one’s car dangerously. The law attempts to make this obligation more determinate by, for example, setting up traffic lights, road markings, and speed limits. If the law does this with sound judgment, the proper application of the relevant moral norm is changed in the process. A manoeuvre that would not count as dangerous driving apart from the legal force of the lane markings at the mouth of the Lincoln Tunnel may well count as dangerous driving – and hence a breach of the moral norm forbidding dangerous driving – once the lane markings are in place. But this holds only if the law proceeds with sound judgment. It holds only if relying on the lane markings assists those who rely on them to avoid violating the original moral norm. If the mouth of the Lincoln Tunnel has profoundly confusing lane markings, reliance on which only serves to make road accidents more likely, failing to observe the lane markings is not a legally constituted way of driving dangerously. It is not immoral under the ‘dangerous driving’ heading. That is because, if the lane markings are profoundly confusing, driving according to the lane markings does not and would not help to reduce the incidence of dangerous driving.

The lesson of the case is simple. A legal norm cannot play its partly constitutive role in relation to a moral norm unless it also has some instrumental role to play in relation to the same moral norm, unless conformity with the legal norm would help to secure conformity with the moral norm of which the legal norm is supposed to be partly constitutive.

We start with the “moral obligation not to drive one’s car dangerously”. Laws – embodied in road markings – are put in place to support this moral norm. In doing so they also constitute it, make it “more determinate”: if road markings are being generally observed, failing to observe them may amount to driving dangerously in and of itself. However, road markings – and laws – may defeat their own purpose. If road markings are so confusing that attempting to rely on them would make the driver more dangerous to other road users rather than less, failing to observe them will not amount to driving dangerously. Similarly a law may instantiate a moral norm, but do so in such a “profoundly confusing” way that someone attempting to observe the law will be more likely to violate the norm. If this is the case, anyone committed to observing the norm will be best advised to disregard the law which purports to embody it. “A legal norm cannot play its partly constitutive role in relation to a moral norm unless it also has some instrumental role to play in relation to the same moral norm”: road markings put in place to help prevent dangerous driving may themselves define dangerous driving, but only if observing them actually leads to less dangerous driving.

Three relationships between moral norms and the law are envisaged here. In one, the law embodies and gives substance to a moral norm. In the second, the “proper application” of the norm is redefined by reference to the law, leading to a changed perception of the norm itself. The third is identical to the second, except that in this scenario the “proper application” of the norm has been redefined to the point where the law does not assist observation of the norm, and may even impede it.

There’s a problem here, relating to that word ‘instrumental’. It seems to me that there’s something inherently problematic in judging the success or effectiveness of laws in consequentialist terms – in terms of the outcomes which they produce or appear to produce. Firstly, assuming that the moral norm to which a law relates can be straightforwardly identified, there is the question of what should be counted as success. Bad road markings, in Gardner’s image, are those for which “driving according to the lane markings does not and would not help to reduce the incidence of dangerous driving”. However, it is a commonplace of debates on sentencing that the criminal law can modify behaviour – both individually and at the level of society – in many different ways; what type(s) of behaviour modification should be counted as success is an open question. Is a law prohibiting practice X at its most effective if the incidence of X-ing is reduced to zero? Or is the effectiveness of the law to be judged by the appropriateness of the punishment dealt out to X-ers, or by the opportunity it gives the community to express their repugnance at X-ing, or by the degree to which it raises awareness of the plight of victims of X-ers? A case could be made out for any of these, not all of which can be reconciled easily or at all. Secondly, it’s not always clear that the moral norm underlying a law can in fact be readily identified, still less the body of moral norms underlying the law (or an area of the law, such as the criminal law or the law of tort). The point here is not that the law is necessarily obscure, but that it is necessarily multivocal: it’s always possible for different and competing claims to be made as to the underlying moral rationale of a law or laws. This in turn raises the question of who is to do the identifying – and whether what they identify can change over time. Suppose that an elected government, facing a long-term economic depression, declares that poverty is a higher priority than crime, and that the law should generally not be used to impoverish poor offenders further. Or suppose that an elected government, facing a rise in crime figures, declares that the chief menace facing the country today is lawless behaviour by immigrants, asylum seekers, Travellers and people of no fixed abode, and that wrongdoing by individuals with no stake in a local community should be treated more harshly. Would these programmatic announcements represent authoritative clarifications of the body of moral norms instantiated by the law, the criminal law in particular? Would we expect the judiciary to ‘read down’ legislation to ensure compliance with these policy stances? If not, why not?

As in the case of torture considered as deprivation of a non-assignable good, I think Gardner’s analogy here pulls in a different direction from his stated argument. Road markings modify behaviour in a distinctive way and in a distinctive context, neither of which maps easily onto the law in general. To drive a vehicle is to put others at risk and accept the risk imposed by others; driving safely rather than dangerously benefits both the driver in question and other road users, in a way which is true of few other ‘virtues’ in driving. In effect, driving safely is the solution to the key co-ordination problem posed by collective road use – and it is a simple, readily available and generally acknowledged solution. Moreover, road markings constitute the moral norm of driving safely in a peculiarly authoritative way, which is perhaps only possible because the norm itself is so generally agreed. Road markings do not typically take the form of recommendations or advice; even to call them instructions would understate the force they have in practice. Rather than advise (or instruct) a driver to make certain choices, road markings typically operate by excluding certain choices altogether: they do not influence behaviour so much as structure it. As such, road markings are not open to be technically observed or observed in spirit or ingeniously circumvented: they are observed or not. Both the moral norm underlying road markings and the criteria for their observance are self-evident, in a way that is seldom true of the law.

Are we committed to abandoning any ‘instrumental’ evaluation of the law, or of individual laws, by reference to their outcome? This conclusion would be unfortunate; not only would it necessitate abandoning Gardner’s insight on the reflexive relationship between laws and norms, it would make it impossible to say whether any law was making the world a better place. A narrower reading of Gardner’s analogy may provide a solution. The situation in which road markings are “profoundly confusing”, such that “reliance on [them] only serves to make road accidents more likely”, can be interpreted in a number of different ways. The implication could be that the road markings are so confusing that it is effectively impossible for any one driver to follow them. Alternatively, it could mean that the markings can be followed, but only at so great a cost in time and attention as to force the driver to disregard other road users, so that observing the markings made his or her driving more rather than less dangerous. Lastly, it could mean that the markings are confusing in the sense of allowing widely diverse readings; markings which could plausibly be followed in multiple different ways would not make any one person’s driving more dangerous, but would greatly increase the likelihood of accidents.

All these forms of confusion can be readily envisaged as flaws of badly-made laws or legal systems: the law so complex and confusing that it is impossible to observe; the law whose demands are so extensive as to make it hard to carry on the activity the law is intended to regulate; the law whose vague or contradictory wording causes more social conflicts than it resolves. Any one of these flaws will make a law less effective, either in guiding individual behaviour or in resolving co-ordination problems; as a result, the moral norm underlying the law will be less effectively constituted in social practice, or (at worst) not constituted at all. However, these are all formal flaws: the failure of the law to constitute a moral norm can be inferred from the failure of the law as law. The realisation of the moral norm underlying the law does not need to be measured as an outcome – indeed, it is probably better if this is not attempted, for the reasons given above.

What I draw from Gardner’s analogy, in short, is a restatement of the intimate connection between morality and the formal virtues of law. To say that a law or body of laws is coherent, comprehensible and followable is not simply to say that it is well-made. A well-made law is also one which is well suited to embody a moral norm – and, crucially, to refine and specify the proper application of the norm in social practice, playing “[a] partly constitutive role in relation to a moral norm”. Whether or not the formal virtues of law have any moral content in themselves, I think this argument suggests that there is at least an irreducible affinity between law and morality.

Here’s a passage from Hillel Steiner’s contribution to A debate over rights which stopped me in my tracks when I read it: I had to put the book down to work out what was going on, which involved staring into space for most of the next half hour.

Suppose you and I conclude a contract which imposes a duty on you to make a payment to my brother: he is the third-party beneficiary of our agreement. According to the Will Theory, I am the only right-holder involved in this arrangement. … According to the Interest Theory, however, not only am I definitely a beneficiary but also my brother, as another beneficiary, is also a right-holder in respect of your duty. …

One apparent difficulty raised by this view is the danger of a proliferation of right-holders. For if my brother proposes to use that payment to purchse something, then it looks like his vendor is a fourth-party beneficiary of my contract with you. …

Bentham suggests that a person is properly included in the set of a duty’s beneficiaries only if the breach of that duty would be a sufficient condition of that person’s interests being damaged. This test obviously does supply the requisite surgical remedy by cutting my brother’s vendor (and her successive beneficiaries) out of that set.

But (Steiner continues) can Bentham’s ‘sufficient condition’ test be defended in its own right, setting aside the fact that it is useful for anyone who wants to uphold an Interest Theory of rights?

If I supply you with the security codes for a bank vault, I supply a necessary but insufficient condition of your robbing that vault. Our ordinary understanding of ‘interests’, it seems to me, is such that my action would none the less count as detrimental to whatever interests persons have in that vault’s not being robbed. And if that’s so, your failure to pay my brother does count as detrimental to the interests of his vendor, whatever Bentham may say to the contrary.

If our ordinary understanding of ‘interests’ is such that supplying you with the security codes for a bank vault counts as detrimental to whatever interests persons have in that vault’s not being robbed, then your failure to pay my brother does count as detrimental to the interests of his vendor. Ow. You may now stare into space.

Steiner’s responding to Kramer, who sets out Bentham’s test in the course of his exposition of the (or an) interest theory of rights. The set-up is essentially the same, but it’s worth paying attention to the way Kramer phrases it:

Suppose that X has contracted with Y for the payment of several thousand dollars by Y to Z. Suppose further that Z plans to spend all of her newly obtained money on some furniture from W‘s shop. In this scenario, W of course will have profited from Y‘s fulfilment of the contractual obligation. Now, given that the Interest Theory ascribes a right to Z – a right that is probably not enforceable and perhaps not waivable by Z – must it also ascribe a right to W?

Kramer describes Bentham’s test in these terms:

any person Z holds a right under a contract or norm if and only if a violation of a duty under the contract or norm can be established by simply showing that the duty-bearer has withheld a benefit from Z or has imposed some harm upon him. Proof of the duty-bearer’s withholding of a desirable thing from Z, or proof of the duty-bearer’s infliction of an undesirable state of affairs on Z, must in itself be a sufficient demonstration that the duty-bearer has not lived up to the demands of some requirement.

So, what about X and Y?

Bentham’s test will work very smoothly when applied to the scenario of the third-party-beneficiary contract. To prove that Y has breached his contractual duty to X, one need only show that Y has inexcusably failed to make the required payment to Z. In other words, one need only show that Z has undergone an unexcused detriment at the hands of Y. Establishing that fact is sufficient for a successful demonstration of Y‘s breach of duty. Hence, Y‘s duty to X under the contract is conjoined with a duty owed by Y to Z; Z, in turn, holds a right to be paid by Y. …

While a demonstration of Y‘s inexcusable withholding of the requisite payment from Z is sufficient to prove Y‘s breach of contract, the same cannot be said about a demonstration of Z‘s failure to buy furniture from W‘s shop. Z‘s abstention from any purchases cannot by itself be adduced as sufficient grounds for concluding that Y has declined to fulfil his contract with X.

Now that is clear.

Steiner’s suggestion that Kramer doesn’t justify Bentham’s test independently of its utility for the Interest Theory seems ungenerous at best; Kramer’s position, as in the third-party-beneficiary example, is that when it’s applied to a problem in interpreting rights, Bentham’s test works – which is to say, it gives legally unproblematic, logically defensible and intuitively plausible answers. Steiner also appears to have got Bentham’s test backwards – the point is not that “the breach of [the] duty would be a sufficient condition of that person’s interests being damaged”, but that damage to that person’s interest is sufficient to demonstrate breach of a duty. If effect B (e.g. damage to interests) is sufficient to demonstrate cause A (e.g. breach of duty), cause A is a necessary condition of effect B; it may or may not be a sufficient condition.

Setting this aside, let’s compare Steiner’s two scenarios. In one, I make a contract with Bertram to pay money to Charlotte; I renege on the contract, leaving Charlotte out of pocket and unable to buy goods from David. In the other, I am employed by Bertha as a security guard. I break my contract of employment, enabling a burglar (Eric) to rob Charles’s bank vault; this is to the detriment of both Charles and his depositors, including Dawn. Intuitively, Steiner argues, we would say that David does not have a case against me, but Dawn has. However, the interest theory (as qualified by Bentham’s test) would disqualify Dawn as well as David; this, for Steiner, suggests that either the test or the interest theory itself is flawed.

There are three main possibilities in interpreting these two scenarios, depending on how we read Steiner’s two claims: that they both involve an indirect victim who would be disqualified from any rightful claim according to Bentham’s test; and that the second of them involves a victim who should not be disqualified. The possible readings are:

1. The two scenarios are comparable; the indirect victim should be disqualified in one case but not the other
2. The indirect victim should be disqualified in one case but not the other, but Steiner is wrong to say that the two scenarios are comparable
3. The two scenarios are comparable, but Steiner is wrong to say that the indirect victim should not be disqualified in the second case; in fact the indirect victim should be disqualified in both cases

If either reading 2 or reading 3 is sustained, Bentham’s test survives unscathed.

Let’s consider reading 2: that there are significant differences between the two scenarios. Is this the case? Certainly, where parties C and D are concerned, we’re dealing with a loss in one case and failure to achieve a gain in the other – and there’s a criminal offence in one case but not the other – but their positions as third and fourth parties are the same.

A second complicating factor is my degree of responsibility for the loss. As we have seen, Steiner suggested that in betraying the security codes I furnished Eric with “a necessary but insufficient condition” of robbing the vault. Steiner’s formulation is terse and potentially misleading – it is unlikely to be the case that my misappropriation of the codes is the only possible route to robbing the vault. The thinking here seems to be that the capacity to enter the vault undetected is a necessary condition of robbing it, and my giving Eric the codes is a sufficient condition for him to acquire that capacity. This is more elaborate than “A contracts with B to pay money to C”, but I’m not sure it’s much more elaborate. The only significant difference is that it requires the intervention of (yet) another party, in the form of Eric – and since his function is to commit a criminal offence rather than to do anything legitimate, his agency can be bracketed out. To clarify this point, suppose that I let Eric get in by leaving a skylight open, and he made off with some bolts of fine and expensive fabric. Now suppose that Eric decided not to go out that night because it was raining – and the rain got in through the open skylight and spoiled the fabric. Unless the wording of my contract as a security guard was unusually precise, nothing would change significantly between the two scenarios as regards my responsibilities, or my relationship with Bertha, Charles and Dawn.

Another complication – although in this case it’s a complication that positively helps Steiner’s case – is my indirect relationship with the bank. If I were employed directly by Charles, it would be arguable that the third-party beneficiaries of the contract were, precisely, Charles’s clients, meaning that the two scenarios were not comparable. I think this would be a confused line of reasoning; if I work in security for a bank, the benefit accrues directly to the bank and only indirectly to its clients. Indeed, it could be argued that the bank is its own third-party beneficiary: as a bank guard I contract with the deposit-holding wing of the bank to keep those deposits secure, the benefit accruing to the trading wing of the bank. In any case, assuming that I work for Bertha’s security company removes this asymmetry.

In short, reading 2 can’t be made to work; the two scenarios, although superficially very different, seem to be directly comparable. But is Steiner right to suggest that my actions in the second case were detrimental to the interests of Dawn, the indirect victim – and that this casts doubt on the utility of Bentham’s test? I’m not convinced that he is. What, after all, is Dawn’s case against the bank? Something turns, perhaps surprisingly, on the nature of Dawn’s loss. If Dawn is simply a depositor, it’s not clear that she has sustained any loss at all. Banks don’t hold our account balances in the form of stacks of notes – which is just as well, seeing that they don’t go into the bank in that form, by and large.  Money is supremely fungible. To say that I have a balance of £X is to say that the bank undertakes to pay me up to £X without asking for anything back; the bottom line of a bank statement is effectively a promissory note, a promise “to pay the bearer on demand”. It may conceivably be that Dawn urgently needs a sum of cash the day after the burglary, and that Eric has emptied the vault to the point where the bank is unable to make the payment, but this is a second-order problem relating to the relationship between Charles and Dawn; Dawn’s interests as an owner of property, some of it in the form of bank deposits, are not affected by the removal of folding money from the vault. Not only are the two scenarios are directly comparable, it seems; the relations between third and fourth parties (Charlotte and David, Charles and Dawn) are also directly comparable, and equally disconnected from the relationship between me, Bertram/Bertha and Charles/Charlotte. Whether Charles is able to carry on business as usual with Dawn is not determined by my breach of contract with Bertha, any more than whether Charlotte is able to spend money with David is determined by my breach of contract with Bertram.

It could be argued that this whole line of argument is misdirected, however. Steiner refers, not to bank depositors in general (whose interest in bank vaults not being robbed seems to be surprisingly limited), but to “whatever interests persons have in that vault’s not being robbed”. Let’s suppose, then, that Dawn does have an interest in the vault not being robbed, in the sense that it holds personal items which would be hard or impossible to replace. I stop carrying out my duty to Bertha, to benefit Charles by securing his premises, with the result that Dawn suffers a permanent loss (from Eric or possibly from bad weather). Surely this is a case of a genuine fourth-party beneficiary (or victim)? I don’t believe it is. The loss in this case is not in fact to Charles but, directly, to Dawn (or, at most, to both Charles and Dawn): I have permitted the removal or spoilage of Dawn’s property, giving my actions just as direct a relationship with Dawn’s interests as if the burglary had taken place at her house. Dawn has a claim against me to the extent that I have undertaken, explicitly or implicitly, to protect her property as well as Charles’s. And, I would argue, if I am placed in the position of protecting premises whose contents are both vulnerable and irreplaceable, I (or my employers) have made just such an undertaking and thereby acquired a liability to the property’s owners. To the extent that the third-party beneficiary of my contract with Bertha is Charles and not his depositors, it seems to me, it must be open to Charles to keep his depositors out of the picture as regards the relationship between him and Bertha (and, by extension, me). If it is not possible, Dawn and other depositors cease to be fourth parties and become third-party beneficiaries in their own right.

My reading may be challengeable, but it seems to me that Steiner’s attempted disproof of Bentham’s test has led us instead to a demonstration and restatement of the test. In a contract with a third-party beneficiary, fourth-party beneficiaries are those who have no right under the contract, as a detriment to them does not suffice to prove breach of the contract. If detriment does prove breach of the contract, the supposed fourth party is in fact an unanalysed third party.

As I said at the outset, I’m keeping an open mind about the Interest Theory of rights, at least in Kramer’s form; my temperamental inclination is more towards some form of Will Theory. But, to the extent that an Interest Theory requires to be delimited by Bentham’s test in some form, and to the extent that Steiner’s argument aimed to undermine Bentham’s test, I’d say that the Interest Theory is looking pretty good so far.

Next: some thoughts on two brief passages by John Gardner (one on tort and torture, the other on road markings and the minimum morality of law). After that I shall probably have to get back to work.

1. So then I took my turn

Consider the criminal law: I have a duty to obey the law; we can suppose that this is correlative to a privilege held by the state, or an individual who holds an office enabling him or her to represent the state, e.g. my friendly local policeman, who I’ll call PC Yellow (for reasons which will become clear later). Now, what can Yellow and I do with this duty/privilege pairing – or rather, what can’t we do with it? The important thing that Yellow can’t do, I think, is waive it. Enforcement of the law can be selective and discretionary – you could say that the texture of the law is open enough for enforcement always to be discretionary to some extent. But it’s not open to Yellow to state that, as far as he has anything to say about it, I personally am free of any duty to obey the law; at least, if he does say that, it’s likely to cause legal trouble for him.

So I have a duty to obey the law, correlated to a privilege in the performance of that duty held by PC Yellow, and Yellow is unable to waive that privilege; in other words, Yellow has a disability of waiver, correlating to an immunity to waiver on my part. ‘Immunity’ may seem like an odd term in this context, but what we’re really talking about is one person altering another person’s legal standing: as a citizen subject to the rule of law I’m ‘immune’ to Yellow placing me above the law, but by the same token I’m immune to being placed below the law, subjected to arbitrary impositions and controls.

This is an example of the ‘second-order’ quality of powers (and disabilities) – the fact that they have effect on other jural relations. Confining myself for the time being to the power of waiver, any holder of a privilege (correlated with a duty) may have the power of waiver over the duty; more to the point, if the holder of the privilege doesn’t have a power of waiver, he or she must necessarily have a disability of waiver. A power of waiver is correlated with a liability to waiver on the part of the duty-holder; a disability of waiver is correlated with an immunity to waiver. Liberties as well as duties may be waived: the holder of a no-right (a lack of entitlement to constrain another’s actions in a particular area) may also have the power of waiver over the correlated liberty – and if the holder of the no-right does not have a power of waiver, he or she will necessarily have a disability of waiver.

At this point it gets (more) complicated. Duties and liberties both represent ways in which one person’s actions are subject to another’s control – or delimited lack of control; but the same can be said of liability and immunity, given that liability by definition involves the potential imposition of a duty. It follows that liabilities and immunities can also be waived – which is to say that they are logically associated, in any given case, with either  power of waiver or a disability of waiver.

We can see where this logic leads if we return to our criminal law example. So far we have one duty (to obey the law) and one privilege, plus one disability (Yellow’s incapacity to place me above the law) and one immunity. Now, can I waive my immunity[1]? In general terms, somebody who is immune to prosecution (for instance) may well have the power of waiving that immunity. Can I, in this case, waive the immunity[1] to being placed above (or beneath) the law? We’ll assume that it’s an unwaivable immunity – I can’t opt to be above the law even if I’d like to be. In this case, I hold a disability[2] of waiver of immunity to waiver, which correlates with an immunity[2] held by Yellow. Yellow in turn is unable to waive his immunity[2], giving him a disability[3] which correlates with an immunity[3] on my part – this third immunity being an immunity to waiver of immunity to waiver of immunity to waiver of duty. I am unable to waive this immunity[3], which means… but enough already; you get the gist.

Hillel Steiner, in his contribution to A Debate over Rights considers the criminal law in Hohfeldian terms and rapidly heads off in a different direction:

Like ordinary citizens, subordinate state officials are standardly disabled from waiving compliance with criminal law duties. Thus Yellow, a subordinate state official, holds a disability to waive a person’s duty not to rob. Yellow’s superior, let’s call her Black, therefore holds an immunity against Yellow’s doing so. Can Black waive her own immunity? What would be implied in denying her the power to do so? For Black’s immunity to be an unwaivable one she, in turn, would have to be encumbered with a disability: namely, the disability to waive Yellow’s disability. But if Black does hold such a disability then some still more superior official, call him Green, must hold an immunity correlative to Black’s disability.

We could, I suppose, continue indefinitely adding such epicycles to this line of reasoning by imagining that Green’s immunity too is unwaivable and identifying yet another even more superior official, Orange, who in turn holds the immunity correlative to Green’s thereby entailed disability. And so on. Let’s not do that. For the sufficiently unmistakable point here is that wherever we decide to stop this otherwise infinite regress, it can be stopped only by an immunity which is waivable. Unwaivable immunities (eventually!) entail waivable ones. So, yes, there can be unwaivable immunities. But what there can’t be are unwaivable immunities without there also being a waivable one. And the waiving of that one renders waivable whatever (otherwise unwaivable) immunity entails it.

A similar passage in Steiner’s 1994 book An Essay on Rights is discussed in Nigel Simmonds’s 1995 paper “The Analytical Foundations of Justice”; the argument reappears more or less unchanged in A Debate over Rights, albeit with a long footnote in response to Simmonds.

There are three things to say about Steiner’s argument here. One is that an Austinian command model of law seems to be creeping in here, with antinomies in the law resolved by reference upward. The thinking here seems to be that official A’s unwaivable subjection to the law is a disability held by official B, who in turn is bound by the effects of a disability held by official C, and so on up the chain until we reach Permanent Secretary Z, whose superior is the sovereign; the latter holds a position above the law, which enables him or her to waive Perm Sec Z’s disability, enabling Z in turn to set the underlings free. Some such model can explain how the rule of law is compatible with change in the law. Interestingly, you can turn the whole model upside down without much loss of explanatory power: official A is above the law relative to you and me, but holds a disability making him or her liable to the law relative to official B, who in turn is above the law relative to A but not to C… until we meet Perm Sec Z, directly subject to the sovereign, who in turn is subject to nobody but empowered to make the law. In this case we would have explained how official freedom of action is compatible with the rule of law. But I think we’re dealing in fables either way, and (more importantly) fables based on a very limited model of the law.

The second point to make – and one that’s made very clearly in Simmonds’s paper – is that Steiner is at best departing from Hohfeld. If we follow Hohfeld, there’s no reason to bring Yellow’s superior into the picture. Yellow’s disability vis-à-vis you or me does not correlate with an immunity held by his or her superior; it correlates, precisely, with an immunity held by you or me. The regress is not vertical but spiral: it consists not of Yellow referring his/her immunity up a Kafkaesque chain of superiors, but of me and Yellow running up an infinite pitch while passing the immunity ball back and forth between ourselves. There’s also something odd – and un-Hohfeldian – in Steiner’s apparent belief that the infinite regress could be stopped with a waivable immunity, i.e. by substituting a power for a disability. In Hohfeldian terms (as Simmonds points out) this would make no difference at all: if you did have the power to waive your immunity, this would correlate to a liability held by Yellow, who would in turn either be able or unable to waive that liability, and off we would go again.

On the other hand (and thirdly), I do think Steiner has identified a genuine problem. I’ll discuss it in the next section.

2. Enough! No more.

If we use Hohfeld’s model, the reasonably plain-language term “unwaivable” apparently can’t be defined without presuming an immunity to waiver of immunity to waiver of immunity to waiver, to say nothing of an immunity to waiver of that immunity, an immunity to waiver of that one, and so indefinitely on. Simmonds talks of these higher-order immunities and disabilities being ‘generated’ through inquiry, which I think is a useful way of looking at it; as if to say, the question of the waivability of the immunity to waive (etc) only arises once you ask it, but once asked it has to be answered. One can imagine MacCruiskeen in the Third Policeman being an expert in this field:

“Ah now. You’ll be talking about the immunity to waiver of the immunity of waiver.”

I supposed that I was. The policeman gave me a look of indescribable craftiness.

“That’s the cleverness of it, you see? I’m talking about the immunity to waiver of the immunity of waiver of the immunity of waiver. And I know what you’re wondering. Can that immunity be waived of its own self?”

I said nothing. The policeman’s ingenuity was rapidly ceasing to be a thing of fascination and becoming one of horror. MacCruiskeen caught my eye and – ye Gods! – winked.

“It cannot, and that’s the truth. There exists an immunity of waiver of the immunity of waiver of the immunity of waiver of the immunity of waiver. What do you think of that now?”

I agree with Steiner in finding this line of thinking troubling. Apart from anything else, it makes me wonder what would happen if I somehow acquired a liability to waiver of immunity to waiver of immunity to waiver of immunity to waiver of immunity to waiver of duty, as it were by accident – would that liability ripple down the chain, leaving me liable (under certain conditions) to waiver of duty? And then, how could the acquisition of some such nth-level liability be ruled out? In his footnote Steiner argues that “any form of infinite regress … cannot be part of anything describable as a normative (much less legal) system; there are necessarily insufficient persons and/or time to sustain it” (emphasis in original); the ‘spiral regress’ proposed by Simmonds resembles “a game whose rules include a stipulation that, at the end of any round, either player is entitled to demand a further round” – an instruction set so open to being prolonged that (pace Wittgenstein) it would be difficult to describe it as a game.

The ‘spiral regress’ thus raises two inter-related problems. On one hand, in specifying a second-order relation – a liability or immunity – it seems as if we can never stop. A liability which can be waived is a liability associated with a power of waiver, correlated with a liability to waiver; this second liability in turn may be waivable, in which case it in turn will be correlated with a second power of waiver… and so on. Different possibilities seem to open up at every stage, and the stages can multiply indefinitely. On the other hand, when interpreting second-order relations – working, as it were, from the outside in – the appearance of multiple, ramifying possibilities seems to collapse. To say that I can waive my immunity to waiver of an immunity to waiver of duty is to say that, in some circumstances, I am liable to waiver of an immunity to waiver of duty – which in turn equates to saying that I may be liable to waiver of duty. Depending on your standpoint, the multiple levels of secondary jural relations seem either to need specifying to infinite precision or to be logically equivalent – in which case they would not need to be specified at all.

As with Dworkin’s right not to be lied to, I think there are a number of possible solutions to this puzzle. One is what you might call the “and no returns” approach. This would see the immunity of waiver I enjoy relative to PC Yellow and the criminal law elaborated into a general immunity, encompassing that immunity and all derivable immunities: as if to say, I have an immunity relative to you in the area of waiving the duty of obeying the criminal law, I have a composite disability relative to you in the area of waiver of this immunity and in the area of waiver of any higher-order immunities deriving from it, and I have a further immunity relative to you as concerns the waiver of the composite immunity correlating to that composite disability. This is a single sentence, but otherwise it’s not much of an improvement: we haven’t succeeded in parcelling up all those higher-order immunities into a single over-arching immunity. And, even if we had done, the Hohfeldian question would still be lurking: this immunity – can it be waived or not?

A more fruitful approach, I think, would be to say that, while it’s always possible to inquire about the powers or disabilities associated with a particular duty, liberty, liability or immunity – and once asked the question can always be answered – it’s not generally necessary to make the inquiry. An infinite (spiral) regress is always possible, but it only comes into being when you start to explore it. And – importantly – traversing the spiral regress generated by considering powers of waiver is something to be done in the real world, under specifiable conditions, not as an abstract exercise. This “real world” stipulation, I think, wards off both the mise en abîme feared by Steiner and the risk of the spiral collapsing into undifferentiated logical equivalence. Here’s an illustration. Let us say that an eccentric relative leaves me a small annuity in his will, on the condition that I visit his grave every May Day. The duty, correlating to a privilege held by Uncle Albert’s executor, is not waivable; if there is no visit, the executor will not pay out. This disability[1] correlates to an immunity[1] on my part; my duty cannot be affected by any variation of the terms of the will by the executor. I am not able to waive this immunity; I have a disability[2] of waiver, correlating to an immunity[2] to waiver held by the executor. In other words, I cannot agree to any variation of the terms of the will which the executor puts forward, and if I offer to agree any such variation the executor may not entertain the offer – he or she is immune to the suggestion. Further, the executor is powerless to waive this immunity, and this disability[3] correlates to a further immunity[3] on my part: it is not open to the executor to propose that henceforth, under certain circumstances, suggestions of agreement to possible variations in the will’s terms will be entertained, nor is it open to me to take any notice of such a proposal.

Let’s suppose, then, that I acquire the power to waive this last immunity, and the executor’s correlative disability with it. In this situation I would let the executor know that, under certain circumstances (which I would specify), I would endorse the proposal that suggestions of agreement to possible variations in the will’s terms would be entertained. What happens now? If my earlier intuition were correct, and a power of waiver would simply propagate back down a chain of immunities and disabilities, I could proceed fairly directly to asking the executor if I could cut out this year’s May Day observance and take the money anyway. This clearly isn’t the case: my willingness to endorse the above proposal (under specified conditions) creates the conditions for the proposal to be made, but doesn’t generate it; that’s up to the executor. If he or she wishes to make such a proposal, and if my stated conditions are congenial, my waiver of my immunity[3] makes it possible for the executor in turn to waive his or her immunity[2] and offer to accept my agreement to possible future variations of the terms of the will, should I give it. However, the waiver of my immunity[3] does not make the waiver of the executor’s immunity[2] necessary – and if the executor does in fact decide to waive his or her immunity[2], this can be done with a whole new set of strings attached. If both sets of conditions are satisfied, and if I wish to do so, I can then agree to any variation of the terms of the will which the executor puts forward – if he or she decides to do so, and if any new conditions attached to this operation are met.

I think that working through this example demonstrates that both the fear of an infinite regress and the fear of collapse into logical equivalence are overstated. It’s true that the spiral of correlative immunities and disabilities (or liabilities and powers) can always be given one more twist: in fact, to say that I can waive my immunity[3] implies that I must have a power[4] to waive my immunity[3] to the waiver of an immunity[2] to the waiver of an immunity[1] to waiver of duty (and to say that I cannot would imply a disability[4], and so on). But once real world considerations are imported diminishing returns start to set in fairly quickly. It makes fairly good intuitive sense to talk about not being able to waive my immunity to any variation of my duty; it’s less obvious what a waiver of immunity to proposals that suggestions of agreement to possible variations in my duty might in future be entertained would look like, or when we might need one. The same logic applies when you look at the spiral from the outside in. While further twists of the spiral can always be generated, higher-order powers and immunities are always in a sense parasitic on lower-order ones, and can’t determine them: waiving a higher-order immunity may make it possible to waive the next one down, but does not make it necessary or likely. The spiral regress is populated by human actors with their own interests and bounded freedom of action; legal powers and disabilities constrain their actions but do not determine them.

3. Just step sideways

This is satisfactory as far as it goes, but I don’t think it gets to the heart of Steiner’s worry about Simmonds’ formulation. In my example, a stack of immunities and disabilities followed by a single power of waiver would not lead to the waiver of the first immunity automatically, regularly or (in practice) very often at all; in practice, it would be of very little moment whether the fifth or sixth twist of the spiral was populated by a disability or a power, given the extreme unlikelihood of any fifth- or sixth-level power of waiver actually enabling a first-level waiver. But this result – the waiver propagating back up the spiral – would be possible; the original immunity would not be unwaivable. To formulate an immunity which literally could not be waived, one would need to follow the spiral regress, essentially, to infinity: stopping at the 5th or 10th or 100th iteration would leave open the possibility that the waiver of an n-times-parasitic immunity would propagate all the way back up to the immunity which we originally wanted to protect.

I can see two possible approaches to solving this problem. One would be to appeal to the “real world” approach and dismiss the question as badly-framed. Hohfeld’s jural relations have their own logical precision and purity – the argument would run – but they are jural relations first and last, abstractions moulded to the proportions of real-world problems. A 100th iteration of immunity/disability ball-passing is unimaginable in a real situation; as Steiner says, we just haven’t got the time (although we have got the people – it only takes two). However, what this implies – contra Steiner – is that to treat the spiral regress as a mechanism capable of generating a hundred or more iterations is to get it wrong. An unwaivable immunity, on this logic, is an immunity which is effectively unwaivable: as if to say, “we agree that the next question will be answered in the negative, for as long as either of us has the motivation to ask the next question”. What this formulation brings out is how firmly Hohfeld’s relations are rooted in the model of relations between two people, and specifically agreements between two people. An unwaivable immunity is fundamentally an agreement; as such it cannot be enforced (“I demand that you make this immunity unwaivable by joining me in answering the next question in the negative”) unless it has first been agreed – in which case what is being enforced is not an agreement but observance of a prior agreement.

Another possible approach takes us back to the hierarchy of officials Steiner envisaged as an alternative to an infinite regress. Infinite regress is a besetting problem for theories of the law. Where, after all, do laws come from? Plainly, laws are made by authorities legally endowed with the power to make law. But how did this power arise? It must have been created by an act of law-making; this itself must have been carried out by some higher authority, itself endowed with the power to make law… and so implausibly on.

One way to avoid this infinite regress is to declare the regress to be finite, essentially capping it off at a fixed point. The command model enables us to cut the knot fairly crudely, simply declaring that the state – or the sovereign – is the final source of the law’s legitimacy and hence ultimately takes precedence. Hans Kelsen’s theory of the Grundnorm (‘basic norm’) can be seen as a similar manoeuvre on a more theoretical level. To quote a paper by Neil Duxbury (which, on a personal note, was the first work of legal theory I ever read):

Every legal norm ‘must be created by way of a special act … not of intellect but of will’ – the will of not just anybody, but of a person or body legally authorized to create the legal norm. That authority is itself conferred on that person or body by another legal norm .. which must itself be created by way of an act of will issuing from a person or body whose law-creating capacity is authorized by yet another legal norm. And so on, until we reach the basic norm. Whereas we can explain the reason for the validity of any legal norm by saying that it is attributable to the will of a person or body whose action is authorized by another legal norm, this explanation cannot be applied to the basic norm. The basic norm is not an enacted norm. ‘It must be presupposed,’ Kelsen elaborated in 1960, ‘because it cannot be “posited,” that is to say: created, by an authority whose competence would have to rest on a still higher norm. This final norm’s validity cannot be derived from a higher norm, the reason for its validity cannot be questioned.’ Because it is not an enacted norm, moreover, it ‘cannot be the meaning of an act of will’; rather, ‘it can only be the meaning of an act of thinking’ – the consequence of ‘presuppos[ing] in our juristic thinking the norm: “One ought to obey the prescriptions of the historically first constitution.”’

We can safely say that this is not entirely satisfactory, since Kelsen himself ultimately abandoned this line of thought (or, Duxbury argues, subverted it by developing tendencies within it); his final conclusion was that the basic norm should be thought of, not as a norm attributable to an act of thinking, but as a fictional norm attributable to the will of a fictional authority. This is a more subtle and interesting point than it looks – particularly when we take into account that, at least some of the time, Kelsen used ‘fictional’ to denote that something not only did not but could not exist, owing to internal contradictions – but I won’t investigate it here.

My current point is that both Kelsen’s basic norm and Austin’s sovereign – considered as capstones topping off an otherwise infinite regress – are arbitrary and unsatisfactory solutions, but solutions to a genuine problem. The problem is not, in Steiner’s terms, “a game whose rules include a stipulation that, at the end of any round, either player is entitled to demand a further round” – as we’ve seen in the context of Uncle Albert’s will, in practice this isn’t likely to cause any difficulties. The problem – both for the legitimacy of legal authorities, and for Simmonds’s unwaivable immunities – is a game in which, at the end of every round, the player must ask for another round. In both cases the question is unanswered at the end of each round, and it’s a question that needs an answer – whether it’s where the legitimacy of law-making authorities comes from or whether an immunity genuinely cannot be waived.

For the first of these cases of infinite regress, a much more satisfactory alternative is offered by Hart’s rule of recognition. Hart’s deceptively simple proposition is that any legal system includes a criterion by which laws can be recognised as ‘legal’, and which is acknowledged and upheld by the practices of officials within the system. Instead of referring upwards to a higher authority (itself dependent on a still higher authority), this approach effectively refers sideways. The question posed is not whether an enactment derived from a legitimate authority, but whether the authority in question was engaging in what was recognised as the activity of law-making within that legal system, including observation of the rules and criteria applicable within that system. The regress stops after a single step; the question of whether, for example, the constitution of the present law-making authority took place in accordance with the criteria then applicable is of purely historical interest – unless that question forms part of the criteria to be applied within the current system, in which case it will in effect already have been asked.

Can the infinite spiral regress associated with unwaivable immunities be dealt with similarly? I think perhaps it can. I suggested above that an effectively unwaivable immunity – as distinct from an immunity which is unwaivable by definition – could be modelled as an agreement that the immunity should be treated as unwaivable, generating a disability of waiver whose correlative immunity was in turn treated as unwaivable, and so on: “we agree that the next question will be answered in the negative, for as long as either of us has the motivation to ask the next question”. This is a “let’s not go there” model of unwaivable immunity, essentially. Perhaps all that is needed to formalise this practice – and bridge the gap between ‘effectively unwaivable’ and ‘unwaivable by definition’ – is a generally recognised rule, and a practice of classification through which it can be determined whether the rule applies. In other words, perhaps when we say that an immunity is unwaivable we are not saying that the derived nth-level immunity to waiver carries a disability of waiver correlative to an n+1th-level immunity, and so on; perhaps we are saying that we can rely on this immunity being treated as unwaivable (by the “let’s not go there” method), because we know that it falls into the class of immunities which we have an established and publicly recognised practice of treating as unwaivable. The infinite regress doesn’t evaporate quite as dramatically as in the previous example – it’s still meaningful to say that I have no power to waive immunity to changes in my standing relative to the criminal law, for instance, and to ask what such a power might look like. Navigating the spiral regress ceases to be necessary, though, which is the desired effect.

Does this class of immunities to be treated as unwaivable, or this practice of recognising immunities as unwaivable, correspond to anything in the real world? Fortunately for me (and for your patience), I think it does. One way of modelling the difference between the criminal law and most (all?) other branches of the law is, I think, precisely the unwaivable immunity with which we started: the immunity to being placed above (or below) the law. In other areas of the law – areas which approximate more closely to Hohfeld’s model of a two-person agreement – it is an open question whether a duty can be waived and (if not) whether the immunity correlative to the disability of waiver can itself be waived. In the criminal law the answer to both questions can only be No. This is one aspect of the uniformity of the criminal law, which can be considered one of its defining virtues: equal subjection to the criminal law can be seen as a civil right, a key element of citizenship.

This is speculative and fairly hasty stuff, but I think it’s worth thinking about. To recapitulate, if we did resolve the spiral regress in the way I’m suggesting, it would mean that there was at least one recognisable area of legal practice which operated on the basis of duties and derived immunities being unwaivable – and did so without inquiring too deeply into the waivability of higher-level immunities, as the answer could be assumed to be negative. The criminal law seems like a good candidate.

My route into legal theory was via Simmonds and Lon Fuller (or Pashukanis, Simmonds and Fuller to be precise). Matthew Kramer is very much on the other side of the debate when it comes to Hart and Fuller (when it comes to Kramer and Simmonds, come to that), so I have to say I wasn’t expecting to find his contribution to the book particularly congenial. As it turned out, I was pleasantly surprised by the power and cogency of his arguments. I read most of the book enthusiastically and at speed, but Kramer’s section in particular; I found myself muttering some of his conclusions out loud as I read them, not as an aid to comprehension but just because they were so well written. I’m not sure that I endorse his version of the interest theory of rights, but I did notice that Simmonds’s trenchant attacks on interest theories left it largely unscathed (as Simmonds in fact acknowledged). But, as I said, I’ll return to this question another time.

For now, here’s a passage from Ronald Dworkin which Kramer discusses briefly.

Dworkin:

In many cases … corresponding rights and duties are not correlative, but one is derivative from the other, and it makes a difference which is derivative from which. There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to, and the idea that I have a right that you not lie to me because you have a duty not to tell lies. In the first case I justify a duty by calling attention to a right; if I intend any further justification it is the right that I must justify, and I cannot do so by calling attention to the duty. In the second case it is the other way around.

Of course, if rights (privileges) are by definition correlated with duties, it cannot make a difference “which is derivative from which”. So what was Dworkin talking about – is there any way to maintain Hohfeldian correlativity while maintaining that there is a significant difference between “I have a right not to be lied to [by you]” and “you have a duty not to tell lies [to me]“, such that information would be lost if we replaced one with the other?

Kramer suggests one line of interpretation:

Dworkin might be referring only to justificational correlativity (and derivativeness) rather than to analytical or existential correlativity (and derivativeness). That is, he might be referring to levels of priority within a justificatory argument only – and not to levels of priority within an analytical exposition or within a legal system. If so, then Dworkin is not proclaiming that Hohfeld’s Correlativity Axiom somehow fails to apply to the legal positions commended by duty-based and right-based theories.

On this reading, Dworkin is not claiming that the paired right and duty are non-correlated, but only that their relationship will be explained in different ways in different situations: as if to say, I might justify the physical challenge of an uphill slope by calling attention to the aesthetic quality of a downhill slope, or vice versa, and it makes a difference (to me and my interlocutors) which is derivative from which.

This is fair enough, but it seems a fairly meagre basis on which to claim that “[some] corresponding rights and duties are not correlative”. Can Dworkin’s argument be grounded more securely? I think it can, in two ways, although neither of them actually challenges Hohfeldian correlativity. In one case the difference which Dworkin detects between the right-not-to-be-lied-to and the duty-not-to-lie rests on linguistic imprecision. The additional information which, Dworkin argues, is carried by one formulation as compared to the other has actually been read into it; if the distinction had been spelt out, it would have become clear that the right and duty being discussed were not a logical pairing and the appearance of an exception from correlativity would have disappeared. In the other, the additional information needed to create the asymmetry derives from a particular reading of the concept of rights – one which is tenable and quite widely used, but is also quite incompatible with Hohfeld’s model.

The first way to salvage Dworkin’s argument rests on generality. Note Dworkin’s phrasing:

There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to, and the idea that I have a right that you not lie to me because you have a duty not to tell lies.

Emphasis added. And this is true: there is a difference between the statement that I have a right not to be lied to by anyone, including you, and the statement that you have a duty not to tell lies to anyone, including me. But this says nothing about correlativity. In the (unlikely) case that I hold a privilege of not being lied to against any and every person I come into contact with, this correlates with a duty on the part of each of those individuals. My privilege against you lying to me is one element of this set of privileges against the world in general, and is precisely correlated with a duty on your part. A similar argument applies in the case where you are under a general duty not to lie. All Dworkin is saying, on this argument, is that general privileges don’t correlate with specific duties – which is to say, privileges and duties don’t correlate if they are imprecisely formulated.

Perhaps this wasn’t Dworkin’s reasoning; perhaps the line quoted above is just a case of hasty phrasing or unfortunate editing, and Dworkin’s thought would have been represented just as well (or better) by this formulation:

There is a difference between the idea that you have a duty not to lie to me because I have a right not to be lied to by you, and the idea that I have a right that you not lie to me because you have a duty not to tell lies to me.

Can we make this work, in analytical and not merely justificatory terms (there is a difference between the idea…)? Only with difficulty, I think. But there is one angle worth looking at, which I’ll call the argument from confidence. Suppose that Dworkin’s argument implicitly concerned, not a “right not to be lied to”, but to a “right to the confident expectation of not being lied to”. Such a right would certainly seem to carry a derived (and not correlated) duty on others not to lie. If the duty not to lie came first, on the other hand, there would be no question of confident expectation: your duty not to lie to me gives me the right to feel, not confidence, but certainty that you will in fact not lie to me. There seems to be an asymmetry between the two pairings.

But what is this ‘confident expectation’, and why – in the teeth of the text – have I introduced it? I’m thinking now of a conception of rights which is far removed from the level of specificity on which Hohfeld’s model works so well. Suppose that when we invoke rights we’re talking about a kind of potentially universalisable framework of moral duties and privileges governing all social interactions: a framework which we (the community which recognises those rights) aspire to implement as a coherent whole, not least through the law, but which is always necessarily a work in progress. Suppose, in short, that we’re talking about something much closer to Fuller’s “morality of aspiration” than the “morality of duty”. The argument from generality is relevant here: in this situation, any right I might have not to be lied to by you would derive from a broader right not, in principle, to be lied to by anyone. But on this aspirational reading of rights, I would have no absolute right not to be lied to, by you or anyone else. I would have a right to the confident expectation of not being lied to (by anyone), by virtue of my membership of a community which upholds the right not to be lied to as an aspiration; at the same time, I would know that aspirations are not duties, and shortfalls from aspirations – and trade-offs between conflicting aspirations – are always a possibility.

This would not release you from any duty not to lie to me, however. My right to the confident expectation of not being lied to by you is only a duty-generating right in principle, all other things being equal, and only you can know in a given situation whether all other things are in fact equal. That said, if the description of the relationship between you and me is updated to include the line “Phil has the right to the confident expectation of not being lied to by you”, the way in which this new information should influence your behaviour is fairly clear. The associated duty is not correlated, but it derives directly – albeit that, in the unpredictable complexities of social life, it would not derive predictably or uniformly. In short, this way of conceptualising rights leads naturally to the asymmetry which Dworkin identifies in an apparently symmetrical pairing of right and duty.

Dworkin’s argument can be salvaged, then, by the simple expedient of stripping out the specificity, precision and duty-orientation of Hohfeld’s model and replacing it with a conception of rights based on a society-wide morality of aspiration, from which duties could be generated only unreliably and by derivation. In short, the ‘confident expectation’ reading would involve completely abandoning Hohfeld and using a schema which makes no claim to correlativity. The ‘generality’ reading rests on a verbal quibble and disappears if we use more precise phrasing, while Kramer’s own explanation – the ‘justification’ reading – would deprive Dworkin’s argument of the significance he seems to claim for it.

I think we can conclude that the project of reconciling Dworkin’s argument with Hohfeld’s framework has been tested to destruction.

Next: Simmonds and Steiner, and Simmonds on Steiner.

Whose pigs are these?
Whose pigs are these?
They are John Potts’
I can tell them by their spots
And I found them in the vicarage garden
(Traditional)

I recently read A Debate over Rights: Philosophical Enquiries by Matthew Kramer, Nigel Simmonds and Hillel Steiner. I enjoyed it enormously. Over the next few days (or weeks) I’m going to post some thoughts which the book sparked off, focusing on points which puzzled me or seemed to need more developing. The next three posts will document some lines of thought which the book sparked off, and which I’ve been worrying at ever since. Post 5 will be devoted to some thoughts on a couple of essays by John Gardner, which don’t entirely belong with the other posts but need to be go somewhere. I’m not, at this stage, offering any kind of engagement with A Debate over Rights as a whole or with the authors’ main arguments; in fact there won’t be anything (for now) about Simmonds’ contribution, or very much about Kramer’s. I’ll re-read the book once I’ve finished the series, which will hopefully prompt some more thoughts.

This first post is going to provide a bit of theoretical background. The three essays making up A Debate over Rights all begin from the logical model of “jural relations” set out by the legal theorist Wesley Hohfeld (1879-1918). Before getting to the specifics, it’s important to note that all Hohfeld’s relations apply in principle between two people and in a particular field of action. For example, Jay’s desire to wear a hat might be protected from Kay’s attempts to thwart it by a right of non-interference – a “liberty” in Hohfeld’s terminology. In this example, this specific liberty would only make a very small and local contribution to Jay’s freedom of action: it would say nothing about anyone else’s ability to stop Jay wearing a hat, or about any non-hat-related coercion Kay might want to exercise. This is a fundamental point about Hohfeld’s scheme, which can have the unfortunate effect of making it seem weak or trivial in comparison with the grand canvases on which human rights discourse generally works. It’s anything but, as hopefully will become clear.

Hohfeld’s table of relations begins with two pairs of oppositions:

Privilege :: Duty

Liberty :: No-Right

Each pairing obtains, as I said above, between two people and in one sphere of action. Crucially, the elements of these pairings are correlated; where privilege exists on one side, duty exists on the other, and vice versa. If A has a duty towards B as regards x-ing, then B has a privilege in respect of A where x-ing is concerned. Say that you have promised the verger that you’ll unlock the church on Sunday morning. This is a useful thing to do and will benefit lots of people beside the verger, but your duty to do it is a duty towards the verger – just as the verger’s justified expectation that the church will be unlocked is a privilege with regard to you, not to the world (or the congregation) in general. (While Hohfeld’s model derives from and fits most naturally into the sphere of legal rights, it can be used productively to talk about purely moral rights, as in this case.) Some writers replace Hohfeld’s term ‘privilege’ with the more familiar ‘right’, or else ‘claim-right’; another way of formulating B’s privilege in this example is simply to say that B has a right to the fulfilment of A’s duty. (I don’t say B has a right to expect the fulfilment of A’s duty (although this would read more easily), for reasons that I’ll come on to later.)

It’s important to note that this is a relationship of logical, not practical, entailment. In other words, my duty to you in a given area is not something that needs to be done in order to fulfil your privilege over me in that area, which would otherwise exist unfulfilled or in a kind of potential state. My duty is the relationship between us (in that area), viewed from my perspective; your privilege is that relationship as it looks from your standpoint. This is the case even if the relationship was created for the sake of creating the duty, without any thought to the privilege (or, conceivably, vice versa). In Kramer’s formulation, someone who constructs an uphill slope in their garden will necessarily build a downhill slope as well, even if their sole reason for doing so was the aesthetic effect of an uphill gradient.

As for the second pairing, here we enter the territory of rights of non-interference. If A has a liberty towards B as regards x-ing, then B has no right to prevent A from x-ing – in Hohfeld’s (only slightly different) terms, B has a ‘no-right‘ towards A in that area. Many of the entitlements we usually refer to as rights are liberties in Hohfeld’s terms: if I have a right to free speech, this means precisely that I hold a liberty to speak, as against others who might interfere (principally the government). Liberties often take much more specific forms: someone may have a ‘right’ to set up in business (in the form of liberties held against the local authority, the police etc) but not have any ‘right’ to carry on that business without interference (in the form of liberties held against local rivals who might undercut the business, customers who might go elsewhere, employees who might go on strike, etc).

There are diagonal as well as horizontal relationships within the table. The opposite of a privilege is a no-right; the opposite of a liberty is a duty. These are logical opposites, such that – in any given social relationship and sphere of action – one party has either a privilege or a no-right towards the other, and either a liberty or a duty.

Two further pairings can be dealt with more briefly. These follow the same basic structure and apply it, reflexively, to the granting and varying of rights.

Power :: Liability

Immunity :: Disability

If A can alter B’s legal standing in respect of area z, A has a power over B in area z – and, by the same token, B has a liability in respect of A in that area. Equally, if A is unable to alter B’s legal standing in respect of area z, B has an immunity in respect of A in area z – and A has a disability in respect of B in that area. Powers are the opposite of disabilities; liabilities are the opposite of immunities.

As noted above, Hohfeld’s opposites – the diagonal pairings – are logical opposites. I found it useful to think of them as dichotomous variables: for any given social relationship and any given sphere of activity, you either have a liberty or a duty towards the other party, and (at the same time) either have a privilege or a no-right. The members of the liberty/duty and privilege/no-right pairings are mutually exclusive and jointly exhaustive: there is no social relationship and no field of activity to which they don’t apply. There’s no ‘off’ position, in other words. The man I happen to sit next to on the bus has no influence on my later, independent choice of sandwich for lunch – but this is not to say that there is no Hohfeldian relation between person A (man on bus) and person B (Phil) in area y (sandwich choice). Rather, there is a relation of liberty (on my part) and no-right (on his).

The exhaustiveness of Hohfeld’s opposites has some particularly interesting – and easily overlooked – effects when we start to put the two pairings together. Some privileges, and some liberties, can be waived: the verger may let me have a lie-in from time to time; I may let my colleagues put in a collective sandwich order and override my personal preferences for a while. In the first case, where I have a duty towards the verger in the matter of unlocking the church, the verger has a power (of waiver) over that duty – and I have a liability, in the sense that the duty may be altered without my say-so. The second case is more complex. If I have a liberty (towards my colleagues) in the matter of sandwich choice, they by the same token have a no-right towards me; strictly speaking, it’s that no-right which I have the power to waive. Again, powers correlate with liabilities: my colleagues are under a liability, in the sense that their exclusion from input into my sandwich choice may be revoked by me, and not by them.

But remember: the opposites are dichotomous, and dichotomies are jointly exhaustive. Anyone who is owed a duty which cannot be waived does not hold a power of waiver, correlating with a liability on the part of the duty-holder. Instead, they hold a disability (of waiver), which correlates to an immunity from having the duty waived on the part of the duty-holder. There is no sphere of activity and no social relationship which cannot characterised by either privilege or no-right, and by either duty or liberty. And there is no relationship – of privilege to duty or of liberty to no-right – which is not further characterised by either power (to waive or vary) or disability, and by either liability or immunity. John Potts enjoys the privilege of ownership of some spotted pigs, and the liberty of non-interference with that ownership, as against the no-right and duty not to interfere of you, me and the vicar; he also has either the liberty to graze them in the vicarage garden or (more probably) the duty to refrain from doing so, combined with a privilege or (again, more probably) a no-right over the vicar himself in the matter of grazing rights. Viewed in this light, so far from being limited to minute and artificial examples (Kay’s duty not to prevent Jay from wearing a hat), Hohfeld’s correlatives and opposites seem to describe the entire social world – albeit that they describe it in impossibly minute terms, a map even bigger than the territory.

One final point, for now: one of the key points of disagreement between Kramer and Simmonds – indeed, one of the key points at stake in the book’s debate over rights – concerns how to conceptualise these xs, ys and zs which make the Hohfeldian model tick. I may have a liberty towards you in a given area, coupled with an immunity as regards any attempt on your part to waive your correlative no-right – but what are these ‘areas’ that we’re talking about? Are they interests, and if so how do these interests work? If they have the cast-iron, logical-entailment structure of a Hohfeldian correlative pairing, how can they be balanced against other interests? If they aren’t balanced against other interests – if they’re a set of fundamental interests which take absolute priority over other, more fungible interests – then what subset of interests can they possibly be? Alternatively, are Hohfeldian rights a way of building a Kantian model of the will of the individual, expressed freely and without any necessary conflict with other individual wills – and if so how do we make them work in the real world?

I have no idea how to answer any of these questions – not that they’re easy questions from anyone’s perspective. The contrast between ‘interest theory’ and ‘will theory’ models of rights is a major bone of contention both between the authors and among the other writers discussed in the book; I’ll come back to it myself another time (probably after I’ve re-read the book).

52 Folk Songs: white is an album of seasonal songs, mostly traditional, recorded between the start of Advent and the end of Epiphany last year. Some are religious, some are songs for cold nights and the turning of the year, and some are both. Unfortunately the album wasn’t available for download until February, by which time the moment for Gaudete and the Boar’s Head Carol had passed. But its time has come round again, so here it is.

The full track listing is:

1. A maiden that is matchless (2:07)
2. The holly and the ivy (1:49)
3. Shepherds arise (3:22)
4. A virgin most pure (4:08)
5. In Dessexshire as it befell (3:34)
6. Poor old horse (5:08)
7. On Ilkley Moor Baht ‘At (4:43)
8. Come, love, carolling (Sydney Carter) (2:08)
9. The boar’s head carol (1:49)
10. Gaudete (2:49)
11. The King (1:26)
12. In the month of January (4:22)
13. The Moving On song (Seeger/MacColl) (2:44)
14. The January Man (Dave Goulder) (2:33)

Tracks 2-4, 9 and 11 have been remixed this time round, to give a better balance between the different vocal tracks. Tracks 7 and 13 are ‘hidden’ tracks, as you’ll see (or rather won’t see) if you visit the album page; they can only be downloaded by downloading the whole album. (You can play (but not download) them at the 52fs: Extras page.)

As well as hidden tracks, the white album comes with full lyrics, notes on the songs and even the odd picture. A few brief comments on the songs:

A maiden that is matchless is sung simultaneously in modern English and Middle English, with a flute part copied from Dolly Collins’s arrangement.
The holly and the ivy is not a pagan song. This was my first attempt at four-part harmony.
Shepherds arise More harmonies. Sing! Sing all earth!
A virgin most pure Another Dolly Collins arrangement (I think), this time on C whistle. Vocals in two-part harmony, partly my own.
In Dessexshire as it befell Yet more multi-part singing, plus a multi-part melodica break. I think the arrangement really works, and the song’s well worth hearing if you don’t know it. A strange and rather creepy piece of work, set on Christmas Day.
Poor old horse An old “house visiting” song, slowed down and given another massively overdubbed arrangement. Also features a quick burst of the old dance tune “Man in the moon”.
On Ilkley Moor Baht ‘At Not actually strictly a seasonal song as such; scientists have established that it can get pretty parky on Ilkley Moor at any time of year. Four-part harmonies, sung as written with a few modifications for singability (I broke it up into five or six separate lines). Also features simultaneous translation for the hard-of-Yorkshire.
Come, love, carolling A contemporary religious song by the wonderful Sydney Carter. Drums, melodica and anything else that seemed appropriate; based on Bob and Carole Pegg’s version on the album And now it is so early.
The boar’s head carol is not a pagan song either. Second attempt at four-part harmony.
Gaudete This was more or less Folk Song #1 for me, thanks to Steeleye Span’s appearance singing it on Top of the Pops, so it’s always had a special place for me. More harmonies, of course.
The King Another multi-part song learned from Steeleye Span, although I wrote these harmonies myself.
In the month of January Just one vocal track on this one, taking on one of those really knobbly traditional melodies.
The Moving On song Not a massive arrangement – just drums, melodica and a couple of brief harmony vocal lines – but the texture of the (heavily-processed) melodica, the slightly over-fiddly drum pattern and the irregularity of the time signature make for an appropriately edgy, claustrophobic atmosphere. I like the way the melodica’s come out, but I’ll probably never be able to do it again – I was trying for something much simpler.
The January Man he walks abroad in woollen coat and boots of leather… What a song.

Share and enjoy! Ho ho ho.

My cat – our cat, rather – generally eats tinned food, but occasionally we give him cat biscuits. Not very often, and certainly not often enough as far as he’s concerned. He knows where they’re kept; when hungry will often sit in front of the biscuit cupboard giving it meaningful looks, even if he’s got a bowl full of food.

That’s not the interesting thing, though. What’s interesting is that, on several occasions, he’s sat by the back door and mewed to be let out, only to turn back and head for the biscuit cupboard when I open the door for him. The thinking is fairly straightforward, if you think of it as thinking – it goes roughly like this:

This‘ll get his attention!

But there’s an awful lot going on under the surface, particularly when you think that we’re dealing with a cat. How do you get to that thought? Or, if ascribing thoughts to a cat is a step too far, how do you get to that action? It seems to me that any creature capable of doing the back-door feint would have to go through something like this series of steps:

1. Move (instinctively, or at any rate unreflectively) towards the back door when wanting to go out
2. Move (unreflectively) towards the biscuit cupboard when fancying a biscuit or two
3. Observe that move 1 is usually successful
4. Observe that move 2 is usually unsuccessful
5. Analyse events involved in successful outcomes to strategies 1 and 2
6. Identify common factor, viz. getting a human’s attention
7. Reflect on goals of move 1 and move 2
8. Identify common intermediate goal of getting human’s attention
9. Redefine move 1 as move which achieves intermediate goal
10. Plan to make move 2 more effective by preceding it with move 1, thus getting human’s attention before expressing interest in biscuit cupboard

I don’t know about you, but that strikes me as pretty sophisticated thinking, particularly if we assume (as I think we must) that none of these thought processes are conscious.

Cats: they’re brighter than they look. Or rather, they really are as bright as they look.